Excerpt from Justice Claude Bouchard in Droit de la famille – 201095, 2020 QCCS 2470.[21] In Droit de la famille-2216[1], Judge Jean-Pierre Sénéchal, j.s.c., recognized the importance of maintaining relationships with grandparents for the development and enrichment of the child:

Moreover, the Court recognizes from the outset that contacts between grandchildren and grandparents, as the applicant rightly points out, are a great asset for the child, the grandparents and society. They are, without a doubt, a great source of joy, affection, learning and knowledge (and vice versa). Intergenerational contacts are in fact a unique source of input, not only valuable, but indispensable, and this, again, both for the people involved and for society as a whole.

Excerpt from Justice Clément Trudel in R. B. v. C. B. , 2004 CanLII 40645 (QC SC).

[15] In support of their claim, the grandparents rely on article 611 of the Civil Code of Quebec, which reads as follows:

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.

[16] They also rely on article 33 C.C.Q., which states

Every decision concerning a child shall be taken in light of the child’s interests and the respect of his rights.

Consideration is given, in addition to the moral, intellectual, emotional and physical needs of the child, to the child’s age, health, personality and family environment, and to the other aspects of his situation.

[17] In summary, section 611 is intended to protect the rights of grandparents and creates a presumption in their favour that it is in the best interests of the children to maintain contact with them. The onus is on the parents to show serious grounds for rebutting this presumption.

[18] In the absence of a definition of serious reasons, this task is left to the court. The court must determine whether there are serious reasons for the parents to interfere with the personal relationship between the grandparents and their grandchildren.

[19] Commenting on section 611, Madam Justice Louise Moreau stated in L.(M) v. O.(M.), 2003, F.D.R. 218 (Res.) :

« 41. There is thus a considerable presumption in favour of grandparent-grandchild contact, since the Act provides that parents may object only for serious reasons.

42. Dominique Goubau, a professor at the Faculty of Law of Laval University, reminded us in an article written in 2011 that modern law is characterized by the increasingly real recognition of the importance of emotional ties between people.

43. Courts consider bonding and attachment as a factor in decision-making in all areas. One factor among others in the growth of this phenomenon is the context of family breakdown and multiple family transitions, where the preservation of bonds of affection is seen as an element of stability and merit.

44. Thus, according to the presumption in article 611 of the Civil Code of Quebec that it is in the child's interest to have personal relations with their grandparents, only proof of serious reasons can overturn this presumption.

45. But what constitutes a serious reason?

46. A review of the case law shows that strained relations between the parties is the most common reason for parental refusal.

47. Still according to Professor Goubau on this point, the case law has developed two trends. The first, refusing contact in order to avoid the child finding himself at the center of the adult conflict of which he would be the victim. The second trend, granting contact in spite of the conflict, says that precisely to avoid the child being a victim of the tensions between adults by depriving him or her of seeing his or her grandparents, under the pretext that the adults are capable of settling their dispute.

48. He then summarizes as follows:

« Beyond this difference, however, the case law is unanimous that the absence of cordial relations between the parties does not constitute a serious reason. And it is almost unanimous on the fact that the existence of simple tensions between the parties does not in itself constitute serious cause within the meaning of the law. Several judgments emphasize that even the presence of a serious conflict between the parties does not necessarily constitute serious cause, but that this reality must be taken into account when arranging the terms of contact. In reality, it is not so much the existence of a conflict that matters, but rather the actual or potential impact of the conflict on the child. »

49. He concludes by reminding us that once a case goes to court, there is necessarily a very important conflict and a considerable deterioration of the relationship.

50. So, once the presence of the conflict is noted, what needs to be analyzed. "Does this conflict have or will have an impact on the child"?

1.1.1 Serious reasons

1.1.1.1 Example of serious reasons

Excerpt from Justice Jacques G. Bouchard in Droit de la famille - 18646, 2018 QCCS 1331.

[4] The parents cite serious reasons for objecting to H... P....

[5] They explain that communications with H... P... has been completely severed since she attempted suicide on Y's first birthday, on [...] 2017.

[6] They added that the relationship had gradually deteriorated over the previous years, mainly because H... P... did not respect parental instructions in her dealings with child X and monopolized him to the point where the parents had difficulty re-establishing their own relationship and the child's routine after H... P... had spent time with him.

[7] In spite of numerous appeals by Mr... M... to his mother, she never changed her behaviour.

[8] In addition, Mr... M... states that since the break-up with her mother, her son X is doing much better. Above all, she said that she feared that a new suicide attempt would put her children in danger, so much so that she would stay with them constantly to watch over them, should the Court grant her mother's requests.

[9]The children's father added that H.. P... makes disparaging remarks about him, which suggests that his mother-in-law can only "turn" the children against him. He also relates that it took X one or two days to regain his composure when he returned from H... P.... The child was then literally raging against him and his wife.

(. . .)

[20] Thus, there is a presumption in favour of maintaining a relationship between a child and his or her grandparents. The onus is therefore on the parents to convince the Court that there are sufficiently serious reasons to interfere with these presumptions.

[21] Our colleague, Justice Bernard Godbout, j.s.c., in a recent decision[2], wisely recalled the following:

[19] The personal relationship that a child has a right to have with his or her grandparents should not be at the expense of the peaceful family environment that is so important to a young child's development.

[22] In the present case, there was very convincing evidence of a serious conflict between the parents and the maternal grandmother. Suffice it to mention the total absence of communication for six months, the mutual loss of trust and the serious denigration of D... F....

[23] In addition, the disturbances experienced by Child X during her return visits with H... P... and the unbalanced relationship she has established with him, by monopolizing his affection to the detriment of the parents, convinces the Court that the interest of this child does not militate in favour of the conclusions sought in the application.

Excerpt from Gaétan Dumas J. in Droit de la famille – 14587, 2014 QCCS 1129.

[6] From the evidence heard, the Court concludes that the plaintiff is unstable and unpredictable.

[7] The defendants had reached the point where they had to organize two Christmas parties and two birthday parties to avoid the rest of the family meeting the plaintiff, whose behaviour was unpredictable.

[8] Despite all the efforts made by the defendants to maintain a relationship with the plaintiff, we find ourselves with failure after failure.

[9] The Court notes that the plaintiff is isolated. She seems to be the only one who has the step and wants to impose this step on those around her.
(...)

[15] Moreover, the plaintiff even tried to manipulate the entire family in an attempt to separate the couple from the defendants.

[16] Following the cessation of contact between the plaintiff and the defendants, the plaintiff even attempted to manoeuvre to effect what the defendant described as an abduction of her children.

[17] In fact, the plaintiff tried to convince her sisters, the defendant's aunts, to contact the defendant to convince her to leave her husband with the children and to take refuge with the children at the home of one of the aunts because she feared for their safety.

[18] This behaviour is unacceptable and should certainly not be encouraged.

(…)

[31] The Court believes that the family relationship has deteriorated to such an extent through the fault of the plaintiff and despite the fact that the defendants have done everything possible to try to maintain the relationship with the plaintiff that this constitutes serious grounds.

[34] The relationship between a child and his or her grandparents is very important, but not so important that it risks destroying the family unit

Excerpt from Justice Sandra Bouchard in Droit de la famille - 161154, 2016 QCCL 227.

[20] The case law has defined these serious grounds as not merely difficult relationships, but rather as circumstances resulting in adverse effects on the child that are real and objective
Excerpt from Justice Robert Mongeon in Droit de la famille - 11692, 2011 QCCS 1265.

[31] A reading of the case law and certain comments in the doctrine submitted to me, however, obliges me to conclude that when the conflict between the child's parents and the grandparent is so serious that it risks disrupting the balance of the family unit in which the child lives in the first place, i.e. with his parents or with his custodial parent, as is the case here, at that point, the Tribunal may conclude that, given the facts shown to it, the conflict situation is significant enough to constitute a serious reason within the meaning of article 611 C.c.Q.

