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The rights of grandparents to see grandchildren after a divorce

By Emily Gore

Many people have fond childhood memories of time spent with their grandparents. As they get older, they look forward to being a grandparent and nurturing a relationship with their grandchildren.

But if their son or daughter goes through a divorce, access to the grandchildren may be cut off. If that happens, they have few legal remedies available to them.

Alberta’s Family Law Act sets out the rules on guardianship, parenting and contact rights pertaining to children. Nothing in the Act specifically gives grandparents a right of contact with their grandchildren since there is no assumption that children have a right to a relationship with them.

However, there are options grandparents can pursue.

A contact schedule

The easiest arrangement is for all parties to agree on a fixed schedule for the grandparents to see the grandkids, such as the first Saturday of the month. All arrangements should be in writing and signed by the guardians and grandparents in front of witnesses.

It is a good idea to seek the assistance of a lawyer when drafting this agreement. Involving a third party with a knowledge of the law can decrease conflict and ensure everyone feels they have input into what has been agreed upon.

A lawyer can also act as a mediator, especially if there is animosity between the parents and grandparents. Some lawyers work as mediators, such as Sean Schaefer and Mark Demas at Demas Schaefer Family Law.

Get a contact order

The Family Law Act allows grandparents to apply to the court for a contact order when guardians (typically parents) and grandparents cannot agree on contact with the child.

Grandparents can apply for a contact order if:

  • the guardians are the parents of the children;
  • the guardians are living separate and apart or one of the guardians has died; and
  • the grandparents’ contact with the children has been interrupted by separation or death.

If all these conditions apply, grandparents can apply to the court for a contact order. If the parents of the children are not separated, the ability to make a contact application is restricted. That is because it is generally assumed that parents are in the best position to make decisions for their children. Unless it can be shown that their ability to keep the children safe is in question or that the children are suffering without contact with their grandparents, the courts are unlikely to interfere. Before being able to bring any court application grandparents must first apply to the court for permission (called “leave”) to even bring such an application.

Factors that are considered

When deciding whether to grant the contact order, the court will weigh many factors, including:

  • The best interests of the grandchild.
  • The grandchild’s wishes.
  • The benefit of the relationship with their grandparents.
  • The grandchild’s history of care with their grandparents.
  • Any history of family violence.
  • Whether the grandparents are able to have contact with the grandchildren during their own child’s parenting time.

The court is more likely to intervene if:

  • 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.

If the order is granted, it will set out the terms governing visits between the child and the grandparent, such as the duration, timing and location. It should also include how they can communicate before and after the visit.

A provision can cover special events, such as stipulating that the grandchild is allowed a one-week cottage visit with their grandparents every summer.

The duration of the contact order might be for a fixed time or an indefinite period.

The Alberta Court of King’s Bench decision of L.O v. K.S., M.S. and D.S., 2022 ABQB 31 gives a good analysis of the considerations a court must look at in determining whether to grant contact time for grandparents with their grandchildren.

Some grandparents are unfit caregivers

If one or both parents contest the application and can show 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.

For example, a grandparent may have mental health issues or addiction problems that compromise their ability to care for children.

According to the website More Than Grand, there are many reasons why grandparents push the boundaries set by the child’s parents, thereby causing unnecessary tension. They include:

  • They believe spoiling their grandkids is their job.
  • They don’t respect the family’s child-rearing decisions.
  • They feel they have the freedom to act as they please since they are not the primary caregivers.
  • They believe their parenting methods work best.
  • They think the parents are overprotective for not allowing them enough access.

Advice for grandparents

The Centre for Public Legal Education in Alberta provides tips to grandparents worried about losing contact with their grandchildren. They include:

  • If you have a good relationship with your child and their spouse, build on that. Give advice only when asked and avoid arguments.
  • In cases of separation or divorce, do not take sides or criticize the parents, especially in front of the children.
  • If one of your grandchildren's parents is hostile, keep a record of telephone calls, personal visits and what was said.
  • Make notes of problems such as drug or alcohol abuse by the parents.
  • If you have a falling out with one of both of the parents, try rebuilding that relationship.
  • If you lose contact with your grandchildren, continue to do things for them such as sending cards and gifts or establishing a trust fund for them.

Contact us for assistance

Demas Schaefer Family Lawyers has decades of experience in providing clients with constructive and creative solutions to get through the emotional and legal challenges of divorce. That includes crafting agreements between family members on how the grandparents can play a part in the lives of their grandchildren. Contact us for a free consultation. We can represent you in seeking a contact order or help resolve the situation through mediation.

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