Category:
Mental Health

ON - Legal Issues and Costs Associated with Becoming a Custodial Grandparent

Click here for printable PDF Tool

Is My Patient At Risk For Depression?

National Guidelines for Seniors Mental Health: Part 2:2.1.1

Predisposing Factors

  • Female
  • Widowed or divorced
  • Previous depression history
  • Brain changes due to vascular problems
  • Major physical and chronic disabling illnesses
  • Medications or Polypharmacy
  • Excessive alcohol use
  • Social disadvantage & low social support
  • Caregiver for person with a major disease (e.g. dementia)
  • Personality type (e.g., relationship or dependence problems)

Precipitating Factors

  • Recent bereavement
  • Move from home to other places (e.g. nursing home)
  • Adverse life events (e.g., losses, separation, financial crisis)
  • Chronic stress with declining health, family or marital problems
  • Social isolation
  • Persistent sleep difficulties

“So anyhow, we got full custody, and been raising her ever  since. Last year when she turned 18, we said what do you want  for your birthday? And she said she wants us to adopt her.  And she’s doing amazing.”

Taking custody of your grandchildren can be complicated. Custodial  grandparents do not have automatic rights to legal help when seeking  custody of their grandchildren.

This pamphlet can assist you to better understand your rights in this  important matter and make choices that make sense for you and your family.

What you need to know:

As a custodial grandparent,you are not automatically granted the same  legal support that is afforded to child protection bodies or to biological  parents. Custodial grandparents are viewed legally as third parties, and  do not benefit from this same level of financial and legal support.

This pamphlet will provide you with information about legal issues that  face custodial grandparents, and resources that can help you in your  particular circumstances.

Custodial Arrangement Options

You may ultimately choose to adopt your grandchild, or to take legal  custody of your grandchild. Adoption and legal custody can have  different impacts on your ongoing right to raise your grandchildren, and  your ability to get financial assistance.

Because adoption and legal custody can change your rights to financial  assistance and impact decisions you make around raising your  grandchildren, it is important to consider both options carefully. To make  sure you are making the right choice in your situation,get legal advice.

About ADOPTION

Adoption and grandparent rights

  • Adoption ensures that your grandchildren will not be taken away from  you. Custody is permanent in cases of adoption.
  • When you adopt your grandchildren, you become their legal parent,  even if you are their grandparent.
  • Adoption allows you to make all legal decisions for your grandchildren,  the same as you would if you were their biological parent.
  • Adoption may be a lengthy, expensive, and complicated process. If  you think adoption might be the best route for you and your family,  get legal advice.

Adoption and financial assistance

  • When you adopt your grandchildren, the government no longer has  to provide you with most forms of financial support or assistance.
  • If the child was a Crown ward you may be eligible to receive some  assistance for services such as psychological counseling, based on  the child’s specific needs.

About LEGAL CUSTODY

Legal custody and grandparent rights:

  • Legal custody of your grandchildren may be temporary or indefinite.  The children live with you but are not your children under the law,  and can live with you as long as you have custody. The children are  considered wards of the court.
  • Legal custody lasts as long as your order of custody does. You  may need to obtain more than one order of custody to have your  grandchildren stay with you long-term.
  • Having legal custody gives you the right to make legal decisions for  your grandchildren.
  • Your grandchildren can be included on medical insurance and travel  with you outside the country.

Legal Issues and Costs Associated with becoming a Custodial Grandparent

How do I get legal custody?

  • You may either get custody of your grandchildren: By seeking custody through the courts as you would in a divorce  proceeding, or, At the request of your local Children’s Aid Society (CAS), if the CAS  (or in some cases, the courts) determine that your grandchildren’s  parents are not taking care of them.
  • If CAS asks to you to take custody of your grandchild, you should ask  them to provide you with as much help as possible with getting legal  custody. Your grandchild’s caseworker may be able to provide you with  support (or help you find support) that will sharply reduce or eliminate  your legal costs.
  • Taking custody of your grandchildren can be costly, both personally  and financially. Be sure to ask CAS what kinds of financial or in-kind  assistance they can offer you. Don’t be afraid to tell them that you  may need additional support, particularly if your grandchildren have  special needs or disability-related needs. CAS may be able to help  with many of the short-term and long-term personal and legal costs  associated with taking custody of your grandchildren.
  • You have some time to consider how you might be able to care for  your grandchildren.
  • Don’t feel rushed. You may wish to talk over your decision  with relatives. You don’t have to agree to take custody of your  grandchildren. You don’t have to decide immediately.
  • Because custody arrangements are not permanent, your  grandchildren’s parents can challenge your legal custody any time. A  judge may decide the parents are capable of parenting again. In that  situation, you would no longer have custody of your grandchildren.

