Grandparents often think that they know best when it comes to their grandchildren. But what are their limitations when it comes to parenting decisions and visitation?
It can be in a child’s “best interest” to have a relationship with their grandparents. However, if the grandparents are not “guardians”, their participation in a child’s life may be curtailed by the court.
A recent Abbotsford B.C. court decision (A.R. and B.R. v. M.W. and L.R. 2015) illustrates this point.
Grandparents, A.R. and B.R. brought forward a court action to get specified access to their 4 year granddaughter (A.W.). They wanted to have visitation with their granddaughter every weekend (Friday to Saturday, overnight), plus holidays and school breaks.
A.W.’s sole guardian, her mother (M.W.) had, over time, limited the grandparents’ time with her daughter because she did not agree with the grandparents taking her to the Jehovah Witnesses’ Kingdom Hall. She also did not want them to discuss religion with her.
There was a history of the grandparents having taken the child to the Hall, and discussing religion with her, even after the mother expressed her concerns and asked them not to do so.
The grandparents argued that their rights under the Canadian Charter of Rights and Freedoms (the Charter) were being violated because the Charter guarantees their rights to practice their religion. They also argued that the Charter gave them the right to express views on any topic, including religion, to A.W. when she was with them.
The Honourable Judge E.M.Ritchie disagreed with the grandparents, clarifying that this was not a Charter case. Moreover, he stated that the grandparents were not Guardians. According to he Family Law Act (FLA), s. 40, only a guardian may have parental responsibilities.
Under s. 41 of the FLA, parental responsibilities are listed and include making decisions respecting the child’s religious and spiritual upbringing.
The Judge balanced the mother’s right to make decisions about the child’s religion and the child’s best interest where it concerned having visitation with her grandparents. He stated:
“Balancing all of the factors set out, and having considered all of the evidence presented, I am concerned that the applicants’ demonstrated inability to respect and comply with M.W.’s decisions on religion will continue to cause conflict. It is not in A.W.’s best interests to be exposed to that conflict.”
“There are many people with strongly held religious views that do not discuss those views in front of others, and specifically not in front of other people’s children. As noted above, the applicants do not appear to be capable of not exposing A.W. to their religious beliefs. Unless and until the applicants satisfy M.W. or the court that they can respect and comply with M.W.’s parental decisions on religion, their time with A.W. must be supervised and limited.”
As a consequence, the Judge ordered that the grandparents could have one visit per month with the child, of one hour’s duration. That visit was to take place at the mother’s home and supervised by her.
This court decision upheld the mother’s right to make decisions about her daughter’s religious upbringing, while allowing contact between the grandparents and their grandchild.
Jayne Embree, M.A.
Jayne holds a Masters in Psychology and is a highly experienced Divorce Coach and Child Specialist. She is currently working with the Administrative and Human Resources Departments of Butterfield Law.