When we talk about issues related to custody or access to children, we usually do it in the context of parents who are separated or divorced can’t agree on who should have primary or partial parenting time with the children. However, in some cases, people who aren’t a parent of a child might request access to the child, including grandparents. In a recent decision from the Court of Queen’s Bench of Alberta, a grandmother asked the court to grant her access to her granddaughter.

Mother and child move out of grandmother’s home

The child involved in the dispute was 18 months old at the time of the trial. At the time of the child’s birth, the mother lived with the grandmother and her husband. The grandmother said during this time she was actively involved in the child’s life. While the mother admits this is true, she also told the court that she did not feel safe with the grandmother, nor did she fully trust the grandmother around the child.

The mother and child moved out of the grandmother’s house in July 2020. The grandmother has not had any contact with the child since November 21, 2020.

The law around permission to seek a contact order

The court covered the law around how someone other than a child’s parent/guardian or person standing in for them can seek contact with a child. There is an exception that grandparents do not require permission to make an application in certain situations, which are if:

 (a)   the guardians are the parents of the child and

(i)   the guardians are living separate and apart, or

(ii)    one of the guardians has died,

and

(b)   the grandparent’s contact with the child has been interrupted by

(i)   the separation of the guardians, or

(ii)   the death of the guardian.

Like in all situations related to child access, the best interests of the child shall be considered by the court in making this decision.

Does the grandmother need permission to bring an application here?

In this situation, the grandmother does not qualify for the exception to seek leave to apply for access. While the first part of the test was met (the parents are living separately and apart), the second part of the test since separation or a death was not responsible for the grandmother’s losing contact with the child.

With this established, the court then considered whether the grandmother can apply for access.

The test for permission to seek access to a child

The court stated that in determining whether a grandparent can seek access, they must once again turn to the best interests of the child, specifically the significance of the relationship between the child and the grandparent.

In this case, the grandmother played a key role in the first year of the child’s life, including attending the birth of the child, and helping care for the child while they lived in the same house. She would occasionally babysit and sometimes took the child out unaccompanied by the mother.

However, there was no evidence that the children currently have an existing relationship, and if the grandmother were to no longer see the child, there would be no impact or effect on the child, which is likely the case for most children at that age.

As a result, the court could not find there to be a significant relationship, and could not allow the grandmother to continue in her question to have access to the child. However, the court did say that the grandmother appears to have much to offer the child, and that the mother may one day wish that the grandmother and child had a relationship

HMC Law’s Family lawyers have a track record of successfully negotiating and mediating claims on behalf of our clients. Although we are capable advocates in the courtroom, we know that the best outcome is more often achieved through finding a solution that is mutually beneficial to you and your ex, and in coming to that solution amicably.  For advice about child custody and access matters, contact us online or call 1-800-480-3534.