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Old 02-17-2006, 03:43 PM
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Question How far do Grandparent rights go?

I've now been served; his parents are taking me to court, asking for a judgement for contact with the children. They're claiming that I've denied them access to the kids, and that they want an order for them to have them for the second weekend of each month, from friday morning to sunday night.

First off, I have NOT denied them access to these kids as they're saying. I have repeatedly invited them to come for birthdays and other holidays, as well as telling them several times that they have a standing invitation to see the kids, just to call ahead. I did, however, refuse to let them take the children at Christmas.

This was the only time they've ever asked, but their son and I are in the midst of court issues over his access to the kids, because of his alcoholism and irresponsibility. That's pertinent to the grandparents' request because the childrens' father claims to live with his parents, and has been exercising his access with the kids at their farm. I explained to his mother at the time, that there were issues with their son's drinking that caused me not to trust the kids to his care, but that they were all welcome and invited to come here for the entire holiday if they wanted to. She said no, they wouldn't do that, and that not only did they insist on taking the kids, but that it must be for overnight as well, because they didn't want to drive so much in one day (they live just over an hour away, but come to my town to help a sick relative almost daily; they actually told me that in the very same conversation).

In addition to the drinking issue, the children had returned from their last overnight visit acting very insecure and upset. The behaviour went on not for a couple of days, but literally for WEEKS. They didn't want me out of their sight, even to go to bed, when prior to that visit, they were fine. I had already discussed that issue with their father, and told him that I thought they were not ready for overnights, and that shorter, more frequent visits for a while would help solve the issue. So again, I explained that to the grandparents, but they said they weren't interested in having them for less than overnight anyway, so that was that. That was the last I heard from them until getting served.

So, a couple of questions. First, since their son has and intends to exercise his access with the grandparents at their farm, would a judge even hear the grandparents' application prior to the father's and my case being decided? Do the grandparents even have a case, since they weren't denied access totally, and refused to see the children at all unless it was on their terms? What about the father's drinking issues? And if legal aid represents me, or I represent myself, will I still have some court costs, or will that be up to the judge to decide?
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Old 02-17-2006, 05:30 PM
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sasha1,


Grandparents are considered legal strangers when it comes to access. Generally their relationship with the children is developed and fostered through the parents. If the parent is not receiving the children's access, and if it is determined to be in the children's best interest then the court may very well grant the requested access to the grandparents.

If you are located in Ontario, the children's law reform act would apply.

If you read the act in itself, there is no specific language that specifically refers to grandparents and incidents of access. what it does say is in the language "or any other person"

Children's Law Reform Act

http://www.e-laws.gov.on.ca/DBLaws/S...sh/90c12_e.htm

Application for custody or access

21. A parent of a child or any other person may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child. R.S.O. 1990, c. C.12, s. 21.

Merits of application for custody or access

24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child. R.S.O. 1990, c. C.12, s. 24 (1).

The merits of their application of access to the children will hinge on the children's best interest.

There is significant amount of jurisprudence out there that suggests the grandparents are very beneficial to children if they pose no harm physically or emotionally to the children. This also is common sense. Access is the child's or children's right to same.

In regards to the other questions such as the father's drinking issues, you could request an order that their be no drinking around the children.

In regards to legal aid, you could attend their office and fill out an application. One of the conditions of accepting legal aid representation is that you ask for an order of costs.

If you are self represented and the only issue is the grandparents access and they are successful in their claim you may have to pay their legal costs ie: solicitor/client basis if awarded by the court.

Last edited by logicalvelocity; 02-17-2006 at 05:38 PM.
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Old 02-17-2006, 06:12 PM
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Sasha1,

I did a quick search at CanLaw for some cases.

