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Courts need to be more ‘activist’ in protecting grandparent rights: Colman

The law isn’t as helpful as it could be for grandparents blocked from spending time with their grandchildren, Toronto family lawyer Gene C. Colman tells AdvocateDaily.com.

Grandparents fighting to gain access have some arguments in their favour, but the case law provides ammunition for that middle generation as well: parents who are trying to prevent their children from spending time with their elders.

The leading case on grandparent access is a 2001 decision where the Ontario Court of Appeal ruled generally that state interference is not the preferred course to follow.

“That approach is still part of the case law,” says Colman, principal of Gene C. Colman Family Law Centre.

Although that landmark case appears to favour “parental autonomy”, Canadian courts continue to make grandparent access orders, supporting the “pro-contact” approach.

“Some judges are very pro-contact and they’ll write decisions almost as though the 2001 ruling doesn’t exist,” he says. “In Canada, we have a more hybrid approach.”

“Courts still give some credence to parental autonomy, but also where there is a pre-existing relationship between children and grandparents — and the parents are acting unreasonably — the courts may step in.”

Colman says he believes the circumstances in which the court should step in should be used more often and be “more activist” in protecting children’s rights to enjoy their grandparents’ company.

Although every case has its own set of facts, outcomes are highly judge-dependent, he says.

“No matter what tack you take, if you’re a parent trying to prevent the grandparent from making contact, or a grandparent trying to get contact, you will have expressions and quotes from case law that will support you,” Colman says.

He suggests the legislation could be improved. The Quebec civil code is very pro-contact and there was some hope that Ontario would move in a similar direction.

The problem is that Ontario recently amended its legislation involving grandparents’ access to grandchildren and Colman says the final product was much less direct than it could have been.

The second reading of Ontario’s Bill C-34 stated that the person entitled to custody of the child “shall not create or maintain unreasonable barriers to the formation and continuation of the personal relationship between the child and the child’s grandparents.”

“This amendment would have gone a huge distance to supporting grandparent’s rights,” Colman says, “but when it came to third reading, all that wording went by the wayside. So all we have is a slightly amended s. 21(1), which says those people that apply for custody or access to a child can include a grandparent. That already was the law.”

While he doesn’t expect Ontario to revisit the issue anytime soon, Colman suggests other provinces might consider the language used in the second reading of Bill C-34 when they look at legislation involving access.

The same argument as shared parenting proponents advocate would apply with that approach, he says. If we legislate a rebuttable presumption in favour of “pro contact”, that would discourage litigation.

“If you’re going to have a presumption that a relationship between a child and a grandparent, both forming it and protecting it, is the social policy of a province, then you’re going to have happier, more well-adjusted grandchildren,” Colman says.

Grandparents, he adds, want to enjoy watching their grandchildren grow and develop over time — the elders are not looking to replace the parents.

“As a grandparent myself, I can say we just want to be grandparents — see our grandkids with some degree of regularity and just spoil them.”  Colman adds that the “spoiling” must still be within the broad parameters of parental approval.

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