While the right of a parent to spend time with their child after a separation or divorce is governed by an agreement or court order with respect to parenting time, non-parents must use a different process to request access to a child. If a non-parent wishes to obtain a court order granting them a right to see their grandchild, for example, they must apply to a court for a contact order. Grandparents are common applicants for a contact order, especially those who may have been estranged from a grandchild by the custodial parent following a high-conflict divorce or separation.

To successfully apply for a contact order, the applicant must demonstrate it is in the child’s best interests to have contact with the applicant. When considering such an application, a court will look at a number of factors, including the applicant’s relationship with the child, any issues which could affect the child’s safety. However, a recent Alberta decision has shown that the child’s age may play a role in the likelihood of success for a contact order application.

Contact Order Requirements for Grandparents in Alberta

Contact order requests are governed by the Alberta Family Law Act. According to section 35(3), a grandparent may bring an application for a contact order without obtaining permission from the court under the following circumstances:

  1. The child’s guardians are also the child’s parents; and
    1. The guardians are separated or divorced, or
    2. One of the guardians has died; and
  2. The grandparent’s contact with the child has been disrupted as a result of the separation, divorce, or death of the guardian(s).

If the parents of the child are not separated or divorced and are both living, a grandparent who has been denied access may still bring an application for a contact order, however, they must obtain the court’s permission first.

When considering whether to grant a contact order, a court will look at several factors, including:

  • Whether the contact would be in the best interests of the child;
  • Any potential impact on the child’s physical, mental or emotional health if the contact order is denied;
  • The necessity of an order to facilitate contact between the applicant and the child;
  • The significance of the relationship between the applicant and the child; and
  • The reasonableness of the guardian’s denial of contact between the child and grandparent.

Significance of the Relationship Determined in Part by the Child’s Age

In a recent decision, a maternal grandmother in Alberta wished to apply for a contact order to see her granddaughter. The child’s mother, the applicant’s daughter, had been the one to deny contact to her mother. While the child’s parents were separated, the court determined that the separation was not the cause for the denial of contact. As a result, the Court required the grandmother to obtain the Court’s permission before bringing the application.

At the time of the hearing, the child was 18 months old. When the child was born, the parents lived with the grandmother, and the grandmother was closely involved in her granddaughter’s life. She regularly helped out with the child’s day-to-day care. The mother didn’t dispute this, however, she said she never felt safe, or fully trusted her mother around her child. The parents moved out of the grandmother’s home when the child was 10 months old.

A few months later, the mother cut off all contact between the grandmother and grandchild, and the grandmother sought the court’s leave to apply for a contact order.

In considering the request for leave, the court focused on two factors specifically. First, the Court determined that an order would be necessary to facilitate contact between the applicant and her grandchild. Second, the Court turned to examine the significance of the child’s relationship with her grandmother.

Ultimately, while the Court found that the grandmother had made a concerted effort to see her granddaughter and clearly the contact was important to her, there was no significant relationship from the child’s perspective. Specifically, because of the child’s young age when she had contact with her grandmother, she had not formed a bond with the woman, and their previous relationship was unlikely to have a significant impact on the child’s life. In the Court’s words:

Given the age of the child here at last close-in contact (ten months) and at last contact (fourteen months) and the absence of evidence (expert or otherwise) about the particular impact (i.e. the importance) of the relationship to the child, and given that the Legislature requires more than the hope of a significant relationship and has not deemed that a grandparent-grandchild relationship is automatically to be regarded as significant, I cannot find the required significance here.

The Hope of a Significant Relationship is Not Enough

This case shows that, while a grandparent may feel a strong connection to their grandchild inherently, more will be required to establish that relationship in the context of a contact order request. To satisfy the legislative requirement, there has to be more than the chance of a future relationship. The relationship and connection must already be established, from the child’s point of view.

In the case at hand, since the child was so young when she had regular contact with her grandmother, there was little to no impact on the child once her mother cut off contact. This case does not establish a specific age cutoff for when a significant relationship could be established, but it would seem a court will require a child to be older than an infant when they last had contact with the applicant.

Contact Mincher Koeman for Dedicated and Skilled Custody, Access, and Contact Representation

At Mincher Koeman, we practice family law exclusively. Our divorce lawyers have represented clients in all types of parenting and contact matters, ranging from amicable to high conflict. We will provide each client with a full picture of their rights and obligations, and provide experienced advocacy in court if necessary. 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 lawyer, contact our firm by calling us at 403-910-3000 or by contacting us online.

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