Changes to legislation in the past few years have prompted some people to ask questions about whether grandparents now have “rights” in Nova Scotia in relation to their grandchildren. While amendments have made it easier for grandparents to apply for custody or access, they did not create any “rights” or presumptions for grandparents.
Changes to legislation
Prior to September 1, 2014 if a grandparent wanted to seek custody or access of a grandchild through the court they would have to first seek leave, meaning they would have to apply to the court for permission before being allowed to start an application for custody or access. After the amendments to the Maintenance and Custody Act that came into place September 1, 2014, however, grandparents no longer have to apply for permission before they can start an application in relation to their grandchildren – they can just file the application. Any other member of a child’s family besides their parents or grandparents are still required to seek leave.
“Best interests” test
On any application regarding custody and access the test is whether the proposed action would be in the “best interests” of the child. This is the test that anyone, including a grandparent, has to meet to convince the court they should order custody or access. The 2014 amendments did not create any presumption in favour of grandparent access, but it did add two extra considerations to the “best interests” analysis when considering grandparent access. Specifically, s. 18(6A) says that the court should consider the willingness of each parent or guardian to facilitate visiting with the grandparent and the necessity of making an order to facilitate access between the child and grandparent. These, however, remain just two of many factors to be considered when determining a child’s best interest.
The 2014 changes to the legislation do not mean that grandparents in Nova Scotia now have a “right” to their grandchildren. While they no longer need to seek the leave of the court to apply they still must go through the process of applying for custody or access, and there is still no guarantee the court will grant it. The outcome depends on the facts in each individual case.