Background

The parties to this matter were the parents of two children, aged 6 and 5, and the children’s paternal grandmother. The grandmother was seeking a contact order to see her grandchildren.

The parties had been in an on-again-off-again relationship from around June 2015 to December 2019. A final order in April 2022, amongst other things, provided the mother with primary residence of the children and primary decision-making responsibility, and allowed for reasonable parenting time for the father, who struggled with mental health issues, substance misuse, and did not have a stable residence.

The grandmother had had a relationship with the children since their birth. She had brought this application due to a falling-out with the mother: the mother had not wanted the children in the presence of a certain member of the father’s family, whom the mother knew as having substance misuse issues.

Following this incident, the grandmother had gone with no contact with the children for an unclear period of time (as the parties’ described timelines differed). Nonetheless, contact had resumed over a year ago whereby the grandmother would see the children during their time with their father.

Issues

Should the grandmother’s submission for an order for specified contact with the children on weekends, every other holiday, one week during the summer, time at Christmas, and time on the children’s birthdays be granted?

Should the mother’s submission for an order that the grandmother have contact with the children at her discretion and that the contact be facilitated during the father’s parenting time or at the mother’s discretion be granted?

Analysis

The relevant statute here was the Children’s Law Reform Act:

Section 21(3)

Application for parenting order or contact order

Contact order

(3) Any person other than the parent of a child, including a grandparent, may apply to a court for a contact order with respect to the child.

Section 28(1)

Parenting orders and contact orders

28 (1) The court to which an application is made under section 21,

(a) may by order grant,

(iii) contact with respect to a child to one or more persons other than a parent of the child, in the case of an application under subsection 21 (3);

(b) may by order determine any aspect of the incidents of the right to decision-making responsibility, parenting time or contact, as the case may be, with respect to a child; and

(c) may make any additional order the court considers necessary and proper in the circumstances, including an order,

(i) limiting the duration, frequency, manner, or location of contact or communication between any of the parties, or between a party and the child,

(ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child

The Act further states that the court is to consider the best interests of the children when making contact orders, as per the factors listed in section 24 of the Act.

The court pointed out that the grandmother currently had “liberal and extensive contact” with the children and that the mother had shown that she would facilitate contact. Though the children did have a right to a relationship with their father and his side of the family, it was reasonable for the mother to be concerned about the people in the presence of the children. Moreover, consistency, reliability, and predictability in the children’s routine with seeing their father and his family was needed.

The contact requested by the grandmother here was not typical for grandparents, as it was more in line with parenting time. As such, the court found that an order was not needed to ensure weekend contact for the grandmother, apart from the contact she already received by way of the existing order for the father’s parenting time.

Conclusion

The court provided the mother with the power to exercise discretion regarding the contact with the grandmother, such that she would not need to facilitate every request for contact, but would do so where reasonable.

Additionally, the order provided that the grandmother was to ensure that, during her contact time, the children would not be in the presence of anyone consuming illicit substances or non-prescription drugs.

Finally, the court ordered that, should the father fail to exercise his parenting time for over one month, and where the grandmother also did not have contact for over a month, the parents and grandmother were to attend mediation prior to commencing court proceedings regarding the issue of the grandmother’s contact.