Do Grandparents Have Rights to See Grandchildren in Alberta?

Being cut off from a grandchild after a separation, a family conflict or a death is painful. Many grandparents want to know whether the law gives them a right to see the child, or whether they have to wait for a parent to change their mind.

In Alberta, the answer is not a simple yes or no. The law gives grandparents a way to ask a court for contact, and in some cases for guardianship, but the court looks at what is best for the child. This article explains the options in plain terms.

This article covers the law of Alberta.

Is there an automatic right to see a grandchild?

Grandparents do not have an automatic right to time with a grandchild. What the law offers is the ability to apply to a court. In Alberta, decisions about a child are tied to guardianship, not to family relationship alone. In most cases a child's parents are also the guardians.

The court's test is the child's best interests. Under the Divorce Act, the court considers only the child's best interests when making a parenting order or contact order. Alberta's guidance says a judge decides based on the child's best interests where guardians cannot agree.

Applying for a Contact Order

A person who is not a guardian, for example a grandparent, applies for a Contact Order using Claim – Family Law Act, Statement – Contact and Affidavit of Service – Applicant. A contact order sets out visits, calls or letters, and it does not give the person rights or responsibilities over the child.

If the parents are in a divorce proceeding, the Divorce Act applies instead. It lets a non-spouse such as a grandparent apply for a contact order, but the non-spouse needs the court's leave to apply, and the court must consider contact alongside any other person's parenting time. Which Act applies depends on whether a divorce action has started, so it is worth confirming your situation with a lawyer.

Guardianship: a different and bigger step

Guardianship is not the same as contact. A guardian under the Family Law Act is a guardian for all legal purposes. An adult who has had care and control of the child for at least 6 months can apply for a Guardianship Order using Claim – Family Law Act (CTS3459) and Adult's Statement – Guardianship of Child (CTS3484).

This route usually fits a grandparent who has actually been raising the child, not one who has visited from time to time. If you only want visits, a contact order is the more natural fit.

Guardianship applications can be filed at any court in Alberta if there is no existing action with the other party. If there is one, you file at the same court and location.

What the court looks at

The Divorce Act directs the court to give primary consideration to the child's physical, emotional and psychological safety, security and well-being. Its list of factors includes the child's relationships with each parent, siblings, grandparents and others, and the child's needs for stability.

• The history of the child's care and plans for the child's care.
• The child's views and preferences, given weight according to age and maturity. The Act sets no age at which a child decides.
• Any family violence and its impact.
• Each person's willingness to support the child's relationship with the other parent.

Alberta's guidance for Family Law Act cases lists similar considerations, including the child's care history, the child's views, the benefit of relationships with both parents or guardians, and any history of family violence.

Practical steps if you are cut off

• Write down the history of your relationship with the child: visits, care you provided, and when contact stopped.
• Keep copies of messages, cards and photos that show the relationship.
• Try a calm conversation or a mediated discussion first. Courts expect parties to try family dispute resolution where appropriate.
• Check whether a court order or divorce action already exists, because that decides where and how you apply.
• Ask a lawyer which application suits you, and whether you need leave of the court.

Courts in Greater Edmonton, Calgary, Red Deer and Grande Prairie may apply the Family Justice Strategy first, and if you do not attend court the judge may make an order in your absence. Do not ignore court dates or paperwork.

Frequently asked questions