Guardianship or Contact with 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 contact between children and 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. These types of situations that don’t involve a child and family services agency are known as private guardianship.
When someone other than a parent wants to assume legal responsibility to care for a child, that person can apply to the court for a guardianship order under Section 48 of The Family Law Act. 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. Section 4 of the Family Law Regulation requires that 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 12 years of age or older
- any child and family services agency that has care of the child
- if the child is in the care of an Indigenous service provider, that Indigenous service provider
- the Director of Child and Family Services appointed under The Child and Family Services Act
- if the child is Indigenous, the agency or Indigenous service provider serving the child’s Indigenous group, community or people
- such other person as the court may direct
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 parental responsibilities respecting the child and is responsible for the child’s support and well-being.
How can grandparents and others have contact with children?
Services and supports are available to help parents, grandparents and others find solutions outside of court to issues relating to contact with a child. 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 Family Coaching or 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 a contact order. Where the parents of the child are going through a divorce or if they already divorced, an application for a contact order can be made under the Divorce Act, which allows people other than the spouses to apply for a contact order with respect to a child with leave (permission) of the court.
The Family Law Act allows a member of a child’s family (such as a grandparent), who would not otherwise have a right to apply for contact, to ask a judge to make a contact order. Non-family members, with leave (permission) of the court, can also apply for a contact order with respect to a child in exceptional circumstances.
For more information, please contact the Family Resolution Service at GetGuidance@gov.mb.ca or call: 204-945-2313 (Winnipeg) or 1-844-808-2313 (toll-free). Please include ‘Contact’ in your email subject line.
How can I support my child(ren) and my grandchild(ren) while they are going through a separation/divorce?
- Respect their roles as decision-makers and follow their rules. Don’t give advice.
- Offer support to both parents, without strings attached.
- Ask them what they need and do what you can to help.
- Listen without judgment or blame toward either parent. Don’t take sides.
- Listen to the children. Do not say bad things about either parent in front of them.
- Respect their grieving process. Allow them to be sad or angry or in denial as long as they need to be.
- Be positive about the future. Families grieve and need time to adjust and rebuild.
What can I do if my access to my grandchildren changes because of my adult child’s separation/divorce?
- Remember that you are not alone.
- Maintain a polite relationship with your adult child, their co-parent, and any new partners that may enter the family going forward.
- Giving unwanted advice may not be appreciated.
- Remain calm when the parents seem to push your buttons.
- Respect your adult child’s role as a parent.
- Make the most of every opportunity to be with your grandkids.
- Start with whatever access you have and build from there.
- Be understanding when it comes to special occasions. Traditions may not be the same. Keep making the times when you can celebrate together special.
- Go to court as a last resort. It is emotionally, financially and physically draining.
- Take care of yourself.
- Seek out counselling.