Grandparents' Rights In New Brunswick

In New Brunswick, grandparents do not have specific rights to their grandchildren unless they have a court order or custody agreement. However, the Family Services Act in New Brunswick recognises the child's relationship with their grandparents as part of the best interests of the child. This means that courts will consider the love, affection, and ties between the child and their grandparents when determining custody matters. Grandparents can apply for visitation or custody rights, but they must prove that it is in the best interests of the child. Factors such as the strength of the relationship, the time elapsed since the last visit, and the grandparents' ability to meet the child's needs are considered in these cases.

Grandparents' rights in New Brunswick are considered under the Family Services Act

In New Brunswick, grandparents do not have specific, legislated rights to their grandchildren unless their grandchildren are in their care and custody by virtue of a court order or a custody and access agreement. However, the Family Services Act in New Brunswick does consider a child's relationship with their grandparents as part of the "best interests of the child".

The "best interests of the child" is defined in the Family Services Act as the best interests of the child under the circumstances, taking into consideration:

• The mental, emotional, and physical health of the child and their need for appropriate care or treatment.
• The views and preferences of the child, where such views and preferences can be reasonably ascertained.
• The effect upon the child of any disruption of their sense of continuity.
• The love, affection, and ties that exist between the child and each person to whom the child's custody is entrusted, each person to whom access to the child is granted, and, where appropriate, each sibling of the child and, where appropriate, each grandparent of the child.
• The merits of any plan proposed by the Minister, under which the child would be cared for by them, in comparison with the merits of the child returning to or remaining with their parents.
• The need to provide a secure environment that would permit the child to become a useful and productive member of society through the achievement of their full potential according to their individual capacity.
• The child's cultural and religious heritage.

Section 129(3) of the Family Services Act allows for a parent or "any person" to apply to the Court for an order for custody or access on the basis of the best interests of the child test. This means that grandparents can apply for custody or access to their grandchildren, and the court will consider the above factors in its decision-making process.

The courts in Canada have recognized that the "best interests of the child" test is the only test applicable to child custody disputes. Therefore, it is technically incorrect to think of grandparents' rights, as they do not have rights to access; children have rights to contact with both parents and their family, as determined through the lens of the "best interests of the child" test.

In summary, while grandparents in New Brunswick do not have specific legislated rights to their grandchildren, they can apply for custody or access, and the court will consider the "best interests of the child" in making its decision, which includes considering the child's relationship with their grandparents.

Grandparents can apply for custody or access to grandchildren

In New Brunswick, grandparents do not have automatic, legislated rights to their grandchildren unless they are already in their care and custody by virtue of a court order or a custody and access agreement. However, grandparents can apply to the court for custody or access to their grandchildren.

The court will consider such applications on the basis of the 'best interests of the child' test, which is the only test applicable to child custody disputes. This test includes a list of factors set down in section 1 of the Family Services Act of New Brunswick. These factors include:

• The child's mental, emotional, and physical health and their need for care and treatment.
• The views and preferences of the child, where these can be reasonably ascertained.
• The effect on the child of any disruption to their sense of continuity.
• The love, affection, and ties between the child and each person with custody, each person granted access, each sibling, and, where appropriate, each grandparent.
• The merits of any plan proposed by the Minister under which they would care for the child, compared to the merits of the child remaining with their parents.
• The need to provide a secure environment that would allow the child to become a useful and productive member of society and achieve their full potential.
• The child's cultural and religious heritage.

In addition to these factors, the court will also consider the willingness of each parent or guardian to facilitate access and the need for making an order for access.

Grandparents can apply for custody or access to their grandchildren through a written application, which will include details of the relationship between the grandparent and grandchild. The grandparent must prove that the child will suffer harm if visitation is denied. The court will consider a range of factors when evaluating an application, including the length and frequency of contact between the grandparent and grandchild, as well as the time elapsed since the grandparent last saw their grandchild.

It is important to note that courts are generally reluctant to remove a child from their parents' care or go against decisions about the child's best interests made by the parents. Therefore, grandparents will only be successful in a claim for custody or access under extraordinary conditions, such as cases where both parents are considered unfit to raise the child.

