H.B. v. A.B., 2010 ABQB 279

Court of Queen ’ s Bench of Alberta Citation: H.B. v. A.B., 2010 ABQB 279 Date: 20100427 Docket: FL03 18779 Registry: Edmonton Between: H.B. Appellant - and - A.B. and D.C. Respondents _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice S.J. Greckol _______________________________________________________ I. Introduction [ 1 ] H.B. is the mother of A.B. and the grandmother of A.B. and D.C.’s two children: J.C., born in 2002 (age 7); and H.C. born in 2004 (age 5).

H.B. enjoyed close contact with her grandchildren from their respective births until mid 2006, when A.B. refused to allow her any contact with the children. H.B. applied to the Provincial Court of Alberta for a contact order. In September 2008, she was granted an interim order allowing her access to the children. On April 2, 2009, H.B.'s application for contact with the children was denied. She now appeals that decision.

II. Facts [ 2 ] H.B. was living in Whitecourt, Alberta, as was her daughter A.B., when A.B.'s first child J.C. was born in 2002. After J.C.’s birth, A.B. worked at a Seven Eleven convenience store and at a restaurant job, while H.B. cared for J.C. during the day and sometimes overnight as well. After H.C. was born in 2004, H.B. looked after both children. Until 2006, the boys lived with H.B., while A.B. stayed either with them or with the children's father, D.C. In 2006, D.C. and A.B. moved into H.B.'s home, which they leased from her, while H.B. moved into her holiday trailer nearby.

In July 2006, H.B. asked A.B. and D.C. to leave with the children for a weekend as she was expecting family who were arriving for a family reunion. They left the house for good at that time. [ 3 ] After July 2006, H.B. saw the children once or twice a month when A.B. visited her to do laundry. In October 2006, A.B. advised H.B. that she would be allowed no further access. H.B. applied to the Provincial Court of Alberta for a contact order. In September 2008, she resumed contact with the boys as a result of a court order.

Their visits occurred every Saturday, from 10:00 a.m. to 12:00 p.m., supervised by D.C.'s boss. In January 2009, these supervised visits ended and A.B. began to visit H.B. with the children from time to time until the access issue was dealt with at trial in April 2009. [ 4 ] H.B. sought unsupervised visits with the boys, once or twice a month on weekends, including overnight from Friday to Sunday. H.B. has now moved to Mayerthorpe, where she has a two bedroom fourplex shared with another woman. [ 5 ] There were difficulties in the relationship between H.B. and D.C..

According to H.B., this was because she provided a refuge for A.B. and the children at times when D.C. was violent and because she and D.C. disagreed about his use of her car. When A.B., D.C. and the children moved out of H.B.’s home, there was a fracas involving D.C.'s stepmother, who allegedly threatened to kill H.B. if she had any contact with the boys. H.B. called the police and filed a complaint. [ 6 ] H.B. testified that the boys were upset about leaving her home. She contends that it was D.C.’s decision that she should no longer be allowed to see the children.

She claims that she had a good relationship with her grandsons and her daughter. Two of her friends, L.K. and F.R., testified at trial as to her good relationship with her grandsons. [ 7 ] There was evidence at trial concerning two injuries sustained by the boys while in H.B.'s care. On one occasion, H.C. was scalded by hot water while his grandmother was making hot chocolate and coffee. On another occasion, J.C. fell off the couch and broke his leg.

There was no evidence that these injuries were sustained as a result of H.B.'s neglect, and the trial judge concluded that her supervision was not a factor in the boys sustaining the injuries. [ 8 ] A.B. testified that she was adopted by H.B. when she was eight and one-half months old. She confirmed that H.B. looked after the boys while she was working. According to A.B., her visits with “grandma” were "pretty good" for the most part, although there was not much communication between the two of them.

She testified that she does not want her mother to have contact with the children because she does not trust her, having regard to the two injuries which occurred while the children were in her care. A.B. does not like her mother and does not want her around her children. D.C. is a long haul trucker. He views H.B. as rude and obnoxious.

He denied H.B. access to her grandchildren on that basis. [ 9 ] After considering the appropriate principles to be applied, the trial judge noted there had been a substantial relationship between the grandmother and the boys, but also a lengthy period of time without a significant relationship. He considered whether it would be in the best interests of the children to have contact with their grandmother given the animosity between her and the children’s parents.

