Table
of Contents | Introduction
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iv. Extended Family Custody and Access
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PROVINCE/STATUTE
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LEGISLATIVE PROVISION
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Canada
Divorce Act, R.S.C.1985 (2nd Supp.), c.3.
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s. 16(3) a person other than a spouse must obtain leave of the court in order to make an application for custody or access.
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Alberta
Domestic Relations Act, R.S.A. 1980, c. D-37.
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-s. 57(1) an "other responsible person" (a person legally liable to maintain a minor or entitled to the custody of a minor) may apply for custody of a minor.
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Provincial Court Amendment Act, 1997, Chapter 22, amends Provincial Court Act, R.S.A. 1980, cP-20.
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-s. 32.1(1)(2) if a grandparent at any time is refused access to a child, the Court may on application make an order as it sees fit regarding the grandparents right of access to the child.
(3) The application for an order under this section may be made a) by a grandparent of the child, or b) by the child, who may apply with or without any person interested on his behalf.
(4) in making an order under this section, the Court shall take into consideration only the best interests of the child as determined by reference to the needs and other circumstances of the child including a) the nature and extent of the child's past association with the grandparent, and b) the child's views and wishes, if they can be reasonably ascertained.
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Child Welfare Act, S.A. 1984, c. C-8.1; as amended by 1985, c. 6; 1985, c. 16; 1986, c. D-27.1; 1987, c. 29; 1988, c. P-12.01; 1988, c. 15; 1989, c. 10; 1990, c. 29; 1991, c. 21; 1994, c. G-8.5; 1994, c. 36 and 1995, c. 23.
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-s. 12(1) A director may enter into an agreement in the prescribed form with
(a) a guardian of a child who is the subject of a temporary guardianship order, or
(b) any person who has a significant relationship with a child who
is the subject of a temporary guardianship order.
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British Columbia
Family Relations Act, R.S.B.C. 1979, c. 121.
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-s. 34 mother, father and any parent as defined in s. 1 may apply for custody or access.
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Manitoba
The Family Maintenance Act, R.S.M. 1987, c. F.20 as amended.
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s. 38 any person may apply for custody or access on behalf of a child
-s. 39(2)(a) either parent (biological or adoptive); or any person so declared under part II of the Act may also apply
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New Brunswick
The Child and Family Services and Family Relations Act, S. N. B. 1980, c. C-2.1 re-titled Family Services Act, S.N.B. 1980, c. F-2.2,
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-s. 129(2) Upon application the court may order that either or both parents, or any person, either alone or jointly with another, shall have custody of a child, subject to such terms and conditions as the court determines, such order to be made on the basis of the best interests of the child; and the court may at any time vary or discharge the order.
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Newfoundland
Children's Law Act, R.S.N. 1990, c. C-13, as amended by S.N. 1995, c. 27.
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-s. 27 A parent of a child or other party, as specified in paragraphs 69(4)(b) to (d), may apply to a court for an order respecting custody of or access to the child or determining an aspect of the incidents of custody of the child.
-s. 69(4) The parties to an application under Parts III and IV in respect of a child shall include a) the mother and the father of the child; b) a person who has demonstrated a settled intention to treat the child as a child of his or her family; b.1) a grandparent of the child; c) a person who had the actual care and upbringing of the child immediately before the application; and d) another person whose presence as a party is necessary to determine the matters in issue.
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Northwest Territories
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-no existing provisions
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Nova Scotia
Family Maintenance Act, R.S.N.S. 1989, c. 160.
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-s. 18(2) the court may, on the application of a parent or guardian or other person with leave of the court, make an order a) that a child shall be in or under the care and custody of the parent or guardian or authorized person; or b) respecting access and visiting privileges of a parent or guardian or authorized person.
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Ontario
Children's Law Reform Act, R.S. O. 1990, c. C.12.
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-s. 21 a parent of a child or any other person may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child.
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Prince Edward Island
Custody Jurisdiction and Enforcement Act, R.S. P.E. I. 1988, c. C-33.
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-s. 7(3) parties to a custody or access proceeding may include: a) the mother and father of the child; b) a person who has demonstrated a settled intention to treat the child as a child of his or her family; c) a person who had the actual care and upbringing of the child immediately before the application; and d) any other person whose presence as a party is necessary to determine the matters in issue.
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Quebec
Civil Code of Quebec, S.Q. 1991, c. 64.
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-Art. 605 either parent or a third person may apply for custody or access of a child
-Art. 611 in no case may the father or mother, without a grave reason, interfere with personal relations between the child and his grandparents. Failing agreement between the parties, the terms and conditions of these relations are decided by the court.
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Saskatchewan
Children's Law Act, S.S. 1990, c. C-8.1.
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-s. 6 (1) on the application of a parent or other person having, in the opinion of the court, a sufficient interest, the court may, by order; a) grant custody of or access to a child to one or more persons; b) determine any aspect of the incidents of the right to custody or access; and c) make any additional order that the court considers necessary and proper in the circumstances.
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Yukon
Children's Act, R.S.Y. 1986, c. 22.
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-s. 33(1) a parent of the child or any other person may apply for custody of or access to the child.
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*although most jurisdictions permit persons other than parents to apply for access, the probability of success by a non-parent who is not in a quasi-parent position is quite small
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