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Jan 2021

Grandparents' Access to their Grandchildren during COVID-19

By Puneet Shroff

Clearly, grandparents are often central to establishing the proverbial village that it takes to raise a child.  Upon a separation, however, the rights of both grandparents, and grandchildren, are less clearly defined.  The ongoing endurance of the novel coronavirus (COVID-19) pandemic has further complicated this dynamic.

Fortunately, grandparents can stay connected with their grandchildren through technology during this time. Nonetheless, it can be difficult for grandparents to be in the physical presence of their grandchildren if one or both parents restricts or denies the children access to their grandparents.

On the one hand, the global effort to stay home and minimize the spread of COVID-19 has resulted in grandparents and grandchildren not being able to spend time together. On the other hand, some grandparents have actually become more involved in the lives of their grandchildren’s child care providers as schools across the country have closed their doors. Not surprisingly this ‘new normal’ ushers in the following important legal questions: will the new parenting arrangements create a status quo that can be relied upon by grandparents? What recourse do grandparents have if they are denied access?

Unless grandparents have legal custody, they do not have an automatic right to access to their grandchildren, and they may require the Court’s intervention in the event that the parents refuse access. Grandparents are entitled to apply for custody or access of their grandchildren under Section 21 of the Children’s Law Reform Act (“CLRA”). The leading case for grandparent access is the 2001 Ontario Court of Appeal decision in Chapman v. Chapman (“Chapman”), which was further summarized by the Ontario Superior Court of Justice in its 2005 decision in Giansante v. Di Chiara (“Giasante”). These cases stand for the proposition that parents can decide whether their children will see their grandparents; however, grandparents may nonetheless be awarded access if a Court is satisfied that:

  1. there is an existing positive grandparent-grandchild relationship, which is more than a mere pleasant relationship;
  2. the parent’s decision to restrict the grandparent access has jeopardized this positive relationship; and
  3. the parent cannot provide a valid reason for restricting access.  

The Court will decide each case on its unique facts, but the paramount test will always be the best interests of the grandchild, as set out at Section 24 (2) of the CLRA. Even if grandparents applying for access meet the Chapman and Giansante criteria, the Court will still need to determine if such access would be in the best interests of the grandchild.

In the context of access applications during the COVID-19 pandemic, the courts are required to take into account the impact of a parent’s or grandparent’s compliance with COVID-19 protocols, guidelines, and regulations.  The Honourable Justice Pazaratz' 2020 decision in Ribeiro v Wright is the leading case on access during COVID-19. This case establishes that Courts need specific evidence of compliance or non-compliance with COVID protocols in order to restrict or terminate access where compliance with COVID-19 regulations, protocols, and/or guidelines are material to the application for access.  

Unfortunately, the body of emerging pandemic case law has focussed on parents rather than custody and/or access applications made by grandparents. With the ongoing expansion of remote access to justice services, we anticipate an increase in  custody and access cases involving grandparents.

 

This article is intended only to inform and educate. It is not legal advice. Be sure to contact a lawyer to obtain legal advice on any specific matter.

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