In Québec, grandparents’ rights are primarily governed by the Civil Code of Québec. Article 611 of the Code specifically addresses the issue of grandparents’ access rights to their grandchildren, which must be determined based on the best interests of the child. The newly amended Article 611 C.C.Q. states the following :
“Personal relationships between the child and their grandparents may be maintained or developed insofar as it is in the child’s best interest and, if the child is 10 years of age or older, with their consent, unless they are unable to express their will. Such relationships may also be maintained under the same conditions with the former spouse of the child’s parent, provided that person played a significant role in the child’s life. These relationships may be maintained or developed by any means appropriate to the situation, and physical presence is not required.
The terms may be agreed upon in writing between the child’s parent, acting as guardian, their guardian if applicable, or the child aged 14 and over, and the grandparents or the parent’s former spouse.
If the child is between 10 and 14 years old and does not consent, or if the parties disagree, the court will decide whether the relationship should be maintained or developed.
In all cases, the consent of a child aged 14 or older is required, and that child may terminate the relationship at any time, without any formal procedure, whether or not a court order has been issued.”
The new legal framework
Since the amendment of this provision, there is no longer a legal presumption that a grandparent’s access to their grandchild serves the child’s best interest. Grandparents must now demonstrate that maintaining or fostering the relationship is in the child’s best interest.
The court’s assessment may take into account several factors, including:
- The child’s age and stability
- The nature and strength of the bond between the child and the grandparents
- The child’s wishes
- The relationship between the parents and the grandparents
For children aged 10 and older, their willingness to maintain contact with their grandparents will be a determining factor unless it can be proven that such contact would go against their best interest.
For children aged 14 and older, their consent is mandatory for any access to take place.
Conditions for filing a request
According to Article 611, grandparents may submit a request to the court under the following circumstances:
- Disagreement between parents: If the parents disagree about whether the grandparents should have access, the grandparents can seek a court ruling.
- Unreasonable denial by the parents: If access is unreasonably denied, grandparents can apply to the court to assert their rights.
- Death of a parent: Following the death of one parent, the surviving parent may limit access. In such cases, grandparents can file a motion to maintain contact.
Legal process
To file a request under Article 611, grandparents must follow a specific legal procedure, which generally includes preparing a formal application to the competent court. In their application, grandparents must clearly explain the reasons why they believe they should be allowed to see their grandchildren.
The court will consider various factors, including:
- The child’s best interest
- The strength and nature of the relationship
- Any supporting evidence of a positive and meaningful connection
The judge’s goal is to assess whether grandparent access aligns with the well-being of the child.
The best interest of the child
Article 611 places a strong emphasis on the best interest of the child, which remains the guiding principle in all decisions. Any grandparental access must not undermine the child’s security, development, or overall welfare.
Conclusion
In summary, Article 611 of the Civil Code of Québec provides grandparents with a legal avenue to request access to their grandchildren in specific circumstances. The judicial process seeks to ensure that grandparent access respects the child’s best interest, balancing the grandparents’ rights with the child’s well-being.
Grandparents considering this legal step are encouraged to consult with a family law professional to receive personalized advice based on their situation.