Can Grandparents Get Contact or Parenting Rights in Ontario?

Losing touch with a grandchild after a separation, a death or a family falling-out is painful. Many grandparents, aunts, uncles and other relatives wonder whether the law gives them a right to be in the child's life.

The short answer is that there is no automatic right, but there is a way to ask a court. This article explains who can apply, which law applies, what extra steps non-parents face, and how a court decides.

No automatic right, but you can apply

The law gives a child's parents an equal right to decision-making responsibility for the child. A grandparent does not have that status. What a grandparent can do is ask the court for an order.

Under the Children's Law Reform Act (CLRA), 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. Whether the court grants either one depends on the child's circumstances and best interests, and nobody can promise a result.

Which law applies: CLRA or Divorce Act

Which statute applies depends on the parents' marital status. The Divorce Act applies to married spouses in a divorce. The CLRA applies to unmarried or common-law parents and to married parents who are not divorcing. The two have parallel but separately numbered sections.

Under the Divorce Act, a non-spouse such as a stepparent needs leave of the court before applying for a parenting order. For a contact order, leave is also required, and the court considers whether contact could happen anyway, for example during another person's parenting time.

What you must file

An application must include an affidavit setting out your proposed plan for the child's care and upbringing, along with details of any earlier family or criminal proceedings. Think about what regular contact would realistically look like, and be honest about any history.

A non-parent who wants decision-making responsibility has extra steps. You must file a recent police records check and ask for a search of child-protection records. Ontario's guidance sets out the timing and forms:

• 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.
• Parents file Form 8 and Form 35.1 (Part A); non-parents file Form 35.1 Parts A and B.
• Form 35.1A is needed only if a party or the children have been involved in child protection matters.

What the court checks and weighs

The court has a duty to check whether restraining orders, child protection matters or criminal matters involving a party are pending or in effect, and it may make inquiries of the parties.

The court's primary consideration is the child's physical, emotional and psychological safety, security and well-being. It then looks at a list of best-interests factors, which include:

• the child's needs given age and stage of development, and the child's relationships
• the history of care and the care plans proposed
• the ability to communicate and cooperate, and any family violence
• the child's views and preferences, given due weight for age and maturity, unless they cannot be ascertained

That list is not exhaustive, so a court may consider other factors, always giving priority to the child's safety. The court must also, where possible, take the child's views into account to the extent the child can express them, and it may interview the child, with the interview recorded.

A court does not consider a person's past conduct unless it is relevant to parenting time, decision-making responsibility or contact.

Try to resolve it outside court first

Parties must protect the child from conflict arising from the case as far as they are able, and, where appropriate, must try to resolve matters through a family dispute resolution process. A mediator cannot make an order, and an arbitrator decides only because the parents agree to that.

If the parents are open to it, an agreement about visits can be a calmer route. If the parents put parenting terms in a domestic contract such as a separation agreement, a court may disregard a provision on decision-making responsibility or parenting time if that is in the child's best interests. How an arrangement with a grandparent or other relative would be treated depends on your situation, so it is worth confirming with a lawyer.

What to do next

• Find out whether the parents were married and whether a divorce is under way, since that decides which law applies.
• Write down your history with the child: visits, care you provided and when contact stopped.
• Think through a realistic plan for contact and keep your tone respectful in any messages to the parents.
• If you want decision-making, arrange a police records check early because of the filing deadlines.
• Speak to a family lawyer about whether leave is needed and which forms apply to you.

Frequently asked questions