Access By Grandparents To Grandchildren

By Pushor Mitchell LLP
Categories: Blog, Family Law
One of the issues that arises from time to time as an unfortunate result of separation and divorce in families is whether or not grandparents are entitled to continue relationships with their grandchildren.
 
Typically, in a divorce proceeding, parents are fighting about custody, guardianship and access in respect of their minor children.  The Family Relations Act of British Columbia, provides, however, that on application, the Court may order that one or more persons may exercise custody over a child or have access to the child.  “Persons” includes parents, grandparents, other relatives of the child and persons who are not relatives of the child.  “Access” is the legal term used in the Act for “visitation”.  The Act also provides that an Order for custody or access may include terms and conditions the Court considers necessary and reasonable in the best interests of the child.  The onus is on the person applying for access to show that the access requested is in the child’s best interests.
 
When trying to decide what is in the best interests of a child, the Court generally looks at the following factors:
 
  • The health and emotional well-being of the child, including any special needs for care and treatment;
  • If appropriate, the views of the child;
  • The love, affection and similar ties that exist between the child and other persons;
  • Education and training for the child; and
  • The capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise those rights and duties adequately.
Courts have been cautious in their approach, however, to applications brought by grandparents.  In the 1985 B.C. Supreme Court decision of Milne v Milne, which was subsequently upheld on appeal, the Court found that although the grandparents of a three year old child previously had a strong connection to their grandchild, once the parents’ relationship broke down, the “unhappy differences” that the mother of the child had with her ex-husband’s parents would turn access visits into unhappy occurrences which would be harmful to the child, and disruptive to the relationship between the mother and the child.  Accordingly, access to the grandparents was denied by the Court.
 
In the 1993 B.C. Supreme Court decision of Chapman v Chapman, the Court said that in looking at an application for access by a grandparent, it must be mindful of the following factors:
 
  • The onus is on the applicant (grandparent) to demonstrate that the proposed access is in the child’s best interests;
  • The custodial parent has a significant role.  The Courts should be reluctant to interfere with a custodial parent’s decision and should do so only if satisfied that it is in the child’s best interests; and
  • It is not in the best interests of a child to be placed into circumstances of real conflict between the custodial parent and a non–parent.  While the Court must be vigilant to prevent custodial parents from alleging imagined or hypothetical conflicts as a basis for denying access to non-parents, in cases of real conflict and hostility, the child’s best interests will rarely, if ever, be well served by granting access.
The Judge did note in Chapman v Chapman, however, that the Court should be wary of custodial parents who advance the argument of conflict or potential conflict for the purpose of defeating an otherwise worthy application for access by a non-parent.
 
For more information on this topic, or to discuss the consequences of a breakdown of marriage, or relationship, contact Pushor Mitchell Lawyers.