Grandparents and Extended Family Members

People other than a child's parents can also have a legal interest in a child. Typically, these people are a child's blood relatives — grandparents, aunts, uncles and so forth — although there's no reason why someone else, like an unrelated long-term caregiver or a neighbour, couldn't also have an interest in the care and well-being of a child, or in having time with a child.

This section talks about the claims a child's caregivers and extended family members can make to guardianship of a child, contact with a child, and child support.

Introduction

Grandparents and other people who are not parents normally become involved in court proceedings dealing with children, as parties in their own right, in only a few situations:

• where one or both of the guardians of the children are dead,
• where one or both of the guardians have abandoned the children or the care of the children,
• where there are serious concerns about the fitness of the guardians to care for the children, or
• where they are being denied time or involvement with the children.

Their concerns are usually about supervising the parenting of the children or getting a schedule in place that will let them see the children on a regular basis.

Two laws might apply to caregivers and extended family members who are seeking guardianship of or contact with children. Where the children's parents are already in court about the children, that might be the federal Divorce Act if the parents are or were married, or the provincial Family Law Act whether they were married or not. If the children's parents are not involved in a court proceeding between each other, it will be the Family Law Act.

Each law has different rules about how and when people other than parents can apply for orders about children, and it's important to understand which law might be applicable.

The Divorce Act

Under s. 16(1) of the Divorce Act, the court can make an order for custody or access on the application of a spouse or "any other person." Section 16(3), however, says that an "other person" must get the court's permission before bringing on such an application.

Since we're talking about the Divorce Act, a court proceeding must have already started between married spouses or formerly married spouses before a child's caregivers and extended family members can step in; there must be an existing proceeding in which to bring the application.

The Family Law Act

The Family Law Act talks about guardians who have parental responsibilities and who have parenting time with children, and about people who are not guardians who have contact with a child.

If the child's guardians are already in court, a child's caregiver or extended family member can start a court proceeding, and ask that the new proceeding be joined to the proceeding between the guardians. Once that happens, the caregivers and extended family members can ask to vary any orders that have already been made between the guardians.

If the guardians are not in court, a child's caregiver and extended family member can start a court proceeding against the guardians and ask for orders about the children.

Orders and agreements

This section talks about the orders available to children's caregivers and extended family members, and is written on the assumption that someone who is interested in securing a right to involvement in a child's life will be going to court to secure that right.

After all, if the child's parents or guardians were okay with the kind of involvement the person is looking for, there'd be no need to secure an order as they would freely give their permission.

There's no reason at all why the child's parents or guardians and the caregiver or extended family member couldn't make an agreement on the issue instead of going to court.

A family law agreement is a contract between two or more people that is enforceable by the courts, just like any other kind of contract. The sort of agreement a child's caregiver and extended family member would want to sign might:

• authorize the caregiver or extended family member to exercise certain parental responsibilities in relation to the child, under s. 43(2) of the Family Law Act,
• provide the caregiver or extended family member with specific rights of contact with the child, under s. 58(1) of the act, or
• if the child is living with the caregiver or extended family member, require one or more parents or guardians to provide child support to the caregiver or extended family member, under s. 147(1) of the act.

It's important to know, as you'll see further on in this section, that a child's guardians cannot make an agreement appointing anyone other than a parent as a guardian. Only the court can make someone other than a parent a guardian, and that requires an application to court and a court order.

Rights and responsibilities of caregivers and extended family

A child's caregivers and extended family members can ask for orders about the care of a child under the provincial Family Law Act. If the child's parents are married and have an order made under the federal Divorce Act, the child's caregivers and extended family members must make any applications about the child under that act and must get the court's permission first.

Where the child winds up living mostly with a caregiver or extended family member, the caregiver or extended family member can ask for an order under the Family Law Act requiring either or both of the child's parents to pay child support to the person with whom the child lives.

A child's caregivers and extended family members cannot ask for orders for spousal support from a parent under the Divorce Act or the Family Law Act as they are not spouses of the parent. For the same reason, they cannot ask for orders about the division of family property and family debt against a parent under the Family Law Act.

The care of children

The Divorce Act

Where a child's caregiver or extended family member must apply for orders about the child under the Divorce Act they will be asking for orders about custody and access. These applications will usually be applications to change, or vary, an order that has already been made between the child's parents.

To vary an order for custody or access, s. 17(5) of the Divorce Act requires proof of a change in circumstances:

Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.

Once a change in circumstances has been proven, the child's caregiver or extended family member must then show why it is in the best interests of the child for the court to make the order he or she is asking for, and the court will usually extend a great deal of respect to the wishes of the child's parents. These issues are discussed in more detail in the section on Custody and Access.

The Family Law Act

Whether a caregiver or extended family member is applying for guardianship, and the rights that go along with it, or for contact, he or she must show why it is in the best interests of the child for the court to make the order he or she is asking for, and the court will usually extend a great deal of respect to the wishes of the child's guardians and often, depending on the child's age and maturity, to the wishes of the child. These issues are discussed in more detail in the chapter Guardianship, Parenting Arrangements and Contact.

