In contrast to some other provincial statutes, the Family Services Act in New Brunswick considers a child’s relationship with his/her grandparents as part of the definition of “best interests of the child”:
“best interests of the child” means the best interests of the child under the circumstances taking into consideration
(a) the mental, emotional and physical health of the child and his need for appropriate care or treatment, or both;
(b) the views and preferences of the child, where such views and preferences can be reasonably ascertained;
(c) the effect upon the child of any disruption of the child’s sense of continuity;
(d) the love, affection and ties that exist between the child and each person to whom the child’s custody is entrusted, each person to whom access to the child is granted and, where appropriate, each sibling of the child and, where appropriate, each grandparent of the child;
(e) the merits of any plan proposed by the Minister under which he would be caring for the child, in comparison with the merits of the child returning to or remaining with his parents;
(f) the need to provide a secure environment that would permit the child to become a useful and productive member of society through the achievement of his full potential according to his individual capacity; and
(g) the child’s cultural and religious heritage;
Section 129(3) of the Family Services Act allows for a parent or “any person” to apply to the Court for an order for custody or access on the basis of the best interests of the child test.
Since the Supreme Court of Canada case of Young v. Young, [1993] 4 S.C.R. 3, [1993] S.C.J. No. 112, courts in Canada have recognized that the “best interests of the child” test is the only test applicable to child custody disputes. Therefore, it’s technically incorrect to think of parent’s or grandparent’s rights, as they do not have rights to access; children have rights to contact with both parents and their family, as determined through the lens of the “best interests of the child” test.
In G.G. v. J.W., 2008 NBQB 338, Madam Justice d’Entremont dealt with the sole issue of whether a grandparent is entitled to specific access to a grandchild. At paragraph 26, Justice d’Entremont referred to the case of N.F. v. H.L.S. (1999) 127 B.C.A.C. 66, in which the British Columbia Court of Appeal stated at paragraph 8:
- The onus in on the applicant to demonstrate that the proposed access in in the child’s best interests.
- The custodial parent has a significant role. The courts should be reluctant to interfere with a custodial parent’s decision and should do so only if satisfied that it is in the child’s best interests.
- It is not in the best interests of a child to be placed into circumstances of real conflict between the custodial parent and a non-parent. While the court must be vigilant to prevent custodial parents from alleging imagined or hypothetical conflicts as a basis for denying access to non-parents, in cases of real conflict and hostility, the child’s best interests will rarely, if ever, be well served by granting access.
Justice D’Entremount also referred to the Decision of the Court of Queen’s Bench of New Brunswick in Morecraft v. Morecraft (1991), 122 NBR (2d) 271 at paragraphs 26 to 29. Paragraph 26 states:
[26] While the “best interests” must remain paramount, the considerations revolving around the issue of access to third parties, including blood relatives, are far different from those involving natural parents. There is no automatic right of access to third parties. Great weight must be given to the wishes of the custodial parents and care must be taken not to unduly interfere with the parents’ inherent right to determine the course of their child’s upbringing.
Given the facts of the case—being a relationship characterized by friction and animosity between the parents and grandparents—Justice d’Entremount decided that the grandmother, G.G., had not met the onus set out in the N.F. case of proving that the proposed access was in her grandchild’s best interests.
The approaches of Justice d’Entremount in the G.G. case and the Court in Morecraft underscore a tension between the rights of parents to make decisions for their children (i.e. not to see their grandparents) and the interests of children to have a relationship with their grandparents. Given these conflicting interests, Canadian courts have decided cases regarding grandparents’ access to their grandchildren on a facts-specific basis. In “Grandparent-Grandchild Access: A Legal Analysis” (Paper Presented to the Family, Children and Youth Section, Department of Justice Canada, Her Majesty the Queen, 2003)< http://www.justice.gc.ca/eng/rp-pr/fl-lf/famil/2003_15/pdf/2003_15.pdf >, Dan L. Goldberg outlines at pages 17-21 four classifications of cases in which courts have decided on grandparents’ access to their grandchildren:
- Intact families in which access was denied;
- Intact families in which access was granted;
- Single-parent families in which access was denied;
- Single-parent families in which access was granted;
In the cases in which access was denied, the courts typically acknowledged that the parents were adults and had rights to parent their children as they saw fit. Where access was granted, the courts usually noted the grandparents were responsible individuals with strong relationships with their grandchildren, which were beneficial to the children’s development. Absent abuse or neglect, courts are hesitant to interfere with parents’ rights to make decisions regarding their children. Thus, grandparent access is best facilitated through the parents. Admittedly, this is a “perfect world solution”, which may not always exist within many family dynamics.