Here is an interesting case as it involves grandparents and the issue of costs


Panny v. Galford
1997 - THE ONTARIO COURT OF JUSTICE
(PROVINCIAL DIVISION)


http://www.canlii.org/on/cas/oncj/19...oncj10004.html


here is another - interesting enough

D.W.M. v. J.S.M.
2003 - Supreme Court Of British Columbia

http://www.canlii.org/bc/cas/bcsc/20...3bcsc1229.html

and this

McLaughlin and McLaughlin v. Huehn and Forget, 2004 ONCJ 426

http://www.canlii.org/on/cas/oncj/2004/2004oncj426.html

Before Justice Margaret A. McSorley

Heard on 6 October 2004; and 6-8 December 2004

Reasons for Judgment released on 10 December 2004

Paragraph 6 of judgement

6] " The starting point for any application regarding a child is section 21 of the Children’s Law Reform Act, R.S.O. 1990, c. C-12, as amended (the “Act”). Although the respondent mother argues — and I agree — that there is no law entrenching the right of grandparents to access to a grandchild, section 21 makes it clear that a parent of a child or any person may apply to a court for an order respecting custody of or access to the child. It is this section that allows the very application that is before the court."

and paragraph 28 of same

There have been several cases decided since Chapman v. Chapman and Chapman concerning grandparent access. In Parsons and Parsons v. Parsons and Chilvers 2002 CanLII 45505 (ON S.C.), (2002), 29 R.F.L. (5th) 137, 2002 CanLII 45505, [2002] O.J. No. 2370, 2002 Cars*well*Ont 1922 (Ont. Fam. Ct.), maternal grandparents sought access to their 5-year-old granddaughter. The evidence was they had always had a positive relationship with the child and, during her early years, had assisted in her care. In July 2000, the mother of the child announced that she was involved in a homosexual relationship. The mother felt that her parents’ response to the announcement was not adequate and, in November 2001, the relationship completely deteriorated when the mother announced that, if her parents did not accept her partner, they would never see the child again. In the material filed, the mother described her mother as evil, cruel, abusive, controlling, overbearing, vengeful and spiteful. In awarding the grandparents access, Justice Grant A. Campbell distinguished Chapman v. Chapman and Chapman on the basis that the relationship between the child and her grandparents had always been a positive one and one that she learned to enjoy and anticipate, unlike Chapman v. Chapman and Chapman where the relationship was described as “regrettably, not a positive one”. Justice Campbell found that it was in the child’s best interests to continue a relationship with all of her extended family. At paragraph [16], Justice Campbell noted that it was the obligation of the adults to act in a mature manner and to seek and to obtain whatever therapy is necessary to ensure that the child is insulated from their personal antagonisms. Justice Campbell also cited the case of N.V.R. v. J.K. and J.A.R. 2001 NBQB 43 (CanLII), (2001), 239 N.B.R. (2d) 89, 2001 NBQB 43, 619 A.P.R. 89, [2001] N.B.J. No. 221, 2001 Cars*well*NB 202 (N.B.Q.B.). He noted paragraph [25] of that decision and quoted Justice Brigitte M. Robichaud as stating:


[25] Even in cases of high conflict between a parent and a grandparent, courts have ordered grandparent access where bonding had occurred with the grandchildren, or where the court was satisfied that the parent was placing his or her own animosity and satisfaction of personal needs ahead of the children’s best interests.
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Old 02-17-2006, 08:59 PM
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Thanks so much for those links, LV! Very informative!

I'm from Alberta, so I don't think the Children's Law Reform Act applies here. The Family Law Act that's been implemented says in paragraph 35:



"(5) Before the court makes a contact order, the court shall satisfy itself that

(a) contact between the child and the applicant is in the best interests of the child,

(b) the child’s physical, psychological or emotional health may be jeopardized if contact between the child and the applicant is denied, and

(c) the guardians’ denial of contact between the child and the applicant is unreasonable."

Regarding 5(c) above, would my 'denial' of contact be considered unreasonable?

I should note that while my ex's parents were not appointed supervisors of the access granted to the father in the interim order, they were witness and party to his breeching the court order on two occassions. One was that he was not to consume alcohol while having the children, and I've discovered that he did on at least one occassion. The other was that it was ordered he remain with the children while exercising his access, and not leave them in the care of others without my knowledge and consent. He did leave them in the care of his family, the first time they stayed overnight actually, which I strongly objected to because at that time, the grandparents were virtual strangers to the kids. They had only seen them once (for a couple of hours) in the previous 10 monthes (the children were almost 2 when this happened).

