Do Grandparents Have Rights in Legal Separation Cases? Exploring the Legal Framework and Custodial Considerations


Grandparents play a significant role in the lives of their grandchildren, providing love, support, and guidance. However, when parents go through a legal separation, it can create uncertainty for grandparents regarding their continued access to their grandchildren. While grandparents do not have an automatic legal right to ongoing access or decision-making responsibilities, it may be in the best interests of the grandchildren to maintain a relationship with their grandparents.


The Legal Framework


Under section 21(2) of the Children’s Law Reform Act (CLRA), grandparents have the option to apply to court for a parenting order that grants them decision-making responsibilities. Additionally, under section 21(3) of the CLRA, grandparents can seek ongoing contact with their grandchild. However, it’s important to remember that each child’s situation is unique, and seeking legal advice is highly recommended to determine the best course of action in any given situation.


The Burden of Proof


When a grandparent applies to court for access to their grandchild, the burden lies on the grandparent to prove that the order will be in the best interests of the child. This often arises when a parent or parents decide to limit or cease contact between the child and the grandparents. In such cases, the Ontario family courts have adopted a three-part test to determine whether access should be granted.


  • Positive Relationship: The court first considers whether a positive relationship already exists between the grandparent and grandchild.


  • Imperiled Relationship: The court then examines whether the parents’ decision to limit access jeopardizes this existing relationship.

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  • Arbitrary Decision: Finally, the court assesses whether the parents’ decision to remove access by grandparents is arbitrary.


Case Studies


To gain a deeper understanding of how the courts approach grandparent access cases, let’s examine two real-life examples.


Chapman v Chapman


In the 2001 case of Chapman v Chapman, the parental grandmother sought a court order after access to her grandchild was refused by the parents. However, the court found no evidence to suggest that the parents’ behavior was not in the best interests of their children. The Court of Appeal sided with the parents, emphasizing that their decision did not mean the grandmother would have no access. Instead, the nature and frequency of access would be at the parents’ discretion, with the assumption that they would make decisions based on the best interests of the children. This case highlights the importance of respecting parental boundaries when it comes to access, as long as the parents are acting in the best interests of their children.


M.M. v. K.M.


The 2023 case of M.M. v. K.M. provides another example where the court had to consider the role of a grandparent and ultimately awarded access. In this case, a maternal grandmother sought a contact order for her three-year-old granddaughter after the child’s mother passed away due to cancer. The father subsequently moved to Singapore and began cutting off contact between the child and the maternal grandmother. As a result, the child’s extended family from her mother’s side was also losing their relationship with her. The court reasoned that given the mother’s untimely death, maintaining ongoing contact with this side of the family was crucial for the child’s well-being. The court ordered a return to in-person and overnight visits with the maternal grandmother, despite the father’s decision to move abroad. The court recognized that the child would benefit from a meaningful connection with her late mother’s family, including emotional support, knowledge of family history, and cultural ties. This case demonstrates that the court may prioritize the child’s best interests, even if it means overriding a parent’s desire to sever ties with the extended family.

Grandparent Rights in a Family Law Case Explained

Factors Influencing Court Decisions


When determining access and decision-making responsibilities for grandparents, the court takes several factors into consideration. These can include:


  • Existing Relationship: The strength and quality of the relationship between the grandparent and grandchild.


  • Best Interests: The court’s primary concern is always the best interests of the child. They assess how the grandparent’s involvement will contribute to the child’s well-being and overall development.


  • Parental Decision: The court evaluates whether the parents’ decision to limit or remove access is arbitrary or based on valid concerns.


  • Extended Family Support: The court recognizes the importance of maintaining connections with extended family members who can provide emotional support, cultural understanding, and a sense of identity to the child.


  • Child’s Wishes: Depending on the child’s age and maturity, their preferences regarding access to their grandparents may also be considered by the court.


Seeking Legal Advice


If you are a grandparent who has been affected by restricted access to your grandchild, it is crucial to seek legal advice from a trusted professional. Family law attorneys experienced in these matters can provide guidance based on your specific circumstances and help you navigate the legal process. Liddiard Law, an esteemed law firm, offers consultations for grandparents seeking to understand their rights and explore their options.


In conclusion, while grandparents do not have an automatic legal right to ongoing access or decision-making responsibilities, the courts recognize the value of maintaining meaningful relationships between grandparents and their grandchildren. The outcome of an application for access or decision-making depends on the unique circumstances surrounding the child’s best interests. By seeking legal advice and understanding the factors that influence court decisions, grandparents can better navigate the complexities of legal separation and ensure the continued involvement in their grandchildren’s lives.


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