What grandparents can do to maintain a connection to their grandchildren during their children’s divorce
Families experience falling outs for different reasons, but sometimes it is a grandparent may unwillingly lose contact with their grandchildren. When considering contact orders between persons that are not a guardian – whether that be grandparents, siblings, cousins, family friends – the court will always look at the ultimate – the best interest of the child.
It is important to note that grandparents do not have an automatic rights to see or care for their grandchildren. Alberta’s Family Law Act (FLA) does not assume that it is in the child’s best interest to have contact with their grandparents. Alberta is however one of the provinces that allows for a contact order, which is available to those who are not guardians of the child. The act puts an onus on the grandparent to prove that contact is in the best interest of the child in the circumstance, this may present a unique set of hurdles that the grandparents do not realise.
There are different steps for grandparents to take whether or not the child’s parents are separated.
If the parents are not separated, it becomes increasingly difficult to establish a contact order. The courts believe that parents are best to make decisions for their children. Unless there is an issue with a parent’s ability to keep the child safe or can be proven that the children are suffering without grandparent contact, the courts are hesitant to intervene. The grandparent may want to consider other dispute resolution mechanisms to repair the relationship with their family to ultimately have time with their grandchildren, such as mediation.
Recent amendments to the Divorce Act saw significant changes relating to grandparents, or close family members, and their ability to gain contact orders during a divorce. The Court has the authority to grant contact orders so that grandparents, or other persons who are not a parent but play an important role in the child’s life, will be able to remain within the child’s life during the high conflict divorce if it is in the child’s best interest.
Here are the steps to take to receive a Contact Order (s.35 FLA)
- Get Court permission (leave) to make an application for contact with a child, after notice to the guardians (typically the child’s parents)
- Bring the contact application itself before the court.
A grandparent does not require the permission of the court to make an application under his section if:
- The guardians are the parents of the child and
- The guardians are living separate and apart, or
- One of the guardians has died, and
- The grandparents contact with the child has been interrupted by
- The separation of the guardians, or
- The death of the guardians
In the contact application itself, parents must show that:
- Contact between the child and the grandparent is in the best interests of the children (s.18 of the Alberta Family Law Act);
- The children’s physical, psychological or emotional health may be jeopardized if contact between the child and the grandparent is denied; and
- The guardian’s denial of contact between the children and the grandparent is unreasonable.
If contact is granted with the grandparent, it may come in different shapes. Contact could be in person, by phone, electronic or written communication.
When dealing with family, avoiding court is always preferred. Try to seek alternative dispute resolution processes and remember what matters is the best interest of the child. If you are a grandparent and want to remain in your grandchildren’s life amidst your children’s high conflict divorce, here some helpful tips: do not develop a bad relationship with either parent, don’t criticize the parents in front of the children, be mindful of emails and text messages as these can be used against you in court, keep notes of visits and the relationship you have developed, always keep the children’s interest at the forefront, and do not take sides.