In Canada, grandparents are not mentioned specifically in the federal laws that govern contact with a child. Instead, the Divorce Act gives courts the right to decide matters of custody and visitation, although Canadian law commonly uses the term "access" to refer to visitation. Under factors to be considered in granting custody and access, the law states that "only the best interests of the child" shall be considered.
Some provinces and territories have statutes that specifically... address access rights for grandparents. In those that do not specifically mention grandparents, grandparents may still petition for access just like any other interested party.
The Canadian government has provided a helpful summary of laws governing access to children, but this summary is not specific to grandparents.
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British Columbia and Grandparents' Rights
In British Columbia, grandparents are mentioned among those who may be given court-ordered access to a child. The law also states that access can be granted independently of custody and that the courts may set terms and conditions as judged to be in the best interests of the the child. In British Columbia mediation and collaborative family lawyers are promoted as ways to avoid lengthy legal battles. The Legal Services Society of British Columbia provides information about grandparents'... rights and also about what constitutes the best interests of the child. The relevant statute is the Family Relation Act [RSBC 1996] CHAPTER 128.
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Quebec's Unique Position
Quebec occupies a unique position in North American law in offering grandparents special protection. Its statutes contain this provision: "In no case may the father or mother, without a grave reason, interfere with personal relations between the child and his grandparents." This wording significantly shifts the burden of proof in family disputes. Rather than the grandparents bearing the burden of proof to overrule a parent's decision, the parents have the burden of proof to show why... grandparents should be cut off.
The law mentions not once but twice that parents must have "serious" grounds for denying grandparents access to their grandchildren. The two circumstances mentioned that would qualify as serious are if the grandparents are physically or verbally abusive to their grandchildren or if they are a bad influence on their grandchildren.
The court system is given the responsibility of governing relationships between children and grandparents in cases in which the parties involved fail to agree. The relevant statute is Article 611 of the Civil Code of Quebec.
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Grandparents' Access in Alberta
In Alberta law, there is no assumption that grandparents have a right to a relationship with grandchildren. Grandparents must show that contact is in the child's best interests. In addition, they must demonstrate that the parent's denial of contact was unreasonable and that a lack of contact with the grandparent could jeopardize the child's physical, psychological or emotional health.
Alberta's Family Law creates two routes for grandparents seeking contact with grandchildren.
If... the parents of the child in question are living separately and the grandparents' access to the child has been disrupted, the grandparents can apply for a contact order. The same applies to grandparents who have lost access as the result of the death of one of the parents.
If the family of the child in question is intact, the grandparents must go through a two-step process. First, they must obtain the leave of the court to apply for access. Once leave is granted, they must apply for a contact order.
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Ontario Grandparents' Rights of Access
For years advocates have tried to strengthen Ontario's laws with regard to grandparents' rights. In 2016 they finally succeeded with
Bill 34, Children's Law Reform Amendment Act (Relationship with Grandparents).
This act doesn't make significant changes in the law but does specify grandparents as persons who can apply for access to or custody of a child.
The law does include a list of items to be considered in determining best interest of the child. These include:
- The bonds of... affection between the child and the grandparent and also the child's bonds with other family members
- The child's preference, when it can be determined
- How long the child has lived in a stable environment
- Whether the person seeking access is willing and able to meet the child's needs
- The plan proposed by the person wanting access or custody
- The ability of the person wanting access or custody to act as a parent.
For more specific information, see the Children's Law Reform Act.Continue to 5 of 12 below.
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Access Rights for Grandparents in Manitoba
Manitoba addresses grandparents' rights in a fairly lengthy statute covering grandparents along with other individuals who might apply for access. When deciding whether visitation is in the best interests of the child, the court is directed to consider the mental, emotional and physical needs of the child. In addition, the court will consider the nature of any pre-existing relationship; and, when the applicant is a grandparent, "that a child can benefit from a positive, nurturing... relationship with a grandparent."
Manitoba law also spells out the different forms that access can take. These include time spent with the child (supervised or unsupervised), the opportunity to attend specific activities of the child and the right to exchange gifts with the child. The court can also consider the right to communicate with the child or to be supplied with pictures of the child and information about the child.
The relevant statute is the Child and Family Services Act C.C.S.M c. 80. Manitoba also has an online guide for grandparents seeking access.
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Grandparents' Access in New Brunswick
In New Brunswick, the law specifies what should be considered in determining the best interest of the child. These factors include the following:
- the mental, emotional and physical health of the child
- any care required
- the wishes of the child, when they can be determined
- the possibility that access would disrupt "the child’s sense of continuity"
- the ties that exist between the child and grandparent
- the need for a secure environment that would allow the child to reach his or her full potential
- t...he child's religious and cultural heritage.
