Q&A By John T. Syrtash, Associate,
Garfin Zeidenberg LLP, a Toronto family law lawyer for the past 38 years
Question: Two years ago, I spent four months in a shelter with my small children because of the violent behavior of my ex-husband. I now have full custody of the children and a restraining order against him. He has no access to the children, but an obligation to pay spousal and child support. Then he left Canada. He’s now back and has sponsored his father to come to Canada. His father has now asked the Family Court for access to his grandchildren on a regular basis. My children have never seen him before. Will the grandfather get access despite the fact that his son, my ex-husband, owes us a large sum, hasn’t lived in Canada and is denied seeing the children and myself?
Answer: Any person can, in theory, apply for access to the child if it is in the child’s best interests. This usually applies to “psychological” parents, relatives, or grandparents who the child has grown up with and who the child is accustomed to seeing. Courts are anxious not to disrupt a child’s emotional development if a child has developed an emotionally stable bond with a particular individual that nurtures his or her development, so long as it does not interfere in the normal rights of the child’s parents to raise the child.
In Ontario, however, the Ontario Court of Appeal has taken the side of parents against grandparents whenever they have crossed paths over the question of a “right” of access by a grandparent to a child where such a relationship does not exist. In this particular situation, if properly argued, I doubt that the Court would allow the children to see a grandparent who they had never met.
The Court might suspect that his court application was merely a backdoor ruse to permit the father to see the child. The failure to pay child support is rarely used by a Judge to stop access to a child since access to one’s parent is a right of the child. But having left Canada is somewhat important, and Dad’s violent behaviour is key. The Court won’t likely ignore it.
John Syrtash is an associate and family law lawyer with the Toronto firm of GARFIN ZEIDENBERG LLP.
Neither GARFIN ZEIDENBERG LLP nor John Syrtash is liable for any consequences arising from anyone’s reliance on this material, presented as general information and not as a legal opinion.
John T. Syrtash,
GARFIN ZEIDENBERG LLP
5255 Yonge Street, Suite 800
Toronto, Ontario, Canada M2N 6P4
Cell: (416) 886-0359
Fax: (416) 512-9992
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