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 the absence of any evidence that the parents are behaving in a way which demonstrates an inability to act in accordance with the best interests of their children, their right to make decisions and judgments on their children’s behalf should be respected, including decisions about whom they see, how often, and under what circumstances they see them.”

Chapman v. Chapman sets out a three-part test which must be proven in order for the courts to interfere with a parent’s decision-making about grandparent access. The test provides that courts should generally defer to a parent’s decisions about grandparent access, unless the following three questions are answered in the affirmative:

(i) Does a positive grandparent-grandchild relationship already exist?
(ii) Has the parent’s decision imperilled the positive grandparent-grandchild relationship?
(iii) Has the parent acted arbitrarily?

In this case, Justice Stevenson decided in favour of the parents. The grandparents’ motion was dismissed because even though the first two parts of the Chapman test were met, the grandparents did not prove that the parents had acted arbitrarily in denying them access to their grandchild. The judge took into consideration that there were longstanding problems between the grandparents and Megan’s parents, and that despite these problems, the mother had previously made an attempt to reconcile the relationship.

In addition to highlighting the authorities on grandparent custody and access issues, this case serves as an example of the extent to which a familial relationship can break down when parties resort to the court system before canvassing Alternative Dispute Resolution (ADR) options. In family law disputes involving custody and access, it is often worthwhile for the parties to seek out ADR methods, such as mediation.  ADR is particularly well-suited to situations where the opposing parties have an interest in salvaging their relationship after the legal issue is resolved, if only for the benefit of the children involved.

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