Do Grandparents have rights to grandchildren in Alberta?
Written by Mat Wirove, Calgary Family Lawyer
Alberta’s Family Law Act provides for some possible options for grandparents when grandparents and parents cannot agree on contact with a child. It should first be noted, that grandparents do NOT have a “right” to see, or take care of their grandchildren. Family law in Alberta does not assume that contact between grandparents and grandchildren is in the best interests of the children. The onus is on the grandparents seeking contact with a child to prove that it is the best interests of the child. In fact, that is the ultimate test in family law when it comes to who has parenting or access with children; is it in their best interests.
The second thing to be aware of is that the steps necessary are different if the children’s parents are separated or not separated. The Family Law Act only allows grandparents to apply for an order for contact if:
- The parents are the guardians of the children;
- The guardians are living separate and apart or one of the guardians has died; and
- The grandparents contact with the children has been interrupted by this separation or death.
If the parents of the children have not separated, the ability to make access application is restricted. In general, the courts believe that parents are in the best position to make decisions for their children. So, unless there is an issue with a parent’s ability to keep the children safe or it can be proven that the children are suffering without contact with their grandparents, the courts would be hesitant to interfere. Therefore, grandparents in this situation are required to make two separate family law applications. First, to get leave from the court to make an application for contact with a child; and 2) bring the contact application itself before the court. When seeking leave to make such an application the court will consider, and the grandparents must show:
- The significance of the relationship, if any, between the children and the grandparent; and
- The necessity of making an order to facilitate contact between the children and the grandparents. That is, the grandparent must show that there is no other way for contact to occur.
In the contact application itself, parents must show that:
- Contact between the child and the grandparent is in the best interests of the children;
- The children’s physical, psychological or emotional health may be jeopardized if contact between the child and the grandparent is denied; and
- The guardian’s denial of contact between the children and the grandparent is unreasonable.
The factors that the court considers for the ‘best interest of the children’ are similar outlined in s. 18 of the Alberta Family Law Act:
(1) In all proceedings under this Part except proceedings under section 20, the court shall take into consideration only the best interests of the child.
(2) In determining what is in the best interests of a child, the court shall
(a) ensure the greatest possible protection of the child’s physical, psychological and emotional safety, and
(b) consider all the child’s needs and circumstances, including
(i) the child’s physical, psychological and emotional needs, including the child’s need for stability, taking into consideration the child’s age and stage of development,
(ii) the history of care for the child,
(iii) the child’s cultural, linguistic, religious and spiritual upbringing and heritage,
(iv) the child’s views and preferences, to the extent that it is appropriate to ascertain them,
(v) any plans proposed for the child’s care and upbringing,
(vi) any family violence, including its impact on
(A) the safety of the child and other family and household members,
(B) the child’s general wellbeing,
(C) the ability of the person who engaged in the family violence to care for and meet the needs of the child, and
(D) the appropriateness of making an order that would require the guardians to cooperate on issues affecting the child,
(vii) the nature, strength and stability of the relationship
(A) between the child and each person residing in the child’s household and any other significant person in the child’s life, and
(B) between the child and each person in respect of whom an order under this Part would apply,
(viii) the ability and willingness of each person in respect of whom an order under this Part would apply
(A) to care for and meet the needs of the child, and
(B) to communicate and cooperate on issues affecting the child,
(ix) taking into consideration the views of the child’s current guardians, the benefit to the child of developing and maintaining meaningful relationships with each guardian or proposed guardian,
(x) the ability and willingness of each guardian or proposed guardian to exercise the powers, responsibilities and entitlements of guardianship, and
(xi) any civil or criminal proceedings that are relevant to the safety or wellbeing of the child.
In any family law claim, it is generally best to avoid court and to seek a mediated settlement first. If you are concerned that you might lose access to your grandchildren you should take steps to try and fix the relationship first. It is better in the long term if you can fix that relationship than having to deal with Alberta family law applications. Some steps you can take as a grandparent to try to avoid court include:
- If your child is going through a separation or divorce from their spouse, try not to develop a bad relationship with the spouse. You will likely need to deal with them in the future if there are grandchildren.
- Don’t criticize the parents in front of the children.
- Do not put any inflammatory language in emails, Facebook or text messages. These can be used against you in family court later.
- Keep notes of phone calls, visits, etc. This document could be very important if you do have to go to court.
- Try to rebuild the relationship, even if you weren’t in the wrong.
- Attempt family mediation or working with a trained psychologist parenting coordinator who is willing to hear all sides.
The Calgary family lawyers at Crossroads Law have experience dealing with grandparent access both before a separation or divorce and after. If you are estranged from your grandchildren give us a call for more information.
