Grandparents' Rights in Child Custody and Parenting Matters in Alberta
Grandparent contact applications have different permission rules under Alberta's Family Law Act and the Divorce Act. Under Alberta's Act, permission is not required where the guardians are the parents and are separated or one has died, and the separation or death interrupted the grandparent's contact. Both conditions must be met.
The Alberta Route
Under Alberta's Family Law Act, the court may make an order for contact between a child and a person who is not a guardian, on the application of any person, including a guardian.
A person other than a parent, a guardian, or a person standing in the place of a parent may not apply without the court's permission, on notice to the guardians.
And here is the exemption that matters to a grandparent. A grandparent does not require permission where the guardians are the parents of the child and either the guardians are living separate and apart or one of them has died — and the grandparent's contact with the child has been interrupted by that separation or that death. Both parts are required.
Where permission is needed, the court considers the best interests of the child, including the significance of the relationship, if any, between the child and the person applying, and the necessity of an order to facilitate contact between them.
Before making a contact order, the court must satisfy itself that the contact is in the best interests of the child. That includes whether the child's physical, psychological or emotional health may be jeopardized if contact is denied, and whether the guardians' denial of contact is unreasonable.
An order made under that Act may provide for visits, or for oral, written or other communication.
The Federal Route
Where there is a divorce proceeding, the Divorce Act allows a court to make a contact order on the application of a person who is not a spouse. That person may apply only with leave of the court, unless they already obtained leave to apply for a parenting order.
In deciding whether to make the order, the court considers all relevant factors, including whether contact between the applicant and the child could otherwise occur — for example, during another person's parenting time.
There is no grandparent exemption in this route.
Two further points under that Act bear directly on a grandparent. Its list of factors for the best interests of the child expressly includes the nature and strength of the child's relationship with grandparents. And a person who has contact with a child under a contact order is required to exercise that contact in a manner consistent with the best interests of the child — a duty that attaches to the contact holder, not only to the parents.
If a Contact Order Needs to Change
Under the Divorce Act
A court may vary, rescind or suspend a contact order or any provision of one, on the application of a person to whom the order relates. Before varying it, the court must satisfy itself that there has been a change in the circumstances of the child since the order was made or last varied. Where the court varies a contact order it may also vary a parenting order to take that variation into account, and the reverse.
Under Alberta's Family Law Act
A contact order may be varied, suspended or terminated on the application of a person who has been granted contact with the child under a contact order, or of a guardian of the child.
Before it does so, the court must satisfy itself that a change in the needs or circumstances of the child has occurred since the order was made or last varied, and must then consider only the best interests of the child, as determined by reference to that change.
The court may include in the variation order any provision that could have been included in the contact order.
That Act also allows the court to make a contact order for a definite or an indefinite period, or until a specified event occurs, and to impose terms, conditions and restrictions.
The two thresholds are worded differently, and each belongs to its own Act.
Which Route Applies
Which of the two applies to a particular family depends on the proceeding that family is in. Alberta's Act states the relationship between the two regimes: its jurisdiction to make or vary a guardianship order, a parenting order or a contact order continues unless and until a court makes an interim or final parenting order under the Divorce Act, or an interim or final contact order under that Act, in divorce proceedings.
It is a question to put to a lawyer rather than to work out from the family's circumstances alone.
How a Lawyer Helps
A family lawyer can identify which route is available on your facts, advise whether the Alberta exemption applies to you, prepare an application for permission or leave where one is needed, and bring or respond to an application to make or vary a contact order.
How the best interests of the child work as the only consideration under both Acts, and how a child's own views are weighed within that, is set out in children's rights in family law.
How parenting time, decision-making responsibility and guardianship fit together across the two Acts is set out in parenting, decision-making and child custody.
Talk to THEBIL Law
Contact THEBIL Law to discuss your situation and the questions you want to address. The consultation request form can be submitted at any time, and the office makes contact to arrange a meeting.
THEBIL Law is a family law firm in Calgary at 5920 Macleod Trl SW Ste 720, Calgary, AB T2H 0K1, Canada.
Call 403-457-3128.