Court of Queen ’ s Bench of Alberta Citation: Hardie v. Payne, 2010 ABQB 756 Date: 20101202 Docket: FL03 25737 Registry: Edmonton Between: Krystal Lynn Hardie Applicant - and - Alfred Edward Payne Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Ms. Hardie asks the court for leave to make an application for contact with her 13 year old brother and, if leave is given, to allow her interlocutory contact with her brother including contact twice a week after school and every full weekend access every second weekend; she states that she has met with her brother who, in response to questioning from her, indicated that he would like to have contact with her. The respondent, who is the father of both Ms. Hardie and Ms.

Hardie’s brother, opposes any such contact: he states that the applicant has not had any meaningful contact with her brother for 7 years and that the applicant’s high degree of animosity towards the father would make contact between the applicant and the child disruptive for the child.. [ 2 ] The application for leave is denied: within the meaning of s.s. 35(4) (

a) of the Family Law Act , Ms. Hardie does not have a sufficiently significant relationship with her brother as to give her status to contest the parent ’ s wishes about contact. For the past 7 years, Ms. Hardie has only had minimal contact with her brother; given the age of her brother, it is that most recent period which weighs most

heavily in the assessment of whether a significant relationship exists at this time. [ 3 ] The application for interlocutory contact is denied: Ms. Hardie has not satisfied any of the requirements of s. 35(5) of the Family Law Act . For example, she has not established that her brother ’ s physical, psychological or emotional health may be jeopardized if her application is not granted. On the contrary, Ms. Hardie ’ s strongly negative feelings towards the respondent are likely to cause stress for her brother because of the potential for conflicting loyalties..

Cases and authority cited [ 4 ] By the court : MacDonald v MacDonald [2009] O.J. No. 1381 ; R.C. v C.R.S. 2009 ABQB 376 [2009] A.J. No. 690 1.

Summary

a) Factual [ 5 ] Ms. Hardie is an adult sister to Austin, who is 13 years old. Ms. Hardie asserts that, because of their mother ’ s illness, from the time her younger brother was an infant she took care of Austin when she herself was not in school. In 2002, Ms. Hardie moved out of her parents ’ home to go to college. Towards the end of 2002, Ms. Hardie ’ s mother, who is also the mother of Austin, died. At the end of the 2002-03 school year, most of the remaining family moved from Ontario to Alberta. Ms.

Hardie resumed her daily involvement with her siblings; in describing the nature of that contact, she swears: “ The way my father and I were communicating to each other, a lot of people would tell me things to the effect that they believed my father was my husband and my brothers were my sons and I had to correct them. ” [ 6 ] In January 2004, Ms. Hardie returned to Ontario to finish her schooling. Ms. Hardie returned to Alberta to visit the family at Christmas in each of 2005, 2006 and 2007. In 2007, however, Ms. Hardie ’ s father became engaged and as Ms.

Hardie puts it, “ he became more distant with me ” . [ 7 ] From September 2007 to August 2008, Ms. Hardie ’ s relationship with her father was strained. [ 8 ] In August 2008, Ms. Hardie swears that she spoke with her brother Austin, who was then 10 or 11, and he told her that he was alone in the house, that there was no heat and no food in the house and that he was hungry. This conversation resulted in Ms. Hardie contacting a maternal relative who took Austin out of his father ’ s home and called Children ’ s Services. However, as Ms.

Hardie put it, “ Family and Children ’ s Services did not see a reason as to why my brother should not be returned to my father, Austin was returned to my father ” . [ 9 ] In September, 2008, Ms. Hardie wrote a letter to her father which included the following comments: Even though you are alive, you are now as dead to me as Mom is. I don ’ t hate you, but I can ’ t hold on to someone who doesn ’ t love or care about me any more. I can ’ t hold on to empty love any longer. I am now an orphan, so please don ’ t contact me ever - I am to you as Ashley is . . . dead.

