Family Law: Grandparents can face legal battle to see grandkids

Under the Family Law Act, the time a person (who is not a guardian) has with a child is called “contact.”

  • Oct. 10, 2015 8:00 a.m.

Monica McParland, Contributor

In British Columbia, grandparents may be surprised to know that they are not automatically entitled to spend time with their grandchildren.

This issue often surfaces in the context of a family law dispute between the children’s parents.

If the child’s parents are separated or divorced, a grandparent should normally see their grandchildren during their own child’s parenting or access time.

Problems arise when either their child will not allow this, or when their son- or daughter-in-law has sole custody and refuses to allow them to see the grandchildren.

There are two possible routes to solve this problem. If the child’s parents were married and have an existing order under the federal Divorce Act, the grandparent must apply under that act.

Alternatively, a grandparent can apply for a court order regarding the care of a child under the provincial Family Law Act.

When applying under the Divorce Act, the grandparent will be asking for an order about “custody and access.”

The grandparent will be trying to vary an existing order between the parents.

Before varying such an order, the Divorce Act requires that there has been a change in the condition, means, needs or other circumstances of the child since the making of the order.

Under the Family Law Act, the time a person (who is not a guardian) has with a child is called “contact.”

Anyone can apply for contact with a child including grandparents.

A schedule of contact can either be established by agreement between the grandparents and the child’s guardians or alternatively a schedule of contact can be set by a court order.

Agreements for contact with the grandparents are only good if they are signed by all of the child’s guardians. A person who applies for contact with a child must satisfy the court that the contact requested is “in the best interests of the child.”

The court will usually extend a great deal of respect to the wishes of the child’s guardians, and depending on the child’s age and maturity, to the wishes of the child.

Therefore, it is best to try and negotiate these matters in advance, often using the assistance of a skilled family lawyer.

Regardless of whether the application is brought pursuant to the Divorce Act or Family Law Act, the grandparent will bear the onus of proving that they have a healthy relationship with their grandchild, and should be prepared to demonstrate they played an active role in their grandchild’s life, before these difficulties arose.

In summary, a grandparent does not have an automatic right to visit his or her grandchild. If the guardians cannot agree, a court order will be required.

Whether or not a court order will be granted is largely dependent on what is in the best interests of the child.

Monica McParland is with the Pushor Mitchell law firm in Kelowna.

250-869-1220

mcparland@pushormitchell.com

 

Just Posted

Okanagan residents can win ride in army vehicle

A social media campaign offers the chance to win a ride in the Dragoons armoured vehicle

Reel Reviews: War from both sides of the desk

We say, “Forgive these films their faults and they will be entertaining enough.”

Residents should keep air intakes clear of snow

Silver Star Fire Department is encouraging residens to keep their air intakes clear after snowfall

Community Leader Awards: The Red Cross

The Kelowna Capital News honours volunteers in the community

Update: Highway 97C reopened following multi-vehicle incident

Highway 97C is closed to eastbound traffic near Pennask Summit following an incident Sunday afternon

PHOTOS: Icing the competition

Skate Canada 2018 Okanagan Regional Championships skated through Vernon this weekend

How to keep local news visible in your Facebook feed

Facebook has changed the news feed to emphasize personal connections. You might see less news.

Street Sounds: Rolling with the Stones

The Stones’ On Air is a blast from the past in every sense

Sledding revved for recovery centre

Adult and Teen Challenge BC’s Sled for Eternity returns to SilverStar Mountain Resort Feb. 24

VIDEO: Protesters rally for affordable housing ahead of B.C. budget

Residents call on province to keep locals housed

Owls soar to valley basketball title

KSS wins easily at Okanagan finals to represent valley next week at provincials in Langley

Brakemen pulling out all the stops for 2018

Kettle Valley Brakemen planning some surprises

#Metoo movement causing confusion in many men, fear of missteps with women: experts

Being painted by the same sweeping brush as those alleged to have mistreated women has angered men

Liberals to dig deeper, aim higher on gender equality in 2018 federal budget

Finance Minister Bill Morneau said the budget would include measures to boost women in the workforce

Most Read