Grandparent Rights: What to do if you are being denied access to your grandchild

Relationships are complicated, and this is especially so when children are involved.

Separating parents often understand the importance of maintaining their child’s relationship to both parents. And if one parent is initially reluctant to do so, their willingness can change after speaking with a family law lawyer.

But, as most families know very well, children can have strong relationships with their extended family. And, in particular, with their grandparents. Grandparents often become de facto babysitters, cookie baking instructors, and even the the child’s first adult confidant.  And sometimes, when parents separate, grandparents get nudged out of the child’s life.

If you are a grandparent being denied access to your grandchild, is there anything that you can do? Yes, there is. However, it’s not a straightforward process.

The legislation we want to look at is The Children’s Law Act, 1997, SS 1997, c C-8.2. And, in particular, we want to look at section 6(1):

Custody or access application
6(1) Notwithstanding sections 3 to 5, on the application of a parent or other person having, in the opinion of the court, a sufficient interest, the court may, by order:
(a) grant custody of or access to a child to one or more persons;
(b) determine any aspect of the incidents of the right to custody or access; and
(c) make any additional order that the court considers necessary and proper in the circumstances.

This paragraph specifies that parents automatically have the right to apply to the court for custody or access. This right does not apply to grandparents. However, although grandparents lack the same rights parents have, courts are aware of the important role they play. Justice Abella, now with the Supreme Court of Canada, has written the following while a judge for the Ontario Court of Appeal:

A relationship with a grandparent can – and ideally should – enhance the emotional well-being of a child. Loving and nurturing relationships with members of the extended family can be important for children. When those positive relationships are imperiled arbitrarily, as can happen, for example, in the reorganization of a family following the separation of the parents, the court may intervene to protect the continuation of the benefit of the relationship….

Saskatchewan courts have agreed with this sentiment. But judges must ignore what is theoretically best for all children. Instead, their focus is always on what is best for the particular child that a particular court case is about. Not all grandparents are created equal; and so, in an effort to protect children, there are legal hoops that grandparents seeking access must jump through.

The legislation quoted above reads: “on application of a parent or other person having, in the opinion of the court, a sufficient interest”. The first step is convincing a court that you are a “person having… a sufficient interest”. Being a grandparent does not automatically make you a person of sufficient interest.

There is no way to know for certain whether a court will find that you’re a person with sufficient interest in your grandchildren. However, a judge will look at several things:

1)            The degree of your involvement in the child’s life;

2)            The length of time that you have been involved;

3)            The quality of your relationship with the child;

4)            How others perceived the relationship that you have with the child; and,

5)            Whether you provided financially for the child.

Not all the factors need to be present. In other words, even if you did not financially provide for the child, but were significantly involved with the child’s life in a different way, you may still be a person of sufficient interest.

If you are able to convince the court that you are a person of sufficient interest, then the next step is to convince the court that it is in the child’s best interests that you be granted court-ordered access.

This idea of something being “in the child’s best interests” is an important phrase. It’s sometimes said that the only test in family law is whether something is in the child’s best interest. The onus is on the grandparent to convince the court that access should be ordered. This is not an easy task.

If a custodial parent does not want to give a grandparent access, courts are instructed to only interfere reluctantly. Courts have also said that, if there is real conflict between the custodial parent and the grandparent seeking access, then the child’s best interest will rarely, if ever, be served by an access order.

In short, while grandparents can apply to the court to obtain an order for access to their grandchild, it’s not something that the court often does. By the time a court application is brought, there’s likely too much hostility between the parent and the grandparent for the court to feel comfortable making such a decision.

That said, each case is unique and is assessed on its own merits. If you are a grandparent being denied access to a grandchild, then WMCZ may be able to help you. Give us a call to book an initial consultation, and one of our family law lawyers will be able to give advice on your particular situation.

While waiting to meet with us, feel free to read through some of the recent decisions on grandparent access linked to below:

A.H. v M.N., 2016 SKQB 87 (CanLII)

Fourney v Fourney, 2016 SKQB 183 (CanLII)

CH v LK, 2013 SKQB 448 (CanLII)

S.F. v M.R.F., 2018 SKQB 21 (CanLII)

This article is of a general nature only. It is based upon laws and policies in effect as of the date published, which may change. It is not intended to be relied upon or taken as legal advice or opinion. You should consult with your lawyer to confirm the current state of the law and obtain advice specific to your situation.