When parents divorce, it is presumed that each parent will be entitled to parenting time and decision-making authority with respect to their child unless it is determined that this would not be in the child’s best interests. Parents who wish to apply for, or change their current parenting time order, may bring an application in court to make this request.
However, it is not just parents who may wish to spend time with their children. Third parties who are unable to have contact with a child in their lives, usually due to a decision by the child’s parents, may apply for a contact order. Generally, a request for a contact order will be made by family members who are not the child’s parents, such as grandparents, aunts, uncles, or others close to the family. However, it is important to note that most parties will need permission from the court to bring an application, with the exception of grandparents, who may do so by right under s. 35(3) of the Family Law Act, if the parents of the child are separated or one parent has died.
Contact orders will be granted when a court agrees it is in the child’s best interests. The onus to demonstrate this lies with the applicant, who must show that the child would be harmed if the order is not granted. The question of onus was central in a recent decision of the Alberta Court of Appeal in which the parents appealed a decision to grant a contact order to their children’s maternal grandparents. The parents claimed that the grandparents’ views about parenting and other issues, such as race and homosexuality, were harmful to their children and had refused contact. They claimed the contact order was granted in error and wanted it set aside.
In VW v. AT, the children’s parents married in 2012 and separated in 2020. They shared two children and had been co-parenting both children after the separation. The mother had a strained relationship with her parents, owing to their alleged “racist, sexist, classist, anti-Semitic and homophobic beliefs.” This was of particular concern due to the fact that the mother had entered into a same-sex relationship post-separation, which her parents repeatedly criticized. In addition, both parents disagreed with the grandparent’s views on parenting and claimed the grandparents were frequently critical of their children’s behaviour. Both children were neurodivergent, living with attention deficit hyperactivity disorder, and the oldest child had also been diagnosed with autism.
The parents had made several attempts to set boundaries with the maternal grandparents with respect to how they spoke in front of the children but said the grandparents ignored their wishes. The parents became concerned that the children were beginning to suffer from low self-esteem as a result of spending time with the grandparents, and they eventually terminated all contact in October 2018. They later found that the grandparents had been communicating with the older child via social media without their knowledge in 2019 and 2020.
In May 2020, the parents sent an email to the grandparents asking them not to have any contact with the children and setting out steps the grandparents would need to take in order for the parents to allow contact to resume. These steps included the grandparents demonstrating the following to the parents:
Within a few weeks of sending the email, the mother saw her father outside her home and reported it to the police. The grandfather, who lived over three hours away, told police he had travelled to his daughter’s home to ensure his grandchildren were safe.
Nearly one year after the mother reported the grandfather to the police, the grandparents brought an application for a contact order. The chamber’s judge granted the request, allowing for supervised contact between the grandparents and the children, and the parents appealed. In the interim, the parents were granted a contact order.
The chamber’s judge’s initial reasoning for granting the supervised contact was that it was in the children’s best interests to maintain their relationships with their grandparents despite the intergenerational conflict between the parents and grandparents. The judge noted that while unsupervised access could be harmful to the children’s wellbeing, it would be unreasonable to deny supervised access monitored by an independent third party. She also ordered the grandparents to refrain from making negative comments about their parents’ life choices and avoid controversial topics such as race or sexuality.
In their appeal, the parents claimed that the chamber’s judge had misapplied the test for granting a contact order set out in s. 35(5) of the Family Law Act and had erred by failing to show deference to the parents’ autonomy to decide whether or not the grandparents could spend time with their children.
Under s. 35(5) of the provincial Family Law Act, a contact order will be granted where the applicant(s) can demonstrate the following:
Notably, a contact order will only grant access between the applicant and the child in question and does not bestow any authority over the child’s life to the applicant.
As applied to the facts of the case, the Alberta Court of Appeal found that the chamber’s judge had misapplied the test. Rather than examining whether a denial of contact would be harmful to the children’s best interests, she instead looked at whether granting the contact would cause harm to the children. The judge reversed the onus of the test, asking the parents to demonstrate the potential for harm rather than the grandparents.
The Court of Appeal did also consider the nature of “parental autonomy” and found that while the wishes of a child’s guardian(s) are one of several factors in determining a child’s best interests, there is nothing in the legislation giving this factor priority. As a result, the Court found that the chamber’s judge did not err in this regard. However, the misapplication of the test for a contact order was sufficient for the Court to set aside the contact order. The grandparents were free to bring another application for a contact order in the future.
At Mincher Koeman, we practice family law exclusively. Our divorce lawyers have represented clients in all types of matters regarding decision-making ability and parenting time, ranging from amicable to high conflict. We will provide each client with a full picture of their rights and obligations with respect to the care of their child or children and provide experienced advocacy in court if necessary. We also regularly work with clients on issues pertaining to child guardianship and contact. We have built our practice to ensure that each client receives first-rate client service and will always be sure to steer clients towards the most efficient resolution of their matter, keeping costs down whenever possible. To discuss your matter with a family lawyer, contact our firm by calling us at 403-910-3000 or by contacting us online.
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