When a Grandparent Can Apply for Decision-Making Responsibility in Ontario

Most grandparent family law applications focus on contact — the right to see and communicate with a grandchild. But sometimes a grandparent needs to go further and seek decision-making responsibility (what was previously called "custody" in Ontario law). Decision-making responsibility is the authority to make major choices about a child's life: schooling, healthcare, religion, extracurricular activities.

If a grandchild is living with you, or if both parents are unable or unwilling to care for the child safely, you may need a formal court order giving you that authority. This article explains when grandparents can apply, what courts look for, and what the process involves.

What Is Decision-Making Responsibility?

Under Ontario's Children's Law Reform Act (CLRA), decision-making responsibility replaced the old term "custody." It refers to the right and responsibility to make significant decisions affecting a child's well-being.

A person with decision-making responsibility can:

• Enrol or transfer a child in school
• Consent to medical treatment
• Apply for a passport on the child's behalf
• Make choices about religious upbringing
• Make decisions about the child's cultural identity

Without a formal order, institutions like hospitals, schools, and passport offices may not recognize a grandparent's authority — even if the child has been living with you for months.

Can a Grandparent Apply?

Yes. Under the CLRA, any person — not just a parent — may apply for decision-making responsibility or parenting time if they have a settled interest in the child's welfare. Grandparents routinely qualify.

There is no automatic presumption in a grandparent's favour. Courts begin with the principle that fit parents have the right to make decisions about their children. A grandparent seeking decision-making responsibility must show the court why it is in the best interests of the child to grant that authority to them rather than to (or alongside) the parents.

When Do Courts Grant Decision-Making Responsibility to a Grandparent?

Courts are most likely to grant a grandparent decision-making responsibility in situations like these:

Both Parents Are Unable to Care for the Child

If both parents are dealing with addiction, serious mental illness, incarceration, or other crises that make them unable to safely parent, the court will look to who is actually caring for the child. If that is you, a formal order makes your role legally recognized.

One Parent Is Deceased and the Other Is Absent or Unfit

The death of one parent and the absence or incapacity of the other creates a vacuum that a grandparent may need to fill legally.

The Child Has Been Living With You Long-Term

A child who has been in your care for a substantial period has a right to continuity. Courts apply a "status quo" analysis — disrupting a settled arrangement requires a compelling reason.

There Is a Risk of Harm With the Parents

If a parent's home is not safe — due to domestic violence, neglect, or substance use — courts will prioritize the child's safety over parental claims.

Sole vs. Shared Decision-Making

A court order can be structured in different ways:

• Sole decision-making responsibility to the grandparent, where parents may still have parenting time but the grandparent has final say on major decisions.
• Shared decision-making responsibility between a grandparent and a parent, requiring both to consult on major decisions.
• A hybrid order where the grandparent has decision-making authority in specific domains (e.g., medical care) while the parent retains authority in others.

Courts favour arrangements that preserve meaningful parent-child relationships unless a parent's involvement is harmful.

The Application Process

Filing Under the CLRA

You file a court application in the family court with jurisdiction over where the child ordinarily lives. Your application must include an affidavit setting out your relationship with the child, why you are seeking the order, and what arrangement you believe serves the child's interests.

Serving the Parents

Both parents (and anyone else with a current order) must be served and given the opportunity to respond. Courts take due process seriously in applications that affect parental rights.

The Case Conference

A judge reviews the materials and meets with both sides. This is not yet a hearing on the merits — it is a structured conversation aimed at narrowing the issues and encouraging settlement.

Assessments and Voice of the Child

In contested cases, the court may order a section 30 assessment (a report by a mental health professional evaluating the family) or a Voice of the Child report (a summary of what the child wants, prepared by a professional). These reports carry significant weight.

Trial (If No Resolution)

Contested applications that do not settle proceed to trial, where a judge hears evidence and makes a final order. Trials are costly and emotionally demanding — most cases are resolved before this stage.

Practical Considerations

• Document your caregiving: School pick-up records, medical appointment records, photos, and school communications all help establish your primary caregiver role.
• Avoid undermining the parents in front of or through the child — courts look unfavourably on this.
• Temporary (interim) orders are available while the case is pending and can grant you legal authority in the short term.
• Legal aid may be available to grandparents with low income — verify current eligibility with Legal Aid Ontario (as of writing — verify current program availability).

Frequently asked questions