They were never close to the children. After from the initial hospital visits (the kids were preemies), their involvement with the babies dwindled to non-existent for quite some time. I don't know what it is with these people, but they are insistent that everyone come to them, as opposed to visiting outside their home. Before the twins were born, that wasn't an issue for us, but following the birth, it became very difficult to travel around with the babies. Still, they didn't make any extra effort to come to us.

I was actually very frustrated with their lack of involvement and interest in the kids, and often encouraged and pushed them to see the babies more. Then when the kids were 13 monthes old, the grandparents declared that they would have nothing more to do with either me or the children until and unless my ex and I reconciled. We did reconcile for a time, but still the grandparents wouldn't come to my home, and when the relationship finally ended, they began claiming I was denying them access. I continued to contact them and invite them to visit the children; they continued to decline. Then my ex began his access at their house, and they were happy with that, but it was shortly thereafter that my ex crashed his truck and got a fourth impaired. Then I discovered he'd been drinking while he had the children on at least one visit, and that's when I decided that I couldn't trust him to be responsible with the kids as long as he was still drinking.

Stupid part of all of this is that I don't think we're really all that far from being able to agree with one another, and I've approached them both directly and indirectly no less than 6 times, asking that we sit down and try to resolve the problems, but they refuse everytime. For the first year and a half, I was continually after them to spend more time with the kids and develop a close relationship, regardless of the issues between their son and I. Now they're saying I'm unreasonable and denying them a relationship with the kids?
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Old 02-17-2006, 11:58 PM
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My own uninformed opinion would be that the grandparents would certainly have a right to have overnight access at thier home with out a doubt. It was very kind of you to offer visitation but in my limited opinion they would have evry right to have the children in thier own home for visitation purposes, and one may question WHY NOT? It is thier own grand children and we must remember we don't own our children. Keeping in contact with thier extended family is alomost always to the benefit of the children. I would hope that we have enough thoughtfullness to think of our children first rather than the conflict at hand with our former spouses, understanding that sometimes they are less than they should be to our chilodren. Parents and grandparents will always be just that regardless of thier qualities and lack there of.
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Old 02-18-2006, 12:15 AM
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Sasha,

There is always more to the story and your story certainly backs up your concerns and the safety and well being of your children.

A 4th impairment charge? I am surprised that they haven't ordered him to attend AA and abolish his driver's license for good. It appears that he definitely has a drinking problem. Perhaps as a condition of access to the children you should seek an order that he shall seek help for his problem such as attending AA.

In Ontario, for impaired driving convictions, the courts have been known to order that as a condition of reinstatement of a driver's license even on a first offense, the convicted abstain drinking altogether, attend AA and also attend an information session workshop on the impact of drinking and driving and harmful effects of same. Drinking and driving kills!

As far as the grandparents access goes, since it appears that the relationship is limited, would it not be appropriate to have a graduated access regime in place and perhaps have it occur in the community that you are located. If everything goes smooth, increase it and work up to a full weekend access. If they are only an hour away, it is not too inconvenient for these people to travel to your community.

I think if you spell out your concerns and stick to the facts similar to what you have mentioned, I think you will get the full support of the court.
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Old 02-18-2006, 12:21 AM
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Fair enough, Today, and I agree with you. I don't mean to give the impression that I intend to forever keep these kids from going to the grandparents' home. I just think that they need to build a relationship and bond with the kids before expecting to take them away from their home and mom for three days straight; they are only 2 years old, and because of the rocky start they've had and their father and paternal grandparents only showing an interest in them now and then, I am their security; I'm the one who's been there from the start and consistently throughout. Because I DO think of my kids first, I have pushed and pushed for these people to see the kids more and build the BOND that should be between grandparents and grandkids. See, I kinda think that the kids' right to feel loved by their grandparents comes ahead of the grandparents' right to visit the kids at their home. I would think that if the grandparents had any love for the kids, they'd take the time and make the effort to create and nurture the bond between them. The grandparents aren't responsible for their son's alcoholism to be sure, but they are responsible for their own behavior of trying to cover up for their son when he makes bad parenting choices.
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Old 02-18-2006, 12:30 AM
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LV, thank you for that! I have suggested exactly that (a graduated access thing) to his parents, and offered to meet them, offered to have them take the kids on their own to the park, etc. They won't budge. I appreciate that you've suggested that, though, because it tells me that I haven't just been a fool banging my head against the wall with them.

