The New Brunswick Provincial Government recently announced that it intends to amend the Family Services Act to include consideration of grandparents in custody and access matters. Here is a link to the press-release for this announcement. Currently the Family Services Act allows “either or both parents or any person, either alone or jointly, with another” to be granted custody of a child. (emphasis mine)
The “any person” has been used in the past to include grandparents, but as you may recall, I wrote in a previous post about the difficulties grandparents face in seeking access to their grandchildren (https://www.purvisculbertlaw.ca/do-grandparents-have-access-rights-to-their-granchildren/. ) Essentially, parents are–rightfully so I might add–the primary decision makers for their children. Therefore, absent serious reasons for replacing a parent’s role as primary decision maker (i.e. abuse, neglect), access decisions typically flow through the parents. If parents do not wish for their children to see their grandparents, then it is difficult for Courts to order access.
One key question about the proposed changes will be: Just how will the Provincial Government include reference to grandparents in the Family Services Act? The answer to this question will help determine how beneficial the amendments will be for grandparents involved in custody disputes. As noted in my earlier post, courts apply the “best interests of the child” test to custody matters, so how further inclusion of grandparents in the equation will affect the outcome of custody disputes will depend on how the changes require judges to consider grandparents more than they do already! (see G.G. v. J.W., 2008 NBQB 338 and Morecraft v. Morecraft (1991), 122 NBR (2d) 271 mentioned in prior post).
Overall, however, this is a welcomed announcement for grandparents. The proof will be in the details and the implementation of the proposed changes.