May 5, 2020 | Elder Law

I am a grandparent: what are my rights?

1. Children have the right to have a relationship with their grandparents

When discussing minor children, it is important to start off with Article 33 of the Civil Code of Quebec: “Every decision concerning a child shall be taken in light of the child’s interests and the respect of his/her rights”.

Most of us would agree that, in general, it is in a child’s best interest to have a relationship with their grandparents, if they are lucky enough to have grandparents. Grandparents provide a level of richness, compassion, love, guidance, and education to their grandchildren which is different than what they receive from their parents. The bond between a grandparent and grandchild is unique and equally beneficial to both parties.

It is necessary though, to understand that the courts point of view is child focused; they are looking to evaluate the effects and benefits of the grandparent/grandchild relationship on the child, not the grandparent. Therefore, it is essential to assess the child’s relationship with a grandparent, from the child’s point of view.

Article 611 of the Civil Code of Quebec stipulates the rights of grandchildren and grandparents. It is very clear that parents cannot deprive grandparents from having a relationship with their children, unless there is a serious reason.

Honourable Justice Jean-Pierre Senécal, J.C.S. analyses the rights conferred by article 611 to help us understand the intention of the legislator:

The right recognized by article 611 is often expressed in the form of visits or outings. It is however distinct from the rights of access as between parents and child. It is an autonomous right, an inherent right which exists by itself and which has its particularities. It is also remarkable to note that the code, in article 611 speaks of “personal relationships”, the modalities of which must, on occasion, be settled by the court, not access rights, exit rights or visitation rights. Personal relationships can certainly take this form. But they can also be expressed differently: telephone contacts, letters, family meetings, etc.[1]

The take-away is that it is the child’s right to have and to maintain a relationship with their grandparent/s. There is a distinction to be made between the right to maintain a relationship with the child and access rights of a non-custodial parent. A grandparent can request access/visitation rights, but the court has the discretion to render an order that they deem is in the child/ren’s best interest.

With this in mind, the burden of proof is on the parent to demonstrate why it is not in their child/ren’s best interest to have a relationship with his/her grandparent/s, because there is a presumption that it is. In order to make this decision, the Court must follow a two-step process. As Honourable Justice Daniel Payette, J.S.C., states in his judgment dated November 19, 2009 in Droit de la famille – 092798:

[31] “… Firstly, it must determine if there are grave reasons preventing the grandparent from establishing relations with the grandchildren. Secondly, in the absence of such grave reasons, the Court will decide of the terms and conditions of these relations.”[2]

This means that what works for one family in terms of maintaining the relationship will not work for another. It is not a one-size fits all approach; to the contrary, it is a case-by-case analysis of what is in the child’s best interest based on their particular circumstances.

As for the first step, Honourable Justice Claude Dallaire, J.S.C., states in her judgement rendered on October 4, 2017 in Droit de la famille – 172714[3] :

The criteria in case law and doctrine are clear, the relationships must have real detrimental effects on the child, taken into account from “the child’s point of view”. The mere fear that this might be the case is not enough. They must be real, objective and reasonable.

The following are reasons that may justify a parent’s refusal to continue to foster a relationship between their child/ren with his/her grandparent/s:

a.    The grandparent is a bad influence on the grandchild.

b.    The grandparent is trying to take over or interfere with the parents’ parental authority and the parents’ role and are infringing on the parents’ rights to make important decisions about their child.

c.    The grandparent/s is physically or verbally abusive toward their grandchild.

d.    The grandparent/s denigrates the parent/s to the child/ren.

e.    The relationship between the parent/s and the grandparent/s has put the child/ren in a conflict of loyalty.

Unfortunately, in many families, a variety of disagreements and disputes arise, which can lead a parent to believe it is not in their child/ren’s best interest to maintain a relationship with their grandparent/s. Parents have a continued duty to shelter their children from any adult conflict.

For example in the case Droit de la famille — 191541[4] dated June 6, 2019, Honourable Justice Lise Bergeron, J.S.C. determined that it was not in the childrens’ best interest to have monthly visits with their grandparents due to family disputes, the children were in a conflict of loyalty between their parents and grandparents.

Honourable Justice Bergeron states in her judgment in the above-cited case:

 [23] “Although the situation may be deplorable and it is hoped that the conflicts will diminish so that healthy relations are re-established between parents and grandparents, the Tribunal, following the evidence, in particular from the report of the children’s attorney is of the opinion that maintaining meetings at an imposed frequency and schedule, in the presence of a parent, would increase tensions and lead to harmful consequences [to the children].

