Vancouver Calgary Grandparents Rights Lawyers deal with cases where grandparents of children want to exercise custody, parenting time, guardianship or even child access and child contact. Our award winning Vancouver Calgary Grandparents Rights Lawyers handle these difficult cases with skill and finesse. Click here to meet with us in Vancouver, Calgary, Surrey, Richmond, Kelowna or Fort St John, BC. You can also call us toll free at 1-877-602-9900.
Vancouver Calgary Grandparents Rights Lawyers
Hannah M. DeJong, our star articled student, and part of our top choice award winner Vancouver Calgary grandparents rights lawyers writes today’s blog on an expanding area of family law.
Vancouver Calgary grandparents rights lawyers point out that during an intact relationship, most grandparents play key roles in providing love and nurturing for their grandchildren. However, on marriage or relationship breakdown grandparents may take sides or be excluded by their son or daughter in law from playing a key role anymore or even getting to see their grandchildren at all. Our Vancouver Calgary Grandparents Rights Lawyers balance parental autonomy with a concept of the benefits an extended family can provide on a child’s development. Sometimes grandparents meddle and cause problems but other times they are innocent victims along with a child of an unreasonable parent. Courts get involved when people can’t reach a solution on their own.
Click here to learn more about Calgary grandparents’ rights to their grandchildren.
Click here to learn more about BC and Vancouver grandparents’ rights to their grandchildren.
Grandparents Access vs. Parental Autonomy
What’s more important – a grandparent’s desire to have contact with a child, or a parent’s decision regarding which third parties should be allowed access to the child? This was the question before the court in a recent case in the Nova Scotia Court of Appeal, Simmons v. Simmons, 2016 NSCA 86. Our Vancouver Calgary Grandparents Rights Lawyers find the courts review of the law timely and important given the fact a child can never have too many loving family members in their lives.
New Case Explained By Vancouver Calgary Grandparents Rights Lawyers
First, the facts. This case involved the mother of a three-year-old boy who lost his father to cancer. The father’s parents, the paternal grandparents, brought a motion for access to their grandson. The relationship between the mother and the grandparents was strained. The mother did not want the grandparents to access their grandson because there had been heated arguments between them regarding the distribution of the deceased father’s estate. At the hearing, the court granted access to the grandparents after receiving written and oral evidence from both paternal grandparents, the mother, and the mother’s parents. The trial judge concluded it was in the best interests of the child that the relationship with his grandparents be fostered and nurtured, and ordered 2 hours of access every ten days. The mother appealed the decision.
The mother’s reasons for appealing, in summary, were that (1) the trial judge failed to put enough importance on her decision-making authority regrading access to her son, and (2) the trial judge made his order based on hope and speculation, instead of evidence, and a consideration of risks to the child if access were ordered.
Law On Grandparents’ Contact Explained By Vancouver Calgary Grandparent Rights Lawyers
The Court of Appeal first set out the law for grandparent’s access. Under the Nova Scotia Maintenance and Custody Act, grandparents can apply for access without first obtaining leave of the court, unlike other family members and third parties.
Vancouver Calgary Grandparents Rights Lawyers Say BC Laws Broaden Grandparent Claims
The B.C. Family Law Act contains a much broader provision allowing the court to order access, or contact, as it is called in British Columbia. Section 59(2) of the Family Law Act states, “A court may grant contact to any person who is not a guardian, including, without limiting the meaning of “person” in any other provision of this Act or a regulation made under it, to a parent or grandparent.” This means that grandparents, and other people who aren’t parents, can apply for access to children on their own, with or without the cooperation of the child’s parents.
However, in both BC and Nova Scotia, the primary consideration in determining any access application is the best interests of the child. Section 37 of the Family Law Act confirms that, as with any issue involving children in a family law dispute, the court must consider the best interest of the child in making an order for contact with a child.
The Court of Appeal then turned to the crux of the issue: how to balance the parent’s decision-making authority with the benefits the child would enjoy by having access to the grandparents? The Court of Appeal noted that his question represents the tension between two approaches to access: the “parental autonomy” and “pro contact” approaches, stating that,
“[27] In short, the parental autonomy approach favours parental decision-making and the pro contact approach favours grandparent access.”
For the parental autonomy camp, the Court of Appeal considered the case of Chapman v. Chapman, [2001] O.J. No. 705 (Ont. C.A.). There, both parents opposed court-ordered access for the paternal grandmother. They wanted her to visit their 10 and 8 year old children, but thought that they, not the grandmother, should determine when and how access should take place. The Court of Appeal reversed the order of the lower court, which had given access to the grandmother, stating,
[21] “The trial judge acknowledged that the right of Larry and Monica Chapman “to independently raise their children should not be lightly interfered with”, yet he defers that right to the speculative hope that continued imposed access to the grandmother will one day produce a positive relationship for these children. This speculation, it seems to me, is an insufficient basis for overriding the parents’ right to protect the children’s interests and determine how their needs are best met. These are loving, devoted parents committed to their children’s welfare. In the absence of any evidence that the parents are behaving in a way which demonstrates an inability to act in accordance with the best interests of their children, their right to make decisions and judgments on their children’s behalf should be respected, including decisions about whom they see, how often, and under what circumstances they see them.”