Excerpt from the Court of Appeal in Droit de la famille – 172486, 2017 QCCA 1637.

[12]It is often said that this provision creates a (rebuttable) presumption that the personal relationship between the grandparents and the child is in the child's interest within the meaning of article 33 C.C.Q. It is therefore up to the parents who object to this relationship to rebut the presumption by proving, by a preponderance of evidence (art. 2804 C.C.Q.), that there is a serious reason for not doing so.

[13] Of course, the existence of a conflict between parents and grandparents cannot automatically deprive the latter of a relationship with their grandchildren or, more accurately (since it is the child's interest that prevails), deprive the grandchildren of the benefit of a relationship with their grandparents. To accept that the conflict itself is inevitably an impediment would mean that the parents' will alone takes precedence, thereby neutralizing art. 611 C.C.Q. Such a conflict is therefore not necessarily a serious reason to impede the relationship between grandparents and grandchildren. However, the fact that it is not in all cases does not exclude the possibility that, because of its nature, intensity or ramifications, it may in some cases be otherwise and that it may reasonably be inferred that the establishment or maintenance of a relationship between grandparents and children entails too great a risk for the latter. The interest of the child, within the meaning of article 33 C.C.Q., which ultimately prevails over any other consideration, does not require waiting for this risk to materialize.

Excerpt from Justice Lukasz Granosik in Droit de la famille - 171721, 2017 QCCS 3284.

[34] In addition, such a conflict must have an objective disruptive or negative effect or compromise the peace of mind of the grandchildren. Finally, in some cases, major conflicts between grandparents and parents may constitute such serious grounds.
Excerpt from Judge Michel Richard in Droit de la famille - 071157, 2007 QCCS 2329.

[28] Professor Goubau states at page 78: "The behaviour of a grandparent may in itself constitute sufficient grounds for refusal when this behaviour has a harmful effect on the child or when it is feared that it will do so. However, these fears must not be purely subjective on the part of the parents, for it is precisely in situations of tension and therefore, to a certain extent, of suspicion (often generated by separation or divorce) that article 611 C.C.Q. finds its real usefulness."

1.1.1.2 Examples of reasons that are not serious reasons

Excerpt from Judge Michel Richard in Droit de la famille - 071157, 2007 QCCS 2329.

[22] Article 611 C.C.Q. establishes a presumption that it is in the child's interest to maintain relations with his or her grandparents.

[23] The legislature has been careful to provide that only for serious reasons can this grandparent-grandchild relationship be interrupted.

Excerpt from Justice Babak Barin in Droit de la famille - 182714, 2018 QCCS 5615.

[21] As my colleague, Judge Claude Dallaire, J.S.C., explains[3]. :
[82] Even where there is evidence of serious conflict, this is not necessarily sufficient to interfere with the child's right to contact with his or her grandparents.
[83] "Unhappiness", not wanting to know anything more about one's father or mother, difficult relationships, fear of denigration, and episodes of accusation and betrayal are not always grounds for refusal when they do not have real negative effects on the child.
Excerpt from Justice Claude Bouchard in Droit de la famille - 18330, 2018 QCCS 682.
[20] That being said, although the relationship between the parties is strained and can be described as difficult, the court is of the view that it does not adversely affect the child as long as the child does not witness or become involved in their disputes. With the exception of the November 5, 2017 event, there was no evidence that the child would have witnessed negative comments about his mother or grandmother and is affected by their conflicts.
[21] In the absence of a serious reason, the court is of the view that it is appropriate to intervene in this case so that there is no impediment to the child's contact with his grandmother.
Excerpt from Justice France Bergeron in Droit de la famille - 172777, 2017 QCCS 5405.
[52] In this case, there is no denying that there is a conflict. In fact, the father is no longer able to relate to his parents because of their attitude. He has no interest in talking to them. He cut them off, especially because they did not accept that he had a girlfriend, too early for them, in relation to the date of the mother's death. He was tired of being told what to do.
[53] The existence of a conflict does not automatically deprive grandparents of a relationship with their grandchildren. In a recent decision of the Court of Appeal, Madam Justice Bich reiterated this[4]:
[13] Of course, the existence of a conflict between parents and grandparents cannot automatically deprive the latter of a relationship with their grandchildren or, more accurately (since it is the child's interest that prevails), deprive the grandchildren of the benefit of a relationship with their grandparents. To accept that the conflict itself is inevitably an impediment would mean that the parents' will alone takes precedence, thereby neutralizing art. 611 C.C.Q. Such a conflict is therefore not necessarily a serious reason to impede the relationship between grandparents and grandchildren. However, the fact that it is not serious in all cases does not exclude the fact that, because of its nature, intensity or ramifications, it may in some cases be otherwise (...)
(...)
[70] The child loves her father. She loves her grandparents. She wants to see them.
(...)
[73] It is in X's best interests to have a relationship with his paternal grandparents, resulting in access. There is no need for such access to be supervised. The evidence does not show that the grandparents are dangerous to the child.
[74] The evidence reveals that, without a doubt, they love their granddaughter.
[75] This is a conflict maintained by the son. There is no evidence that the child is experiencing the conflict, experiencing it poorly, and that it is having an impact on her.
[76] The evidence does not support a finding of grave cause.

Excerpt from the Honourable Catherine La Rosa in Droit de la famille - 172337, 2017 QCCS 4577.
[11] Since March 2017, Mrs. F. has prevented contact between the children and Mrs. A. for no good reason, according to Mrs. A.
[12] In the interest of children X and Y, Ms. A. wishes to establish access to them and has difficulty understanding Ms. F.'s position towards her.
[13] Mrs. A. said that she was able to provide, as a maternal grandmother, all the affection, attention, education and stability necessary for the proper development of the children, as she had done since their birth.
(...)
[19] She admits that Mrs. A. has had frequent contact with her daughters since their birth. However, for Ms. F., this contact was not healthy. these contacts were not healthy, considering that she was always trying to take on the role of mother to her detriment in relation to the children.
[20] For these reasons, for several months, Mrs. F. decided to distance herself from her mother, considering that she wanted to make decisions for her.
(...)
[30] In this case, after having carefully heard the parties, the Court is of the opinion that Ms. A.'s access to her two granddaughters must be maintained.
[31] There are no serious reasons to prevent the maintenance of a meaningful relationship between Ms. A. and her two granddaughters.
[32] It is true that there is a significant conflict between Ms. A. and Ms. F. .... The Tribunal notes, however, that this has not always been the case. On the contrary, the relationship between Ms. A. and Ms. F. has been satisfactory for a long time, to the point where Ms. A. was able to accompany Ms. F. during certain more difficult periods of her life.
[33] A return to a better disposition is to be hoped for.
[34] The Court is of the view, however, that the current conflict should not affect the children who have been accustomed to having their grandmother in their lives since birth and whose presence seems positive.
[35] The deficient communication mentioned by Mrs. F. cannot justify the absence of a grandmother's relationship with her grandchildren when the grandmother, involved in her grandchildren's lives since their birth, represents a positive figure.

1.1.1.3 Burden of proof

577. Adoption confers on the adoptee a filiation which succeeds the person’s pre-existing filiations.

However, in the case of an adoption by the spouse of the child’s father or mother, the new filiation only succeeds the established filiation, if any, with the child’s other parent.

Although there may be recognition of the adoptee’s pre-existing bonds of filiation, he ceases to belong to his family of origin, subject to impediments to marriage or civil union.

