Divorces can be tough not only on children and parents but on grandparents too.
When a couple separates, one parent may see more of the children than the other parent and it can also impact the amount of time that grandparents get to spend with their grandchildren.
While most of the custody laws focus on the rights and responsibilities of parents, Alberta’s Family Law Act does make some provisions for grandparents if there are disputes over contact with a child.
While there are no such things as grandparent “rights” to see or take care of grandchildren in Alberta, if it can be shown that such contact or care is in the best interests of the children, the family court can issue an order for contact.
So, what can you do as a grandparent who would like to see more of your grandchildren or gain guardianship over them?
Table of Contents
- How can grandparents maintain contact with grandchildren after a separation?
- What if the parents of the children are not separated?
- Factors considered for the “best interests of the children”
- Naming a grandparent as a child’s legal guardian
- Are you a grandparent going through a custody dispute in Alberta?
How can grandparents maintain contact with grandchildren after a separation?
In most cases, grandparents do not necessarily seek legal guardianship of their grandchild but simply want to spend time together and maintain contact.
If so, they can apply for a court order if the guardians are the parents of the child AND have separated OR if one parent has died and the grandparent’s contact with the child has been interrupted by this separation or death.
The courts can exercise a great deal of discretion in such matters. Providing the proposed contact is in the child’s best interests and the request is not unreasonable, the court can order contact time between a grandparent and a child.
If one or both parents contest the application and can prove that contact time between the grandparent and child is inappropriate or not in the child’s best interest, the contact order is unlikely to be granted.
What if the parents of the children are not separated?
If the children’s parents are not separated, the steps you will need to take as a grandparent will differ from those taken if they are separated.
The Family Law Act only allows grandparents to apply for an order for contact if:
- The parents are the guardians of the children
- The guardians are living separate and apart or one of the guardians has died, and
- The grandparent’s contact with the children has been interrupted by this separation or death.
Unless proven otherwise, the Alberta courts generally presume that both parents making decisions about upbringing is best for the children. If they remain living together, the courts may not intervene on behalf of a grandparent unless there are safety issues for the children in remaining with the parents or it can be shown that the lack of contact with the grandparents harms the children.
So, if the parents have not separated and grandparents are looking for court intervention, they would need to first apply for leave from the court to make an application for contact with a child and then, they would need to bring the contact application before the court.
The contact order will generally only be granted if the grandparent can show that the relationship with the child is a significant one, in the best interests of the child, AND no other course of action is available to achieve contact.
The court may be more inclined to intervene if the following is discovered:
- The children’s physical, psychological or emotional health could be jeopardized if contact between the child and the grandparent is denied, and
- The guardian’s denial of contact between the children and the grandparent is unreasonable.
Factors considered for the “best interests of the children”
A grandparent seeking contact with a grandchild must prove that the best interests of the child are served by the contact.
In fact, for any divorce or separation issues with marriages involving children, the best interests of the children are always the primary consideration for the Alberta family law courts.
Specifically, Alberta’s Family Law Act cites the following considerations as key when deciding:
- The greatest possible protection of the child’s physical, psychological and emotional safety
- The child’s needs and circumstances, including their physical, psychological and emotional needs (which will usually include the need for stability)
- The child’s age and stage of development
- The history of care for the child
- The child’s cultural, linguistic, religious and spiritual upbringing and heritage
- The child’s views and preferences (if appropriate)
- Any plans proposed for the child’s care and upbringing
- Any history of family violence, including its impact on the safety of the child and other family and household members, and the child’s general wellbeing
- The nature, strength and stability of the relationship between the child and each person in the household and any other significant person in the child’s life
- The ability and willingness of each person to care for and meet the needs of the child, and to communicate and cooperate on issues affecting the child
- Any civil or criminal proceedings that are relevant to the safety or wellbeing of the child
Naming a grandparent as a child’s legal guardian
In certain rare circumstances, the court has the power to name a grandparent as the legal guardian of a child—or parents can make a provision in their wills for that to happen.
Grandparent rights in a will
A grandparent can be named as a child’s legal guardian in a will in the event that the child’s parents pass away. The court will then usually honour this provision unless it is deemed to be contrary to the child’s best interests.
Court-mandated grandparent rights
Alberta courts may consider making an order to name a grandparent as the legal guardian to a child in specific circumstances when it is deemed in the child’s best interests.
This is most likely if the child has no guardian or a grandparent has had the care and control of the child for at least six months. It will only happen if the grandparent can demonstrate a willingness and capability to adequately look after the child’s physical, psychological and emotional development.
Before the order is finalized, the court must be satisfied that the biological parents of the child have received notice of the guardianship application (if they are alive) and consent to the order.
Are you a grandparent going through a custody dispute in Alberta?
Grandparents of children from a marriage breakup often have to watch in pain on the sidelines.
It is easier to resolve the issues when the relationship between the parents and the grandparents remains on a strong footing but this is not always the case.
If you suspect that the relationship is harming the children, you can seek legal advice from an experienced family lawyer.
At Jennings Family Law in Calgary, we can help you seek redress for losing contact with the grandchildren. We provide a free case evaluation to explore your legal options.