Family Access to Children
Parents are generally responsible for caring for and making decisions about their children. However, if the parents are unable to care for their children or if there is disagreement about access by grandparents or others, the law provides some options.
What is private guardianship?
When parents can’t take care of their children, grandparents or other family members or friends sometimes step in rather than involving a child and family services agency. Families may even decide that it is better for the child to live with another family member for reasons that may include education.
When someone other than a parent wants to assume legal responsibility to care for a child, that person can apply to the court for an order of private guardianship. Part VII of The Child and Family Services Act deals with private guardianship. The court can appoint any adult as a guardian of the child and may remove a guardian so appointed, with or without appointing another. The court can appoint a guardian on a temporary (interim) basis, until the issues are finally settled or on a final basis. Before any order is granted, notice must be given to:
- the parents of the child
- the guardian of the child (if any)
- the child, if if 12 years of age or older
- any child and family services agency that has care of the child
- the agency serving the appropriate First Nation, if the child is or could be registered as a status Indian
As with many other kinds of decisions involving children, a judge considering an application for private guardianship must consider whether the order would be in the best interests of the child. Once appointed, the guardian has the care and control of the child and is responsible for the child’s maintenance, education and well-being.
How can grandparents and others access children?
Services and supports are available to help parents, grandparents and others find solutions to child access issues outside of court. To start, families are encouraged to take For the Sake of the Children, Manitoba Justice’s free online supportive information program. While primarily directed at parents, any interested person can take the program. Participants learn about the legal and emotional needs of children and families during a separation.
Public or private Mediation can also help families resolve access issues without going to court. If an agreement can be reached, it can be (but does not have to be) included in a court order.
When agreement outside of court cannot be reached, legislation allows people to ask a judge to make an access order. Where the parents of the child are going through a divorce or if they already divorced, an application for access would usually be made under the Divorce Act, which allows people other than the spouses to seek access to a child with leave (permission) of the court. When the changes to the Divorce Act come into effect this will be referred to as “contact” with a child, rather than access.
Manitoba’s The Child and Family Services Act allows a member of a child’s family (such as a grandparent), who would not otherwise have a right to apply for access, to ask a judge to make an access order. Non-family members can also apply for access to a child in exceptional circumstances. Under amendments to The Child and Family Services Act that came into effect in December 2006, a judge hearing an access application by a third party must consider not only the best interests of the child, but all relevant matters, including:
- the mental, emotional and physical needs of the child
- the nature of any pre-existing relationship between the applicant and the child
- where the application is made by a grandparent, the fact that a child can benefit from a positive, nurturing relationship with a grandparent
For more information, please contact a family guide at GetGuidance@gov.mb.ca or call: 204-945-2313 (Winnipeg) or 1-844-808-2313 (toll-free). Please include ‘Access/Contact’ in your email subject line.