A recent court ruling has opened up the possibility that grandparents may be able to garner legal access to their grandchildren against the wishes of the parents. Prior to this decision (Boyle v. Gale 2007) grandparents did not have this right as long as the parents were demonstrably attentive to their children and particularly if they were still a couple. In Boyle v. Gale the Ontario Superior Court granted the paternal grandparents access to their three grandchildren on alternate weekends and provided for some flexibility to accommodate the mother's work schedule.

The grandparents in this case had had regular access to their grandchildren after breakdown of their son's marriage, but the court halted that access based on the son's drug use. Furthermore, the mother of the children alleged that her ex-spouse's family "constantly belittle, yell and scream at her... She indicates that she does not wish to be restricted by a court order in favour of the applicants when they have acted in an unreasonable manner towards her in the past."

The mother's counsel argued that unlike Alberta and British Columbia, Ontario grants grandparents no statutory right to access. The Judge conceded that a United States Supreme Court ruling held that the parents have a constitutionally protected right to decide who has access to their children and that the state should not interfere with that right and that Section 7 of the Charter of Rights and Freedoms provides a similar protection. Nevertheless, the Judge referred to the Children s Law Reform Act to say there is no conflict between it and the Charter:

"...in essence the best interests of the children are to be considered in determining the question of access" and "that grandparents may in particular circumstances be granted access rights to their grandchildren. At all times, the constant theme which is paramount is the best interests of the children."

As it appeared that the restriction of access was the decision of the mother and not "the wish and desire of the children" the Judge stated that "a reformation of the relationship, on an interim basis at least, is in the short-term and long-term best interests of the children."

The Judge also ordered that the grandparents' access not be in their son's presence "unless there is an order of the court to that effect."

My advice as always is to be practical. By all means stay away from Court. I am a great believer in grandparents walking on "eggshells" when it comes to their grandchildren. They should not instigate conflict with the parents of their grandchildren. Turning the other cheek is best. My most successful cases for grandparent access, and for all involved, have been political solutions not Court decisions.

June 2007

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