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Grandparents’ rights in divorce or separation

Grandparent carrying a child

Feeling shut out of your grandkids’ lives since their parents’ separation or divorce?

Thanks to legal changes, you could be spending a lot more time with your loved ones.

Fortunately, most provinces and the federal Divorce Act now recognize grandparents have a special place in children’s lives. That gives you the right to argue for visits or even custody.

Separation Hurts

Gurpreet and Sharmila missed out on watching grandson Bindy grow up when Frankie and Nila divorced in 2010. Frankie, who had a well-paying job and healthy bank account, got custody. 

With eight-year-old Bindy in Ontario, his maternal grandparents in Alberta had no custody or visitation rights until 2016. Bindy was 14 when Ontario changed its rules to give grandparents custody or access. Today, Gurpreet and Sharmila regret the many years they were separated.

Until recently, an estimated 75,000 Ontario grandparents had no visiting rights. As long as a child’s parents were loving and attentive, they had the right to choose if their children saw grandma or grandpa. Current Canadian law considers the best interests of the child. That gives you and your grandchildren a chance to speak up.

Why Grandparents Matter

As a grandparent, you can be a role model, teacher, family historian, caregiver, problem solver and treasured confidant. You also may be less stressed and have more time to play than busy parents. Who wouldn’t want that special experience?

Fact is, almost half of Canadian grandchildren see their grandparents at least once a month. If you are missing out, it could be time to make your voice heard.

Your Legal Rights

You say your ex-daughter-in-law has custody, but ignores you. You desperately want to be part of your grandchildren’s lives.

An access order may be for you if:

  • your grandchildren’s parents leave you out
  • your grandchildren move away after a parent’s death, separation or divorce
  • or you lose custody of your grandchildren.

The courts can be sympathetic. Judges look for:

  • evidence of affection, love and emotional ties
  • your grandchildren’s preferences, if they are old enough
  • and their home environment.

If the court believes your grandchildren would benefit from contact with you, your chances are fairly good.

Be aware that courts tend to favour parents, especially if you have a hostile relationship. They frown on placing children in the middle of a conflict. Or interfering in the bond between a parent and child. Your ability to get access can depend on how well you navigate any conflicts.

When to Consider Custody

Parents can’t always care for their children. When a parent is:

  • sick or neglectful
  • in jail
  • using alcohol or drugs
  • or abusive 

asking the court for custody may be the right choice. 

Your loving care, and your grandchildren’s desires, are important to the court. Of course, your ability and willingness to provide for your grandchildren and to act as a parent also matter.

The road to custody can be an uphill battle. If you have a strong bond with your grandchildren, be prepared to fight for what you believe in.

Questions to Ask Yourself

Going to court for custody? Ask yourself:

  • Does a positive grandparent-grandchild relationship already exist?
  • Has the parent’s decision imperilled that positive relationship?
  • Has the parent acted arbitrarily?

In Ontario, the Office of the Children’s Lawyer may be asked to make a recommendation to the court. Many other provinces have similar advocates. It’s one more way the courts decide what is in your grandchildren’s best interests.

A Final Word

Axess Law’s family lawyers may help mediate a solution to custody and access, like regularly scheduled visits. It’s less costly and adversarial than going to court.

And that could be a happier resolution for everyone.


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