I do not wish you harm and sincerely hope you have a good life, but If am now no longer a part of you. [Although the signature on the letter is slightly different from the name used by the applicant today, Ms. Hardie recognizes the letter as

having been authored and signed by her.] P.S. I have the original copy, so don ’ t be putting words I did not say in my mouth. [ 10 ] Between September 2008 and August 2010, there was no contact whatsoever between her father and her brother on the one hand and Ms. Hardie on the other. [ 11 ] In August 2010, Ms. Hardie moved in with her maternal grandparents in Edmonton; they reside approximately 2 blocks away from Ms. Hardie ’ s father; Austin ’ s school is approximately 5 blocks away from Ms. Hardie ’ s residence. Ms. Hardie did not contact her father. Later in September, Ms.

Hardie approached her brother at a neighbourhood park. Her father then obtained an ex-parte restraining order against Ms. Hardie; that order was vacated on September 8, 2010. [ 12 ] There is a dispute between the parties about the basis on which the order was vacated. Mr. Payne states that the understanding between the parties was that Ms. Hardie would bring a court application for contact before attempting to contact Austin again. Ms. Hardie states that there was no such arrangement or agreement. [ 13 ] In fact, Ms.

Hardie arranged to meet Austin at his school on September 9, 2010, and again on two separate occasions on September 15. [ 14 ] Even though Ms. Hardie disputes the basis on which the restraining order was vacated, she did apply in the Provincial Court for contact with her brother. Those proceedings have been transferred to this court.

b) Legislative [ 15 ] The Family Law Act, R.S.A. 2000, c. F-4 .5, as amended, provides a structure within which individuals who are not the parents of a child can apply for contact with that child. For ease of reference, and to provide additional assistance in the

interpretation of the statute, the entirety of the legislative provisions relating to contact orders is set out below. Division 3 Contact Orders Contact order 35(1) The court may, on application by any person other than a guardian, make an order providing for contact between a child and the applicant.

(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.

(3) A grandparent of a child does not require the leave of the court to make an application under this

section if (

a) the guardians are the parents of the child and (

i) the guardians are living separate and apart, or (ii) one of the guardians has died, and (

b) the grandparent ’ s contact with the child has been interrupted by (

i) the separation of the guardians, or (ii) the death of the guardian.

(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.

(6) The court may, in a contact order, provide for contact between the child and the applicant in the form of visits or in the form of oral or written communication or any other method of communication, and may provide for any related matter that the court considers appropriate. Terms and conditions 36 The court may make a contact order for a definite or indefinite period or until a specified event occurs and may impose terms,

conditions and restrictions in connection with the order as the court considers appropriate. Variation of contact order 37(1) In this section, “ variation order ” means an order made under subsection (2).

(2) The court may, on application by (

a) a person who has been granted contact with a child under a contact order, or (

b) a guardian of the child, make an order varying, suspending or terminating a contact order or any part of that order.

(3) Before the court makes a variation order in respect of a contact order, the court shall satisfy itself that a change in the needs or circumstances of the child has occurred since the making of the contact order or the last variation order made in respect of that order, and in making the variation order, the court shall consider only the best interests of the child, as required by

section 18 and as determined by reference to the change.

(4) The court may include in a variation order any provision that could have been included in the contact order in respect of which the variation order is sought. 2. Does the court give leave? [ 16 ] The court concludes that Ms. Hardie ’ s relationship with her brother is not sufficiently significant to warrant the granting of leave to proceed with an application for contact. [ 17 ] In coming to that conclusion, the first matter that I have taken into account is the nature of the relationship itself. On Ms.

Hardie ’ s own evidence, she has had only minimal, incidental, contact with her brother during the last 7 years, since January 2004. Moreover, during the last two years, from the summer of 2008 to the summer of 2010, she has had no contact with him at all.

Because of the development of children, that is their intellectual, psychological and emotional maturing, timing is an important feature in the assessment of the needs of children; for example, it is generally recognized that it is more important to have frequent regular contact between young children and the persons with whom children must bond, than it is to have frequent contact when children are older. As children age, daily or weekly contact could, if necessary, be replaced by extended summer vacation visits or supplemented by telecommunication. The fact that, early in his life, Ms.

