Can Grandparents Get Contact With a Grandchild in Alberta?

Separation can change who a child sees. Sometimes grandparents find that visits have slowed or stopped, and it is not clear what, if anything, the law lets them do. This article explains the usual court route in Alberta for a grandparent or another adult who is not a guardian.

It is general information, not advice. Your facts matter a great deal, so a lawyer can confirm which route fits your situation before you file anything.

This article covers the law of Alberta.

Why grandparents usually apply for a Contact Order

In Alberta, decisions about a child are tied to guardianship, not just to being related to the child. In most cases a child's parents are also guardians. A grandparent is usually not a guardian, so a parenting order is generally not the right application.

A person who is not a guardian, such as a grandparent, applies for a Contact Order. A contact order sets out visits, calls or letters, and it does not give the person rights or responsibilities over the child. Decisions about health, school and daily life stay with the child's guardians and anyone with parenting time or decision-making responsibility.

What forms are used

The application for a Contact Order uses three documents:

• Claim – Family Law Act
• Statement – Contact
• Affidavit of Service – Applicant

The Affidavit of Service is how you show the court that the other side was told about the application. Read each form carefully, and consider having a lawyer review them before you file.

If there is already a divorce action

The Family Law Act cannot be used for a matter already dealt with by an order or judgment under the Divorce Act, and where a divorce action has started, parenting is dealt with under the Divorce Act instead. This can change the steps for a grandparent.

Under the Divorce Act, a person who is not a spouse, such as a grandparent, can apply for a contact order, but needs leave (permission) of the court to apply. Any contact is also considered alongside another person's parenting time. In practice, this means the court looks at how your time with the child fits with the time the parents have.

How the court decides

Under the Divorce Act, the court considers only the child's best interests when making a parenting order or contact order. It must give primary consideration to the child's physical, emotional and psychological safety, security and well-being. Under Alberta's guidance for Family Law Act matters, a judge also decides based on the child's best interests, aiming to protect the child's physical, psychological and emotional safety.

Under the Divorce Act, the factors the court looks at include the child's relationships with each parent, siblings, grandparents and others, as well as the history of the child's care and the child's needs for their age and stage. The child's views are considered too, with weight given according to age and maturity, unless they cannot be ascertained. Any family violence is also considered.

A close relationship with a grandparent is one factor, not a guarantee. Whether a particular request succeeds depends on the facts, and a lawyer can talk through how a court may view yours.

Where to file, and the Family Justice Strategy

Which court and location is right for a Contact Order application can depend on whether there is already a court file involving the family, so it is worth confirming this with a lawyer or the court before you file.

In Greater Edmonton, Calgary, Red Deer and Grande Prairie, the Family Justice Strategy applies before a family application is filed. Its requirements include:

• The Parenting After Separation course, if children under 18 will be affected, with the certificate filed with a court clerk before filing. The course must be retaken if the certificate is more than 2 years old.
• Alternative dispute resolution attempted within the past 6 months, shown on a Participation in ADR form.
• A family court counsellor meeting for unrepresented parties with dependent children.

Whether each step applies to a grandparent applicant can depend on your situation, so confirm it before filing. If you cannot complete a mandatory requirement, you can file a Request to Waive/Defer Mandatory Requirements form. Reasons include family violence concerns, technological or language barriers, and inability to locate the other party.

Other options and what to do next

If you have been caring for the child, a different route may exist. 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). Guardianship is a much bigger step than contact, so get advice first.

Enforcement also depends on having an order. A person without a court order has no order to enforce, and the guidance says to apply first for a Contact Order, Custody and Access Order or Parenting Order. For a non-guardian, time with the child is called contact.

• Write down your history of caring for and seeing the child, with dates.
• Find out whether a divorce action or earlier court file already exists.
• Check whether you need leave of the court under the Divorce Act.
• Look at whether the Family Justice Strategy applies in your city.
• Keep communication with the parents calm and in writing.
• Speak with a lawyer before filing.

Frequently asked questions