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In Ontario, grandparents do not have a presumptive entitlement to custody and/or access to their grandchildren. This means that if their child separates from his or her spouse, dies, or the grandparent becomes alienated from their child for other reason, there is no presumptive right that the grandparent can have contact with their grandchild. However, the Children’s Law Reform Act ("CLRA") provides that any person may apply to the court for an order for custody and/or access to a child.

Just like any other non-parent, when applying for custody and/or access to their grandchild, a grandparent must complete some additional paperwork, including obtaining a criminal record check as part of his or her application.

When determining whether a grandparent should be granted custody and/or access to their grandchildren, the court applies the same test it always uses when determining custody and access to a child – whether such an order will be in the best interests of the child. This test is highly subjective and guided by the facts in each case. The CLRA does state that, among other factors, the court shall consider whether there are other members of the child's family residing with him or her, and the child's relationship by blood to the party to the application.

In the end, even though Ontario legislation does not provide grandparents with any presumptive rights to their grandchildren, where their relationship with their grandchildren is not being supported, grandparents have the same ability to apply to the court for resolution as any other person. The court has the authority to order a variety of outcomes tailored to the facts of the individual case. Although there are no presumptive rights for grandparents, the courts will not take the issue lightly, and will certainly place value upon the importance of a child's relationship with his or her extended family, including grandparents.

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This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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