| Marilyn Marks, president of the Alberta Grandparents’ Association, is angry about new provincial legislation that she says will make it even more difficult for grandparents to gain access to their grandchildren.
The new Family Law Act continues to give grandparents the option to go to court to fight for access to their grandchildren, but a new provision requires grandparents of children who live in a two-parent family to get permission from a judge first.
"Bill 45 was supposed to make it more equitable and fair for all Albertans to have access and now they’ve added another burden," says Marks. "It’s very discriminatory to a grandparent of married children."
Marks argues that grandparents shouldn’t have to go to court to fight for access to their grandchildren at all. She says children should automatically have the right to have a relationship with their grandparents unless it can be proven that they present a danger.
She says grandparents often can’t afford to pay court costs or don’t want to drag their family history through the courts. Marks knows what that’s like firsthand – she has tried to gain access to her grandchildren and lost.
"It’s an adversarial and punitive and degrading process," says Marks. "Right now grandparents are presumed to be a danger to the child without proof…. The children are the pawns. Their interests are not foremost."
But Queen’s University law professor Nick Bala, one of the leading experts on grandparents’ rights, says Alberta is one of the most progressive provinces in the country when it comes to the rights of grandparents.
Bala says the new provision that requires grandparents of intact families have to get permission from a judge before fighting for access through the courts makes sense because courts generally don’t want to interfere with parents’ authority unless there’s a situation of abuse or neglect.
"We give parents the right and responsibility to make many decisions, including how grandparents are going to be involved with their children," he says. "One can indeed sympathize with these grandparents (who are denied access), but you have to ask how did they get to that state…."
Bala says courts tend to look at cases differently if the parents of the grandchildren are divorced or separated or one is dead. As well, he says, grandparents have enhanced rights if they’ve been the primary caregiver for their grandchildren for an extended period of time.
Stephen Jenuth, a family lawyer and president of the Alberta Civil Liberties and Privacy Association, agrees with Bala that grandparents should have to apply for access to their grandchildren if their children deny it. He points out that parents often have to go to court to fight for custody or access, so why shouldn’t grandparents. But he doesn’t see the logic in making grandparents go to a judge to get permission to apply for access simply because their grandchildren’s parents are together.
"It strikes me that this has to do with the children’s rights, not the parents. I don’t think we should put extra hurdles in the process," says Jenuth. "I think the reasons why grandparents would feel it necessary to apply for access would be the same (for married or separated parents), so I don’t think it’s rationally based."
Marks argues that the court process is too adversarial and doesn’t ensure that the rights of children are protected.
"Children need extended family and community in their lives," says Marks. "It’s the right of the child… to have access to as many loving, supportive people in their lives ,including extended family, so they can reach their full potential… and they’re being deprived."
Shannon Haggerty, a spokesperson for the Alberta government’s ministry of justice, says grandparents’ concerns were carefully weighed when creating the new legislation, but "we need to put the interests of the children first."
"To simply make across-the-board provisions guaranteeing contact orders does not take into account the specific needs or the special circumstances of each individual family," says Haggerty. |
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