Divorce and separation can have lasting effects on many different relationships beyond just the two parties involved. Often, extended family relationships are also affected. Grandparents who had previously maintained a close relationship with their grandchild may suddenly find themselves removed from their lives. The situation is particularly common for grandparents whose children have limited parenting time. When this occurs, what options do grandparents have for maintaining or re-establishing a relationship with their grandchildren?

The Effects of Separation on Grandparents

Alberta family law recognizes that the relationship between a child and their grandparents is a special bond which is generally facilitated through the child’s parents. However, following a separation or divorce, and the outcome of any parenting arrangements, some grandparents may fear the impending loss of connection with their grandchild. Further, one parent may object to the ongoing involvement of extended families, such as grandparents, in their child’s life.

In situations where a relationship has been negatively impacted as a result of the parent’s separation or divorce, grandparents may still have options to try to maintain contact with their grandchild by bringing an application for a contact order.

Contact Orders in Alberta

A “contact order” is a court order that authorizes someone who is not the child’s parent or guardian, such as a grandparent, to enjoy time with the child. The order will set out the parameters under which the third party is allowed to contact the child and may place limitations or restrictions on contact time. For example, a contact order may stipulate that the third party can have contact with the child in-person through supervised visits, or over the phone and video calls.

A contact order does not give the third party any rights or responsibilities over the child. Further, a contact order is not an absolute right. Therefore, while an application for a contact order can be commenced following restriction of contact by the child’s parent or guardian, it is the responsibility of the courts to determine whether granting a contact order is in the child’s best interests.

Depending on the circumstances of the child’s parents, a contact order may be applied pursuant to section 35(5) of Alberta’s Family Law Act, or section 16.5 of the federal Divorce Act.

Courts will Consider the Grandparent-Grandchild Relationship but it may not be a Determining Factor

There are various factors listed in the legislation for courts to consider when determining whether a contact order is in the best interests of the child in question. However, these lists are non-exhaustive, allowing the court to consider additional relevant factors before deciding.

In some cases, a grandparent who had substantial involvement in the child’s life, even if that relationship was not strong at the time of the application, may be awarded a contact order, as was the case in Clarke v. Hancharuk.

Conversely, a grandparent may not be awarded contact time with the grandchild despite substantial involvement in the child’s life. In DLL v. CCL, the mother and child resided with the grandmother for ten months after the grandchild was born. The grandchild’s mother claimed that she did not trust the grandmother being around her or the grandchild and therefore moved out of the grandmother’s home. The grandmother claimed she had no contact with the grandchild after the move. Ultimately, the Court refused to grant a contact order as the grandparent’s relationship with the grandchild was not “significant”, due to the child’s young age and inability to “perceive, experience and even reciprocate” the relationship.

Court of Appeal Vacates Contact Order Between Grandparents and Grandchildren

The case of VW v. AT involved separated parents who both objected to ongoing contact between their children and the children’s maternal grandparents. Despite the grandparents’ previous involvement in the children’s lives, the children’s parents were uncomfortable with their views and expressions pertaining to racism, homophobia, parenting styles and discipline. Contrary to a no in-person contact order, the grandchildren maintained contact with their grandparents through social media without their parent’s consent.

The grandparents brought an application before the Court and a contact order was granted with supervised visits. However, the children’s parents successfully appealed this order and the order was vacated. As the parents, in this case, were unmarried, the Court referred to Alberta’s Family Law Act. Section 35(5) of the Family Law Act states that a court must be satisfied that granting a contact order is in the child’s best interests, and, as the Court of Appeal highlighted, whether the children’s interests would be jeopardized if such contact is denied. The Court noted that this approach puts the onus on the grandparents to provide evidence supporting the best interests analysis.

In arriving at its decision, the Court noted that section 18 of the Family Law Act provides a non-exhaustive list of factors to consider when determining the best interests of the child. However, in this case, the Court found that the parent’s argument, and parental autonomy, was paramount in these circumstances.

Contact the Calgary Family Lawyers at DBB Law for assistance with Contact Orders or Grandparents’ Rights

Located in the heart of downtown Calgary, the experienced family lawyers at Dunphy Best Blocksom LLP work closely with clients to provide legal advice and develop tailored solutions to fit each client’s unique family circumstances. When parents separate, it is generally in the children’s best interest to foster relationships with their extended family, including grandparents. While some grandparents may become integral parts of a child’s life following their parents’ divorce, in some cases, the relationship between grandchild and grandparents can quickly become strained. Therefore, it is important for grandparents to understand how to preserve their relationships and pursue a contact order.

DBB Law is recognized as a trusted and leading Calgary firm providing comprehensive legal services in various areas, including wills & estates, business & commercial, and real estate and property disputes. To speak with a lawyer regarding your family law matter, contact us at 403-2665-7777 or reach out to us online.