I Want To See My Grandchild!

By Monica McParland
Categories: Blog, Family Law

In British Columbia grandparents may be surprised to know that they are not automatically entitled to spend time with their grandchildren. This issue often surfaces in the context of a family law dispute between the children’s mother and father. Grandparents may be entitled to visits with the grandchildren but it’s not straightforward and a court order or an agreement may be required.

If the child’s parents are separated or divorced, a grandparent should normally see their grandchildren during their own child’s parenting or access time. Problems arise when either their child will not allow this, or when their son or daughter in law has sole custody and refuses to allow them to see the grandchildren.

There are two possible routes to solve this problem. If the child’s parents were married and have an existing order under the federal Divorce Act, the grandparent must apply under that act. Alternatively, a grandparent can apply for a Court order regarding the care of a child under the provincial Family Law Act.

When applying under the Divorce Act the grandparent will be asking for an order about “custody and access”. The grandparent will be trying to vary an existing order between the parents. Before varying such an order, the Divorce Act requires proof of a “change in circumstances”. The grandparent must show the court that there has been a change in the condition, means, needs or other circumstances of the child of the marriage since the making of the order, or the most recent variation of it, as the case may be.

Assuming a change in circumstances is established then the grandparent must show why it is in the best interests of the child for the Court to make the order he or she is seeking. However grandparents should be aware that the Court will usually extend a great deal of respect to the wishes of the child’s parents, so it is advisable to use negotiation and mediation tools in advance of any court hearing, to win the parent over.

Under the Family Law Act, the time a person (who is not a guardian) has with a child is called “contact”. Anyone can apply for contact with a child including grandparents. A schedule of contact can either be established by agreement between the grandparents and the child’s guardians or alternatively a schedule of contact can be set by a court order. Agreements for contact with the grandparents are only good if they are signed by all of the child’s guardians who have the parental responsibility of determining who can have contact with the child.

A person who applies for contact with a child must satisfy the Court that the contact requested is “in the best interests of the child”. The Court will usually extend a great deal of respect to the wishes of the child’s guardians, and depending on the child’s age and maturity, to the wishes of the child. Therefore it is best to try and negotiate these matters in advance, often using the assistance of a skilled family lawyer.

Regardless of whether the application is brought pursuant to the Divorce Act or Family Law Act, the grandparent will bear the onus of proving that they have a healthy relationship with their grandchild, and should be prepared to demonstrate they played an active role in their grandchild’s life, before these difficulties arose.

In summary, a grandparent does not have an automatic right to visit his or her grandchild. If the guardians cannot agree, a Court order will be required. Whether a Court order will be granted is largely dependent on what is in the best interests of the child.

Monica can be contacted at 250-869-1220 or mcparland@pushormitchell.com