Earlier this month, we wrote about significant changes brought to the Divorce Act pursuant to amendments that came into force on March 1, 2021. 

In a recent Ontario decision, the court addressed related changes to the Children’s Law Reform Act (the “Act”), which include amendments regarding parenting time, decision making and contact (formerly called “custody” and “access”). As set out below, the court noted that the best interests of the children are now more specifically defined under the Act. 

At issue before the court was whether granting the grandmother contact was in the best interests of the children.

Grandmother Seeks Contact with Grandchildren

The parents, who no longer live together, have two children, born in 2012 and 2014. The mother has custody of the children.

The children’s maternal grandmother applied to court seeking contact with the children on a defined basis.

The grandmother submitted that before her contact with the children was arbitrarily ended by the mother, they had enjoyed a very fruitful and intensive relationship with her. She argued that it was best for the children that the parents be required by court order to permit the children to have defined contact with her.

The parents opposed granting any contact to the grandmother other than in their discretion. They characterized the children’s past relationship with the grandmother as toxic. They submitted that it was best for the children that they have no contact with their grandmother.

Grandmother Denied Contact with Grandchildren 

Addressing the recent amendments to the Act as they applied to the case at bar, the court stated:

“As is always the case in issues engaging where children will live and who else they will have contact with the court must decide based upon what is in the best interests of the children in the context of the children’s age, experience, family and social background and all of the factors (not meant to be exhaustive but somewhat more detailed than in the past) identified by the Legislature in section 24 of the Act as recently amended. 

The amended Act has been in force for less than a month.  Guidance from other courts of initial jurisdiction, let alone on the appellate level, is largely absent.  It is apparent on the face of the newly amended Act that the Legislature has decided to direct the courts to apply a definition of “best interests of the child” that is significantly more detailed than was the case in the past.  

That Legislative direction draws a line between past determinations of what is “in the best interests of a child” (guided by statements of intent and of general principle) and the new intention to add to those principles specific areas of concern to assist the courts with an enhanced level of firmly directive guidance.

Such direction is encompassed in the wording of the new section 24 (broadly paraphrased): ss. 24 (1) (including with regard to contact) the court shall only consider the best interests of the child in accordance with this section; ss. 24 (2) all circumstances of the child are to be considered giving primary consideration to the child’s physical, emotional and psychological safety, security and well-being; and factors related to the circumstances of a child [as set out in] ss. 24 (3)…

The amended Act at ss. 24 (4), requires that the court take into account a broad spectrum of actions which come within the ambit of family violence, broadly defined.  Family violence has been given a bold new emphasis in the amended Act to underline the importance attached to that factor by the province.

The new Act makes the usefulness of older caselaw somewhat less helpful.  Now not only are former cases fact driven, but they apply the former principles of the former “best interests of the child” definition instead of the new definition referenced already.”

Applying the new best interests test, the court concluded that it was not currently in the best interests of the children to force contact with the grandmother, finding that it would threaten the children’s security and stability.

As a result, the court dismissed the grandmother’s motion.

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At Feigenbaum Law, our goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible and ensuring your children are provided for. Mark Feigenbaum is able to counsel his clients on all potential risks that may result from a family law dispute, not just those related strictly to the breakdown of a marriage. Contact Mark online or call him at (905) 695-1269 or toll-free at (877) 275-4792 to book a consultation.