Do grandparents have rights in BC? For example, are grandparents in BC able to get a court order for access to their grandchildren? The answer is yes. In BC, grandparents are among those who may be given court-ordered access to a child. Section 59(2) of the Family Law Act, SBC 2011, c. 25 discusses orders respecting contact with a child and gives grandparents the right to apply to court for access to grandchildren:
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.
In all access cases, the overarching test is the best interests of the child. So in essence, when deciding if an access order should be made, the court will determine whether the grandparent-grandchild relationship is good for the child.
Parental authority: Do grandparents have rights in BC when child’s parent opposes access?
If a child’s parent decides that they do not want the grandparents to have access, are the courts bound by the parent’s decision? The answer is no. Parental decisions and views are entitled to a level of deference by the courts, but denial or restriction of access is subordinate to the overarching test of whether access is in the child’s best interests. Consideration of the views and wishes of the child’s parents and grandparents is only relevant if it informs the court on the best interests of the child.
Do grandparents have rights? A recent decision of the courts
A recent decision will help to illustrate the court’s analysis where parental decision-making authority is balanced against grandparents’ wish for access. The Simmons v. Simmons, 2016 NSCA 86 case revolves around a child named Brayden, who was just 15 months old when his father died of cancer. Prior to his father’s death in March 2015, Brayden’s paternal grandparents would visit Brayden on a weekly basis. After his father’s death, estate issues led to a dispute between Brayden’s mother and his paternal grandparents, and their relationship became strained. Brayden’s mother refused to allow the grandparents to visit with Brayden until they apologized.
In December 2015, Brayden’s paternal grandparents brought a motion for access to their grandson. After their motion was filed, the parties met and Brayden’s mother agreed to allow limited visits, which resumed, and by all accounts, went well. Brayden’s mother then put forward an offer of settlement which proposed two 1.5 hour visits every four weeks for three months, followed by mediation. The grandparents wanted longer visits, but Brayden’s mother would not agree, so the motion for access went before the court.
On July 29, 2016 the court made an order granting the grandparents access which was to increase gradually over a period of four months, followed by day-long visits every second weekend. Brayden’s mother appealed that order, arguing that the court failed to give proper deference to her decision-making authority regarding access to the child. She argued that, absent a finding of unfitness, she as the child’s mother is entitled to determine what is in his best interests where contact with third parties, including grandparents, is concerned. The Court of Appeal dismissed her appeal and upheld the access order.
Parental autonomy vs. pro-contact approaches
The essence of the mother’s argument tracks the first of two competing approaches to grandparent access:
- The “parental autonomy” approach is based on the premise that parents have the legal responsibility and the right to make decisions with respect to with whom their child will associate, how often, and in what circumstances. In the absence of a finding of parental unfitness, or harm flowing from the lack of access, the court has no right to interfere with parents’ proper decision making authority.
- The “pro-contact” approach tends to proceed from the premise that generally, contact between a child and their grandparent is beneficial, and therefore access should not be denied unless it can be shown to be harmful.
In short, the parental autonomy approach favours parental decision-making and the pro-contact approach favours grandparent access.
Best interests of the child are the paramount consideration
The Court of Appeal in Simmons considered the two approaches and determined that it was not bound by any particular paradigm of grandparent access in its analysis of the best interests of the child, which is the paramount consideration and the only test to be applied in such applications. The court may consider parental autonomy, pro-contact or other paradigms, portions of any of them or none of them in its analysis, so long as it takes into consideration the particular circumstance of the child. In Simmons the judge concluded that it was in the best interests of Brayden that the relationship with his grandparents be fostered and nurtured. As such, denial or restriction of access by the mother was subordinate to the overarching test of whether access was in the child’s best interests.
What are factors that may support grandparent access?
Here are the relevant factors in Simmons that led to the conclusion that an access order was consistent with the child’s best interests:
- The order was not wrongly based on hope or speculation that access would resolve the tension between the parties or to try to build a relationship. Here, a relationship between Brayden and the grandparents already existed and was a warm one. While the father was alive, they saw each other regularly, at least once a week.
- There was no evidence that the grandparents posed a risk to the safety of Brayden.
- After the grandparents’ motion was filed, Brayden’s mother agreed to visitation (albeit on a more restricted basis than the grandparents desired). This implied that whatever negativity existed at the time, Brayden’s mother was of the view that spending time with the grandparents was in Brayden’s best interests.
- While there was mistrust, there was no hostility in the relationship between the mother and the grandparents. Had the court determined that it was hostile and the conflict so strong as to make access not beneficial and potentially harmful, that would have been a consideration against access.
- In this case, there were 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. Judicial deference to parental authority was 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.
While those were the relevant factors in Simmons, each case coming before the court will be determined sui generis; that is, on its own unique facts and the particular circumstance of the child.
Take home point: Do grandparents have rights in BC?
In all access cases, the overarching test is the best interests of the child. Parental decisions and views are entitled to a level of deference, but ultimately, consideration of the views and wishes of parents and grandparents is only relevant if it informs the court on the best interests of the child. If you have questions about grandparents’ rights in BC, contact Onyx Law Group’s team of experienced family law lawyers at (604) 900-2538.