I love watching my boys participate in pretty much anything, including, sports, play, board games, concerts etc. I think about how old I’ll be when they might have kids and then I just wonder – will I be around long enough to be able to sit by the boards and watch a granddaughter or grandson play hockey. That thought always hits me hard as my children’s grandfather died shortly after his first grandchild was born and he didn’t enjoy the pleasure of being with his six grandchildren. Of late, though, I’ve had to wrestle with some tough emotions in a few matters – what if I was told by my own son or daughter-in-law that I couldn’t watch my grandchild; that I couldn’t take them out for a drink or a walk after a game or a party?

The Ontario Court of Appeal set out the leading grandparents access case in Chapman v. Chapman and Chapman 2001 CanLII 24015. Judith Holzman, a fine advocate and adversary, won the day, for her clients, the parents, namely Dr and Mrs. Chapman. Justice Abella, now a Judge with the Supreme Court of Canada, gave the reasons for the Court of Appeal. The salient portions of the Judgment read as follows:

“A relationship with a grandparent can – and ideally should – enhance the emotional well-being of a child. Loving and nurturing relationships with members of the extended family can be important for children. When those positive relationships are imperiled arbitrarily, as can happen, for example, in the reorganization of a family following the separation of the parents, the court may intervene to protect the continuation of the benefit of the relationship “
“The trial judge acknowledged that the right of Larry and Monica Chapman “to independently raise their children should not be lightly interfered with”, yet he defers that right to the speculative hope that continued imposed access to the grandmother will one day produce a positive relationship for these children. This speculation, it seems to me, is an insufficient basis for overriding the parents’ right to protect the children’s interests and determine how their needs are best met. These are loving, devoted parents committed to their children’s welfare. In the absence of any evidence that the parents are behaving in a way which demonstrates an inability to act in accordance with the best interests of their children, their right to make decisions and judgments on their children’s behalf should be respected, including decisions about whom they see, how often, and under what circumstances they see them.”

“Larry and Monica Chapman, not Esther Chapman, are responsible for the welfare of the children. They alone have this legal duty. Esther Chapman, as a grandparent, loves her grandchildren and, understandably, wants to maintain contact with them. Nonetheless, the right to decide the extent and nature of the contact is not hers, and neither she nor a court should be permitted to impose their perception of the children’s best interests in circumstances such as these where the parents are so demonstrably attentive to the needs of their children. The parents have, for the moment, decided that those needs do not include lengthy, frequent visits with their grandmother. Although the parents’ conflict with Esther Chapman is unfortunate, there is no evidence that this parental decision is currently detrimental to the children. It should therefore be respected by the court and the children’s best interests left in the exclusive care of their parents.”

For grandparents, it is important to be aware of the following factual findings as well as the evidence of the assessor:

1. The grandparent, Mrs. Chapman, was a strong willed woman who was used to having her own way, although she was not capable of caring for her grandchildren on her own;

2. The parents, Dr. & Mrs. Chapman were highly dedicated and loving parents;

3. The parents and children were a well-functioning family and the children had a very strong attachment to their parents; and

4. The children had negative feelings towards their paternal grandmother;.

Mrs. Chapman requested 10 visits a year and the trial judge ordered at least six, over a period of 44 hours not including travel time. The Court of Appeal overturned the trial decision and dismissed the application, thereby permitting the parents to decide the nature and frequency of access.

Since the Appeal decision, Ontario Courts have interpreted the case such that trial judges should generally defer to a parent’s decision about grandparent access unless all three of the following questions are answered in the affirmative:

1. Does a positive grandparent-grandchild relationship already exist?

2. Has the parent’s decision imperiled the positive grandparent-grandchild relationship?

3. Has the parent acted arbitrarily?

Our review of the case law suggests that the toughest part of the test is the last. What would be an arbitrary decision? What would justify not allowing a grandparent see his or her grandchild?

We know that each case in family law is to be decided on its own unique set of facts and that for custody and access cases, the viewpoint is always from the child’s perspective. It’s partially about the wishes of the child, depending upon the maturity level, but it is quite rightly mostly from the view of what is in the best interests of the child.

From a legal perspective, I have to keep in mind that it is not what’s best for the grandparent or the parent, but as a parent and hopefully a future grandparent, I can’t help but thinking about the emotional challenges for a grandparent that cannot see their grandchild. What must they have done?

The Chapman case was just plain bad facts for Mrs. Chapman. A fair inference seems to be that Mrs. Chapman wasn’t particularly liked by her son and/or daughter-in-law and that affected their children’s views. She expressed her views although she wasn’t very close to the family. She did not see her grandchildren to any great extent (i.e. six times per year at best and three times of near the date of trial) and she did not see them alone; rather, she saw them with their parents. She also was not able to care for them alone. As well, and according to an assessor, the family was intact, and the parties remained together and not apart; the children were strongly attached to their parents, both of whom were professionals, the father a doctor and the wife, a musician.

Awful facts for Mrs. Chapman and an bad precedent for all grandparents to follow. The test that has arisen out of Chapman hasn’t made it an easy for grandparents that have followed.

What are better facts? A pre-existing relationship between a grandparent and a grandchild that does not depend on holiday gatherings, but a grandparent that has spent time caring for a grandchild on a routine, periodic basis. A strong attachment between grandparent and grandchild helps as well. A grandchildren whose parents are separated and do not get along and an absent parent make a request for access more likely to be granted.

For grandparents, I don’t mean to suggest that grandparents should tip toe around, but certainly don’t impose your will of your son-in-law or daughter-in-law. Don’t express your opinions; keep them to yourself. Don’t have expectations, but enjoy the time you get with your grandchildren. Don’t let your relationship be dependent on your child and in-law. Recognize that life is much, much busier today and parents don’t have enough time to visit all the time. Instead, buy candy; take your grandchild to a movie. Go and watch your grandchild take part in activities. Ask if you can take your grandchild for an afternoon or for a brief holiday, giving his or her parents a rest, and then be certain to give many updates and follow the agendas of mom and dad and not your own. Most of all, enjoy and support, without judgment.

I hope I can do that and I just keep hoping that my retirement year includes me, just watching and enjoying.