Excerpt from the article Les relations personnelles de l'enfant avec ses grands-parents : comprendre et appliquer l'article 611 C.c.Q. by Me Élisabeth Pinard
In spite of this winding path, we believe that one constant emerges, namely the existence of a presumption of an autonomous right of grandparents to personal relations with their grandchildren, which it is up to the parents to reject (...).
Excerpt from Alicia Soldevila, J. in Family Law- 182808, 2018 QCCS 5801.
[26] The onus is therefore on the parents of a child who is to be cut off from one of his or her grandparents to demonstrate that the severance of the relationship is in the child's best interests. Indeed, in order to deprive a child of this link, the conflict between the parents and the grandparent in question must be so great that it risks spilling over into the direct family unit (father-mother of the child)
Excerpt from Justice Christian J. Brossard in Droit de la famille - 15750, 2015 QCCS 1519.
[35] It is true that there are grounds for prohibiting or limiting a child's contact with grandparents where the relationship is unhealthy for the child or is a harmful influence, let alone where the contact poses a risk to the child's safety or health. However, the onus is on the parent to prove this.
[36] In particular, for a grandparent's conduct to constitute sufficient grounds for refusing contact with the child, it must have a real adverse impact on the child or at least an objective fear that it will. As for the existence of a conflictual relationship between the parents and the grandparents, it cannot in itself constitute a serious reason within the meaning of article 611 C.C.Q. Rather, it is the actual harmful effects of such a relationship on the child that will impede the grandparents' application. Moreover, the mere fear of the negative impact of the conflict on the child is not sufficient to justify the application.

Excerpt from Judge Denis Jacques in the Droit de la famille- 191756 QCCS 3659 judgment.
[19] In Droit de la famille - 171200[5], Justice Claude Dallaire explains the burden of proof for grandparents' rights of access as follows
(...)
[51] In principle, the onus would be on the grandfather to prove his access claim, but this presumption shifts the burden of proof to the parent challenging the access claim, the mother, who has the primary burden of proving "serious reasons" for opposing the access claim if she wishes to defeat the grandfather's claim or if she wishes to reduce the frequency of access or other arrangements.
[52] The grandfather, therefore, has no obligation to convince us that it is in the best interests of his grandchildren to maintain a personal relationship with him.
[53] Since the defendant's burden rests on the definition of "serious reasons", it should be noted that these are those that would have "weight and importance" for a reasonable person in the same circumstances and that they are assessed objectively and not subjectively. They must lead to the conclusion that the continuation, resumption or frequency of the relationships sought may have a real adverse effect on the well-being of the children.
Excerpt from Justice Steve J. Reimnitz in Droit de la famille- 20230, 2020 QCCS 539.
[61] Masse J. went on to state:
[47] Thus, where there is evidence of a well-founded fear based on objective facts, such as the grandparent's behaviour coupled with a deep-seated conflict, that contact is likely to have a harmful impact on the child, serious grounds will be established.
[48] These objective facts can certainly be proven by the production in the court record of the grandparent's writings, admissions of certain behaviours, and the grandparent's words and behaviours at the hearing, as well as by any other evidence deemed credible that establishes these behaviours and the extent and nature of the conflict.
[49] The line between a fear based on conduct and/or serious conflict and a purely subjective fear may not be so clear in all cases. All of the evidence must be considered in this regard, taking into account the particularities of the grandchildren involved, including their age.

1.1.2 Importance of the child's opinion

Excerpt from Judge Carl Lachance in Droit de la famille - 181141, 2018 QCCS 2281.
[33] Even though article 611 C.C.Q. creates a presumption in favour of the grandmother, unless there are serious reasons for not doing so, the Court must necessarily take into account the wishes of the children, considering their age, when deciding on the terms of access.
[34] According to the Court of Appeal, the opinion of a child over 12 years of age is largely determinative of custody, whereas according to the Superior Court, the opinion of a 10 year old child must be given considerable weight.
[35] With respect to the access claimed by the grandmother opposite Y, the Court is of the opinion that it should not be granted and that it should cancel the access provided for in the agreement signed in 2011.
[36] On the one hand, the evidence demonstrates the existence of a serious conflict between Y and his grandmother.
[37] On the other hand, this child does not wish in any way to resume contact because of her grandmother's attitude towards her.
[38] The attachment between Y and her grandmother seems to be absent.
[39] The plaintiff's love seems to be more directed towards X.
[40] Granting access in the current state of Y's relationship with her grandmother seems to us to be counterproductive and unnecessary.
[41] In addition, the grandmother acknowledged that she would not force the child to visit her if she did not want to.
[42] In the circumstances, the best interests of the child justify, at least in the present circumstances, no contact.
[43] With respect to the access sought by Child X, the Court considers it necessary to respect the child's desire to see her grandmother.

Excerpt from Justice Michèle Lacroix in Droit de la famille - 061087, 2006 QCCS 7806.
[39] The children's desire is not the only criterion to consider. However, it is a definite indicator of the quality of the relationship they may have with their parents, and in this case their grandmother as well.
Excerpt from Justice Lise Bergeron in Droit de la famille- 19230, 2019 QCCS 546.
[51] In M.F. v. J.L. 2002 CanLII 36783 (QC CA), [2002] R.J.Q. 676 (C.A.), Rothman J.A. says:
35. In my respectful view, if a child is sufficiently mature to express himself on a vital question such as custody or access by his parents, then he has the right to be heard on that question and the right to have his wishes fairly put in evidence before the court.
Excerpt from Justice Chirstian J. Brossard in Droit de la famille - 191120, 2019 QCCS 2408.
[52] Moreover, where a child of eight years of age or older expresses his or her wishes about custody in a free and informed manner, and not on a whim, that choice must be given strong consideration. However, the court is not bound by that choice if other factors strongly indicate that it is not in the child's best interests to carry out his or her wishes.

1.1.3 Interest of the child

Excerpt from Justice Robert Legris in Droit de la famille - 123160, 2012 QCCS 5697.
[10] The majority of the case law cited by the parties holds that even a conflict between parents and grandparents is not sufficient to defeat the provisions of article 611 C.C.Q. which enshrine the right of grandparents to have contact with their grandchildren, unless there are serious reasons for doing so.
[11] The Court does not have to decide who is right between the plaintiff and the defendants. It is all a matter of circumstances. One of them has not resolved her break-up and does not seem to be in the process of doing so. The others have cut ties and this break, normally unnatural, with all its imbalances, inevitably transpires on their immediate surroundings.
[12] There is abundant evidence here that X suffers greatly from the prospect of meeting the plaintiff, even if these meetings go very well. The Court considers that article 611 C.C.Q. should be interpreted in light of article 33 C.C.Q. The criteria set out therein, namely X's moral, intellectual, emotional and physical needs, his age, his health, his character and his family environment, militate in favour of suspending access.
Excerpt from Judge Louise Moreau in Droit de la famille- 103468, 2010 QCCS 6353.
[35] In cases like these, there are no losers and no winners. This two-year-old child is entitled to the love and tenderness that the grandparents have to offer, but according to his or her own needs.
(...)
[38] Article 611 C.C.Q. creates a presumption of the grandparent's right to develop a relationship with his or her grandchildren by maintaining certain ties, in the best interests of the child. This is to be analyzed individually and on a case-by-case basis.
Excerpt from Judge Claudette Tessier Couture in Droit de la famille - 133684, 2013 QCCS 6492.
[27] The Court cannot help but note that if each party holds to its position, the situation is not beneficial to the children and will get worse from year to year. It is not in the interest of the grandchildren. It would be unfortunate to conclude that there are serious reasons for this and that the grandparent/grandchild contact should be cancelled. The relationship between the parties needs to be rebuilt and both parties, the two plaintiffs and the two defendants, need to work on it, and this is in the best interests of the grandchildren.
(...)
[34] Our colleague, Mongeon J.[6]dealing with article 611 C.C.Q., writes :
16. The main point of this section is that it deals with the child's relationship with the grandparents. The case law and the authors have seen in it a presumption in favour of grandparents to have access to their grandchildren, unless there are serious reasons, which it is up to the parents to prove. I note that article 611 C.C.Q. states that the interests of the child will and must always be paramount. The Tribunal must, in all circumstances, protect the interests of the child and decide, in any dispute involving the child, in such a way as to maintain this protection.
18. The Tribunal is of the view that the right and protection of the child must take precedence over that of the grandparents. If, for example, the child was old enough to express his or her wishes, then the Tribunal should take this into account.
Excerpt from Judge Suzanne Hardy-Lemieux in Droit de la famille - 073553, 2007 QCCS 6685.
[9] Me Michel Tétrault, in the treatise "Droit de la famille", states the following[7] :
"Article 611 C.C.Q. establishes a presumption that it is deemed to be in the interest of the child to have personal relations with his or her grandparents. The rule is that, unless there are serious reasons, parents cannot prevent the establishment of such contact.
The law aims to promote the development of the child and prevent parents from depriving the child of positive relationships with grandparents for "untimely" or "capricious" reasons.

