What the Alberta Family Law Act Says
Written by Mat Wirove, Senior Family Lawyer at Crossroads Law, Calgary
Navigating the legal complexities of grandparent rights in Alberta can be a challenging and emotionally taxing process. The Alberta Family Law Act does provide specific provisions for grandparents seeking contact when disagreements arise with parents or other guardians, but it's not as straightforward as one might assume. While the law does not recognize an inherent right for grandparents to see or take care of their grandchildren, it does outline potential pathways for establishing contact under certain circumstances. This blog aims to provide a clear and comprehensive overview of the law, outlining the conditions, steps, and considerations that grandparents must be aware of, whether the children's parents are separated or not.
When Can Grandparents Apply for Contact?
Firstly, it is important to understand that grandparents do not have a “right” to see or take care of their grandchildren - the law does not assume that contact with a grandparent is in the best interest of the children. Therefore, the onus is on the grandparent seeking contact to bring an application, showing the contact is in the child’s best interests.
The second thing to be aware of is that the necessary steps differ depending on whether the children's parents are separated or not. The Family Law Act allows grandparents to apply for an order for contact only if:
- The parents are the guardians of the children;
- The guardians are living separate and apart or one of the guardians has died; and
- The grandparents contact with the children has been interrupted by this separation or death.
If the parents of the children in question have not separated, access to the grandchildren becomes more restricted. In general, the court takes the opinion that parents are in the best position to make decisions for their children. So, unless there is an issue with the parent’s abilities or it can be proven that the children are suffering without contact with their grandparents, the courts would be hesitant to interfere.
Applying for Contact with Grandchildren
If grandparents wish to seek contact, they must make two separate applications to the courts:
1. Seeking leave to apply for contact – this preliminary application must be made by the grandparents who must prove:
a. there is a significant relationship (or the potential for one) between the children and the grandparent; and
b. a court order is necessary to enable contact, meaning there's no other way for the grandchildren and grandparents to connect.
2. Filing the contact application – if leave is granted, grandparents can then file the contact application itself and must show:
a. Contact between the child and the grandparent is in the best interest of the children;
b. The children’s physical, psychological, or emotional health may be jeopardized if contact between the child and the grandparent is denied; and
c. The guardian’s denial of contact between the children and the grandparent is unreasonable.
Court Factors for the Best Interests of the Children
When determining what aligns with the 'best interest of the children,' the court's considerations are governed by Section 18 of the Alberta Family Law Act. This section is aimed at ensuring the child's well-being and outlines a multi-faceted approach that includes physical, psychological, and emotional aspects. The specific provisions encompassed in Section 18 are as follows:
18 (1) In all proceedings under this Part except proceedings under section 20, the court shall take into consideration only the best interests of the child.
(2) In determining what is in the best interests of a child, the court shall:
A: ensure the greatest possible protection of the child’s physical, psychological and emotional safety, and
B: consider all the child’s needs and circumstances, including:
i. the child’s physical, psychological and emotional needs, including the child’s need for stability, taking into consideration the child’s age and stage of development,
ii. the history of care for the child,
iii. the child’s cultural, linguistic, religious and spiritual upbringing and heritage,
iv. the child’s views and preferences, to the extent that it is appropriate to ascertain them,
v. any plans proposed for the child’s care and upbringing,
vi. any family violence, including its impact on:
a) the safety of the child and other family and household members,
b) the child’s general wellbeing,
c) the ability of the person who engaged in the family violence to care for and meet the needs of the child, and
d) the appropriateness of making an order that would require the guardians to cooperate on issues affecting the child,
vii. the nature, strength and stability of the relationship
a) between the child and each person residing in the child’s household and any other significant person in the child’s life, and
b) between the child and each person in respect of whom an order under this Part would apply,
viii. the ability and willingness of each person in respect of whom an order under this Part would apply:
a) to care for and meet the needs of the child, and
b) to communicate and cooperate on issues affecting the child,
ix. taking into consideration the views of the child’s current guardians, the benefit to the child of developing and maintaining meaningful relationships with each guardian or proposed guardian,
x. the ability and willingness of each guardian or proposed guardian to exercise the powers, responsibilities and entitlements of guardianship, and
xi. any civil or criminal proceedings that are relevant to the safety or wellbeing of the child.
Alternate Dispute Resolution
Generally, it is best to avoid court whenever possible. If you are concerned that you might lose access to your grandchildren, take steps immediately to try and fix the relationship first. It is better in the long term if you can fix the relationship rather than having to deal with court orders. Some steps you can take to avoid court are:
- If your child is going through a separation from their spouse, and you have a good relationship with either of them, focus on maintaining and building that connection. Offer advice only when asked and avoid getting involved in any arguments;
- Avoid taking sides and don’t criticize the parents - especially in front of the children;
- Contact a support group;
- If you become estranged, make sure to keep detailed notes of phone calls, visits, and other interactions. These records could prove to be very important if you find yourself needing to go to court;
- Try to rebuild the relationship, even if you weren’t in the wrong; and
- Attempt mediation or working with a trained psychologist who is willing to hear all sides.
If you are unable to fix the relationship, then it’s best to get some legal advice. Our team of experienced paralegals and legal coaches at Coach My Case are well-versed in the intricacies of the Alberta Family Law Act, particularly when it comes to grandparent rights and the complex legal pathways for obtaining contact with grandchildren. We can assist with applications, court orders, mediation efforts, and provide valuable legal advice tailored to your unique family situation. If you have questions or need more information about grandparent rights, contact us today for a free 20-minute consultation.
