The relationship between a grandparent and a grandchild can be a special and meaningful one for both parties.
However, circumstances can arise that interrupt the relationship – perhaps the child’s parents separate or get divorced, a parent becomes ill or passes away, or there is simply a disagreement between the parents and grandparents about contact with the child.
What options do grandparents have to try to re-establish contact with their grandchildren if this happens?
What is a Contact Order?
Both the Family Law Act and the Divorce Act contain procedures for seeking “contact orders”. A contact order can authorize non-parents – which included grandparents, other extended family, or even friends – to spend time with children.
There is no absolute right for grandparents to have contact with their grandchildren. If a grandparent applies for contact, the court’s sole consideration is the best interests of the child.
What is the Process to Seek a Contact Order under the Family Law Act?
An application for a contact order can be considered in any circumstance where access to the children is being limited or denied by the guardians (usually the parents). The process is available whether the child’s parents are living together or not. However, if the parents are together, the application cannot be brought without first obtaining permission of the court.
If permission is required, the court’s decision about whether to grant permission will be based on a consideration of the child’s best interests, and in particular the court will consider the significance of the relationship between the child and the grandparent, and the necessity of making an order to facilitate contact.
A grandparent’s relationship with a grandchild may be “significant” even if it is not current – for example, if it has been interrupted for some reason (CLARKE V HANCHARUK, 2016 ABCA 389). An order may be “necessary” even if some contact has been permitted in the past, especially if contact is being refused presently, or it appears likely that problems will persist (BD V SW, 2007 ABPC 95).
On the other hand, a grandparent’s relationship with the child may not be “significant”, even if there has been considerable involvement in daily care, if the child is too young to “perceive, experience, and even reciprocate in” the relationship (DLL V CCL, 2021 ABQB 283).
Note that grandparents may be exempt from the requirement to obtain permission in certain cases where the parents are not together, eg, if the parents are living apart or one of them has died, and the parental separation or death of one of them has interrupted the child’s contact with the grandparent.
APPLYING FOR A CONTACT ORDER
If permission to seek a contact order is granted, or in cases where permission is not required, the court must then determine whether contact between the grandparent and the grandchild is in the child’s best interests.
Analysis of the child’s best interests requires a court to consider a wide range of factors, which may include:
- the history of care for the child,
- the child’s cultural, linguistic, religious and spiritual upbringing and heritage,
- the child’s views and preferences,
- any family violence,
- whether the child’s physical, psychological or emotional health may be jeopardized if contact between the child and the grandparent is denied,
- whether the parents’ denial of contact is unreasonable.
Even where grandparents can show that they have had a close relationship with the grandchild, it is possible that contact may not be found to be in the child’s best interests. For example, if there is significant conflict between the grandparents and the parents which is likely to be exacerbated by a contact order, a court could consider that contact would not be to the children’s benefit (HB V AB, 2010 ABQB 279).
It is also important to note that the Family Law Act requires courts to approach the best interests analysis from the perspective of whether the child’s physical, psychological or emotional health may be jeopardized if contact with the grandparent is denied, rather than if it is allowed.
In the recent decision of VW V AT, 2022 ABCA 261, the Alberta Court of Appeal indicated that this language in the legislation places the burden of presenting evidence to support the best interests analysis on the grandparents. Essentially, to grant an order for contact between grandparents and grandchildren, a judge must find that there is “a risk of harm to the child if contact which has been found to enhance the child’s best interests is removed”. See our discussion of the VW case here.
What Kind of Order Can the Court Make?
If the court concludes that contact with a grandparent is in the child’s best interests, it will likely make a detailed order that sets a schedule and/or specific parameters for how and when contact is to occur. The court has broad discretion to decide what contact should look like.
For example, contact may mean in-person visits at designated places and times, but it could also be in the form of oral or written communication, or through media such as Facetime or Zoom. A contact order can also stipulate that it applies for a definite or indefinite period of time, or until a specified event occurs. The court may impose other terms, conditions or restrictions in connection with the order that it considers appropriate.
Contact Orders under the Divorce Act
Following amendments that came into force in March 2021, the Divorce Act now also provides the possibility for “a person other than a spouse” – which includes grandparents – to apply for a contact order (s. 16.5(1)).
As is the case under the Family Law Act, a non-spouse applying under the Divorce Act must first obtain leave of the court to bring an application for contact. However, the Divorce Act provides no exemptions to this requirement. Consequently, in some cases, it may be advantageous for grandparents to bring their application under the Family Law Act rather than the Divorce Act if they are able to benefit from the exemptions provided by the provincial statute.
The Divorce Act does not indicate specific factors that should be considered in determining whether to grant leave to bring a contact order. In particular, there is no express direction for the court to consider the significance of the relationship with the grandparents before granting leave. Given the newness of the Divorce Act provisions, it remains to be seen exactly how courts will weight that or other factors in deciding leave applications.
If leave is granted, the court must decide whether to issue a contact order, after considering “all relevant factors” affecting the best interests of the child. Under the Divorce Act, that analysis must include whether contact between the grandparent and the child could occur “during the parenting time of another person”. For example, if paternal grandparents are able to visit with the child during the father’s parenting time, a court may decline to make a contact order (KLB v SWB, 2021 BCSC 1437).
Whenever possible, it is preferrable to attempt to resolve disputes over contact with grandchildren through negotiation. However, if you are having difficulties getting to see your grandchildren, Spectrum Family Law can advise you about your options and assist you with steps you may need to take, both in and out of court.
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Allison provides a balanced approach to family law files and strives to help families in the midst of separation and divorce. She has a wealth of experience in litigation including appearing in trials, Special Chambers applications and case conferences.