The court is also directed to consider "the merits of any plan proposed by the Minister under which he would be caring for the child, in comparison with the merits of the child returning to or remaining with his parents." The relevant statute is the Family Services Act. c. F 2.2. See more about Custody and Access in New Brunswick from the Public Legal Education and Information Service of New Brunswick.
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Rights of Access in Nova Scotia
In 2012 the legislature of Nova Scotia amended its statute so that it specifically mentions grandparents among those who can seek access to a child. This Grandparents' Rights Affirmation Act amends the existing Maintenance and Custody Act. In 2007 the Law Reform Commission of Nova Scotia produced a report entitled Grandparent-Grandchild: Access that provides an in-depth analysis of both statutory law and case law as it applies to grandparent visitation rights.
In Nova Scotia applicants for... access must first obtain the leave of the court before they can file a suit for access. The Law Reform Commission found that this step allows for the weeding out of suits that are frivolous or lack merit. The government has spelled out other changes that are planned for the Maintenance and Custody Act.
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Grandparents' Rights in Newfoundland and Labrador
The Children's Law Act allows grandparents to sue for access to their grandchildren. Access includes not only visitation but also the right to information about a grandchild's health, education and general welfare. The court will consider whether the grandparent presents any type of danger to the child and will make its decision based on the best interests of the child. The court will consider factors such as the emotional ties between the grandchild and the grandparent, the... grandparent's ability to provide guidance and support, the stability of the child’s environment and the preferences of the child.
Additionally, the Family Justice System provides free mediation for those who request it. A Request for Services form must be filled out and signed by both parties. Those who file a suit for access without requesting mediation services may be required by the court to participate in mediation.
More information can be found on the website of the Public Legal Information Association of Newfoundland and Labrador (PLIAN).Continue to 9 of 12 below.
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Grandparents' Rights in Prince Edward Island
The laws of Prince Edward Island (PEI) contains no mention of grandparents’ rights to access and visitation with their grandchildren. Grandparents can sue, however, as can any third party who feels that they should have access to a child. When making a decision, the court will strive to protect the child's overall best interests. The court will consider whether there is an existing relationship between the child and the petitioner and whether it would be good for the child to have a... relationship with the person. The person who wants access and visitation must show the judge that such contact would be beneficial to the child.
Learn more from the Community Legal Information Association of Prince Edward Island.
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Saskatchewan and Grandparents' Access Rights
Grandparents in Saskatchewan do not have any specified right to access to their grandchildren. The court may award such access to grandparents, stepparents and other third parties in appropriate circumstances. Family members are advised to try to resolve their differences without going to court, by utilizing mediation or other means.
When making a decision in court, a judge will consider the following:
- The quality of the relationship that the child has with each party
- The personality, character and... emotional needs of the child
- The grandparent's ability to care for the child during visits
- The wishes of the child, when the judge feels it is appropriate
- Other factors relating to the best interests of the child.
The judge will not consider the past behavior of any parties to the suit unless it relates to the party's ability to care for the child.
Although they are not biological parents, before they can sue for access, grandparents must complete a class in Parenting after Separation and Divorce. The grandparents are required to notify the other parties that they must also take the class.
Saskatchewan provides a self-help kit that grandparents can utilize to file their own application for contact. Look for the kit titled Initial Application for Custody, Access, or Child Support by a Non-Parent. This kit also contains many other helpful links.
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Yukon Grandparents' Rights of Access
The Yukon statutes, contained in Children's Act, R.S.Y. 2002, c. 31, address issues of custody and access and are quite lengthy. They are very specific about what constitutes the best interests of the child, but most of the criteria are more relevant to questions of custody than of access. The Grandparents' Rights Association of the Yukon (GRAY) assists grandparents with access issues.
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Grandparents in Nunavut and the Northwest Territories
In these two territories, aboriginal people are in the majority. Their ways differ somewhat from the ways of the other Canadian provinces and even from Yukon.
Nunavut and the Northwest Territories practice a consensus form of government with no opposing parties. The justice system in Nunavut has a single level. The Northwest Territories has a more traditional, diversified court system.
Generally speaking, citizens of these territories are less likely to go to the courts to settle family matters... than are citizens of other areas of Canada. Nunavut is largely Inuit, and the Northwest Territories has a large aboriginal population, mostly First Nations and Inuit. Grandparents play important roles in these territories and are expected to step in to care for children when the parents cannot. The laws of the territories, however, do not specifically mention grandparents' rights of access to grandchildren.