Focus On

Family Law - Custody and access - Considerations - Best interests of child - Access - Contest between parents and non-parents – Rights of non-parents - Grandparents

Thursday, January 19, 2017 @ 7:00 PM  


Appeal by the mother from an order awarding access to the child’s paternal grandparents. In 2015, the child’s father passed away from cancer. Prior to his passing, the paternal grandparents visited the child regularly. The parties disagreed over the frequency of the visits. Following the father’s passing, the mother and the child moved in with her parents. The paternal grandparents did not visit the child for several months due to strained relations with the mother. The mother maintained that she had not denied access, but merely required an apology for past ill treatment. The grandparents commenced court proceedings and obtained interim access. The application judge found that the child’s best interests were consistent with fostering and nurturing a relationship with his grandparents. The judge ordered access gradually increasing over a four-month period to a day-long visit every second weekend. The mother appealed.

HELD: Appeal dismissed. The application judge did not fail to accord proper deference to the mother’s decision-making authority regarding access to the child. There was no authority establishing a parental autonomy paradigm as the only acceptable approach in determining a child’s best interests in the context of grandparent access. Judicial deference to parental authority was tempered by a willingness to recognize the benefits of extended family to a child who lost a parent. The application judge did not misapprehend the mother’s position supporting a relationship between the child and the grandparents in the context of the past mistrust between the parties. Denial or restriction of access was subordinate to the overarching test of whether access was in the child’s best interests. The judge thoroughly weighed the evidence regarding the relevant factors in determining access was consistent with the child’s best interests. The order was not wrongly based on hope or speculation that access would resolve the tension between the parties. The access order was supported by the evidence and was designed to provide predictability and certainty surrounding access visits.