The recent decision in the matter of Nichols v. Herdman, 2015 CarswellOnt 9262 (Ont. S.C.J.), sets out what grandparents are required to prove in order to obtain a court order for custody/access of grandchildren. In this case, the grandparents brought a motion seeking several orders with respect to their grandchild, Megan, including joint custody, primary care of Megan during the weekdays, two access evenings per week and access with Megan every weekend. Unsurprisingly, Megan’s parents were not agreeable to the aggressive position taken by the grandparents. They refused to allow the grandmother any access to Megan, but they were prepared to allow supervised access by the grandfather.
Section 21 of the Children’s Law Reform Act requires custody and access questions to be determined on the basis of “the best interests of the child.” The Court also referred to the principle set out in the Ontario Court of Appeal decision of Chapman v. Chapman, 2001 CanLII 24015 (ON CA) which addressed the level of deference to be accorded to the decisions and judgments of parents:
In Virc v. Blair, a recently decided Ontario Court of Appeal case, the Court considered the requirement to make full financial disclosure prior to signing a separation agreement and the parties’ respective obligations to investigate the veracity of said financial disclosure.
Virc was initially decided on a summary judgment motion. The parties had executed a separation agreement which purported to conclusively deal with all support and property issues. Two years later, and after the completion of several business courses, the wife came to the realization that the deal might have been improvident and brought an application to have the agreement set aside. The husband moved for and was granted summary judgment against the wife. Of chief concern to the motion judge was the fact that the wife had apparently failed to question and investigate the financial disclosure that had been provided by the husband during the negotiations.
As it turned out, there was evidence that the husband had inflated the value of his assets at the date of marriage by at least $8,909,292. But