Hardie had not only daily contact with her brother, but had significant care-giving responsibilities for him, is not as important as the fact that, for more than half of his life, Ms. Hardie has only been a peripheral presence for Austin. [ 18 ] Moreover, even though Ms. Hardie considers herself to have been the primary care-giver of Austin when he was a baby and a toddler, Ms. Hardie has, with respect, failed to recognize that, even if the early part of his life, the main decisions in her brother ’ s life were made by Austin ’ s father and that her role was to carry out those decisions.

For example, it was Austin ’ s father, not Ms. Hardie, who decided to move to Alberta. In the same way, it was Austin ’ s father, not Ms. Hardie, who in fact made the decision about who would be responsible for Austin ’ s physical day to day care. In a more general way, it will be obvious that the wishes of an unrelated baby-sitter will rarely over-ride the wishes of a parent. Ms. Hardie was not, of course, a mere baby-sitter to her younger brother, but nor was she that sibling ’ s parent. [ 19 ] That is not to say, however, that if this application had been brought while Ms.

Hardie had the daily physical care of her

brother that the decision about leave would have been the same; in some circumstances, daily physical care-giving might be a sufficiently significant relationship to justify granting leave to at least bring an application for contact. [ 20 ] In coming to the conclusion that Ms. Hardie does not have a sufficiently significant relationship with her brother to grant her leave to bring an application for contact, I also take into account the purposive

interpretation of the word “ significance ” as used in this context. [ 21 ] The context of an application for leave to contest a parent ’ s wish concerning contact is that parents have the right and responsibility to make decisions in their children ’ s best interests; it is only if parents are unable to act in their children ’ s best interests that the court will replace its decision about what is in a child ’ s best interests for the parent ’ s decision.

As the legislation illustrates, even a grandparent will not automatically be given leave to have contact with a grandchild. [ 22 ] That general context was recently reviewed by an Ontario court in MacDonald : ...

In the absence of any evidence that the parents are behaving in a way which demonstrates an inability to act in accordance with the best interests of their children, their right to make decisions and judgments on their children's behalf should be respected, including decisions about whom they see, how often, and under what circumstances they see them. 75 There have been many cases grappling with this issue over the years. One of the most recent reported decisions is G. (G.) v.

W. (J.) [2008] W.D.F.L. 5313 , an October 2008 decision of the New Brunswick Court of Queen's Bench, which reviewed a lengthy series of cases and adopted the position: "There is no automatic right of access to third parties. Great weight must be given to the wishes of the custodial parents and care must be taken not to unduly interfere with the parents' inherent right to determine the course of their child's upbringing." 76 Respondent's counsel referred to a 2005 Nova Scotia Family Court decision, Manuel v.

Hughes 2005 NSFC 14 (CanLII) , 20 R.F.L. (6th) 313 , which declined to order access where there was high conflict between parents and grandparents. Although this case dealt with slightly different legislation in another Province, the analysis was similar to that found in Ontario cases, and the judgment made specific reference to the Ontario ruling in Chapman.

In Manuel , after reviewing a long history of highly unpleasant intergenerational conflict - reminiscent of the case before me -- the court summarized: 19 I start with the proposition that a child, generally speaking, will benefit from the additional love and support offered by grandparents, with the grandparents for the most

part lending support not only to grandchildren but to biological parents as well. In a nuclear family, it is the parents who set the ground rules, if you will, for raising their own children; and if there are harmonious relations between the parents and grandparents, most grandparents will wisely defer to the guidance provided by the parents.

One obvious reason for this deference to a parent's wishes is so that the child will not be placed in the unenviable position of having to choose between the direction of a parent or a grandparent when a conflict arises.... 23 ...As the case law has evolved in this area, the Court is directed to consider the possible benefit of access visits; and, specifically, whether implementation of access visits could have a beneficial or deleterious effect on the children ...

In the present circumstances, I conclude (the grandparents) represent a destructive and divisive force which would be deleterious to the ongoing well being of (the children). They have entrenched viewpoints which do not permit a level of co-operation between the parents and grandparents. Moreover, as in the past, the children, I find, will be placed in the middle of a minefield between these warring parents and grandparents. 24 ...

Thus, I conclude the magnitude and prolonged nature of the acrimony between the paternal grandparents and (the parents) demonstrates the non-existence of an ability to communicate and co-operate without hostility and denigration.

