Do Grandparents Have a Right to See My Kids After Divorce? Alberta’s Court of Appeal Gives a Clear Answer

One of the most common questions parents ask during a separation or divorce is whether grandparents have a legal right to see their grandchildren.

The Alberta Court of Appeal addressed this issue in VW v AT, 2022 ABCA 261, a case involving grandparents who sought court-ordered contact with their grandchildren after the children’s parents cut off access. The decision provides important guidance for families across Alberta.

The Facts

The maternal grandparents had been heavily involved in the children’s lives for years. They celebrated holidays together, provided childcare, took the children on vacations, and had frequent contact with them.

However, the relationship between the parents and grandparents deteriorated in 2018, before the parents separated in 2020. The parents, specifically the mother, raised concerns about the grandparents’ racist, sexist, anti-Semitic, and homophobic views, as well as disagreements about parenting and discipline. The parents believed the grandparents’ criticism of the children, both of whom had special needs diagnoses, was negatively affecting their self-esteem.

Eventually, the parents ended contact between the grandparents and the children. The grandparents then applied to court for a Contact Order under Alberta’s Family Law Act in May of 2021. The grandparents were successful in front of the Honourable Justice E.J. Sidnell, who ordered supervised visits with the children. The parents appealed.

The Most Important Legal Test

Many people assume grandparents simply need to show that seeing them would be good for the children. That is not the law. While Section 35 of the Family Law Act provides for applications for contact for non-guardians of children, Justice Sidnell incorrectly applied the test.

The Court stated, “it was for the grandparents to establish that if contact was denied, the children’s physical, psychological or emotional health may be jeopardized.” (para. 28)

This is a crucial distinction.

The question is not whether contact would be beneficial. The question is whether denying contact creates a risk to the child’s well-being. The Court found that Justice Sidnell had applied the test incorrectly by focusing on whether contact could safely occur rather than whether the children would be harmed if contact was denied. As a result, the Contact Order was overturned.

Do Parents Get the Final Say?

Many parents believe that because they are the children’s parents, their decision should automatically control. The Court rejected that argument.

The parents argued that courts should defer to their decision regarding who their children see. The Court acknowledged that parents’ views matter, but explained they are only one factor in the overall best-interests analysis.

The Court stated, “there is no basis for this Court to interpret parental wishes as having priority. Ultimately, the best interests of the child are paramount.” (para. 50)

In other words, parents do not have an absolute veto over grandparent contact. However, grandparents do not have automatic rights either.

What Does This Mean for Parents?

If you are going through a separation or divorce and are considering limiting a grandparent’s access, the court will not automatically force contact simply because a grandparent wants it. The grandparent must prove that denying the relationship may jeopardize the child’s physical, psychological, or emotional health. A previous close relationship may help support that argument, but it is not enough on its own.

At the same time, courts will carefully examine the reasons parents have for limiting contact. Concerns about a child’s safety, emotional well-being, boundaries, or exposure to harmful behaviour will be relevant considerations.

The Bottom Line

The law in Alberta is child-focused. Grandparents do not have an automatic right to access. Parents do not have an automatic right to refuse it. The court’s only concern is what serves the child’s best interests, and as VW v AT confirms, the deciding question is whether denying contact puts the child’s well-being at risk, not whether maintaining contact would simply be beneficial.