1.1.4 Frequency of contact

Excerpt from Judge Claude Bouchard in Droit de la famille - 061065, 2006 QCCS 7556.
[14] In the present case, the defendant does not formally object to contact being maintained between his son X and his grandmother. He is aware that this link must be maintained with the family of X's mother, who died suddenly a few days after his birth.
[15] He also admits that the plaintiff was very helpful during the difficult time he went through following the death of his spouse, which he also shared with the plaintiff who lost her daughter. These particular circumstances distinguish this case from any other application that may be made by grandparents who wish to see their grandchildren.
[16] Indeed, the plaintiff has remained very present with her grandson and, without replacing the mother who has passed away, she has been called upon to play an important role with him. Because of these circumstances, she is likely to be more present with her grandson than grandparents usually are.
[17] For this reason, the Court is of the opinion that the regular contact between the applicant and her grandson X should be maintained at the current frequency of once a week. Changing this frequency risks further disturbing child X, who is only one and a half years old, who expects to see his grandmother every week and would not understand the reasons justifying such a change in frequency.
[18] The Court is also sensitive to the defendant's desire to distance himself somewhat from the plaintiff in order to assume more responsibility for his son, whose ability in this regard is not in doubt. This desire is legitimate, because after having lived through difficult moments during the first year following the death of his spouse, the defendant received a lot of help, notably from the plaintiff, in addition to benefiting from psychological follow-up. He now seems ready to fully assume his responsibilities.
[19] For this reason, the Court does not believe that there is any reason to increase the frequency or duration of contact between the applicant and her grandson, which is satisfactory for the time being since it allows her to see her grandmother every week.
[20] Extending access rights beyond the current situation risks aggravating the relationship between the plaintiff and the defendant, to the detriment of the well-being of child X. The relationship must remain harmonious in the context of grandparent/grandchild relationships, as distinct from the relationship in the context of access rights to non-custodial parents.
Excerpt from Justice Claude Bouchard in Droit de la famille - 18330, 2018 QCCS 682.
[22] In this regard, the plaintiff is asking the court to grant her access to the child from 4 p.m. Friday to 4 p.m. Sunday, every other weekend, in addition to telephone contact once a week. As the court expressed it at the hearing, this is more of a right of access for the non-custodial parent, to which the applicant responded that given the absence of the child's father who lives in British Columbia and the close bond that has developed between her and the child, such a request is justified.
[23] The court disagreed, and in the words of the Court of Appeal, it was not so much a right of access that was granted to the grandparents, but rather the right to maintain a "personal relationship" beneficial to the child.
[24] In this regard, the defendant indicated to the court that she needed her weekends to spend quality time with the child since she works a lot during the week, which is not disputed by the plaintiff. In this vein, the court is also of the opinion that the modalities suggested by the plaintiff, of one weekend every two weeks, are not appropriate in the circumstances. The duration and frequency should be reduced.
[25] The Court is also aware that the child appreciates the stays at his grandmother's house and that sleeping over occasionally gives him great satisfaction. This allows him to maintain this complicity with his grandmother who, with her spouse who has a good relationship with the child, takes advantage of this to spoil him a little.
[26] In these circumstances, the court is of the opinion that the plaintiff should be granted access to the child on the basis of one day every three weeks, from Friday 4:30 p.m. to Saturday 4:30 p.m. This does not, of course, preclude any other agreement between the parties, for example, if the opportunity arises during the week when the defendant must be absent for work purposes or for some other reason.
Excerpt from Justice Alain Bolduc in Droit de la famille - 182247, 2018 QCCS 4534.
[13] According to article 611 C.C.Q. the parents may not interfere with the child's contact with his or her grandparents, unless there is a serious reason for doing so.
[14] Since these contacts are not similar to the access rights that parents have with their children, grandparents cannot, as a general rule, seek access rights in the same way as a non-custodial parent.
[15] Considering that the defendants are not interfering with their children's personal relationships with the plaintiffs, the plaintiffs' access rights must be determined by assessing the best interests of the children, which is the overriding criterion.
Excerpt from Justice Georges Taschereau in Droit de la famille - 12347, 2012 QCCS 660.
[13] It is recognized that the establishment of contact between a child and his or her grandparents is a right of the child and also a right of the grandparents
(...)
[16] These considerations concerning culture, values and religion and these difficulties relating to the exercise of parental authority cannot have the effect of depriving X and his grandmother of contacts that foster the development and maintenance of personal relations between them, in accordance with the principle set out in article 611 C.C.Q. This is all the more the case since there is no evidence of disrespect, by M... L... of the culture, values and religion that R... A... and K... L... intend to transmit to their child. The best interest of the child is paramount.
[17] It is important to keep in mind, however, when deciding whether to grant access to grandparents, that the child's parents are the holders of parental authority and that access to grandparents cannot be equated with access and outing rights that a non-custodial parent may claim following a breakdown of the relationship. These visits, outings and communications, whether written or oral, that the Court authorizes are intended to allow the child and his or her grandparents to get to know each other and to develop and cultivate emotional ties.
(...)
[29] Returning to Saturday afternoon, the Court finds it useful to emphasize, once again, that X's access to his grandmother is intended to allow them to get to know each other and to develop and cultivate emotional ties. They should not interfere with the role and initiative of the parents in the exercise of their duties of care, supervision and education.
Excerpt from Justice Serge Gaudet in Droit de la famille - 1875, 2018 QCCS 139.
[34] Moreover, the courts insist that the relationship between grandparents and their grandchildren remains subordinate to that of the parents, who in principle have priority. In M.L. v. M.-J. H.8, the Court of Appeal stated that :
Nor can [grandparents] demand access rights in the same way as a non-custodial parent. The role of grandparents, while important, is generally secondary to that of parents. The legislator entrusts the parents with the right and duty of custody, supervision and education of the children (article 599 of the Civil Code of Quebec).
[35] Except in exceptional circumstances, the tendency of the courts is to grant access to grandparents for a few hours per month, which is generally considered sufficient for the maintenance of personal relationships between grandparents and grandchildren.

