What About Grandparents in Divorce?

Grandparents play a significant role in a child’s life, from being a connection to the child’s family history to caregivers to friends.

Unfortunately, traditionally, grandparents have not been granted transparent and detailed rights regarding contact in Ontario; but that changed recently.

Grandparents’ rights hinge on whether the matter is governed by the Children’s Law Reform Act or the Divorce Act.

The Children’s Law Reform Act applies where the child’s parents were never married or have decided to proceed by separation rather than a divorce. In contrast, the Divorce Act applies where the parents have already received a divorce or are pursuing a divorce.

In 2016, Bill 34 (Section 21(1) of the Children’s Law Reform Act) was passed, giving grandparents the right to argue for access during custody disputes. The courts must consider grandparents’ rights in these matters while ruling in the child’s best interests.

In March of 2021, changes were made to the Divorce Act to continue to glorify the best interests of a child as the top emphasis. In addition to assessing a child’s physical, emotional and psychological protection, the Act also handles the nature and strength of the child’s relationships with parents, grandparents, and other significant people in their life.

Grandparents can make a submission for contact, parenting time, or decision-making responsibility under the Divorce Act.

• The child’s necessities, considering the child’s age and stage of development, such as the child’s need for stability.
• The nature and strength of the child’s connection with each parent, each of the child’s siblings and grandparents, and any other person who plays a crucial role in the child’s life.
• Each parent’s readiness supports the growth and maintenance of the child’s relationship with the other parent.
• The history of care of the child.
• The child’s opinions and preferences give weight to their age and maturity unless they cannot be established.
• The child’s cultural, linguistic, religious, and spiritual upbringing and heritage, including Indigenous upbringing and heritage.
• Any plans for the child’s care.
• The capacity and readiness of each person in respect of whom the order would apply to care for and meet the child’s needs.
• The ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child.
• Any family violence or abuse and its impact on the child:
• The capacity and readiness of any person engaged in family violence to care for and meet the child’s needs.
• The appropriateness of making an order would require individuals in respect of whom the order would apply to co-operate on topics involving the child.
• Any civil or criminal proceeding, order, condition, or measure relevant to the child’s safety, security, and well-being.

Consideration under The Divorce Act

Consider the matter is governed by the Divorce Act, indicating that the parents have either divorced or are seeking a divorce. In that case, grandparent rights can be decided by granting parenting time and decision-making responsibility according to a parenting order or contact order.

According to the Divorce Act modifications that came into effect as of July 2020, spouses, parents, and any person present in or seeking a parental role in a child’s life can apply for a parenting order. However, under section 16.1(3) of the Divorce Act, non-spouses must seek leave from the court to obtain a parenting order. Further, section 16.5(1) of the Divorce Act authorizes courts to make an order providing for contact between that person and a child. In deciding whether to make a contact order, the court will assess several factors, including whether contact between the person and the child could otherwise occur during one of the spouse’s parenting times.

As with a parenting order, the governing principle for granting a contact order is deciding what is in the child’s best interests by referencing the factors set out in section 16(3) of the Divorce Act.

• The child’s needs, given the child’s age and stage of development, such as the child’s need for stability.
• The nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents, and any other person who plays a critical role in the child’s life.
• Each spouse’s readiness to support the development and supervision of the child’s relationship with the other spouse.
• The history of the care of the child.
• The child’s views and preferences give weight to the child’s age and maturity unless they cannot be established.
• The child’s cultural, linguistic, religious, and spiritual upbringing and heritage, including Indigenous upbringing and heritage.
• Any objectives for the child’s care.
• The capacity and willingness of each person in respect of whom the order would apply to care for and meet the child’s needs.
• The ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters involving the child.
• Any family violence/abuse and its impact on, among other things, the capacity and willingness of any person who engaged in the family violence to care for and meet the needs of the child and the suitability of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child.
• Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security, and well-being of the child

Contact a lawyer for clarification if you are unsure or need legal advice regarding your rights as a grandparent.

– Marian Grande, Q. Med