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Case could place more financial responsibility on grandparents

While changes in legislation have given grandparents new rights when fighting for access to their grandkids, it may come with more responsibility, says Toronto family lawyer Lisa Gelman.

Depending on the circumstances, increased access could also lead to a demand for child support, says Gelman, principal of Gelman & Associates.

“One of the principles the courts consider is whether a person has stood in the place of the parent for a significant period of time,” she tells AdvocateDaily.com.

For example, the courts have ordered child support in the case of a step-parent, where there is no biological link, says Gelman.

“If a step-parent has stood in the place of a parent for a significant period and then wants to leave, that person can be on the hook to pay support even though it's not their biological child or even if they haven't adopted them.

“So if the law can allow that, then theoretically, you can apply that to a grandparent that has stood in the place of a parent. But there's no legislation dealing with that,” says Gelman.

In a case that could set a precedent, a North Bay, Ont., couple is being sued for child support by the mother of their 10-year-old granddaughter. 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.

Gelman says this “potentially groundbreaking” case could establish more obligations for grandparents.

But she says it’s important to note that access is not automatically tied to child support.

“Legally, there is no connection,” explains Gelman. “Even if one parent was willfully not paying, the court still has to decide the issue of access or custody independent of that.”

She says the court has to base its decision on what’s in the best interest of the child.

“While the child may suffer indirectly if that money isn’t paid, the relationship with that parent can still be positive,” says Gelman.

“So just because somebody isn’t paying doesn’t mean they lose the right to custody or access.”

While the law doesn’t explicitly extend to grandparents, Gelman says the principle would be similarly applied.

Gelman says she will be watching the North Bay case with interest to see how the court ultimately decides.

She believes the case is unprecedented and will hinge on “the frequency and duration of the relationship” between the couple and their granddaughter.

“In a situation where the access isn’t continuous — every day, seven days a week or so — for a prolonged period of time, it would be a challenge to be successful,” says Gelman.

“One can argue that they did not stand in the place of a parent and that they were very clearly acting as grandparents in the girl’s life. As a result, I think it would be a stretch for the court to order child support."

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