Grandparents can be “stability, love, and strength” not only for their children but also for their grandchildren. Unfortunately, in divorce, separation, or family controversies, grandparents may be left without the chance to spend time with their grandkids. Numerous people realize that no legal help can be offered to them to acquire guardianship or visitation rights to their grandchildren in Canada. This paper addresses grandparents’ rights under the Canadian legal system, the circumstances in which to seek custody or access, and the steps needed during the legal process.
Understanding Grandparents’ Rights Under Canadian Law
The grandparents are not automatically entitled to custody or visitation in Canada like the parents. Nevertheless, Canadian courts consider the bond between grandparents and grandchildren and, therefore, they might provide custody or access under certain circumstances. Every province and territory in Canada has a special set of family laws that govern these matters, founded on the same principles the Family Law and Divorce Act has.
Custody vs. Visitation Rights
To make it more straightforward before we go into the law, the two following terms are to be defined:
- Custody: This is the formal power given to a person to make decisions on their child’s upbringing, including health, education, and religion.
- Visitation (Access) Rights: A grandparent might have the child spend time with them; however, he/she just has no say in the decision-making process.
When Can Grandparents Apply for Custody in Canada?
Though parental custody is usually the rule, grandparents can be custodians when parents cannot. Courts may decide to give children to grandparents if:
- Both parents are dead.
- Both parents are addicted to drugs, ignore or are violent while neglecting their responsibilities.
- One parent has left the child on their own.
- Grandparents would be more suitable foster parents because such is in the child’s best interests.
Can Grandparents Obtain Visitation Rights?
On the one hand, sometimes grandparents are not after custody but are just requesting the right to visit. Visitation rights may be granted by the family courts of Canada if the judge believes it is in the best interest of the child. While some provinces have acknowledged grandparents’ rights for visitation, some others require the grandparents to seek court-ordered access if the parents are refusing them contact. You can find out more by talking to the right attorney for family law.
Provincial Laws on Grandparents’ Visitation Rights
While federal laws provide a broad framework, each province and territory has its own rules:
- Ontario: Under the Children’s Law Reform Act, grandparents can go to court to apply for custody or access if they have an existing relationship with the child, which is the child’s right.
- British Columbia: By the Family Law Act, the young person with a good relationship with his/her grandparents has the right to contact them. However, the relationship is perfect when the younger person and their grandparents decide that the relationship is essential.
- Alberta: The Family Law Act gives grandparents the right to attend to the benefit of their right to see their grandchild if they have an existing relationship with the child, and parental refusal is finding the rationale inadequate. TeamLawGroup provides family law services to guide you through matters like these in Edmonton.
The Legal Process for Grandparents Seeking Custody or Visitation
If grandparents are denied access to their grandchildren, they can take the following legal steps:
1. Attempt Mediation or Family Counseling
Through the use of parents and children’s respectful, collaborative divorce (parenting plan), parents can avoid court. After that, parents will work out and share how the children are doing, including a plan for the upcoming year.
2. Filing a Court Application
Administration contains the records of the said plaintiff/defendant.
- A strong pre-existing relationship with the child.
- Why maintaining the relationship serves the child’s best interests.
- Any negative impact caused by denial of access.
3. Court Hearing and Decision
If the parties managed to resolve the mediation successfully, the court and the counselor would make a joint recommendation to be approved by the judge and be certified as the court’s final judgment. You should have a family lawyer on board throughout the process. You can check out the average cost of family lawyers easily online.
- Grant temporary or permanent custody.
- Deny the application if it is not deemed beneficial for the child.
Challenges Grandparents May Face in Custody or Visitation Cases
It is not simple to obtain custody or access because there are several reasons for it:
- Parental Opposition: Some parents might feel they are the only ones with the final say in making all the critical decisions.
- Proving Harm to the Child: The elderly will have to enable the discovery of the damage that the child will experience if the older persons are not allowed access to the child.
- Legal Costs and Lengthy Proceedings: Family-related court cases are usually costly and, therefore, to some extent, quite time-consuming.
Alternatives to Legal Action
In case it is not necessary to take legal action, grandparents can go on with the following alternatives:
- Offering monthly expenses to the parent who is keeping the child/non-custodial parent.
- Seeking assistance from a family mediator.
- Engaging in family counseling.
Conclusion
Although grandparents don’t make an automatic cut in (the laws of) Canada that specify visitation or custody, family law acknowledges the importance of grandparents’ role in the life of their grandchild. The court needs to examine the child’s wishes and recognize the grandparents’ rights if the proper conditions are explored. Grandparents dealing with visitation access matters should attempt mediation before taking legal action. Where necessary, they can hunker down to go to court by providing substantial proof of a strong, pre-existing relationship, along with evidence of the positive impact they represent in the child’s life.
