In Ontario, the rights of grandparents and other extended relatives regarding custody and access have not been clearly established. However, as per Section 21(1) of the Children’s Law Reform Act, grandparents and other extended relatives now have the right to fight for custody and/or access to the subject children during domestic disputes.
However, it should be noted that Section 21(1) of the Children’s Law Reform Act does not guarantee grandparents or other relatives the right to custody or access to children. The decision is ultimately up to the court in an attempt to balance out the grandparents’, or relatives’, right to apply for custody/access and the best interest of the child(ren).
As per section 24(2) of the Children’s Law Reform Act, the following is a list of the factors that the Court must consider when determining what is in a child’s best interests:
(a) the love, affection and emotional ties between the child and, (i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child, (ii) other members of the child’s family who reside with the child, and (iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, (if possible) (c) the length of time the child has lived in a stable home environment; (d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child; (e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing (f) the permanence and stability of the family unit with which it is proposed that the child will live (g) the ability of each person applying for custody of or access to the child to act as a parent; and (h) any familial relationship between the child and each person who is a party to the application.
There is extensive case-law on the issue of grandparents’ rights. Noteworthy, the case of Chapman v. Chapman, 2001 CanLII 24015 (ON CA), applies the above factors to determine if the Applicant grandparents' right to seek access outweighs the Respondent parents’ right and duty to act in the best interest of the children. The key point is that as long as parents take care of their children without child protection concerns arising, the rights of the primary care givers especially over custody issues is to be given clear weight. Access depends on the Rights of the children and how such access benefits the children.
Determining the applicability of the above sections of the Children’s Law Reform Act and relevant case-law depends on the circumstances of your case. If you have questions regarding grandparents’ or rights of extended relatives to claim access over and custody of children when in the primary care of the parent or parents, please contact our office for a free 30-minute consultation.