[24] Imposing visits with the grandparents would not eliminate this conflict of loyalty or this stress experienced by the children, who fear to betray their parents and do not want to “hurt” or displease their parents.”

 In Droit de la famille — 172486[5], the Court of Appeal, in a judgment rendered on October 24, 2017, overturned a Superior Court judgment granting a grandmother time with her grandchildren. In this case, the grandmother was actively denigrating the childrens’ parent to their grandchildren and the judgment stated the following:

 [26] “In the end, the respondent (grandmother) apparently irrepressible propensity to denigrate her daughter, as well as all of these incidents, which seem symptomatic of her state of mind, constitute a reason serious enough that we should grant her request with respect to her grandchildren Z and A, in the name of the best interests of those children, who need not be exposed to the real risk which the conduct of their grandmother entails. It is a manifest and decisive error on the part of the (superior court) judge not to have considered essential evidence or to have diminished its importance after a defective inferential process.”

It is important to note however, that the presence of conflict between a parent and a grandparent does not, on its own, constitute a serious reason to prevent the grandparent/grandchild relationship.

In the case of Droit de la famille — 172337[6], in a judgment dated October 10, 2017, the court determined that despite the fact that there exists a serious conflict between the grandmother and mother of the children, this does not represent a serious reason to put an end to the relationship between the grandmother and her grandchildren.

Honourable Justice Catherine La Rosa, J.S.C. states the following:

[34] “The Tribunal is, however, of the opinion that the current conflict should not rub off on children who are used to having their grandmother in their lives since birth and whose presence seems positive.

[35] The deficient communication mentioned by Mrs. F … cannot justify the absence of a relationship of a grandmother with her grandchildren when the grandmother, implicated in the life of her grandchildren since their birth, represents a positive figure.”

If you are a grandparent experiencing difficulty to exercise your right to have a relationship with your grandchild/ren, you can issue an Application at the Superior Court of Quebec. If your Application is granted, a judgment will be rendered that stipulates the rights and modalities that you have been granted (the days, times and frequency) and that the parents have the obligation to respect the court order.  

In Quebec, it is also important to note the notion of status quo applies to all matters with respect to child custody and access rights. This means that the court favours maintaining stability and routine for children at all times. Therefore, a grandparent who petitions the court for rights with their grandchild/ren can expect that unless there are serious reasons not to do so, a judge will do their best to maintain the relationship and the modalities that have been in place since the child/ren was/were born.

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2. Exceptional circumstances: custody rights for grandparents

Parents unless for a rupture of parental authority, always have priority when it comes to the custody of their child/ren. In the case where neither parent can care for their child/ren, the court can order that custody be granted to a third party, such as a grandparent. In this case, the grandparent can issue an Application for custody to the Superior Court and would have to demonstrate that it is in the child/ren’s best interest to be in their custody.

The burden of proof falls on the grandparent to demonstrate why it is not in the child/ren’s best interest to be in their parent’s custody. Even if a third party can convince a judge that it is in the child/ren’s best interest to be granted custody, the child/ren’s parents retains parental authority of the child/ren, unless they are specifically deprived of it by a judge.

Parental authority means that parents have obligations, rights and responsibilities to their child/ren from birth until the child/ren turns eighteen years-old. Their rights and responsibilities include providing them with shelter, food, supervision, physical and psychological protection, and education. As well as making all necessary decisions, such as education, health, religion, etc. The only exception to parental authority, is if the court orders a rupture of parental authority, which can be removed from a parent in extremely severe cases,  the burden of proof is extremely high, that it is in the child/ren’s best interest for the parent to no longer have any decision making power, no authority and essentially nothing to do with the child/ren.

The most important thing to retain, without exception, is that all decisions parents/grandparents/courts make must be in the child’s best interest. Even if there exists a dysfunctional relationship between you and your grandchild/ren’s parents, make your best effort to do what is necessary in order to maintain the important relationship and the special bond a child (your grandchild/ren) has/can have with (you) their grandparent/s and to preserve the gift of the exceptional love you both share. 

Please do not hesitate to contact us if you have any questions.

[1] Droit de la famille-2216, EYB 1995-72408 (C.S.).

[2] Droit de la famille — 092798, 2009 QCCS 5247

[3]  Droit de la famille — 172714, 2017 QCCS 5297 (CanLII)

[4] Droit de la famille — 191541, 2019 QCCS 3362

[5] Droit de la famille — 172486, 2017 QCCA 1637 (CanLII)

[6] Droit de la famille — 172337, 2017 QCCS 4577 (CanLII)