Guardianship, parental responsibilities and parenting time

Under s. 40(1) of the Family Law Act, only people who are the guardians of a child have parental responsibilities and parenting time in relation to that child. People who are not the guardians of a child may have contact with the child and do not have the right to participate in making decisions about the raising of the child or the right to get information from the important people involved in the child's life, such as doctors, teachers, coaches and so on.

Under s. 39, the people who are presumed to be the guardians of a child are:

1. the child's parents, as long as they lived together,
2. a person who is a parent of a child under an assisted reproduction agreement, and
3. a parent who "regularly cares" for the child.

A child's caregivers and extended family members are not presumed to be the guardians of a child. A caregiver or extended family member may become the guardian of a child by:

1. appying for an order appointing him or her as a guardian of a child under s. 51,
2. being appointed by as the standby guardian of a child by a guardian under s. 55, or
3. being appointed as the guardian of a child upon the death of a guardian by the guardian's will, under s. 53.

Since being appointed as a standby guardian or a guardian upon the death of a guardian both usually take some time, a caregiver or extended family member who feels the need to step in sooner rather than later will apply for appointment as the guardian of a child under s. 51.

Applications for appointment as a guardian can be difficult and time-consuming, and the court must be satisfied that the appointment is in the best interests of the child. The person who is applying to become the guardian of a child, the applicant, must fill out a special affidavit required by the Provincial Court Family Rules and the Supreme Court Family Rules that talks about:

• the applicant's relationship to the child,
• the other children presently in the care of the applicant,
• any history of family violence that might affect the child, and
• any previous civil or criminal court proceedings related to the best interests of the child.

Applicants must also get a new criminal records check and a records check from the Ministry of Children and Family Development (MCFD).

Authorizations to exercise parental responsibilities

Under s. 43(2) of the Family Law Act, a guardian who is temporarily unable to exercise certain parental responsibilities may authorize someone to exercise those responsibilities on his or her behalf, including a child's caregiver or a member of the child's extended family. Such authorizations must be made in writing, and should say exactly what it is that the authorized person can do.

The parental responsibilities that someone can exercise under a written authorization are:

• making day-to-day decisions affecting the child and having day-to-day care, control, and supervision of the child,
• making decisions about whom the child will live with and associate with,
• making decisions about the child's education and participation in extracurricular activities,
• giving, refusing, or withdrawing consent to medical, dental and other health-related treatments for the child,
• applying for a passport, licence or permit for the child,
• giving, refusing, or withdrawing consent for the child, if consent is required,
• receiving and responding to any notice that a parent or guardian is entitled or required by law to receive, and
• requesting and receiving from third parties health, education, or other information respecting the child.

Authorizations like these are mostly used when the child needs to go somewhere else to attend school and the guardian needs to make arrangements for the child to be looked after, when the guardian is seriously ill but going to recover, and when the guardian is going to be out of commission for awhile recovering from a surgery or treatment.

Contact with a child

Any person can apply for contact with a child under s. 59 of the act. The court must be satisfied that the contact asked for is in the best interests of the child. People who are applying for contact don't need to get a criminal records check or an MCFD records check done.

Child Support

The Divorce Act

Under s. 15.1(1) of the Divorce Act, only a married spouse may apply for a child support order under the act. As a result, a caregiver or extended family member who has had to apply to vary a Divorce Act order for custody must apply under the Family Law Act for an order requiring the child's parents to pay spousal support. Both applications can be made in the same document and at the same time.

The Family Law Act

The Family Law Act says, at s. 147(1), that "each parent" has a duty to provide support for his or her child, as long as the child is a child as defined by s. 146 and hasn't become a spouse or withdrawn from the care of his or her parents under s 147(1). Under s. 149, the court can make an order requiring a parent to pay child support to "a designated person" on the application of "a person acting on behalf of a child":

(1) ...on application by a person referred to in subsection (2), a court may make an order requiring a child's parent or guardian to pay child support to a designated person.

(2) An application may be made by

(a) a child's parent or guardian,

(b) the child or a person acting on behalf of the child...

As long as the court has made an order under which the child lives mostly with a child's caregiver or extended family member, he or she can ask for an order for child support against any or all of the child's parents and guardians.

According to s. 150(1) of the act, where an order for child support is made, the amount of the support order is to be determined under the Child Support Guidelines. As a result, all of the provisions of the Guidelines apply to parents on the application of a child's caregiver or extended family member, including:

• the tables that are used to calculate the amount of child support payable,
• the exceptions that allow child support to be paid in an amount different than the usual table amount, and
• the rules about the payment of children's special expenses.

Resouces and links

Legislation

• Family Law Act
• Divorce Act
• Federal Child Support Guidelines

Links

• Grandparents raising grandchildren
• Benefits for grandparents raising grandchildren
• Online Child Support Calculator