Bill 34, also known as An Act to amend the Children’s Law Reform Act with respect to the relationship between a child and the child’s grandparents, was recently given royal assent after being re-introduced by NDP MPP Michael Mantha (Algoma-Manitoulin) in fall of 2016.
Grandparents and Access to Grandchildren in Ontario
Advocacy groups have been pushing for change for over a decade. Six previous versions of the bill were previously proposed, but never passed.
Grandparents’ rights groups estimate that 75,000 grandparents in Ontario have historically been denied access to approximately 112,000 grandchildren, which the rights groups say causes “needless alienation, pain and suffering”.
In some circumstances, grandparents are not able to see their grandchildren following a separation or divorce, as custody and access arrangements leave the children primarily with one parent who then denies grandparents and other family of their former spouse access to the children. In other situations, a grandparent is alienated from his or her adult child or children and, consequently, is not given permission to see their grandchildren.
Indeed, during the debate about Bill 34, Mr. Mantha acknowledged:
Some people assume that these issues arise out of divorce, but this is not necessarily the case for most…Sometimes the root cause is found in sibling jealousy over money, over disputes, people innocently speaking out of turn, or sons and daughters exercising their control. Most often, it just occurs with seemingly no logic, no reason — and it’s happening
What Does the Bill Change?
The Bill brings Ontario in line with Quebec, Nova Scotia, Saskatchewan, Manitoba, and Yukon, which all previously passed legislation affecting grandparents’ rights.
While Bill 34 does not automatically grant grandparents the right to their grandchildren, it provides them with a chance to make an argument for access during custody disputes, and it means that courts will have to consider grandparents in custody cases, while considering what is in the best interests of the child or children in question.
Best Interests of the Child
As with parental access, courts will consider the merits of each individual case, and will ultimately, make a decision based on the specific circumstances. In order to do so, courts consider the following, per section 24(2) of the Children’s Law Reform Act:
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.
If you have questions about access or custody of children following a divorce or separation, or if you are a grandparent who has not been able to see your grandchildren but would like to have access to them, call Jason P. Howie at 519.973.1500 or contact us online. We serve clients in Windsor, Essex County and throughout the region.