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Grandparents often ‘collateral damage’ in divorce

Grandparents cut off from seeing their grandchildren can turn to the courts to gain access, but that’s not necessarily the best approach, says Toronto family lawyer Gene C. Colman.

The manner in which they were excluded from the lives of their grandchildren will largely determine the best method to use to try and regain access, he tells AdvocateDaily.com.

Colman, principal of Gene C. Colman Family Law Centre, says one way that grandparents have been shut out is through classic parental alienation — something he has seen far too frequently in separation and divorce cases.

“The grandparents are collateral damage,” he says, adding that it might even be extended to the child hating a formerly beloved family pet or an aunt or uncle. “Everyone gets caught up and the grandparents suffer on the side.”

Another frequent form of alienation occurs when the grandparents are expressly obstructed or blocked from seeing the child.

“In some cases, a parent doesn’t want you to have contact with your grandchild. And they may go a step further and tell the youngster terrible things about you,” says Colman. “From the perspective of the grandparent, it’s very difficult. You had great times with your grandchildren, and all of a sudden it’s cut off.”

Depending on the situation, the remedy requires a different approach, he says.

When the grandparents are collateral damage during a bitter divorce, for example, it’s best not to add fuel to the fire, he says.

“It’s not advisable to bring an independent legal application as things are already heated up enough between the parents,” says Colman.

That’s when negotiation and other strategies come into play, he says.

But when the grandparents are expressly obstructed from seeing the grandchildren, a remedy might well be in sight thanks to earlier court rulings.

Courts have stepped in for those cases where there’s a pre-existing positive relationship between the elders and the children that was blocked by a parent.

“If there was an ongoing relationship between the grandparent and the grandchild and the parent is acting unreasonably, then the court may be an option, but I often recommend using other methodologies,” he says, pointing to counselling, therapy and mediation.

The approach by the courts is to weigh parental autonomy with pro-contact by the grandparents. What usually occurs is a hybrid approach to balance the decision-making powers of the parent with the positive contact the child has with the grandparents, Colman says.

According to judges who espouse the “pro-contact” school of thought, the  premise is that there should be contact with the grandparents unless the parents have compelling reasons to displace that assumption, he says.

But some cases have even succeeded despite the parental autonomy approach that is based on the notion that it is generally in the child’s best interests for the court to respect the parents’ decision-making.

When it comes to child protection cases, he says, society doesn’t hesitate to step in under the Child and Family Services Act. But for some judges the situation is reversed when there is no perceived child protection threat to the child; in that situation, under the parental autonomy approach deference is given to the parents' choices, Colman says.

“The state does step in to protect children in children’s aid cases; What could be more sacred than the grandparent/grandchildren relationship?” he argues, adding he believes there is room for the state to better support the pro-contact approach.

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