The issue of a grandparent’s right to have time with their grandchildren was recently explored by the Alberta Court of Appeal in VW v AT, 2022 ABCA 261. Often, when couples separate they enter into parenting plans for their children. During the drafting of these agreements (or orders), grandparents time with the kids can go unconsidered. The focus between separating spouses is primarily on how much time each parent will have with the children, and the respective rights and obligations each party will have with respect to their own children. Grandparents who may have previously held close ties to their grandchildren, may find their time greatly diminished.
Grandparents do have the ability to apply for a court order for contact to their grandchildren. Further, they can do so against the wishes of the parents of the children, and this is the most normal situation in which these types of applications arise. The process involves applying to the court for what is known as a Contact Order under the Family Law Act, and there are specific requirements for bringing such an application that were previously stated in a previous article on this blog.
It is important to note that when applying for a Contact Order the court primarily considers the best interests of the child. So, although grandparents have the ability to bring an application, they must also meet the burden of establishing that their request for contact with the children is in their best interests.
Both parents in the VW v AT case were in opposition of the grandparents having access to the children. The parents disagreed with the grandparents racist, sexist, classist, anti-Semitic and homophobic beliefs, as well as their parenting methods. The children, however, wanted a relationship with the grandparents. The grandparents applied for a contact order as a result.
Originally the grandparents were granted a Contact Order. However, the parents appealed this decision and were successful. The court cited the following as the test for granting a contact order:
Section 35(5) of the FLA provides that before granting a contact order, the court must be satisfied that contact is in the child’s best interests, and the section specifically directs courts to consider whether:
- the child’s physical, psychological or emotional health may be jeopardized if contact between the child and the person for whom contact with the child is proposed is denied, and
- the guardians’ denial of contact […] is unreasonable.
Although this section is not new, the lower court had applied the test improperly when they originally granted the grandparents a contact order. The judge considered whether the children’s best interests would be jeopardized if contact was permitted. VW v AT clarified that the test is in fact the opposite, the burden is on the grandparents to establish that if contact was denied, then the children’s best interest would be jeopardized… that is the physical, psychological or emotional health of the children would suffer. Thus, the Court of Appeal made in clear in placing the evidential burden on the grandparents to make their case as to how it is in the children’s best interest that they are present in the children’s life and how they will be effected if contact is withheld – it is not on the parents to prove that the grandparents are jeopardizing the best interests of the children, and the opinions of the parents are only one of many considerations when it comes to the ‘best interests’ of the child.
By Quinn Miller
Note: This article provides general commentary and is in no way intended to replace the need to consult with a legal professional concerning the specific circumstances of your situation. This article should not be construed or relied upon as legal advice.
