Can Grandparents Get Parenting Time or Contact in Ontario?

Being cut off from a grandchild after a separation, a death or a family conflict is painful. Many grandparents want to know whether the law gives them a way back into the child's life, or whether they simply have to wait for a parent to relent.

The short answer is that you can ask the court, but you start from a different place than a parent does. This article explains who can apply, what you have to file, and what a judge looks at when deciding.

Can a grandparent apply to court?

Yes. Under Ontario's Children's Law Reform Act, a person who is not a parent, such as a grandparent or stepparent, may apply for a parenting order on decision-making responsibility or for a contact order. A parent, by comparison, may apply for a parenting order covering both decision-making responsibility and parenting time.

Contact is the usual request for a grandparent who simply wants a relationship with the child. Decision-making responsibility means significant decisions about the child, such as health, education, culture, language, religion and significant extra-curricular activities. Asking for that is a bigger step, and it comes with more paperwork.

Which law applies to you

Which statute applies depends on the parents' situation. The federal Divorce Act governs parenting between married spouses who are divorcing. The Children's Law Reform Act applies to unmarried or common-law parents and to married parents who are not divorcing.

When deciding on a contact order under the Divorce Act, the court considers whether contact could happen anyway, for example during another person's parenting time. That means a grandparent who already has a workable arrangement with a parent may find the court asks why an order is needed.

What you have to file

Every application must include an affidavit with your proposed plan for the child's care and upbringing and details of any earlier family or criminal proceedings. Ontario's guidance says non-parents file Form 35.1 Parts A and B, and that Form 35.1A is needed only if a party or the children have been involved in child protection matters.

A non-parent seeking decision-making responsibility must also file a recent police records check and ask for a search of child-protection records. Ontario's guidance adds these timing points:

• You must serve the police record check on the other parties and file it with the court within 10 days of receiving it.
• An existing check can be used if it was completed within 60 days before the application started.
• The Children's Aid Society returns its records report to the court within 30 days.

The court also has a duty to check whether restraining orders, child protection matters or criminal matters involving a party are pending or in effect.

What the court considers

The court's primary consideration is the child's physical, emotional and psychological safety, security and well-being. Beyond that, the listed best-interests factors include the child's needs given age and stage of development, the child's relationships, the history of care, care plans, family violence and the child's views and preferences. The list is not exhaustive, so a court may consider other factors, while always giving priority to the child's safety.

Where possible, the court takes the child's views and preferences into account to the extent the child can express them, and it may interview the child. For a grandparent, evidence about the child's existing relationship with you and your history of caring for the child will usually matter. Past conduct is not considered unless it is relevant to parenting time, decision-making responsibility or contact.

What to do next

• Write down the history of your relationship with the child, including how often you saw them and what role you played.
• Confirm whether the parents are married and divorcing, since that decides which law and which leave requirement applies.
• Consider whether a conversation or family dispute resolution could restore contact without court. Where appropriate, parties must try to resolve matters through a family dispute resolution process.
• Start the police records check early if you are seeking decision-making responsibility.
• Speak with a family lawyer about which application suits your situation.

Frequently asked questions