The New Brunswick Government recently amended Section 129(3) of the Family Services Act to consider other parties, including grandparents’ access to their children. Section 129(3) of the Act used to state that “upon application the court may order that either parent or any person shall have access to a child”. The New Brunswick Court of Queen’s Bench referred to this section in cases such as, G.G. v. J.W., 2008 NBQB 338 and Morecraft v. Morecraft (1991), 122 NBR (2d) 271 regarding whether grandparents have rights to access their granchildren. In GG, supra, Madam Justice D’Entremont referred to Morecraft, which stated “[t]here is no automatic right of access to third parties“. In an earlier post (see here), I noted the difficulty the wording of section 129(3) posed to questions regarding grandparent’s access to their grandchildren.
On May 5, 2017, the New Brunswick Government passed the bill–An Act to Amend the Family Services Act. This Act essentially replaces the current section 129(3) with the following:
129(3)Repealed: 2017, c.22, s.1
129(3.1)On application, the court may order, on the basis of the best interests of the child, that either parent, a grandparent, another member of the child’s immediate family or any other person shall have access to a child, whether or not an order for custody has been made with respect to the child.
129(3.2)An order under subsection (3.1) shall be made subject to the terms and conditions that the court determines.
129(3.3)On application by a grandparent or another member of the child’s immediate family, other than a parent or guardian, the court shall take into consideration the willingness of each parent or guardian of the child to facilitate access and the need for making an order for access.
129(3.4)An order under subsection (3.1) may provide that access be exercised in the form of visits, oral or written communication or by any other means of communication.
129(3.5)The court may vary or discharge an order under subsection (3.1) at any time.
These amendments broaden the items a judge must consider when making an order for access to a child to “grandparents” and “another member of the child’s immediate family.” In addition, section 129(3.4) specifies that access may be through visits or other means of communication (likely email, Facetime, Skype, etc.) These are likely welcomed changes for grandparents who have, until now, not been explicitly mentioned. As stated in my post <a href=”https://www.purvisculbertlaw.ca/proposed-changes-to-family-services-act-in-new-brunswick-to-consider-role-of-grandparents/”>here</a>, however, how these amendments affect grandparent’s access to their grandchildren will depend on how courts in New Brunswick interpret and apply these provisions in future
Here are some links to more information on these amendments:
– Copy of
An Act to Amend the Family Services Act:
https://www.gnb.ca/legis/bill/pdf/58/3/Bill-49.pdf
