CLIENT TALK
January, 2004
GRANDPARENTS' RIGHT OF ACCESS
TO THEIR GRANDCHILDREN
Many grandparents are quite involved with their grandchildren.
Some grandparents are even intimately involved in their day-to-day upbringing.
The issue of the legal rights of a grandparent to access to his/her
grandchild arises most often when the parents have separated and one
of them has custody of the child(ren) to the exclusion of the other.
In family law, attention is paid primarily to the circumstances of the
parents and their children. There is the presumption that the grandparents
will enjoy contact with their grandchildren when they are in the care
of their own son or daughter.
This most often affects the paternal grandparents, particularly if
the children are young. Before the separation, they may have enjoyed
contact with their grandchildren and invitations to participate in many
of the children's activities and, even, the opportunity to look after
the children for several days at a time. Afterwards, they may be, effectively,
disengaged from the lives of their grandchildren. This is particularly
so if, for any reason, their son moves away from his former home town
or is otherwise less involved in the children's lives. The grandparents
are then reliant on their good relationship with the children's mother
surviving the marriage breakdown in order to continue to enjoy a positive
and meaningful relationship with their grandchildren.
Sometimes in the aftermath of the matrimonial breakdown, there is a
distinct chilling in the relationship between the custodial parent and
the "non-custodial" grandparents. What are those grandparent's
rights in these circumstances?
The issue is approached through the Family Relations Act, and an application
can be made to Court. Sections 35(1) and 35(1.1) of the Act provide
that a Court may, on application, order that one or more persons, including
grandparents, may exercise custody over a child or have access to the
child.
In an application for such access, the Court will be guided by its
determination of the best interests of the child. The onus will be on
the applicant grandparents to demonstrate that the proposed access is
in the child's best interests.
However, the Court will pay great attention to the position of the
custodial parent. The Courts have declared themselves "reluctant"
to interfere with a custodial parent's wishes and will do so only if
satisfied that it is in the best interests of the child. It has been
held that it is not in the best interests of the child to be placed
into circumstances of real conflict between the custodial parent and
a non-parent. Generally speaking, grandparents have to accommodate themselves
to the parent's decision regarding the amount and type of access. In
the words of one Master of the Supreme Court of British Columbia:
"Unless there is a willful attempt to alienate the children
from their grandparents and to frustrate the Court Order, the Court
should not attempt to dictate to parents how much time and under what
conditions grandparents are to see their grandchildren. In having determined
that the best interests of the children are served by access to their
grandparents, it is only upon evidence that the custodial parent is
acting against those best interests by being unreasonable, that the
Court should specify access."
This is a relatively new area of the law. Fifteen years ago, such Court
applications were rare. Now they appear to be reasonably common.
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The opinion(s) expressed in this article may not be shared by the Law Corporation and is the opinion(s) of the author. This article is not intended to substitute for the advice of a lawyer. Please consult a lawyer regarding any legal issues you may have.
Shook, Wickham, Bishop & Field
906 Island Highway, Campbell River, B.C., V9W
2C3
Tel: (250) 287-8355
Fax: (250) 287-8112
Email: wickham@crlawyers.ca