The 'best interests of the child' test is used to determine custody

In New Brunswick, grandparents do not have specific rights to their grandchildren unless they have court-ordered custody or a custody and access agreement. When it comes to custody matters, the courts always consider what is in the best interests of the child. This is known as the "best interests of the child" test, and it is the only test applicable to child custody disputes. The test is flexible and gives family court judges latitude to decide any issue pertaining to the child's growth and development.

The "best interests of the child" test considers several factors, including the child's physical, mental, and emotional well-being, the child's views and preferences, the child's relationships with their parents, caregivers, and other important people in their life, such as grandparents, and the child's cultural and religious heritage. The test also takes into account the history of the child's care and the impact of any family violence.

In New Brunswick, the "best interests of the child" test is outlined in Section 1 of the Family Services Act, which was amended in 2017 to explicitly include grandparents' access to their grandchildren. This amendment ensures that grandparents are considered when determining custody matters and provides them with the opportunity to apply for access or custody if it is in the best interests of the child.

The "best interests of the child" test is a critical tool used by courts to ensure that decisions regarding custody arrangements are made with the child's well-being as the primary consideration. It is applied in all custody cases and gives judges the flexibility to make decisions that account for the unique circumstances of each family.

Courts consider the strength of the relationship between child and grandparent

In New Brunswick, grandparents do not have specific, legislated rights to their grandchildren unless their grandchildren are in their care and custody by virtue of a court order or a custody and access agreement. However, the Family Services Act in New Brunswick considers a child's relationship with their grandparents as part of the definition of "best interests of the child".

The "best interests of the child" is the only test applicable to child custody disputes. Courts always consider custody and access matters through a narrow prism: what is in the child's best interests? The rights and interests of parents and grandparents are a secondary consideration.

When considering the "best interests" of the child, the Court shall consider:

> (d) the love, affection and ties that exist between the child and each person to whom the child’s custody is entrusted, each person to whom access to the child is granted and, where appropriate, each sibling of the child and, where appropriate, each grandparent of the child.

Courts will consider the strength of the relationship between the child and grandparent, including the amount of previous contact. A grandparent who has been in regular contact with their grandchild will likely fare better than a grandparent who has not.

In the case of a strong pre-existing relationship, the grandchild may endure negative psychological consequences if denied an opportunity to spend time with their grandparent. If the facts show that the grandparents have played a long-standing and positive role in the child's life and development, and that the child's emotional, mental, or physical health would be jeopardized by being deprived of that contact, the Court would usually rule accordingly and restore access between the child and their grandparents.

In summary, while grandparents in New Brunswick do not have specific rights to their grandchildren, the Court will consider the strength of the relationship between the child and grandparent when determining the "best interests of the child".

Grandparents must prove that denying visitation will harm the child

In New Brunswick, grandparents do not have specific rights to their grandchildren unless the grandchildren are in their care and custody by virtue of a court order or a custody and access agreement. However, the Family Services Act in New Brunswick does consider a child's relationship with their grandparents as part of the definition of the "best interests of the child".

Section 129(3.3) of the Family Services Act states that:

> "On application by a grandparent or another member of the child's immediate family, other than a parent or guardian, the court shall take into consideration the willingness of each parent or guardian of the child to facilitate access and the need for making an order for access."

This means that grandparents can request visitation rights and, if a parent denies a grandparent the chance to visit their grandchild, the grandparent may fill out an application for visitation. This application must provide evidence that visitation is in the best interest of the child and that the child would be harmed if visitation were to be denied.

Courts will consider a range of factors when evaluating an application, including the length and strength of the relationship between the grandchild and grandparent, the time elapsed since the grandparent last saw the grandchild, the current arrangement if the child's parents are separated or divorced, and the physical distance between the parents and grandparents.

Grandparents must also demonstrate that they are capable of meeting the child's needs and that the child will not be exposed to harm during their care. Overall, the courts will always consider custody and access matters primarily from the perspective of what is in the child's best interests, with the rights and interests of parents and grandparents being a secondary consideration.

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