For years, grandparents in Ontario who want to see their grandchildren, but are denied contact, have struggled with an uneven approach taken by the courts. Recent legislative changes, Bill 34, have now come into play which appear to affect such claims. But how significant is the new law in practice?
Bill 34 – Children’s Law Reform Amendment Act
Bill 34, Children’s Law Reform Amendment Act (Relationship with Grandparents), 2016, received royal assent in December 2016. It is now in force and effect. The Bill amends the Children’s Law Reform Act to include grandparents as a specifically named category of applicants who may be entitled to seek and obtain access to children. In addition, it includes grandparents as a named category of individuals whose relationship to a child must be considered under a “best interests” test, if those grandparents are entitled to custody of or access to their grandchild.
There has been a lot of media coverage of what this bill means. Many of the articles on the subject focus on the emotional stories of grandparents estranged from their grandchildren, eager to re-establish access. However, it remains to be seen what effect this new law will have on grandparents’ access cases.
Grandparents have always been able to apply for access to their grandchildren in Ontario. The previous wording of section 21(1) of the Act allowed “any other person”, apart from a parent, to seek an order for custody of or access to a child. This “any other person” included grandparents, as well as any extended family member, either biological or non-biological. The new law does not appear to substantively change the old, since grandparents were always included under the “any other person” designation. Orders granting grandparents access to children, or even custody of children, were already being made in appropriate circumstances by the courts.
How will this affect your grandparent access claims?
If you are a grandparent seeking an access order, it seems likely that your case will proceed as it had before. Since the newly amended law express only a slight change in Ontario’s policy regarding these cases, you can expect a similar process to the one that has existed for years.
That said, however, this new policy direction may have important effect on the way your case is argued and heard. It has long been the precedent in Ontario that you, as a grandparent, are a “stranger to the court” regarding custody and access claims. While the substantive effect of the change appears minimal, it cannot be denied that the legislature has clearly named “grandparents” as important individuals to be considered. In the long run, judges will have to consider this clarification, when it comes to your claim.
So as a grandparent, you were already among those who could seek access, and your relationships with your grandchild had to be considered when looking at that child’s best interests. What, then, has really changed for your case? It will remain to be seen how judges deal with Bill 34. However, it appears to represent a clear legislative intent – specifically, to elevate grandparents over other non-parental applicants for custody and access. It may be that little has changed in substance. But for the moment, your future grandparent access claims appear to have been provided a leg up.
You can review the updated Children’s Law Reform Act at https://www.ontario.ca/laws/