July, 2017 | Purvis Culbert Law

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129(3)Repealed: 2017, c.22, s.1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

– Link to status of the bills in NB Legislature: https://www1.gnb.ca/legis/bill/print-e.asp?legi=58&num=3&page=4

– Link to current version of the Family Services Act: https://www.canlii.org/en/nb/laws/stat/snb-1980-c-f-2.2/latest/snb-1980-c-f-2.2.html

Separation and divorce can be painful and confusing for all parties involved. This is especially true for the children of separating couples.

It is important to recognize that you are not the only one hurting while you are going through a divorce. Children often get caught up in arguments and discussions between parents. For the Sake of the Children offers an informative program that helps to educate separating parents about the impact of certain actions on their children. The program reminds us that children are aware of more than we sometimes realize and that it can be very difficult for them to process painful and confusing information, in a healthy way, without the proper support and guidance. In addition, it can be difficult for parents to avoid the temptation to involve their children in their disagreements. For the Sake of the Children can help you to put your differences aside and focus on what really matters–the children!

In Manitoba, it is mandatory for separating parents seeking custody agreements to attend a similar educational program. Here in New Brunswick, however, the program is offered for free to any interested party, but it is not mandatory.

I have personally seen how parents justify using their children as pawns in their battle against eachother. It is not pretty and will ultimately not endear you to a Judge. Remember the words of Ontario Judge Alex Pazaratz in a previous post here.

See below to view the instructional videos shown during the For the Sake of the Children program:

Children: The Experts on Divorce (15 minutes)

https://vimeo.com/11106924

Divorce and Separation: Legal Considerations (19:44 minutes)

https://vimeo.com/11106951

Vignette #1: Miguel (The Messenger) (7 :27 min.)

https://vimeo.com/10556768

Vignette #2: Nathan (The Exchange) (3 :00 min.)

https://vimeo.com/10556790

Vignette #3: Denise (The Haircut) (6 :39 min.)

https://vimeo.com/10556698

Vignette #4: Jessie (Mom’s house – Dad’s house) (9:41 min.)

https://vimeo.com/10556748

For more information, or to register for the program, check out the following links:

For discussion:

Should For the Sake of the Children or a similar program be made mandatory for parents who wish to separate in New Brunswick?
Can you think of any issues that may arise with requiring all parents to attend the program before separating and implementing custodial agreements?

Month: July 2017

Amendments to Family Services Act in NB Considers Grandparents in Custody Matters

Have you taken the “For the Sake of the Children” course?