Legal custody and financial assistance:

  • Having legal custody means you may lose monthly foster payments. If  taking custody will cause financial hardship for you, it is worth talking  with your caseworker to see if they can help you secure financial  support for your grandchildren.
  • You may be eligible for other kinds of governmental support  depending on your particular situation. You can find more information  about financial support here: [pocket tool uri]

What do I need to know before I go to court?

  • Matters of custody are dealt with in Family Court. Before your court date,  it can be very helpful to get advice from a person who practices family  law (a lawyer or paralegal).
  • You may be able to use a duty counsel lawyer to help you in court. This  will depend on your income and your circumstances.
  • Advice from Family Court staff is also available at certain times. Staff  can explain procedural issues, like filling out forms, but cannot act for  you as a lawyer would.
  • The forms you will need to prepare for court are available online or at  any family law court.
  • Free information about family law issues, resources, and court procedures  is also available at each courthouse where family law is practiced.
  • If you do not have a lawyer, a free guide on how to represent  yourself at Family Court is available on the Internet at:  http://www.ontariocourts.ca/oci/files/guides/guide family.pdf
  • Many Family Courts in Ontario have mediation services available.  Mediation is a voluntary process by which a trained and neutral  mediator helps the family come to an agreement together. Both sides  have to agree to try mediation.
  • If mediation is unsuccessful, the information discussed cannot be  used in any subsequent legal proceedings, except in very limited  cases. If mediation is successful, both sides sign a mediation  agreement. Mediation can be an effective and low-cost way to reach  an agreement, but it is strongly recommended to seek legal advice  before trying mediation.

Legal Aid in Ontario

You may require the services of a lawyer to obtain or keep custody of  your grandchildren, or to adopt them. If you cannot pay for a lawyer,  Legal Aid may be able to help. In Ontario, Legal Aid is provided by right  to the child’s parents, but not to grandparents. If you wish to change or  maintain a legal living arrangement related to your grandchildren, you  may need to pay for some or all of the legal costs, depending on whether  your income qualifies you for legal aid, and what kind of legal aid you  may be eligible for.

  • You will have to complete an ‘eligibility test’ at the Legal Aid office  closest to you to determine if you qualify for legal aid.
  • You may qualify either for duty counsel, which provides more limited  help and does not assist you with your case from beginning to end, or  for Ontario’s certificate program, which will provide more extensive  assistance. You may be able to pay a small monthly fee to access the  certificate program.
  • The test for legal aid will ask you about the nature of your legal  problem and your ability to pay for a lawyer.
  • Your ability to pay for a lawyer is decided by your assets, income and  expenses.
  • Only those with the lowest incomes will be able to get all their legal  costs paid.
  • Legal aid may be able to arrange loans and/or subsidies for those with  slightly higher incomes.
  • For Legal Aid information,   https://www.legalaid.on.ca

Lawyer Referral Service

  • If you are having a hard time finding a lawyer, referral services can be used to help find lawyers which can take on your case
  • Before you talk to a lawyer ask about the cost of a consultation
  • Also, ask for a printed copy of the cost of each of the legal services they will provide
  • The Lawyer Referral Service of the Law Society of Upper Canada (Ontario) https://lso.ca/public-resources/finding-a-lawyer-or-paralegal
  • Canlaw - A free online referral service that can find lawyers anywhere in Canada https://canlaw.com/

Where can I get more information about Custody  and Family Law?

  • Community Legal Education Ontario https://www.cleonet.ca offers free online  information about Family Law, as well as community legal clinics.

For updated information on:

  • Financial resources
  • Legal information & resources
  • Resources for children with special needs
  • Support groups
  • Other issues facing grandparent caregivers

Visit https://www.cangrands.com

You should not rely on this pocket tool for financial or legal advice. It provides general information only. NICE is not responsible for any use of the information other than for general educational/informational purposes and no claim can be made against NICE or any of its personnel for any such use.
National Initiative for the Care of the Elderly (NICE)
246 Bloor Street West, Room 234
Toronto, Ontario M5S 1V4, Canada