Although the case law has set in place measures on how to handle grandparent access, going to court is rarely the beneficial choice. This kind of issue should be dealt with by a mediator/ family therapist who can offer guidance and work on mending relationships as opposed to granting orders/dismissing applications that will likely create an even bigger divide amongst family members . At the heart of custody issues is the best interest of the child, and grandparent access cases rarely ever end in their best interest. According to Ontario law, a grandparent does not have an automatic right to see their grandchild. The parents hold the right to allow access, so a grandparent brining an access application will typically only fuel the fire.
In the recent case Nichols v. Herdman, we see the negative effects of litigation on family ties in the context of grandparent access disputes. The grandparents had a close tie of love and affection with their granddaughter, but conflict arose between the mother and grandmother, primarily over the mother’s husband, and the grandparents sought access to the child. Relying on the leading case in Canada for grandparent access, Chapman v Chapman , Justice Stevenson dismissed the motion for access. The Chapman case sets out three questions that must be answered affirmatively in order for the court to sway from the parents decisions regarding grandparent access.
- Does a positive grandparent-grandchild relationship already exist?
- Has the parent’s decision imperiled the positive grandparent-child relationship?
- Has the parent acted arbitrarily?
Justice Stevenson found that although the answers to the first two questions were affirmative, the parents had not acted arbitrarily and therefore the motion was dismissed.
The family is left with a broken relationship between the parent and grandparents and therefore a broken relationship between the grandparent and child. This case is yet another reminder that the law has a firm stance on the parents’ right to control grandparent access, and that these matters truly do not belong in a courtroom. Throwing litigation into the mix of an already highly sensitive matter is not in the best interest of the child.
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