Grandparents’ rights bill likely to have little impact
By April Cunningham, Associate Editor
New Ontario legislation that aims to extend rights to grandparents in custody and access cases likely won’t make much difference in practical terms, says St. Catharines family lawyer and mediator Sharon Silbert.
Under the Children’s Law Reform Act, grandparents have always been considered among the individuals who have “love, affection and emotional ties” to a child and whose relationships should be taken into account in custody or access decisions. The only difference is now, with the passing of Bill 34, grandparents are specifically named as people the courts should consider as caring for the child — an adjustment not likely to change the legal landscape, says Silbert, principal of Sharon B. Silbert Professional Corporation.
“Grandparents shouldn’t see this as being a major overhaul of the legislation that will suddenly give them new rights,” Silbert tells AdvocateDaily.com.
“In fact, grandparents don’t really have any special rights and the new bill doesn’t change that fact. However, the legislation does make sure the importance of the relationships between children and their grandparents are not overlooked.”
The fundamental legal principle applied in custody and access cases is not considering the rights of parents or grandparents, but the best interest of the child, Silbert says.
“The bill does not create anything new but specifically includes wording to serve as a reminder to decision-makers that they must consider children’s relationships with their grandparents when adjudicating custody and access issues.”
The bill recently received royal assent after being reintroduced by NDP MPP Michael Mantha earlier this fall, the Toronto Star reports. According to the article, Mantha brought the bill forward following a discussion within his own family.
“Advocacy groups estimate about 75,000 grandparents in Ontario have been estranged from their grandchildren and have been pushing for improvements to the laws for more than a decade,” the article says.
Silbert has both mediated and acted as counsel on grandparent access issues, which sometimes arise if one parent has died and the grandparents on that side of the family want to continue or establish a relationship with the child. Conflicts can also arise because of a falling out between parents and grandparents, leading to the elders being cut out of the child’s life.
The original version of the bill would have constituted a more significant change to the legislation, Silbert points out. One of the clauses in the original draft would have forced the court to consider how willing each of the people applying for custody would be to facilitate contact with grandparents. That element of the legislation was eliminated before final reading.
“One of the challenging aspects of grandparent access cases is trying to strike a balance between fostering a positive relationship between a child and their extended family and respecting parents’ ability to make decisions for themselves about how they want to raise their kids,” she says. “If the bill was adopted the way it was originally drafted, that balance may have shifted slightly, but the amendments that were actually implemented leave things much as they were before.”