Grandparents and Third Parties and Children of Separated or Divorced Parents
Do non-parents/non-guardians have a right to spend time with my child? The short answer is that it’s possible, but it must be in the child’s best interests.
A guardian of a child is generally entitled to have “parenting time” with a child, whereas a grandparent or any other third party who is not guardian of a child may be entitled to “contact” with the child.
Section 59 of the Family Law Act (British Columbia) gives the court the authority to make an order for contact with a child.
In making any orders under section 59 of the Family Law Act (British Columbia) the court must only consider the best interests of the child.
Section 37(2) of the Family Law Act (British Columbia) states that:
To determine what is in the best interest of a child, all of the child’s needs and circumstances must be considered, including the following:
(2)To determine what is in the best interests of a child, all of the child’s needs and circumstances must be considered, including the following:
(a) the child’s health and emotional well-being;
(b) the child’s views, unless it would be inappropriate to consider them;
(c) the nature and strength of the relationships between the child and significant persons in the child’s life;
(d) the history of the child’s care;
(e) the child’s need for stability, given the child’s age and stage of development;
(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;
(g) the impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member;
(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child’s needs;
(i) the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
(j) any civil or criminal proceeding relevant to the child’s safety, security or well-being.
More direction is provided on this issue in a recent decision of the British Columbia Provincial Court, D.D. v. A.C., 2017 BCPC 5, which provides some background on the jurisprudence in this issue and direction as to what is in a child’s best interest when assessing third party access claims.
Key points to take away from D.D. v. A.C. 2017 BCPC 5 are:
- Parent Autonomy – The court should be generally reluctant to interfere with the parent’s/guardian’s decision on parenting time. However, the parent’s/guardian’s views cannot trump the best interests test but may form one component of it.
- Conflict – The court should be hesitant to expose a child to real acrimony between a parent/guardian and a third party.
- Onus – The onus is on the third party to demonstrate that contact is in the child’s best interests.
- Best Interests of the Child – Ultimately, the court must consider only the best interests of the child.
Please contact our offices if you would like to discuss the possibility of obtaining an order for contact with a child.