1.2 Role of Grandparents

Excerpt from Justice Jean-Pierre Sénécal in Droit de la famille - 2216, [1995] R.J.Q. 1734, 1738 (S.C.).
It is because the role of parents and grandparents is not the same in relation to children. Parents must raise their children. They have duties of custody, supervision and education (art. 599 C.C.Q.), which require a daily presence, follow-up and constant involvement. This is not the role of grandparents. Their role is simply to love their grandchildren and to bring them the richness of their personality, their experience and their affection. As Dominique Goubau points out, "they can develop affectionate contacts with their grandchildren without having to worry about education and the control of education".
The rights conferred by article 611 C.C.Q. are therefore not comparable to the rights of exit and access that parents may claim in the context of a separation or divorce, and grandchild/grandparent contact cannot be "measured" against the yardstick of separated child/parent contact.
Except in exceptional situations, such as when a grandparent has in fact exercised custody and even parental authority over a child for a long period of time, the courts do not grant the same amount and duration of contact time to a grandparent as to a non-custodial parent. Dominique Goubau has the following to say on the matter:
If the right of residence is the rule for the non-custodial parent, should it not be the exception when it comes to grandparents [...]?
[...]
Residence rights, which are true limits to parental authority, should be granted only with restraint and only in cases where there is evidence of a significant prior relationship between the grandparents and the child.
It must therefore be concluded that, while personal child/grandparent relationships are a great asset and cannot be prevented without serious reasons, they should not be confused with, or generally have the same frequency and scope as, the access rights found among separated parents.

Excerpt from Justice France Bergeron in Droit de la famille - 113467, 2011 QCCS 5890.
[33] The grandmother does not have parental authority and should not interfere with the education of her son. This does not mean, however, that the grandmother should not have rules when X is at home. She must supervise the child according to the rules set by the father.
[34] The Court therefore invites the father to inform the grandmother of his rules of life with respect to X, both verbally and in writing, which she must keep and which the father may modify if necessary.
Excerpt from Justice Michèle Lacroix in Droit de la famille - 061087, 2006 QCCS 7806.
[54] Grandparents do not have parental authority. They are not on an equal footing with the parents and cannot claim any kind of additional sharing of the child's time.
[55] The grandparents' right to personal relations is part of the arrangements for sharing the child's time with his or her parents.
[56] C occupies a great place with the children. She occupies, in the end, the place that the parents let her take, a very important place.
[57] This reality cannot be denied.
[58] Thus, since C has lived with the children continuously for six years and the relationship is very strong, it is only natural that she would want to maintain an important place as a grandparent but not as a parent. It is in the children's best interest to maintain this special relationship.
[59] While we want to maintain this special relationship, it must be in a calm, non-conflictual context in which the children are likely to find themselves.
[60] The purpose of article 611 of the Civil Code of Quebec is to allow for the development of a rewarding relationship between grandparents and grandchildren. C's conduct must also not be an intrusion into the educational role of the parents despite the place she has occupied during the parties' life together.
Excerpt from Judge Louise Moreau in Droit de la famille - 103468, 2010 QCCS 6353.
[4] X's parents dated for over a year, but never cohabited. When she announced her pregnancy, the man suggested abortion to the woman, which she refused. The parents separated before the child was born.
(...)
[7] The plaintiffs, for their part, have shown more interest in their grandson since the child's birth.
(...)
[36] The Court is also somewhat concerned about the place the plaintiffs want to take. It is not because their son is not exercising his rights and responsibilities as a father that they can do so in his place. The grandparents certainly have their place in the lives of the grandchildren, but it is not in the forefront and does not allow them to interfere in the life of the grandchildren or to participate in important decisions for them.
Excerpt from Justice Louisa L. Arcand in Droit de la famille - 093070, 2009 QCCS 5832.
[50] A relationship with grandparents should not be confused with the parental authority of parents. The role of grandparents is to love their grandchildren and to pass on their cultural heritage.
[51] Grandparents must respect the authority of the parents and, most importantly, respect the limits set by the parents and the parents' requests.
(...)
[61] Grandparents must also understand that a relationship with their granddaughter does not mean that the child belongs to them and that they can take over the child. They must respect the limits of the present judgment or they will jeopardize any future relationship with their granddaughter.

1.2.1 Special case on the death of a parent

Excerpt from Justice France Bergeron in Droit de la famille - 113467, 2011 QCCS 5890.
[25] Although in agreement with these principles, the situation submitted is different and deserves particular attention given the challenge for this child whose mother died a few weeks after birth to continue "learning" from the maternal environment.
(...)
[30] The child who has lost her mother must keep her bearings in the maternal environment. The privileged place to do this is with the maternal grandmother, who is the only one who really knew her daughter and is able to tell her story.
[31] Given the attachment between X and his maternal grandmother and her spouse, the significant access the father has allowed since the birth of his son and the connection the child must maintain with the maternal environment, it is in his best interest to have access to his grandmother every week. Therefore, X will go to his maternal grandmother's house every other weekend from Saturday to Sunday, and in the week when there is no weekend access, he will go to dinner with her on Fridays from 4:00 to 8:00 p.m.

2. GUARD

2.1 Assignment of custody to a third party

Excerpt from Justice Chirstian J. Brossard in Droit de la famille - 191120, 2019 QCCS 2408.
[50] The best interests of the child are the cardinal rule of custody and access, defined in terms of the child's moral, intellectual, emotional and physical needs, as well as the child's age, health, character, family environment and other circumstances relevant to his or her situation.
[51] The assessment of this interest also takes into account a variety of other factors, such as, in the presence of two parents as is usually the case, the parenting abilities of the parents, the emotional relationship between the child and each parent, the maximization of healthy contact between the child and both parents, the search for stability, the desire to avoid disruption to the child, the living environment available to the child and the physical environment.
(...)
[53] With respect to grandparents, while Parliament creates a presumption that contact with them is in the child's best interests, it is usually distinct from the access rights of a parent and need not be exercised with the same degree of regularity and intensity or in the same form. However, the interests of the child are still the paramount consideration and should take precedence over those of the grandparents or parents.
[54] In this regard, the legislature contemplates the possibility that a third party may be granted custody of a child and the courts, beginning with the Supreme Court of Canada and followed by the Court of Appeal, have recognized such a possibility if the third party demonstrates that "it is in the best interests of the child
[55] That said, to quote the Court of Appeal in Droit de la famille - 072895[8] :
While the law allows for joint custody to be given to both a parent and a significant third party, it must be remembered that this can only be done in the most exceptional circumstances. If a parent is fully capable of assuming custody of his or her child, I fail to see how it could be justified to deprive him or her of this attribute of parental authority in order to entrust him or her, every other week, to a person who is not the other parent. Only the best interests of the child can authorize this.

2.1.1 Deprivation of parental authority

Opinion of Beetz J. in Supreme Court C.(G.) v. V.-F.(T.), [1987] 2 S.C.R. 244.
21. Normally, parental authority is vested in the parents. The Civil Code of Quebec specifies in art. 647 C.C.Q (now art. 599 C.C.Q) the scope of the rights and obligations that flow from their role:
647. The father and mother have, with respect to their child, the right and duty of custody, supervision and education.
(...)
24. 24 The holder of parental authority may, however, delegate the exercise of that authority, as provided for in art. 649 C.C.Q. (now art. 601 C.C.Q.) or in certain provisions of the Youth Protection Act, R.S.Q., c. P-34.1, concerning the application of voluntary measures. The holder of parental authority may also have the exercise of his or her attributes reduced by virtue of a judicial decision. A judgment may have the effect of depriving the holder of the exercise of part of his rights without this deprivation being decreed because of the holder's misconduct: this is the case when a judgment of legal separation or divorce awards custody to one of the parents or, as I indicate in the next chapter, when the child's interest requires that custody be awarded to a third party.
25. The Civil Code of Quebec also provides for the possibility of total or partial forfeiture of parental authority. Whether total or partial, forfeiture entails not only the loss of the exercise of the attributes of parental authority, but also the loss of the authority itself, in which case the holder ceases to be invested. It can only be pronounced for a serious reason and in the interest of the child:
654. (Now art. 606 C.C.Q.) The court may, for a serious reason and in the interest of the child, pronounce, on the application of any interested person, the total or partial forfeiture of parental authority in respect of the father and mother, one of them or the third person to whom it would have been granted.
(...)
30 (...) Partial or total deprivation of parental authority remains conditional: it depends on proof of misconduct by the holder.