As for the fourth impaired driving charge, the courts would likely have ordered him to treatment or thrown him in jail by now, except he's trying to avoid the whole issue, and consequently has a warrant out for his arrest right now for failing to appear in court! I should have reiterated that in the earlier posts! Sorry, I thought I had!

Actually, I like Ontario's laws.. my understanding is that with a fourth impaired, you NEVER get a driver's license again. GONE! For life!
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Old 02-18-2006, 12:44 AM
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Sasha,

after glancing at the Family law act of Alberta; I found it to be very interesting. It like our Children's Law Reform Act and Family Law Act Ontario combined into one.

http://www.canlii.org/ab/laws/sta/f-...115/whole.html

I did come across this section of the act in regards to grandparents access.

Family Law Act - Alberta

Division 3

Contact Orders

Contact order

35(1) The court may, on application by any person other than a guardian, make an order providing for contact between a child and the applicant.

(2) Subject to subsection (3), a person other than

(a) a parent of a child, or

(b) a person standing in the place of a parent

may not make an application under this section without the leave of the court on notice to the guardians.

(3) A grandparent of a child does not require the leave of the court to make an application under this section if

(a) the guardians are the parents of the child and

(i) the guardians are living separate and apart, or

(ii) one of the guardians has died,

and

(b) the grandparent’s contact with the child has been interrupted by

(i) the separation of the guardians, or

(ii) the death of the guardian.

(4) In determining whether to grant leave under subsection (2), the court shall consider

(a) the significance of the relationship, if any, between the child and the applicant, and

(b) the necessity of making an order to facilitate contact between the child and the applicant.

(5) Before the court makes a contact order, the court shall satisfy itself that
(a) contact between the child and the applicant is in the best interests of the child,

(b) the child’s physical, psychological or emotional health may be jeopardized if contact between the child and the applicant is denied, and

(c) the guardians’ denial of contact between the child and the applicant is unreasonable.

(6) The court may, in a contact order, provide for contact between the child and the applicant in the form of visits or in the form of oral or written communication or any other method of communication, and may provide for any related matter that the court considers appropriate.

Terms and conditions

36 The court may make a contact order for a definite or indefinite period or until a specified event occurs and may impose terms, conditions and restrictions in connection with the order as the court considers appropriate.



Variation of contact order

37(1) In this section, “variation order” means an order made under subsection (2).

(2) The court may, on application by

(a) a person who has been granted contact with a child under a contact order, or

(b) a guardian of the child,

make an order varying, suspending or terminating a contact order or any part of that order.


(3) Before the court makes a variation order in respect of a contact order, the court shall satisfy itself that a change in the needs or circumstances of the child has occurred since the making of the contact order or the last variation order made in respect of that order, and in making the variation order, the court shall consider only the best interests of the child, as required by section 18 and as determined by reference to the change.

(4) The court may include in a variation order any provision that could have been included in the contact order in respect of which the variation order is sought.
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Old 02-18-2006, 01:45 PM
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Yes, the general consensus is that the Family Law Act will greatly improve our family law system here in Alberta. Apparently, there are high hopes that just the changes in the language alone (like removing "sole custody") will help to create a less-adversarial atmosphere between parents.

LV, thank you so much for your help with the research! Not just for myself, either; time and again I see your posts with numerous links to cases and statutes, and find lots of valuable information!
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