He concluded that contact would result in continuing friction which would be transmitted to the children, and this would have an adverse effect on them. [ 10 ] The trial judge next considered whether H.B. had demonstrated that the children's physical, psychological or emotional health might be jeopardized if contact was denied. He concluded that the evidence did not demonstrate her inability to care for the children. He found H.B. to be bright and alert.

He characterized the issue before him to be whether forcing the parents to provide contact between the children and their grandmother would be detrimental to the emotional health of the children. He determined that contact would not be to the children's benefit because of the level of animosity between their grandmother and their parents.

[ 11 ] The trial judge also considered whether H.B. had demonstrated that the parent's denial of contact was unreasonable. He concluded that everybody in the situation was unreasonable, and given the nature of the relationships between the parties, denial of contact was not unreasonable. III. Legislation [ 12 ] The Family Law Act , S.A. 2003, c. F-4.5 provides in part: 18(1) In all proceedings under this Part, the court shall take into consideration only the best interests of the child.

(2) In determining what is in the best interests of a child, the court shall (

a) ensure the greatest possible protection of the child’s physical, psychological and emotional safety, and (

b) consider all the child’s needs and circumstances, including (

i) the child’s physical, psychological and emotional needs, including the child’s need for stability, taking into consideration the child’s age and stage of development, (ii) the history of care for the child, (iii) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, (iv) the child’s views and preferences, to the extent that it is appropriate to ascertain them, (

v) any plans proposed for the child’s care and upbringing, (vi) any family violence, including its impact on (

A) the safety of the child and other family and household members, (

B) the child’s general well-being, (

C) the ability of the person who engaged in the family violence to care for and meet the needs of the child, and

(

D) the appropriateness of making an order that would require the guardians to co-operate on issues affecting the child, (vii) the nature, strength and stability of the relationship (

A) between the child and each person residing in the child’s household and any other significant person in the child’s life, and (

B) between the child and each person in respect of whom an order under this Part would apply, (viii) the ability and willingness of each person in respect of whom an order under this Part would apply (

A) to care for and meet the needs of the child, and (

B) to communicate and co-operate on issues affecting the child, (ix) taking into consideration the views of the child’s current guardians, the benefit to the child of developing and maintaining meaningful relationships with each guardian or proposed guardian, (

x) the ability and willingness of each guardian or proposed guardian to exercise the powers, responsibilities and entitlements of guardianship, and (xi) any civil or criminal proceedings that are relevant to the safety or well-being of the child. ... 35(2) Subject to subsection (3), a person other than (

a) a parent of a child, or (

b) a person standing in the place of a parent may not make an application under this

section without the leave of the court on notice to the guardians. ...

(4) In determining whether to grant leave under subsection (2), the court shall consider (

a) the significance of the relationship, if any, between the child and the applicant, and (

b) the necessity of making an order to facilitate contact between the child and the applicant.

(5) Before the court makes a contact order, the court shall satisfy itself that (

a) contact between the child and the applicant is in the best interests of the child, (

b) the child’s physical, psychological or emotional health may be jeopardized if contact between the child and the applicant is denied, and (

c) the guardians’ denial of contact between the child and the applicant is unreasonable. IV. Issue [ 13 ] The issue on this appeal is whether the learned trial judge made a material error, a serious misapprehension of the evidence or an error of law in finding that the criteria set out in s. 35(5) of the Family Law Act were not met. V. Analysis [ 14 ] The standard of review that must be met on an appeal of an order relating to access was described in D.W.H. v.

D.J.R , 2007 ABCA 57 at para. 12 - 13 , 412 A.R. 34: While chambers decisions in cases involving custody and access are entitled to considerable deference, an appellate court will intervene if there is a material error, a serious misapprehension of the evidence or an error of law: Van de Perre v. Edwards , 2001 SCC 60 , [2001] 2 S.C.R. 1014. [ 15 ] Section 35(2) of the Family Law Act states that someone other than a parent of a child or a person standing in the place of a parent must have leave of the court in order to make an application for contact.

H.B. is neither a parent nor a person standing in place of a parent and therefore required leave of the Court to proceed with the application. [ 16 ] Section 35(4) of the Act required that the trial judge, in determining whether to grant leave, consider the significance of the relationship, if any, between the child and the applicant, and the necessity of making an order to facilitate contact between the child and the applicant.

