Conflicts between parents over custody and parenting time are a well-known and common consequence of separation and divorce. But what legal options do grandparents and other family members have when they find themselves cut off from their minor relatives? In Alberta, grandparents and other relatives do not have any guaranteed rights to see a child. However, there are legal steps that relatives can pursue if an agreement cannot be reached directly with the parents or guardians.
A Court order allowing someone, other than the child’s parent or guardian, to spend time with a child is referred to as a ‘contact’ order. Applications to the Court for a contact order are most frequently used when the parents of the child have separated and one parent has custody. They are also used if one parent has died and contact between the remaining parent and the deceased’s family has broken off. Contact order requests can be for face-to-face visits with the child at specified times, as well as for written and oral communication.
Grandparents and stepparents can apply directly to the Court for a contact order if the child’s parents have separated. For a contact order to be granted, the Court must be convinced that contact between the relative and child is in the child’s best interest. To reach a decision, the Court will consider the “physical, psychological or emotional health” of the child and the benefits of the relationship. Courts often look favourably on granting contact orders when a strong relationship between relative and child existed prior to the forced end of contact.
When applying to the Court for contact, relatives will be required to specify:
• Why they believe contact with the child will be in the child’s best interest
• Why they believe the denial of contact is unreasonable
• Any other information that supports their application
In some cases, grandparents are denied access to see their grandchildren when the parents are still together. In these situations, grandparents hoping to apply for a contact order must first receive ‘leave’ (or permission) from the Court. These cases can be challenging, as the Court’s starting point will be that the parents know what is best for the child. In the 2017 Alberta Provincial Court ruling in Carty v. Boucher (2017 ABPC 318), a grandmother was seeking permission from the Court to apply for a contact order to see her daughter’s four children. The court ruled against the grandmother’s request, stating:
“…it is not in the best interest of the children to grant leave for a lawsuit that will expose them to animosity between their parents and their grandparent, deprive their family of money which could be used for the benefit of the family, including the children, and probably prove to be emotionally draining.”
Aunt and uncles and other relatives hoping to spend time with their young relatives must also apply for ‘leave’ from the Court before they can apply for a contact order.
If you are a grandparent or other relative hoping to gain, or re-gain contact with a minor relative, or if you are the parent of a child that is responding to such an application, the experienced family law team at SVR Lawyers is here to assist.