Grandparent Contact Application

The case of Kirshenblatt v. Kirshenblatt, 2024 ONSC 2896 considers contact between paternal grandparents and their two grandchildren, E., 13.5 years of age, and L, who was 10 years of age. The grandparents pursued court intervention as E.’s visits with their grandparents had been challenging, and L. had not had any contact with the grandparents.

The grandparents provided significant financial support to their son, the father, Ryan, before and after his marriage and were actively involved in his life. Once married to Jacquelyn, conflict arose between the grandparents and Ryan and Jacquelyn. The couple underwent counselling to address these issues. These issues included disrespect for boundaries, excessive demands for Ryan’s attention, and their treatment of Jacquelyn. The couple slowly reduced their involvement with the grandparents. In the years following the birth of the children, the grandparents had reasonable contact with their grandchildren. However, over time this decreased. In 2015, the parents started to actively withdraw from the relationship with the grandparents, and reduced the grandparents’ time with the children. Eventually, the parents retained counsel and a letter was sent to the grandparents regarding contact with E. for one visit in alternate months. The grandparents commenced an application. In 2020, a contested motion was heard and E.’s visits were increased to ten hours once a month, as well as other relief. However, the visits with E. deteriorated, and in 2021, E. wanted less contact with the grandparents. The parties engaged with a clinician and still struggled to reach an agreement regarding contact. In May 2023, a temporary order was entered into. However, L. refused to have contact with the grandparents, and while the contact was limited to bi-weekly calls, they were not successful. E.’s visitations with the grandparents had been going well.

In Ontario, grandparents do not have a legal right of contact with their grandchildren and the onus is on the grandparents to show that contact is in a child’s best interests. The starting presumption is that deference should be given to the parents’ decision as whether to grant a grandparent access to a child. The test in Gilansante v. DiChiara, 2005 CanLII 26446, poses three questions to determine whether deference should be given to the parent’s decision:

• Does a positive grandparent-grandchild relationship already exist?
• Does the parent’s decision imperil this relationship?
• Has the parent acted arbitrarily?

If a court decides not to defer to the parents’ request, a second set of questions must be answered:

• Is an order mandating contact in the children’s best interests?
• If yes, what contact order is appropriate?

The Court in Kirshenblatt applied the test above for each child separately. For E., there was a positive relationship with the grandparents, albeit there were challenges. Namely and while the visitations improved, the grandparents were voluntarily returning E. early, after two or three hours. E.’s opportunity to speak with the grandparents to plan activities had improved the quality of the visits. When examining whether the parents imperilled the relationship, the parents acknowledged that they were hypervigilant about E.’s peanut allergy and that they had concerns about the grandparents’ lack of proper care. They admitted that they declined requests of additional and different contact methods but stated that they were acting in the child’s best interests as she did not want additional contact. The report by the Office of Children’s Counsel indicated that E. did have concerns about visits and did not want an order for ongoing contact. While the child’s relationship to the grandparents was imperilled, both parties were to blame for the state of the relationship. It was concluded that the parents did not act arbitrarily in limiting contact between E. and her grandparents. They used their best judgement to protect the child as they deemed fit, while considering her views and preferences. The Court stated that there was no basis to interfere with the parents’ deference in respect of contact between the grandparents and E.

When applying the test to L.’s relationship, the Court found that there was no positive relationship between the grandparents and the child at the time of the assessment nor prior thereto –L. was estranged from the grandparents. Under the second branch of the test, the Court found that both parties imperilled the relationship. The parents permitted no contact with L., and all requests made by the grandparents were rejected or ignored. The grandparents’ conduct also caused strain between the parties as they had threatened to call the Children’s Aid Society, accused the parents of child abuse, labelled the mother as mentally ill, made disparaging comments to E. about the mother, amongst other behaviours. The judge stated that both parties’ actions had imperilled the relationship between L. and her grandparents. When determining whether the parents’ views ought to be respected, the Court stated that the parents’ failure to facilitate visits was not reasonable as they did not take steps to address the concerns or facilitate contact which was not in the best interest of L. Hence, their right to make decisions did not need to be respected. In this case, L. was denied the opportunity to develop a relationship with her grandparents. There was no concern about the impact of a contact order on the family as an order had been made for E, and had no impact on the relationship between L. and the parents. The Court further reasoned that the parents are well-equipped to address challenges that could arise from L. having contact with the grandparents. The parents should not be treating the children differently and allowing one to have contact while giving the other discretion.

The Court also considered the fact that L may miss her opportunity to have a relationship with her grandparents, concluding that a contact order for L is the best way to ensure that she does not feel regret in the future. The Court noted: “to refuse to explore L.’s best interests simply because the grandparents failed to meet the three-part test, when a contact order is being made for her sister E. on consent, is not child-focused” (para 209). The grandparents’ request for monthly visits and telephone contact provides stability and an opportunity to develop a better relationship with L. From the time of estrangement, the grandparents remained consistent in their attempts to have a relationship with L. The Court further found that it was not in L.’s best interest, given her young age, to use her voice to dismiss contact with her grandparents as her parents had allowed her to do. A contact order was deemed to be in L.’s best interest however deference as to the duration and frequency was left to the parents, with a remark that short visits at least once a month would be best.

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