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Legally speaking: Can grandparents obtain rights to see grandchildren when parents oppose?

by Daniel Romano

In our practice, we often meet grandparents who want to see their grandchildren but are prevented from doing so due to a conflict with the parents.

There are three typical scenarios in which these sorts of disputes become actual legal conflicts:

Scenario #1: The grandparents and parents have a good relationship with the children but the parents and grandparents are not getting along.

Scenario #2: The parents and the grandparents are each claiming that the other is unfit and should not be around the children.

Scenario #3: The parents are separated or divorced, and each is struggling to have the maximum amount of time with the children. Neither parent wants to share their precious time with the grandparents.

What does the law say?

In Quebec, two important laws apply.

• Every decision concerning a child shall be taken in light of the child’s interests and the respect of his rights (Article 33 of the Civil Code
of Quebec)

This means that you do what is in the child’s best interests, not necessarily what is in the parents’ interests or what the grandparents want.

  In no case may the father or mother, without a grave reason, interfere
with personal relations between the child and his grandparents (Article 611 of the CCQ)

When read together these two rules mean that it is in the child’s best interests to have a relationship with his or her grandparents, and if someone is going to try to interfere with that, they had better have a very good reason to do so!

How the courts apply the law depends on the specific facts of each case. The results can vary widely depending on what the judges are faced with. In some cases, if the grandparents are proven in court to be a bad influence on the children, the judge will side with the parents and not order any form of contact with the grandparents.

At the other extreme, there are rare examples of parents who are in such a bad state that the grandparents are not only accorded visiting rights, but are actually granted exclusive custody and any contact with the parents will be severely limited.

The above are extreme examples. The most common outcome is that the judge will grant the grandparents specific visiting rights once or twice a month if the grandparents are unable to come to an agreement with the parents.

In the words of a judge (translated from French): The courts must protect the children from capricious decisions by the parents so that the grandparents can exercise their role, which consists of loving their grandchildren and bringing them the richness of their personality, of their experience and of their affection.

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Daniel Romano is an attorney with Kalman Samuels, a family law firm. We invite you to follow us next issue when we address Common Law Spouses and Their Rights – How long can I live with someone before we are considered married?

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