The factors listed in s. 48(2) of the Act are of assistance in assessing the significance of the relationship between H.B. and the children. [ 17 ] H.B. is the maternal grandmother of the children. She provided a primary parenting role during the children’s formative years and was involved in every aspect of their care. There was a significant relationship between the children and their grandmother. Due to the conflict between the biological parents, particularly the father, and H.B., contact between the children and their maternal grandmother has been denied.

Therefore, an order was necessary to facilitate contact. There was no material error, serious misapprehension of the evidence or error of law in the trial judge granting leave for the contact application to proceed. [ 18 ] Section 18(1) of the Family Law Act requires the court to take into consideration the best interests of the child in all proceedings dealing with guardianship and contact orders. Section 18 (2) sets out considerations that will be determinative of best interests. The considerations are comprehensive, touching on all aspects of the child’s physical, psychological, emotional, cultural and

social well being. [ 19 ] Section 35(5) mandates that, before making a contact order, the court must be satisfied that contact between the child and the applicant is in the best interests of the child; the child’s physical, psychological or emotional health may be jeopardized if contact between the child and the applicant is denied; and the guardians’ denial of contact between the child and the applicant is unreasonable. A.

Whether Contact Between the Children and their Maternal Grandmother is in the Children’s Best Interests? [ 20 ] In the early years of their lives, these children resided with their grandmother and she was primarily responsible for their day to day care. She provided stability to them through her care and the provision of shelter and the necessities of life. The children undoubtedly formed a strong bond with her in this time period. Due to the fractious relationship between H.B. and D.C. in particular, contact between her and the children was severed.

The trial judge concluded that the continuing friction between the children’s parents and grandparents would have an adverse effect on the children. On the evidence, this is not a material error, a serious misapprehension of the evidence, or an error of law. B. Whether the Children’s Physical, Psychological and Emotional Health may be Jeopardized if Contact Between Them and the Applicant is Denied? [ 21 ] Common sense dictates that children are emotionally and psychologically harmed when important relationships in their lives are disrupted.

However, the evidence does not establish that the children’s physical or psychological or emotional health will be jeopardized or endangered if contact with their maternal grandmother is denied. The trial judge concluded that because of the animosity between the parents and the grandmother, contact would not be to the children’s benefit. On the evidence, this is not a material error, a serious misapprehension of the evidence, or an error of law. C.

Whether the Guardians’ Denial of Contact Between the Child and the Applicant is Unreasonable? [ 22 ] The relationship between the children’s father and their maternal grandmother is one of animosity, to the point that police intervention was required on one occasion. The parents do not want continued contact between H.B. and the children. The time of significant involvement between H.B. and the children ended in 2006. As noted by Veit J. in Lucenko v.

Lucenko 2008 ABQB 153 at para. 4 , 443 A.R. 174, “... parents have the prima facie right to determine the individuals with whom their children associate; courts must be respectful of those guardian rights.” The trial judge concluded that given the relationships between the parties, denial of contact was not unreasonable. On the evidence, this is not a material error, a serious misapprehension of the evidence, or an error of law. VI. Conclusion [ 23 ] The trial judge was not satisfied that a court order enforcing contact between the children and their maternal grandmother H.B. was in their best interests.

I cannot find an error of law in the application of the statutory legal standards to the facts found at trial. The appeal is dismissed. [ 24 ] This matter was adjourned for a period of time to give the parties an opportunity to arrive at an amicable resolution. They have not. This indeed is unfortunate as the immediate and easy solution of estrangement chosen by the parents denies these young boys the opportunity to know their maternal grandmother and deprives them of all that accompanies such extended family relationships.

Undoubtedly, the children will experience a sense of dislocation and loss for a person who has been a source of support and stability in their lives. Although the decision by the parents to deny contact with their sons’ grandmother may be short-sighted and ill-advised, as the trial court judge has found, it is a decision which was theirs to make in the circumstances. Heard on the 11 th day of February, 2010. Dated at the City of Edmonton, Alberta this 26 th day of April, 2010.

S.J. Greckol J.C.Q.B.A. Appearances: Hamish J.D. Henderson for the Appellant Brian L. Fish for the Respondents