Are grandparents able to get court orders for access to their grandchildren?
The answer is yes. In British Columbia, third parties (for example grandparents) can get court ordered access to children.
Section 35 of the Family Relations Act provides that grandparents of a child may apply to the court to exercise custody over a child or have access to a child.
Seciton 16 of the Divorce Act provides that the court can make an order recpecting custody or access if an application is made by a spouse, or any other person.
The new Family Law Act provides in Section 59 that the court may grant contact to any person who is not a guardian, including grandparents.
The British Columbia courts have set out some considerations in case law, for example Chapman v. Chapman to guide an analysis of what is in a child’s best interest when assessing third party access claims:
- The court should be reluctant to interfere with the custodial parent’s decision on access and should do so only if it is satisfied that it is in the child’s best interest to do so;
- It is not in the child’s best interest to be exposed to a real conflict between a custodial parent and a third party (however the court should be aware of cases where parents may be arguing there is a conflict or potential conflict to beat an access application that has merit).
It is the onus of the party seeking access to a child to show that the access they are proposing is in the best interest of the child. A court may also consider what the child thinks about access if they are old enough.
(Meet the Fockers – different grandparents = different parenting styles ~ NOTE: safe for work)
If you are a grandparent seeking acecss to your grandchild, there are some useful resources online that you can consult for free, including:
- Grandparents Raising Grandchildren: A Legal Guide;
- Supporting Grandparents Raising Grandchildren Resource Booklet;
- Legal Services Society: Grandparents’ access rights;
- JP Boyd’s Family Law Resource;
- Legal Services Society: Benefits for grandparents and other relatives raising children; and
- A caselaw summary prepared by the Department of Justice.
Interestingly, the summary of case law by the Department of Justice looks at how the courts have treated access claims by grandparents differently in circumstances where the families are “intact” and “not intact”. The Department of Justice articles summarizes their review:
The case law above seems to suggest that the courts may use their jurisdiction to maintain existing relationships between grandparents and grandchildren when the acrimony between the parents and grandparents is not so strong as to place the children in an untenable position. However, the courts are unlikely to create or establish relationships when none previously existed, against the wishes of a parent.