The Canadian Bar Association
Family

Grandparents have no special right to access

A recent Ontario Superior Court of Justice decision underscores how grandparents have no right to see a grandchild, says Ottawa family lawyer and civil litigator Timothy Sullivan.

“They would need the factual basis to show the child is better off with the grandparent being in their life,” says Sullivan, of SullivanLaw. “It has to be a little bit more than ‘It's my turn for playtime.’”

In Nichols v. Herdman, 2015 Carswell Ont 9262 (Ont. S.C.J.), grandparents sought access to their two-year-old grandchild. They previously had a close relationship with the child and helped care for the child regularly. However, a conflict escalated between the mother of the child and the grandparents, which resulted in the mother cutting off all ties between the parties.

The judge found that although the grandparents had a positive relationship with the grandchild, and while the decisions of the parents had jeopardized the relationship between the grandparents and the grandchild, the parents did not act arbitrarily.

Sullivan says the fact the case even entered litigation causes one to wonder how it could have been in the child’s best interests.

“Money spent on litigation is not being spent on the child. So it's supremely unfortunate that parents are put to litigation with their own parents and the child is the one who ultimately pays for it in lost resources," he tells AdvocateDaily.com.

Sullivan says such cases are not unusual, and in fact, grandparents' rights is a topic he first encountered while working for a pro bono students organization in law school.

He says it all comes down to doing what's right for the child.

“Grandparents have done their work and should now enjoy the fruits of their labour in spoiling the grandchildren, but it's not always easy for a parent to turn over access to a grandparent when the parents are either suffering their own discord between them or they have a perception that one of the grandparents or both are not the best people to be with the child,” he says.

“It's a real conundrum. But the parents have the right to decide how the children are raised and who can care for them. Grandparents have no specific right.”

According to Ontario family law, grandparents have no particular right to play with or care for a grandchild. They only way they would succeed in litigation is if the grandparents have “acted as parents,” Sullivan says, doing significant caregiving of the child.

“The child has a right to be cared for and loved by the family, but the grandparent doesn’t have the right to be the permanent babysitter,” he says.

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