By Danielle Cable
Generally, the relationship between grandparents and their grandchildren is facilitated by the parents of those grandchildren, and a grandparent’s involvement in a child’s life will be subject to the discretion of the child’s parents. However, grandparents are sometimes motivated to seek court intervention in the grandparent-grandchild relationship.
This may occur where there is conflict between one or both parents and the grandparent that poses a barrier to the grandparent’s relationship with their grandchild, where one or both parents are out of the picture or have passed away, and/or where a child protection agency has become involved with a family and children are placed in the care of their grandparent(s) or another person on a long-term or permanent basis as result.
Like so many questions falling under the umbrella of family law, when grandparents seek court intervention to deal with issues relating to their grandchildren, the outcome will be based on what arrangements are in the best interests of the specific child who is subject to the proceeding. However, there are a number of steps required before a grandparent or grandparents can expect to have a court application for grandparents’ rights heard and determined in court.
The specifics will come down to what legislation applies: 1) the Parenting and Support Act of Nova Scotia, if you are a grandparent filing an application unrelated to any past or ongoing divorce process; or 2) the federal Divorce Act if the parents of the child or children central to the matter have divorced or a divorce application has been filed but not yet concluded. In either case, the grandparent applicants may be required to seek and acquire “leave” of the Court (meaning, permission) in order for their application to be considered.
Under the Parenting and Support Act, grandparents can apply to the Supreme Court Family Division for an order for contact time, interaction or “any other matter the Court considers appropriate” relating to their grandchildren without first seeking permission from the Court to do so.1 If they seek an order for rights to a grandchild child beyond those, such as the right to travel with their grandchildren or the authority to make or be involved in significant decisions for them, leave will be required.
In proceedings under the Divorce Act, the Court may only grant orders providing for contact time, decision-making responsibility, and other rights and obligations between non-spouses (including grandparents) and the children of divorcing parents if the applicant has established leave.2
Leave will only be granted if the judge determines that it is to the children’s benefit for the application to be considered. The factors the judge must analyze overlap with the criteria that must be considered in any other “best interests” analysis.3
This article is intended to provide general information only and should not be considered legal advice. If you would like more information about the legal topics addressed in it, or about any other legal topic, you should consult a lawyer and are welcome to contact us.
1 PSA s. 18(1) and (2)
2 Divorce Act s. 16.1(3)
3 Spence v Stillwell, 2017 NSSC 152 citing MacLeod v. Theriault, 2008 NSCA 16 and C.G. v. M.G., 1995 CanLII 4158 (NS SC) (Gray v. Gray)
