Difference between revisions of "Children and Parenting after Separation"

==Grandparents and Other Non-Parents==

People other than a child's biological parents can also have a legal interest in a child. Typically, these people are a child's blood relatives — grandparents, aunts, uncles and so forth — although there's no reason at all why someone else, like an unrelated long-term caregiver, couldn't also have an interest in a child. Most often, however, it's grandparents who feel the need to seek a legal role in their grandchildren's lives. For that reason, this segment is primarily directed to grandparents, although it applies equally to other non-parents.

Grandparents and other non-parents normally become involved in law suits dealing with children, as parties in their own right, in only a few situations:

getting access to the children;

supervising the parenting of the children; or,

getting custody of the children.

A. Legislation

Two laws might apply to non-parents seeking custody or access to children. Where the children's parents are already in court about the children, that will be either the Divorce Act (where the parents are or were married) or the Family Relations Act. If the parents are not involved in court proceedings between each other, it will be the Family Relations Act.

1. The Divorce Act

According to s. 16(1) of the federal Divorce Act, the court can make an order for access and custody on the application of a parent or "any other person." Section 16(3), however, says that an "other person" must get the court's permission before bringing on such an application.

Since we're talking about the Divorce Act, litigation must have already started between married spouses or formerly married spouses before the grandparents can step in; there must be an existing law suit in which the application is brought. A grandparent cannot start an action under the Divorce Act, since the act only applies to disputes between married spouses. Grandparents must ask the court for permission to be "joined" to the existing action.

If there is no action between the parents under the Divorce Act, grandparents can leap into the fray by applying under the Family Relations Act, whether the parents are fighting about things in court or not.

The provincial Family Relations Act speaks of "persons" who may exercise custody, guardianship or access, not of "parents" or "spouses." This means that anyone can seeks custody, guardianship and access to a child, not just the child's biological parents. In fact, s. 35(1.1) of the act expressly states that "persons" includes "parents, grandparents, other relatives of the child and persons who are not relatives of the child." The Family Relations Act is a lot more permissive than the Divorce Act, and non-parents do not need to get the court's permission before bringing an application.

The same principles apply to the rules about child support. Those sections also speak of "persons" rather than "parents" or "spouses." A person who has custody of a child can apply for child support, regardless of whether the person making the application is a parent or not.

Actions for custody, guardianship, access and child support can be brought by grandparents and other non-parents under the Family Relations Act in either the Supreme Court or the Provincial (Family) Court. It is not necessary to wait until the parents have started proceedings themselves before the application is made.

When a child's parents are involved in a family law proceeding between themselves, s. 18(2) of the Family Relations Act allows grandparents and other non-parents to apply to court for leave to "intervene" in the matter. People who are granted standing as intervenors in a proceeding have the right to present argument to the court, to say why the court should or shouldn't make a particular order. In most cases, intervenors aren't asking for an order for themselves, they're just arguing a particular point of a view about what the court should do in the case.

There is a strong presumption in favour of the natural or adoptive parents of the children. The court will generally be inclined to allow the children to remain with their parent or parents unless a strong case can be shown that the parents are neglectful and that the children are suffering in their care. To quote from a 1992 case of the British Columbia Supreme Court, J.R. v. D.W.:

"Parental claims will not lightly be set aside except in clear cases where the welfare of the child cannot otherwise be achieved."

"The law no longer treats children as the property of those who gave them birth but focuses on what is in their best interests."

Nevertheless, grandparents and other non-parents seeking custody will face a difficult challenge, especially where both parents are still in the picture, even if they have been actively involved in caring for the children themselves. Since actual, concrete harm must usually be shown before grandparents are awarded custody, it can be critical to gather as much documentary evidence as possible. Some helpful sources include: police records; the records of social workers involved with the children; files from the Ministry for Children and Families; and, a psychologist's report.

ill-treatment, mistreatment and neglect of the children;

chronic drug or alcohol use, a partying type of lifestyle;

instability of the parent's lifestyle and living situation;

abandonment of the children by the parents, or an existing status quo in which the non-parent is primarily responsible for the care of the children; and,

poor parenting skills on the part of the biological parent.

Grandparents and other non-parents should not be too discouraged by the generally pessimistic tone of this segment. There are quite a few cases in which grandparents have been awarded custody of their grandchildren; it is possible to succeed on a custody application, although the chances of success depend wholly on the circumstances of each case.

There is a big difference between seeking custody and seeking access. In custody cases, the courts are concerned with the fundamental living arrangements and health and welfare of the children. In access cases, the parent usually has custody, and the court is being asked to challenge the parent's right to control his or her child's upbringing. As a result, the court will place an even greater emphasis on the discretion and judgment of the parent.

Grandparents and other non-parents do not have a presumptive right of access to children under either the Divorce Act or the Family Relations Act, but they can ask the court to make an order giving them access to their grandchildren. The 1993 Supreme Court of British Colmbia case of Chapman v. Chapman sets out the general rules governing applications for access by non-parents.

The burden is on the non-parent to show that the proposed access is in the child's best interests.

The child's parents have a significant role and the court should be slow to interfere with the parents' discretion, and should only do so when satisfied that the access is in the child's best interests.

It is not in the child's best interests to be placed in circumstances of conflict between parents and non-parents, and access should not be given where it would only escalate the conflict between the parties.

Non-parents may also have to demonstrate that they offer some positive benefit to the child before access will be allowed, and they must demonstrate that the child's time with them will be in the child's best interests. Normally, grandparents and other non-parents are allowed only the amount of access that the parents will agree to.

Where both parents are still in the picture, the court will usually require that grandparental access occur during the time that their child has the grandchild. In otherwords, maternal grandparents will usually have access, if the court makes the order at all, during the mother's time with the child.

Where only one parent is in the picture, the court will usually determine what access the grandparents ought to have independently of the interests of the grandparent's child.

When a non-parent obtains custody of a child, or even just the child's primary residence without an express order regarding custody, that person can apply for child support against the biological parents of the child. The same rules will apply to a non-parent's application for child support as apply to a parent's application, except that grandparents and other non-parents can only apply for child support under the Family Relations Act, they cannot apply under the Divorce Act. See the section Child Support for more information on this topic generally.