By Nick Kunysz
Separation and divorce do not only affect children and parents. Grandparents often play an important role in the lives of their grandchildren and can be directly affected when their children divorce. Numerous studies have shown that grandparents often provide much-needed stability and support to grandchildren in a divorce situation (Dench & Ogg, 2002; Silverstein, Giarusso, and Bengston, 2003; Jappens and Van Bavel, 2016; Jappens, 2018; Ferguson et al., 2004). However, when there is a breakdown of a relationship between the parents of children, grandparents can often find themselves caught in the middle of conflict between divorcing parents or even cut off from contact with their grandchildren. In extreme situations grandparents may also find themselves confronted by concerns about health, safety and welfare of their grandchildren.
Alberta family law provides some options for grandparents seeking to preserve access to their grandchildren and look out of their best interests.
First, it is important to realize that grandparents in Alberta do not have an automatic right to see or have contact with their grandchildren. In general, courts normally presume that the parents and guardians of a child are in the best position to decide whom the child should be allowed to see. However, grandparents who have had contact with their grandchildren cut off by a parent or parents can in certain situations have a court direct contact to be re-established. In such situations, the ability of a grandparent to apply for a court order giving them contact with their grandchild depends on whether the parents are separated or not.
Grandparent Contact Following the Separation or Death of a Parent
According to the Family Law Act, a grandparent may directly apply for contact with a grandchild if:
- The parents are the child’s legal guardians;
- The guardians are living separate and apart OR one of the guardians has died; and
- The grandparent’s contact with the child has been interrupted by this separation or death.
In other words, if the separation of the parents, or the death of one of the parents has resulted in a situation where the grandparents’ contact with their grandchild was cut off, then grandparents may apply directly to the courts for contact to be reestablished. If you are a grandparent, this means that the situations in which you are most likely able to apply directly for contact with your grandchild are when the parent that is your child has either died or no longer has custody of your grandchild, and the other parent is denying you contact.
When deciding whether to order contact to be re-established, the courts will consider whether re-establishing contact is in the best interests of the child. The court will consider a wide variety of potential factors in deciding whether contact with a grandparent is in the child’s best interests, with the main considerations being:
- The reasonableness of the parents’ refusal to allow contact;
- Whether the grandchild’s physical, psychological or emotional health will be jeopardized by the lack of grandparent contact;
- Whether the grandchild wishes to have contact with their grandparent, particularly if the grandchild is 12 years of age or older.
If a parent’s denial of contact with a grandparent is unreasonable and harmful to the child’s wellbeing, Alberta courts may order contact to be re-established, such as was done in the Provincial Court of Alberta case JLC v JLL. A major consideration for the courts is how strong a grandparent’s relationship was with the grandchild before contact was cut off, including how often a grandparent regularly saw the grandchild.
However, the courts are often very sensitive to the danger of conflict between a parent and grandparent harming a child’s emotional well-being. In such cases courts will often refuse to grant grandparent access. In the case of HB v AB the court refused to grant a grandmother contact due to high conflict between her and the mother, even though the grandmother applying for contact had previously had played a primary parenting role in helping raise the children and had previously enjoyed a significant relationship with the children.
Grandparent Contact Without the Separation or Death of A Parent
If the reason that a grandparent’s contact has been cut off is not due to the separation or the death of a parent, such as a situation where both parents are denying access (whether or not they are separated), then grandparents must take an extra step to have contact reestablished through the courts. According to the Family Law Act, the grandparent in this situation must first obtain the court’s permission to apply for contact. When considering whether to grant permission to apply for contact, the court will consider two main factors:
- The significance of the relationship between the grandchild and the grandparent. According to the Provincial Court of Alberta in DB v WS, “significant” relationship is one where there is already an established and positive relationship between the grandchild and grandparent.
- The necessity of making an order to facilitate the contact. If a grandparent is able to have contact with the grandchild without a court order, such as through the cooperation of one of the grandchild’s guardians, then the court will not grant permission to apply directly for contact.
If a court agreed to grant a grandparent permission to apply, this does not mean that the court will order that contact be reestablished. It only means that the grandparent may now ask the court to reestablish contact. The grandparent must still satisfy the court that it is in the grandchild’s best interests to have contact with the grandparent based on the considerations mentioned earlier in this article. These are two separate steps, and success on the first step does not guarantee success on the second. Be warned that when both parental guardians are opposing contact with a grandparent, courts are often quite hesitant to grant an order for contact.
Other Options – Being Granted Custody
If a grandparent is seriously concerned that their grandchild’s health, safety and well-being are compromised, and that their current parental guardian is unfit to care for the grandchild, he or she may bring an application to be granted custody over the grandchild. A grandparent being granted custody of a child is an exceptional option that tends to be granted in extreme situations where the guardian of the child is truly unable to properly take care of the child, or has placed the child at risk of serious harm.
Although this information provides a general outline on the rights of grandparents in Alberta, the courts recognize that each case is different and that there are many complex factors to be considered in an individual situation. In order to fully understand the rights of a grandparent in your situation, it is important to speak to a family lawyer.