Andy Hayher

two approaches to grandparent access

The issue of grandparents and access was recently revisited by the Nova Scotia Court of Appeal in Simmons v. Simmons. In this case a three year-old boy had lost his father to cancer. Prior to his death, thechild had frequent contact with his paternal grandparents. After his father’s death conflict arose between the grandparents and the child’s mother as it related to his father’s estate. The rift culminated with an argument in a lawyer’s officer where the child’s mother demanded an apology from the grandparents. Shortly thereafter the mother refused to allow the grandparents access. The grandparents brought an application for access and were granted access by the Associate Chief Justice O’Neil. The mother appealed on the basis that the Trial Judge did not give the mother’s decision making authority proper deference.

The approach that is often adopted by the court in these types of cases is the “parental autonomy approach” discussed in the Chapman decision by Madam Justice Abella (as she then was). That approach holds that absent a finding of unfitness, the child’s parent is entitled to determine what is in his/her best interests where contact with third parties, including grandparents, is concerned. In this decision the court looked at (and adopted) another approach. The Nova Scotia Court of Appeal used the “pro contact approach” which starts from the position that contact between a child and grandparent is beneficial and access should not be denied unless it can be shown to be harmful. The Trial Judge in this case found that while the mother was loving and caring, the grandparents did not pose a safety risk to the child. In fact, the Trial Judge found that the grandparents would be positive caregivers and it would be in the best interests of the child to form a relationship with the grandparents.

The Court of Appeal agreed and did not find the Trial Judge in error and found that the “parental autonomy” approach was not the only approach that a Court could consider when adjudicating grandparent access cases.