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 5:00 p.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

Comedy fundraiser for Okanagan baseball leagues

It’s a comedy and carnival night for the Okanagan College, Okanagan Athletics, and Kelowna Jr Coyotes

Two Kelowna stores work to raise funds for non-profit and the Central Okanagan Foodbank

ScanDesigns Furniture and Muse & Merchant Home Collection locations raised $20,500

Ballet Kelowna kicks off with first 2019 program, Winter

The new program comes to the Kelowna Community Theatre Feb. 1

Central Okanagan NDPers organize meeting look at BC government’s record last year

Organizers say open house at UBCO is open to people of all political persuasions

West Kelowna Warriors lose to Rivermen

It was a tight 2-1 loss in the first of a three game road trip

Vernon ringette team tops in Calgary

Also highlights from Okanagan rink action with Westside, Kelowna and Salmon Arm

47 men arrested by Vancouver police for allegedly seeking sex with teenage girls

Seven of those arrested have been charged as part of a two-month operation

B.C. hospital apologizes for veteran’s five-day hallway stay

Clinical director of Victoria General Hospital says case of retired veteran ‘definitely excessive’

Speaker Darryl Plecas says ‘justice’ needed for legislature employees

Plecas spoke to media at the opening of a pedestrian and cycling bridge in Abbotsford Wednesday

Advocate hopes B.C. legislature scandal leads to more transparency

‘Depressing’ that it takes a scandal to inspire freedom of information reform, says Sara Neuert

‘Dr. Lipjob’ avoids jail, gets 30-day suspended sentence

She will have to serve the 30 days in prison if she commits a breach during her two-year’s probation

UPDATE: Police watchdog heads to Kelowna for officer involved shooting

RCMP are surrounding the CIBC at the mall in Kelowna

Ex-Mountie involved in Taser death at Vancouver airport sues government

Kwesi Millington claims he acted in accordance with RCMP training

B.C. company fights court order to allow public access to Nicola Valley lakes

Legal battle between fish and game club, cattle firms takes another twist

Most Read