When parents separate, the first topic they often discuss is child custody. Despite the separation, both parents continue to exercise parental authority and both have the right to see their child.
But parents are not the only people who have contact with their child. The Civil Code of Québec recognizes that grandparents can have personal relations with their grandchild. A grandparent can therefore go to court if one of the parents unfairly prevents them from seeing or visiting their grandchild, for example, after an argument.
In this article, our family lawyers explain:
- When a parent can validly object to contact or visits between grandparents and grandchildren;
- When the court will allow contact or visits between grandparents and grandchildren.
1. The right to a relationship between the child and their grandparents
The Civil Code of Québec provides that relations between a child and their grandparents may be maintained or developed “ to the extent that it is in the child’s interest ”.
It is important to note that this right belongs first and foremost to the child. It is also a right of the grandparents, but only to the extent that the relationship is necessarily mutual. A grandparent therefore cannot ask to see their granddaughter simply because it is “ their right ”. They must also show that it is in their granddaughter’s interest.
2. The child’s interest
In family matters, every decision concerning a child is based on the principle of the “ child’s interest ” and respect for the child’s rights. The child’s moral, emotional and physical needs are taken into account to help determine what is in their interest. The child’s age and personality are also factors to consider. The presence of family violence must also be taken into account.
For example, a judge who must decide on shared or sole custody of a child must determine, based on the evidence presented at trial, which type of custody is in the child’s best interests.
Deciding whether a grandparent and grandchild should have contact is no exception to the principle of the “ child’s interest ”.
3. How can a grandparent obtain access to their grandchild?
If there is no agreement with the child’s parent about access, the grandparent will have to file an Application for access rights with the court.
For a court to grant a grandparent access rights to their grandchild, the grandparent must show the judge that it is in the grandchild’s interest to maintain or develop a personal relationship with them.
What does “maintaining or developing” a relationship with the child mean? The law allows grandparents who already have an established relationship with their grandchild to file an Application for access rights. The same is true for grandparents who have not yet developed a relationship with their grandchild.
The judge will analyze the evidence presented at trial and decide whether a relationship between the grandparent and the grandchild is desirable.
The Quebec Court of Appeal has stated that grandparents do not necessarily have to show that they are “ significant third parties ” in the child’s life to be granted access. It is therefore reasonable to think that a grandparent who sees their grandchild only occasionally could be granted access. This could be the case, for example, for a grandparent who lives several hours away from the child’s home.
4. A grandparent’s access rights and the forms they can take
In law, the concept of “ access rights ” refers to contact between the non-custodial parent and the child. If a father has sole custody of his child, the mother is the non-custodial parent, and her contact with the child, for example every other weekend, is her “ access rights ”. For more information, we invite you to read our article on child custody arrangements.
By analogy, the same term (“ access rights ”) is used for contact between grandparents and their grandchild.
Since grandparents are not substitutes for parents, they cannot obtain access rights as extensive as a parent’s.
If the parents cannot agree on the time their child spends with the grandparents, the question can be brought before the court.
4.1 Where access takes place
Access can take place in different locations, such as the parents’ home or the grandparent’s home, but also in public places (shopping centre, playground, etc.).
The law recognizes that maintaining or developing a relationship between a child and their grandparents does not require them to be physically together. Access could therefore take place not only in person, but also by videoconference, by phone, by letter or by text message.
4.2 How often access takes place
The frequency of access can also vary. Access can take place at set times or at times to be determined, depending on the relationship between the parents, the grandparents and the child.
In the child’s interest, a judge could grant a grandmother access to her grandson on the third Sunday of each month, from 10:00 a.m. to 4:00 p.m. By mutual agreement, a separated father could agree with his own father (the child’s grandfather) that the grandfather may see his granddaughter for dinner during the father’s every-other-weekend access.
4.3 Planning access
If there is an agreement, access can be set out in writing between the parents and the grandparents. A child aged 14 or older can also arrange access directly with their grandparents.
5. When a relationship with the grandparent is not in the grandchild’s interest
The courts have identified various situations where contact between grandparents and grandchildren was not in the grandchildren’s interest. However, each situation is assessed case by case. The examples below cannot be generalized. For a legal opinion on your specific situation, do not hesitate to consult our family lawyers.
5.1 Examples of situations
A conflict between the parents and the grandparents should not automatically prevent contact between grandparents and grandchildren. However, if the conflict is serious enough that it could harm the child, it could stand in the way of access. The child’s interest requires that the child not have to “ bear the psychological consequences of the climate of war, of the climate that exists between the parents and the grandparents ” (our translation). In a recent judgment, Justice Marie-Hélène Dubé wrote : “ The grandmother must understand that reducing the conflict with the mother is necessary to allow [the child] to have healthy personal relations with her ” (our translation).
A grandparent’s behaviour can also be a reason not to allow access. This is the case for a grandparent who constantly disparages the child’s parent. It is also the case for a grandparent who harasses the parents and the child.
A grandparent’s criminal record can also justify refusing access, as can problems with alcohol and/or drug use.
Finally, a child’s particular characteristics can also affect whether the relationship is maintained or developed. In a January 2023 judgment, Justice Robert Dufresne considered the case of an 11½-year-old girl diagnosed with adjustment disorder (TDA) and autism spectrum disorder (ASD), namely Asperger’s. The child did not know her grandmother well and had had little contact with her. The judge wrote : “ The evidence convinces the Court of [the child]’s great fragility in the face of any change, even a seemingly trivial one. It does not appear to be in [the child]’s interest to develop a new relationship with a person who is practically a stranger to her, even if she is her maternal grandmother ” (our translation).
5.2 The child’s wishes
The child’s wishes can stand in the way of maintaining or developing the relationship between a grandparent and the child. Article 611 of the Civil Code of Québec sets out different rules depending on the child’s age. The table below summarizes the principles:
| Child under 10 | Access for a child under 10 is determined based on the child’s interest, regardless of whether the child says they want to see their grandparents or not. |
| Child aged 10 to 13 | Grandparents can have access to their grandchild aged 10 to 13 if : – The grandchild consents; – Or, if the grandchild does not consent, the court has authorized it for the grandparents. The court will take into account the child’s interest and the reasons for their refusal. |
| Child aged 14 and older | When the child is 14 or older, their consent is absolutely required for the grandparents to exercise access rights. In other words, from age 14, a teenager can end their relationship with their grandparents entirely at their own discretion if they wish. |
Contact our family lawyers
Our lawyers frequently act in disagreements between parents and grandparents over grandparents’ access to their grandchildren. They can :
- Analyze your situation and provide a legal opinion on your rights and obligations;
- Inform you of the options available to resolve the conflict (formal notice (demand letter), negotiation, going to court, etc.);
- If you are a grandparent, draft your application for access rights and file it with the court;
- If you are a parent and have received an application for access rights that is unjustified or contrary to your child’s interest, contest the application;
- Develop a strategy and prepare your arguments for a court hearing;
- Prepare your evidence for a court hearing:
- By selecting the documents needed to convince the court of your position;
- By selecting the witnesses needed for your case and preparing them for the hearing;
- Represent you in court in an application for access rights;
- Negotiate an out-of-court settlement to resolve the dispute.
Note: The information above is general in nature and does not constitute legal advice. For advice on your particular legal situation, feel free to contact one of our lawyers in Québec City or Lévis.
