Grandparents' Rights in BC: Getting Contact With Your Grandchildren

Losing touch with grandchildren after a separation, a death or a family falling-out can be painful. Many grandparents are surprised to learn that BC law does not give them an automatic right to visits.

What the law does give is a way to ask. This article explains contact agreements, contact orders and guardianship applications under the Family Law Act, and what a court looks at when a grandparent applies.

No automatic rights, but a clear path to ask

Under BC's Family Law Act, decisions about a child are made by the child's guardians. In most families that means the parents: section 39 says each parent is generally a guardian, both while they live together and after they separate. Grandparents are not guardians just because they are grandparents.

The Act uses the word "contact" for time that someone who is not a guardian spends with a child. Contact can be visits, overnight stays, phone or video calls, or other forms of connection. It does not give the grandparent parental responsibilities or a say in major decisions about the child's life.

In most families, grandparents see their grandchildren through informal arrangements with the parents. The legal options below matter when that has broken down.

Option one: a contact agreement

Section 58 lets a child's guardian and a person who is not a guardian make an agreement about contact, including the terms and form it will take. The catch is that the agreement is binding only if it is made with all of the guardians who have responsibility for deciding who the child spends time with. An agreement with one parent alone may not hold if the other parent is also a guardian with that responsibility.

A written contact agreement that is filed in court can be enforced as if it were a court order. That gives you a remedy if visits stop without good reason. A court can still set aside or replace an agreement that is not in the child's best interests.

A negotiated agreement, often reached through mediation, is usually faster and less damaging to family relationships than going to court.

Option two: a contact order

If you cannot reach an agreement, you can apply to court under section 59. The Act expressly says the court may grant contact to any person who is not a guardian, including a grandparent. The court can describe the terms and form of contact, and can require supervision if that is in the child's best interests.

Both the Provincial Court and the Supreme Court can make contact orders under the Family Law Act (sections 192 and 193). Which court fits depends on whether other family law issues are already before a court and what else is being decided.

What the court looks at

The only test is the child's best interests. Under section 37, the court must consider all of the child's needs and circumstances, including:

• The child's relationship with you, and the nature and strength of the bond.
• The history of the child's care, for example whether you have been a regular caregiver.
• The child's views, unless it would be inappropriate to consider them.
• The child's need for stability given their age and stage of development.
• Any family violence and its impact on the child.

Because the test is the child's best interests rather than what the adults want, a grandparent who simply disagrees with a parent's choices will usually find it harder to get an order than one who can show a meaningful existing relationship that the child is losing, and that contact would benefit the child. Conflict between the adults also matters, because contact that drags the child into a dispute is less likely to be in their best interests.

When guardianship is the right question

Sometimes grandparents are not just visitors. If you are raising a grandchild, or the parents cannot care for the child, contact may not be enough. Section 50 says a non-parent cannot become a guardian by agreement alone, but section 51 allows the court to appoint a guardian on application. You must give the court evidence about the child's best interests, and if the child is 12 or older, the court cannot appoint you without the child's written approval unless it is satisfied the appointment is in the child's best interests.

Our article on parenting arrangements and guardianship in BC explains how guardianship and parental responsibilities fit together.

Planning ahead as a family

Grandparents often come into the picture when a parent dies. Under section 53, a guardian can appoint someone to be the child's guardian on their death, in a will or in the prescribed form. If you have agreed to step in for your adult child, it is worth making sure that appointment is actually in place. Our article on naming a guardian for your children in your will covers how that works.

Practical steps before you apply

• Try to keep the door open. A calm written request to the parents, or an offer of mediation, can help and also shows the court you tried.
• Gather your history. Photos, messages, school pick-ups and holidays can show the relationship you have had.
• Keep the focus on the child. Avoid criticizing the parents to the child or online.
• Get advice on the right application, since a contact order, a guardianship order and enforcing an existing agreement under section 61 are different processes.

Cut off from your grandchildren? Find out where you stand

Our family lawyers can explain whether a contact agreement, contact order or guardianship application fits your situation, and help you prepare the evidence the court will look at.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.