[22] Larry and Monica Chapman, not Esther Chapman, are responsible for the welfare of the children. They alone have this legal duty. Esther Chapman, as a grandparent, loves her grandchildren and, understandably, wants to maintain contact with them. Nonetheless, the right to decide the extent and nature of the contact is not hers, and neither she nor a court should be permitted to impose their perception of the children’s best interests in circumstances such as these where the parents are so demonstrably attentive to the needs of their children. The parents have, for the moment, decided that those needs do not include lengthy, frequent visits with their grandmother. Although the parents’ conflict with Esther Chapman is unfortunate, there is no evidence that this parental decision is currently detrimental to the children. It should therefore be respected by the court and the children’s best interests left in the exclusive care of their parents.
The Court of Appeal then turned to the trial decision in the case at hand, which took the pro contact approach. The Court of Appeal referred to the lower court’s reasons, which stated:
“There’s no basis for me to conclude that Ronald and Laurina Simmons [grandparents] would not be appropriate and positive caregivers for Brayden, and Nicole Simmons [mother] didn’t really, in my view, suggest that there was. She supports the child, Brayden, having a relationship with the parental grandparents.
In the letter of March 24th a proposal is made on her behalf with that in mind, so whatever negativity existed at that time it was the conclusion of Nicole Simmons that the paternal grandparents could spend time with the child. And, obviously, implicit in that is the conclusion on her part that it was in the best interest of the child that that occur.
…I’m satisfied that it is in the best interest of Brayden that he be given the opportunity to form a relationship with his paternal grandparents and that that be a meaningful opportunity. The question then becomes how that can be best achieved…
…
The Court is sensitive and is deferential to the decision-making of parents, and in this case Nicole Simmons. The Court places significant value on her role as the single parent, but in my view providing for the grandparents, the paternal grandparents, to have access does not in any significant way diminish the role of Nicole Simmons.
The Court of Appeal considered these reasons and concluded that, although the judge did not begin with and proceed from the premise that the mother had the legal right to decide when, how often, and in what circumstances, if ever, the grandparents should have access to their grandson, he did not make a mistake in law by doing so.
Our skilled Vancouver Calgary Grandparent Rights Lawyers feel there is a trend to more contact by grandparents than ever before.
When both parents are alive then one can say separate grandparent time is less crucial as they can see the grandchild on their child parenting time. Our skilled Vancouver Calgary Grandparent Rights Lawyers note however that when one parent is not seeing their child for parenting capacity issues or other reason then separate grandparent contact or grandparent access becomes more important.
Vancouver Calgary Grandparents Rights Lawyers And Impact Of Death Of One Parent
The appeal judges found that, parental deference is only one paradigm the court may consider in deciding whether to grant access, and that each case must be decided based on its own unique facts. This case was unique because the father had passed away. The judge noted the particular benefits grandparent access may have to the child where one parent has passed away:
41 “In addition, judicial deference to parental authority can be tempered by the court’s willingness to recognize benefits that extended family bring to a child whose life has been marked by the loss of a parent, such as love, support, and stability. These cases sometimes present best interest factors not apparent in cases with two living parents, including the fact that a child can know his or her deceased parent, including his or her personality, heritage, and culture, through his or her grandparents.”
Essentially, this case was different than Chapman is a number of key ways. The paternal grandparents, because of the father’s death, would serve as an important link for the grandson to that part of his family. Also, the mother in this case had expressed that she wanted her son to have a relationship with his grandparents, but what she didn’t want was the hostility and mistrust. Overall, she had a positive outlook towards the maintaining of a grandparent-grandson relationship. This made ordering access less likely to run the risk of “overriding” the parent’s decision-making authority.
Lastly, the Court of Appeal determined that the lower court’s decision was not based on hope or speculation of a positive relationship between the grandparents and the mother, and the grandparents and their grandson. Although the trial judge spoke about the grandson having an opportunity to “form a relationship” with his grandparents, he did not mean it in the sense of creating a relationship, as in Chapman, but rather the relationship growing and deepening.
Final Say By Court Explained By Vancouver Calgary Grandparents Rights Lawyers
So what are we left with? Every case is different, and as such the law has to be interpreted in light of the facts of each situation. However, this case is good news for grandparents overall, and stands for the conclusion that some degree of mistrust and hostility between grandparents and parents will not always be a good enough reason for parents to deny the grandparents access to their grandchild.
Vancouver Calgary Grandparents Rights Lawyers look forward to assisting you in this complex and emotional area of the law. Call us today at 1-877-602-9900 to create a plan that is best for grandchildren.