2.1.2 Best interests of the child test

Excerpt from Justice Jocelyn Geoffroy in Droit de la famille - 20753, 2020 QCCS 1776.
[12] Any decision that the Court must make in relation to a child must be made in the best interests of the child, in accordance with article 33 of the Civil Code of Québec, which provides that, in addition to the moral, intellectual, emotional and physical needs of the child, the child's age, health, character, family environment and other aspects of his or her situation must be taken into consideration.
33. Best interests of the child; Decisions concerning the child must be made in the child's best interests and with respect for the child's rights.
Elements considered; In addition to the moral, intellectual, emotional and physical needs of the child, the child's age, health, character, family environment and other aspects of the child's situation are taken into consideration.
Opinion of Beetz J. in Supreme Court C.(G.) v. V.-F.(T.), [1987] 2 S.C.R. 244.
When fathers and mothers fight over the custody of their child, it is often difficult to discover where the best interests of the child lie. To this end, the case law has created a rather fragile presumption of fact that the best interests of a young child generally lie with the mother. The problem is more complex when custody of the child is in conflict between a father or mother and a third party. In this case, case law has created another strong presumption that the best interests of the child are best served by entrusting him or her to the care of the father or mother, unless "serious allegations are made against them that could lead to forfeiture".
(...)
42. The interests of the child have become the cornerstone of Quebec civil law decisions concerning children. The reform of family law put forward in 1980 with the adoption of the Act to establish a new Civil Code and to reform family law, S.Q. 1980, c. 39, established the primacy of the criterion of the child's interests. The principle of the primacy of the child's interest was then recognized for the first time in an unequivocal manner in the Civil Code:
30 (Now art. 33 C.C.Q.) The interests of the child and respect for his or her rights must be the determining factors in decisions made about him or her.
Consideration may be given to the child's age, gender, religion, language, character, home environment and other circumstances.
43. The enactment of s. 30 C.C.L.C. was accompanied by a number of legislative amendments designed to ensure the application of this test to the various situations where the welfare of the child may be compromised. In addition, Parliament has imposed a duty on the courts to ensure that the interests of the child are protected. It is the duty of the judge to appoint a tutor ad hoc to the child in all cases where the interests of the child are opposed to those of the holder of parental authority, as well as in cases where the child cannot determine his or her own interests (art. 816.1 C.C.P.).) Where the court finds that the interests of the child are at stake and that it is necessary for the protection of those interests that the child be represented, the court may, even of its own motion, adjourn the trial until an attorney is appointed to represent the child (art. 816 C.C.P.) The court also has the duty to look after the interests of the child at any time during the proceedings for legal separation (art. 528 C.C.Q.) If the separation is based on a draft agreement, the judge must delete or modify the clauses of the temporary agreement that appear to be contrary to the interests of the child (art. 822.2 C.C.P.) He may even, according to art. 822.3 C.C.P., reject the application for legal separation if it finds that the proposed agreement does not sufficiently protect the interests of the child. These provisions unquestionably highlight the preponderant role of the child's interests and the need to give them priority, in certain circumstances, over any interests that might be opposed to them.
44. The language of s. 30 C.C.L.C. itself confirms that the interests of the child may occasionally take precedence over the interests of the person having parental authority if they conflict. Article 30 C.C.L.C. states that the interests of the child are to be assessed by taking into account, inter alia, "the age, sex, religion, language, character of the child, his family environment and the other circumstances in which he finds himself. Despite the considerable weight that must be given to it, the family environment is therefore not the determining criterion: it remains a factor that must be considered among others. Article 647 C.C.Q. rightly presumes that the family environment is the home most likely to ensure the child's well-being. But this is a presumption that can be rebutted. If it is found that, for whatever reason, the child's development and growth are likely to be compromised by being left with or returned to the parents, then the interests of the child allow the rights of the holder of parental authority to be overridden. The best interests of the child do not, therefore, override authority, but rather prescribe the parameters of its exercise.
(...)
45. 45 This interpretation of s. 30 C.C.L.C. and the relative nature of the rights conferred by parental authority seems to me to be consistent with the intention of the legislator, which is also expressed in ss. 3 and 4 of the Youth Protection Act:
3. Decisions under this Act shall be made in the best interests of the child and with respect for the rights of the child.
4. Any decision made under this Act shall be directed to the maintenance of the child in his or her parental environment. If, in the best interests of the child, such retention or return to the parental home is not possible, the decision shall be directed to the provision of continuity of care and stability of living conditions appropriate to the needs and age of the child and as close as possible to a normal parental home.
(...)
53. The concern to preserve the interests of the child has been expressed in many recent decisions where custody has been given to a third person on the basis of the child's welfare, even though the facts did not allow the holder of parental authority to be found guilty of a serious reason that could lead to total or partial forfeiture. These decisions follow the introduction of the concept of forfeiture in the Civil Code.
(...)
It is not necessary, for the purposes of s. 30 C.C.L.C., to reach an adverse inference about the conduct of the person having parental authority in order for custody to be awarded to a third person. An example of this would be a parent whose physical disability is such that he or she is unable to deal with the custody of his or her child for all practical purposes: it would be unnecessary and exorbitant to have to relinquish some of that person's custody before awarding custody to a third person. The interest of the child as set out in art. 30 C.C.L.C. is sufficient in such a situation to entrust the child to a third party. This is the case when the emotional separation between a parent and child is involuntary or accidental.
65. 65 It goes without saying, however, that a parent should not be deprived of custody of his or her child because a third party is wealthier, better educated or has other children. A third party seeking custody of a child must rebut the presumption that one parent is better able to provide for the child's welfare. The third party must establish by a preponderance of the evidence that the child's development or growth is likely to be impaired if the child remains with or returns to the parent. The third party must also demonstrate that he or she is able to provide the necessary care and affection for the child, as opposed to the person with parental authority.
66. The award of custody of a child to a third party is not intended to relieve the parent of his or her obligations or to separate the parent from the child. Wherever possible, the decision to award custody of the child to a third party should be designed to promote, through the granting of access and accommodation rights, the return of the child to his or her family environment or, failing that, the re-establishment of a more harmonious relationship. Such an interpretation seems to me to be in keeping with the spirit of art. 30 C.C.L.C., which is also expressed in the above-mentioned ss. 3 and 4 of the Youth Protection Act: it favours family ties without jeopardizing the need for stability and balance that each child experiences.

2.2 Custody by grandparents in case of parental incapacity

Excerpt from Judge Michel Richard in Droit de la famille - 061118, 2006 QCCS 7769.
[23] Under articles 598 C.C.Q. et seq., it is the parents' responsibility to exercise parental authority and to take charge of the care, custody and development of their child, as stipulated in the Code.
[24] The rights of parents are enshrined and their forfeiture or change of attributes requires, by virtue of articles 611 C.C.Q. and following, the demonstration of serious reasons to be asserted against the parents in order to remove such attributes.
[25] On the other hand, not to be confused, there is no such thing as grandparent custody. The role of parents is very different from that of grandparents, as was decided in Droit de la famille 2216.
[26] There is nothing in the evidence to support the grandparents' claim that they are afraid of being separated from their granddaughter because they believe that the defendant is not able to care for her.
(...)
[33] It is in the child's best interest that the father have custody.
[34] This custody will be assigned and contact will be resumed progressively in the manner specified in the findings.

