Both the Children’s Law Reform Act and the Divorce Act include a provision for “contact orders,” which permits non-parents, most often grandparents or stepparents, time with the child(ren). The courts have acknowledged that grandparents can play a significant role in their grandchildren’s lives, especially where a parent has been ill, incarcerated, or unable to care for the children. In such circumstances, grandparents are eligible to apply for a parenting order.
For a grandparent to be successful in an application for contact, the grandparent must establish a persuasive case for why this is in the best interests of the child. The court would consider such factors as:
- The closeness of the relationship between the child and the grandparent(s),
- The views and wishes of the child, dependent upon their age;
- Other factors in the best interests of the child test set out at section 24 of the legislation, as they apply to the children in each particular case;
- Whether contact is being arbitrarily or unreasonably withheld;
- The parents’ wishes, which will be given considerable deference.
Where there has not been a close and meaningful relationship between the grandchildren and the grandparents and access is disputed by the children’s parents, it may be unlikely the grandparents will be successful.
Grandparent contact can arise in four different circumstances.
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Grandparents contact where the parents are living together.
The leading case that deals with grandparent contact while the parents of the children are living together is Chapman v Chapman. In this case, Justice Abella of the Court of Appeal wrote in her decision for the court that “in the absence of any evidence that the parents are behaving in a way which demonstrates an inability to act in accordance with the best interest of the children, their right to make decisions and judgements on their children’s behalf should be respected, including decision about whom they see, how often and under what circumstances”.
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Grandparents contact when the grandparent has functioned as the parent.
If a grandparent served as a primary parent for a child for a significant period, they may have a persuasive argument proving that the disruption of the grandparent-grandchild contact would not be in the child’s best interest. If the grandparent successfully proves this argument, the court is inclined to implement a contact order to the grandparent.
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Grandparents contact when the parents have separated.
In circumstances where the parents are separated, the court takes the position that the grandparents will have contact with their grandchild(ren) when they are in the parent’s care. For instance, the paternal grandparent will have contact when the child is in the father’s care and vice versa.
Issues may arise when a parenting arrangement provides one parent with limited contact or formal supervision. In such instances, the court tends to respect the decision-making process of the primary parents, regardless of if the court perceives their decision to be “right.” This is because parents are presumed to act in the best interest of their children when there is hostility between family members. If a grandparent has a negative relationship with the primary parent, courts are reluctant to command a parent to allow contact as it may expose the child(ren) to conflict and would fall outside the scope of their best interest.
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Grandparents contact each other where there is a history of family violence.
In circumstances where the court fails to understand the reality of the violence perpetrated within the family, grandparents may be rendered as the most viable options to provide care of the child(ren) and serve in their best interest.
At Blackburn Lawyers, we strive to provide efficient and effective services for every family law matter. If you and/or a loved one has any questions about a grandparent, contact order, contact our family law lawyers today.
Disclaimer: This blog sets out a variety of information relating to law that is to be used for educational purposes and is not legal advice for your matter. The author does not intend for this blog to be a source of legal advice.
Written by Adriana Totera
* Please note that the information in this article is not intended as legal advice, but rather as a general overview on the subject. If you are seeking legal advice, please consult with a lawyer.
