After a decades-long crusade to have the grandparent-grandchild relationship acknowledged in the courts, advocates have some hope they’re gaining ground.
Grandparents’ rights: It may sound like a made-up term, but, in fact, the grandparent-grandchild relationship is increasingly becoming recognized as an important one, partly due to a decades-long movement to have it recognized by the Canadian judicial system.
Some grandparents, excluded from seeing a grandchild often after divorce, separation or the death of one of the child’s parents, have asserted their rights, spawning a national movement that Daphne Jennings has been watching or been part of for the better part of three decades.
“I hadn’t even gone to Ottawa when the Canadian Grandparents Rights Association came to my office asking for my help,” says Jennings, elected as the Reform Party MP for Mission–Coquitlam in 1993. “So I became known as the MP fighting for grandparents’ rights before [my] first term began.”
She sponsored a private member’s bill for an amendment to the Divorce Act that would grant access to or custody of a child to a grandparent, but it failed after second reading. It did, however, spark a special joint committee resulting in 48 recommendations for changes to the act.
But the grandparents persevered in the provinces, focusing on family- and child-related legislation.
Jennings herself now serves as president of the association, which advocates for family ties and family stability. In her 2020 book, The Canadian Grandparents Story — Family Matters, she recalls a movement that sought standing for grandparents in courts across the country.
That included the creation of a Heartache and Tears Quilt in the 1990s, representing lost contacts between grandparents and their grandchildren.
The best interests of the child has become the dominating principle when it comes to resolving conflicts within a family and the involvement of grandparents is, for the most part, considered to be of benefit to a child.
Amendments to the federal Divorce Act last year acknowledge that others beyond the mother and father have an important role to play in a child’s life and the act provides the opportunity for them to apply for access. Provincial legislation, too, such as the Children’s Law Reform Act in Ontario, the Family Law Act in British Columbia or the Children’s Law Act in Prince Edward Island acknowledges the importance contact with others such as grandparents has in a child’s life.
The child’s physical, emotional and psychological safety is important for a court considering an application, as is the strength of the child’s relationships with family members and others.
“They made it very clear that it’s open to the grandparents to approach the courts and say ‘I would like independent access to my grandchildren,’” says Stephen Morgan, a family law lawyer based in Milton, Ont. “It’s all still seen through the prism of the best interest of the child.”
Morgan points out that there are exceptions and possible stumbling blocks. When a person other than a parent seeks permission from the court for independent visitation, the court has to determine if there’s any reason why that could be a bad idea.
The pre-existing relationship between the grandparent and the child has become a consideration in the argument for contact and could become an issue when the child is still young.
“That possibility is there that a judge could say to someone you haven’t had enough time to build a relationship,” says Morgan.
The parents’ rights to determine the course of the child’s upbringing also factor in because the courts are reluctant to interfere with a parent’s decisions. But parents can’t simply cut their child off from seeing the grandparents when the child’s well-being is not at issue, which provides grandparents with the opportunity to assert their right for contact or access to a grandchild. The challenge for the court is to balance the parents’ decision-making authority against the grandparents’ desire for contact.
The courts also watch for red flags, such as when grandparents undermine the parents or when the grandchild ends up in the middle of the conflict. Other red flags include situations in which the grandparents have a history of abuse or tend to create tension. Finally, if the parents can prove the grandparents’ involvement in their life would have a negative impact on the child or endanger the child, that becomes a red flag.
“That all becomes very problematic. The bottom line for the courts is that this has to be a positive thing for the child,” adds Morgan.
While the “best interests of the child” test still prevails, Calgary-based research lawyer Barb Cotton says the recent changes to the Divorce Act may not be the be-all and end-all for which grandparents had hoped. Parental rights continue to dominate, with the grandparents having the weaker rights, she says. “There’s been real advocacy for what is colloquially termed as grandparent rights,” Cotton says. “Grandparents' rights meaning that there would be a presumption in the courts that the grandparents would have a right to see their grandchildren.”
While changes to the Divorce Act allow people such as grandparents to apply to the courts for contact with their grandchildren, there isn’t an automatic presumption that they should be allowed to be part of their lives.
By far the best approach, adds Prince Edward Island family lawyer Sophie MacDonald, is to work it out independent of the courts. If the grandparents and parents can’t work out a solution, they can turn to a less adversarial alternative dispute resolution option.
“If I had to go to court to get a court order to see my grandchild, that doesn’t bode well for having a great relationship going forward,” MacDonald says.
But if arbitration, mediation and conciliation are not effective in the grandparents’ pursuit of contact, she says, there is some solace for grandparents knowing the courts can serve as another form of recourse for them.
MacDonald cautions grandparents not to let too much time pass. If they haven’t seen the child in three years, for instance, the court may be reluctant to change what has become the status quo for the child.
“In order to preserve the relationship with the grandchild, it’s important to be respectful of their (the parents’) views and how they’re parenting,” she says.
“These rights that are given by the court are hard fought for, but the court is still putting primary importance on parents’ views of things.”