Excerpt from the Honourable Lucie Rondeau in J.G. (In the matter of), [2005] R.J.Q. 2794.
[2] On November 20, 2003, the Court declared that the child's safety and development were in jeopardy and ordered that he be placed in foster care for one year. The order also provided that contact between the child and his maternal grandfather, Mr. J2... G... who had taken custody of the child shortly before this decision, would take place according to the agreement between the latter and the social worker of the Director of Youth Protection (DYP).
(...)
[4] The mother acknowledges that she cannot, at this time, regain custody of her son. She would agree that he should be entrusted to his grandfather who, as we shall see later, is making such a request. She asks to see her son every two weeks and contests the withdrawal of some of the attributes of her parental authority.
[5] The maternal grandfather requested and obtained authorization to intervene in the file as a party to the litigation. He contends that the DYP imposed strict conditions on his contact with the child while unilaterally limiting the duration and frequency of such contact.
[6] The grandfather objected to the child being placed in foster care until he reached the age of majority. Mr. G. and his wife, Mrs. J3... B..., offer to take custody of the child as long as the situation requires it. They ask, if the child is kept in foster care, to have extended contact with him.
(...)
[41] The grandfather testified first of all that he has been constantly involved with J. since his birth. He visits the child and his mother regularly when they are in [region A] and supports the mother, when necessary, with certain financial needs. He also sees the mother and child often when they are in [region B].
[42] In September 2003, he unreservedly agreed to take on, with his spouse of several years, Mrs. J3... B... the custody of J.... Mrs. Pauline Truchon tells them that they must move into a larger apartment (the couple lives in a three-room apartment) in order to assume custody of the child. The father says that he is ready to make this change, but his wife is not, for the moment, ready.
(...)
[58] The grandfather, aged [...], wishes to take custody of his grandson for as long as necessary. He has been in a stable relationship for 14 years with his wife (who is one year younger than he is) who agrees with his request. The man, who works full time, seems to have a good social life. He submits that the child would continue to attend his current daycare, which is, in fact, the same one he attended when he was in her care in the fall of 2003. The grandfather says, "The only thing he has kept, as I asked, is his daycare.
[59] The grandfather acknowledges that the foster mother has adequately assumed her responsibilities towards J., who is developing very well with her. He suggests in this context that J...'s integration with him be, if that is the decision of the Tribunal, progressive. If not, he asks the Tribunal to determine his access rights so that he can have regular contact, some of which would be extended.
(...)
[71] However, it cannot be claimed that the DYP took such a step, which implies the analysis of all possible alternatives, since he ruled out from the outset the possibility of entrusting the child to his grandfather, who never definitively ruled out this avenue.
(...)
[76] In this case, the appropriate direction to achieve the statutory objective of returning the child to the family environment is to place J. with his grandfather.
[77] First of all, it is the extended family environment with which the mother is not, contrary to what can be encountered in many other situations, in conflict. The grandfather is aware of the real difficulties of his daughter, the child's mother. He maintains a distant relationship with her without closing the door to the help he could give her if she assumes her share of responsibility for her situation.
[78] Secondly, the DYP did not provide any evidence that the grandfather and his spouse were unable to meet the child's needs. On the contrary, his only position for requesting that the child be maintained with his foster family is that he "has invested in her". However, this "investment" by J... in his foster mother was facilitated by the illegal intervention of the DYP, who imposed or collaborated to ensure that the terms and conditions were in place so that he would not maintain ties with those he had previously "invested" in.
[79] The short duration of the contacts between J. and his grandfather, their infrequency, the imposition of the exchange in a neutral place, not appropriate for a child of J.'s age, when no clinical reason justifies it, the refusal to transmit photos on the pretext that they could possibly identify the place where they were taken, the confidentiality of the foster family's contact information and the fact that the child was not allowed to leave the home. s age, when there is no clinical reason to do so, the refusal to transmit photos on the pretext that they could possibly identify the place where they were taken, the confidentiality of the foster family's contact information and the ignorance of the conditions of the living environment in which the child is evolving are all decisions or attitudes aimed at facilitating the severing of the child's link with his past and his integration into the new living environment chosen for him.
[80] It would be unfair and unjust to pursue this course of action in contravention of a court order, but especially in contravention of the rights of certain individuals, the child and his grandfather.
[81] Third, there is no evidence to suggest that J. could not, at the age of five, "invest" in his grandfather, who is not a stranger to him. While recognizing that J... will experience a certain emotional rupture by leaving his foster mother, there is no evidence to conclude that this situation would be fatal to him. J... does not leave one foster family to join another that is unknown to him.
[82] Moreover, the possibility of a gradual integration with the grandfather, if the foster mother agrees to collaborate in such a process, may lessen the difficulties that the child is likely to encounter.
Excerpt from Justice Chirstian J. Brossard in Droit de la famille - 191120, 2019 QCCS 2408.
[9] The child's grandparents are very involved in his life. When X was 2 years old, his parents' drug use and addiction problems, the toxic environment in which they live, their dating habits and their marital conflicts had become such that they were no longer able to assume their role as parents. The Mother is then approximately 22 years old.
[10] It is in this context that, in the interest of the child, the parents entrust the care and responsibility of X to the grandparents.
[11] From then on, and for the next four years or so, i.e. from sometime in 2012 until the end of 2016, when X turned six, the Grandparents were in effect X's surrogate parents, "full-time" for the first three years (since X did not attend daycare until she entered kindergarten in the fall of 2015), without ever cutting ties with the parents and without the parents being prevented from seeing their daughter.
[12] During these years, the parents moved several times, without however moving away from the home of the grandparents and X.
[13] Throughout this period, there is no doubt that the Grandmother became and was the dominant parental figure for X (to the point where X calls her "Mom", despite the Grandmother correcting her) and that the two maintain an attachment bond, a strong emotional bond, to this day.
[14] In January 2014, the situation was formalized in a Parental Agreement regarding custody with a third party. According to this agreement, the child will be in the custody of the Grandparents, "meaning that the majority of meals, bathing, bedtime, etc. will be taken care of by the Grandparents," with authority "to make decisions necessary for the child's welfare," with the necessary decision-making rights granted to them, "[t]he final decision always remaining with the parents." At any time, however, the parents may notify the grandparents that they want to pick up the child. But, if one of the Grandparents thinks it would be harmful or dangerous to let X go with one of her parents, the Grandparents can refuse to let her go. However, they will have to give arguments to support this decision.

3. ADOPTION

3.1 Sonship

Art. 523 C.C.Q. Both paternal and maternal filiation are proven by the birth certificate, regardless of the circumstances of the child's birth.
In the absence of this title, constant possession of status is sufficient.
Art. 529 C.C.Q. Acknowledgement of maternity or paternity alone cannot contradict a filiation that has already been established and not overturned in court.

3.1.1 Change of parentage upon adoption

Art. 577 C.C.Q. Adoption confers on the adopted person a filiation that succeeds his pre-existing filiation.
However, in the case of an adoption by the spouse of the child's father or mother, the new filiation succeeds only to that established with the other parent, if any.
Although there may be a recognition of his pre-existing filiation links, the adopted person ceases to belong to his family of origin, subject to the impediments of marriage or civil union.
Art. 577.1 C.C.Q. When the adoption is granted, the effects of the pre-existing filiation cease. The adopted person and the original parent lose their rights and are discharged from all duties towards each other. The guardian, if any, loses his or her rights and is released from his or her duties to the adoptee, except for his or her obligation to report. The same applies where a certificate of native customary adoption is served on the Registrar of Vital Statistics, subject to any provisions to the contrary in accordance with native custom mentioned in the certificate.

