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Grandparents’ rights can be double-edged sword: Shinehoft

Grandparents who receive access to their grandchildren through the courts, thanks to changes in legislation, could be at risk of one day having to make a financial commitment as well, says Toronto family lawyer Elinor Shinehoft.

“Grandparents have to realize that, while they may be getting extra rights, it’s a double-edged sword. They may end up on the hook for child support,” Shinehoft, principal of Shinehoft Law, tells AdvocateDaily.com.

In an ongoing case in North Bay, Ont., the grandparents of a 10-year-old girl are being sued for child support by the girl’s mother. The couple were made parties to a custody dispute between the girl’s parents in 2012, even though they say they weren’t in court at the time. Their son was estranged from the child’s mother when he died in an accident in 2013, according to a CBC report.

Shinehoft says the case is breaking new ground and "it will be interesting” to see how it’s resolved.

Advocates estimate that 75,000 grandparents in Ontario have little or no access to their grandchildren — often due to divorce or broken relationships with their own grown children, the CBC reports.

“The problem seems to be much more rampant than people realize, and many grandparents are being alienated from their grandchildren for various reasons,” Shinehoft says.

“One or both of the parents are not allowing the children to visit, and the grandparents have never really had proper recourse in court. Prior to changes to the legislation, if they wanted to resume a relationship or visit with their grandchildren, they were at the mercy of what the parents decided,” she says.

In a step toward fixing that situation, Ontario’s Children’s Law Reform Act was amended in 2016 by a private member’s bill that made special mention of grandparents when applying for a custody or access order, and when considering the best interests of the child. The changes, in s. 21(1) and s. 24(2)(a)(i), took effect in December 2016.

By adding grandparents to the legislation, says Shinehoft, "It's very clear that they have the right to bring an application. It also clarifies that they are a group of people who are important enough to be mentioned.

“It actually gives them official standing in a court to say, ‘I want to continue a relationship with my grandchild and I’m entitled to bring an application under the legislation,’” she says. “People have recognized that grandparents should have rights and that children should spend time with them.”

Shinehoft says she has some “reservations when it comes to people challenging parental decisions,” but she agrees with the amendment because applications to the court will still be decided on a case-by-case basis.

She says she’s also pleased that “the test is still focused on what’s in the best interest of the child because the unfortunate truth is that some parents don’t always do what’s in the best interest of their children.

"Grandparents are sometimes excluded just out of spite if there’s a messy divorce between the parents. And it’s a pity because it’s really good for children to have a relationship with their grandparents.”

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