It would be, therefore, imprudent, in my view, to place innocent children in the middle of this active minefield. [ 23 ] As the words of the statute itself make clear, the existence of a relationship, even a biological relationship, between an individual and a child are not sufficient to establish the kind of relationship that justifies the granting of leave for an action in relation to contact.

Of course, a child will generally benefit from the love and support of as many people as possible; nonetheless, if there is a conflict between the parents of a child and others who wish to have contact with the child, the court must act as a gatekeeper to ensure that only applications that meet the statutory standards will be allowed to proceed. [ 24 ] Finally, the third factor which I have taken into account in denying leave is that the granting of leave to embark on an application has potentially far-reaching ramifications. Not only does leave require the parent/respondent to consider potential expenses

connected with contact proceedings - including fees for lawyers and parenting experts - money which might perhaps better be used for the child ’ s more obvious best interests, but it involves a certain amount of emotional tension from which a child can rarely be shielded. In the situation here, for example, Ms. Hardie has requested a short-term assessment pursuant to Practice Note 7, and the appointment of a lawyer for Austin; these are processes that would be expensive and intrusive and therefore processes upon which one should not embark lightly. [ 25 ] In

summary, by imposing a requirement for leave before contact proceedings are initiated, the government was recognizing that not every relationship with a child constitutes a sufficient basis for potentially over-riding a parent ’ s wishes relative to contact. Ms. Hardie has not met the required threshold. 3. Does the court grant interlocutory contact? [ 26 ] Ms. Hardie ’ s motion for interlocutory contact with her brother is denied. [ 27 ] Ms.

Hardie asks for contact with her brother “ each and every week ” on Tuesday and Thursday from the end of the school day to 6:00 p.m. and every second weekend from Friday at 4 p.m. to Sunday at 6 p.m. In addition, she asks for holiday access as she is able to arrange with Austin. [ 28 ] Ms. Hardie ’ s request for contact is denied because she has failed to satisfy the statutory conditions for such contact as set out in s. 35(5) of the Family Law Act . Clearly, she has failed to meet the requirement set out in sub – para. (

b) that she establish that Austin ’ s physical, psychological or emotional health may be jeopardized if her application is denied. Ms. Hardie has not provided any evidence whatever with respect to those issues. [ 29 ] As to the requirements of sub-para (a), the only evidence Ms. Hardie presents is her statement that her brother told her that he wanted to have contact with her.

The court observes that it is generally accepted that children may well tell needy adults what the child believes the adult wants to hear; for that reason, courts typically require expert assistance in interpreting the expressed wishes of children. Here, neither Ms. Hardie ’ s evidence that Austin wants to see her or Mr. Payne ’ s evidence that Austin does not want to see her carries any weight with the court. In any event, a child ’ s wishes are not inevitably in a child ’ s best interests. [ 30 ] Finally, Ms. Hardie has not established that Mr. Payne ’ s denial of contact is unreasonable.

As the MacDonald case notes, great animosity between the parent of a child and the individual who wants contact with a child is, typically, a counter-indication to contact being in a child ’ s best interests. The same notion was expressed recently by Burrows J. of this court in R.C. when he said: 8 The materials before me establish the deep rift, the deep desire on the part of the grandparents for contact, and the deep desire on the part of the parents for no contact. Before the law permits the court to override the decision of the parents, the court must be satisfied of the matters listed in s. 35(5).

The materials before me do not so satisfy me. [ 31 ] The obvious reason why severe animosity is a counter-indication to contact is that severe animosity will inevitably place the child in a difficult position with regard to loyalties. Such stress, which is difficult for adults to manage, is unfairly burdensome for children. [ 32 ] In

summary, Ms. Hardie has failed to meet the statutory requirements for contact, even interlocutory contact, with her brother. 4. Costs [ 33 ] If the parties are not agreed on costs, I may be spoken to within 30 days of the release of this decision.

Heard on the 29 th day of November, 2010. Dated at the City of Edmonton, Alberta this 1 st day of December, 2010. J.B. Veit J.C.Q.B.A. Appearances: Katie Noel Law Office for Ms. Hardie Michal L. Furman, Glenora Law Office for Mr. Payne