Art. 578 C.C.Q. Adoption gives rise to the same rights and obligations as filiation by blood.
However, the court may, depending on the circumstances, permit a collateral marriage or civil union between the adoptee and a member of the adoptive family.

3.1.2 Exception to promote the best interests of the child

Art. 33 C.C.Q. Decisions concerning the child must be made in his interest and with respect for his rights.
In addition to the moral, intellectual, emotional and physical needs of the child, the child's age, health, character, family environment and other aspects of the child's situation shall be taken into account.
Art. 612 C.C.Q. Decisions concerning children may be reviewed at any time by the court, if the circumstances justify it.
Excerpt from Nicole-M. Gibeau J. in Droit de la famille - 192315, 2019 QCCS 4820.
[15] First, X's adoption erased his original filiation. Article 611 C.C.Q. is of no legal use to S.. the biological grandfather.
[16] On the other hand, the best interests of the child test does allow the Tribunal to hear access applications from a biological parent of the adopted child.
[17] It follows that S. is a third party in relation to X. He therefore does not benefit from a specific provision presuming the validity of his relationship with this child.
[18] Article 33 C.C.Q. does not confer rights as such; the decision whether or not to grant access rights to a third party is made solely in the interests of the child and with respect for his or her rights.
(...)
[25] Now 10 years old, X does not want contact with S.... Although the desire for children at this age is not determinative, it must be seriously considered.
Justice André Prévost summarized the current state of the law in M.M. v. S.B.T. 2006] F.D.R. 53 (S.C.):
"a) the adoption system in Quebec is closed, that is, all ties with the original filiation disappear;
(b) in granting a right of access, the biological family is considered a third party;
(c) a right of access shall be granted only in the interest of the child."
Excerpt from Justice Thomas M. Davis in Family Law - 17904, 2017 QCCS 1705.
[3] By motion dated July 17, 2014, Ms. P... requests that her access with her granddaughter be ordered by the court. A final consent and certain access rights are agreed upon between the parties. The consent is endorsed by a judgment of Judge Gibeau on April 13, 2015.
[4] Mr. C. now asks that the rights recognized by this judgment be annulled.
[5] In addition, prior to Mr. C's motion, Ms. P had requested that some of her accesses be clarified, given some of the difficulties she had in exercising the accesses agreed to in April 2015. Mr. C. believes that this request is inadmissible, because his new spouse Mrs. F. has adopted X. She intervenes in the file to support Mr. C....
(...)
[19] The access stops between June 2014 and April 2015, at which time the parties agree to an agreement that grants the following access to Ms. P... :
(...)
[20] This consent was confirmed by a final judgment of Gibeau J.
(...)
[37] There is no doubt that her interest is in continuing to have significant contact with Mrs. P., but what about the fact that Mrs. P. is no longer a grandmother?
[38] When a child is adopted, filiation is modified. The Civil Code of Quebec deals with this issue in the following articles:
Art. 577. Adoption confers on the adopted person a filiation that replaces his original filiation.
The adopted person ceases to belong to his or her family of origin, subject to the impediments of marriage or civil union.
Art. 578. Adoption gives rise to the same rights and obligations as filiation by blood.
However, the court may, depending on the circumstances, permit a collateral marriage or civil union between the adoptee and a member of the adopting family.
[...]
Art. 579. (Now art. 577.1 C.C.Q.) When the adoption is granted, the effects of the previous filiation cease; the tutor, if any, loses his rights and is discharged from his duties towards the adopted person, except the obligation to render an account.
However, the adoption by a person of the child of his or her spouse does not sever the bond of filiation established between the spouse and the child.
[39] We can therefore see by the operation of the law that there is no longer any filiation between X and Mrs P....
[40] However, this in itself does not lead to the conclusion sought by Mr. C. and Ms. F. that Ms. P. does not have the legal interest to bring her motion.
[41] This issue was addressed by Prévost J. in M.M. v. S.B.T. [9]. Referring to the Court of Appeal decision in Droit de la famille - 1873[10] and to the author Michel Tétrault[11]he rightly explained that the adoptive parents of a child have the right to expect that the biological family will no longer interfere in the life of the adopted child.
[42] Access to a biological family member can only be granted if it is in the best interests of the child. Prevost J. summarized the situation as follows:
[30] The interests of the child are codified in article 33 C.C.Q. :
Art. 33. Decisions concerning the child must be made in the child's interest and with respect for the child's rights.
In addition to the moral, intellectual, emotional and physical needs of the child, the child's age, health, character, family environment and other aspects of the child's situation shall be taken into account.
[31] The state of the law on this issue can therefore be summarized as follows:
a) the adoption system in Quebec is closed, i.e. any link with the original filiation disappears;
(b) in granting a right of access, the biological family is considered a third party;
(c) a right of access shall be granted only in the best interests of the child.]
[43] In the present case, there is an important element that the Tribunal must address in its analysis of X's interest, namely the effect of the judgment of April 13, 2015. It will be recalled that in the agreement endorsed by that judgment, the parties agreed that Mrs. P... , at that time X's grandmother, could have access. It can be concluded that the accesses by Mrs. P... were deemed to be in the interest of X.
[44] In view of this judgment, should the Court take into account article 612 C.C.Q. as Ms. P. wants?
[45] The article reads:
612. Decisions affecting children may be reviewed at any time by the court if circumstances warrant.
[46] In Droit de la famille - 071016,[13] De Wever J. used article 612 C.C.Q. in conjunction with article 33 C.C.Q. to deal with applications for changes in custody arrangements and access by parents to their children. Justice Kear-Jodoin applies the same articles in Droit de la famille - 132652[14].
[47] The Court considers that article 612 C.C.Q. also applies to this debate. The adoption of X by Mrs. F... did not render the April 2015 judgment null and void. However, the adoption is an important element that the Court must consider in deciding whether this judgment should be reviewed. Of course, it will have to apply article 33 C.C.Q. as well.
(...)
[61] He concludes that X is the person who will suffer if the Tribunal ends contact between her and Ms. P.... She has already grieved the loss of her mother and is likely to grieve again if she is denied contact with Ms. P....
[62] Finally, he explains that the decision to deprive X of this contact could turn out badly for Mr. C. and Ms. F.... When she is a teenager, it is likely that X will ask them questions about why she lost contact with Mrs. P... and may blame them for ending the relationship.
[63] In the face of such evidence, the Tribunal can only conclude that X's best interests favour maintaining contact. (...)

[1] Family Law - 2216, 1995 R.J.Q 1734.
[2] Family Law - 16787, 2016 QCCS 1526.
[3] Family Law - 131416, 2013 QCCS 3173.

[4] Droit de la famille - 172486, 2017 QCCA 1637, par. 13, p.5.
[5] Family Law - 171200, 2017 QCCS 2298.

[6] Family Law - 073273, 2007 QCCS 6216.

[7] Michel Tétrault, Droit de la Famille, 3rd Edition, Éditions Yvon Blais, 2005, page 1655.

[8] Family Law - 072232, 2007 QCCA 1180.

[9] M.M. v. S.B.T., [2006] F.D.R. 53 (S.C.).
[10] Droit de la famille - 1873, [1994] R.J.Q. 1787 (C.A.).
[11] Michel TÉTRAULT, Droit de la famille, 3rd ed. 2005, Cowansville, Éditions Yvon Blais, p. 1212.
[12] M.M. v. S.B.T., [2006] F.D.R. 53 (S.C.).
[13] Family Law - 071016, 2007 QCCS 2061.
[14] Family Law - 132652, 2013 QCCS 4753.

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Quebec Jurisprudence on Grandparents' Rights

Table of contents

1. RELATIONS BETWEEN THE CHILD AND THE GRANDPARENTS

1.1 Right to maintain a relationship between the child and the grandparents