Hrycun v Theriault, 2015 ABQB 794

Court of Queen ’ s Bench of Alberta Citation: Hrycun v Theriault, 2015 ABQB 794 Date: 20151214 Docket: FL03 48153 Registry: Edmonton Between: Crystal Joy Hrycun Applicant - and - Candace Theriault and Chris Theriault Respondents _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Pursuant to the provisions of s. 35(2) of the Family Law Act , in this morning chambers application the maternal grandmother applies for leave to make an application for contact with her daughter’s four children, the oldest of whom is 10 years old.

The married parents of the children in question, who live together and with all three children, both oppose the application. [ 2 ] The application for leave is denied: where eventual success in the application is remote, it is not in the best interests of the children to grant leave for a lawsuit that will expose them to animosity between their parents and their grandparent, deprive their family of money which could be used for the benefit of the family, including the children, and probably prove to be emotionally draining. Case and authority cited

[ 3 ] By the applicant:

Section 35, Family Law Act , R.SA. 2003, c F-4.5. [ 4 ] By the respondents: H.B. v A.B. , 2010 ABQB 279 . [ 5 ] By the court: Theratechnologies v 121851 Canada Inc . 2015 SCC18 ; D.P.N. v T.J.T. 2013 ABQB 940 at paras. 161-162 ; Parmar v Parmar [1997] B.C.J. No. 2094 at paras. 11-19 ; Hayes v Moyer 2011 SKCA 56 at para. 5 ; Craig v Craig [2000] O.J. No. 1171 at para. 11 ; L.L. v S.S. 2015 NBQB 227 at para. 41 ; Kerton v Kerton-Muir 2015 ONSC 5956 at paras 56-59 . 1 . Background [ 6 ] The applicant is the mother of Candace Theriault, one of the respondents.

Candance Theriault is married to, and living with, Chris Theriault, the second respondent. The Theriaults have four children, the oldest of whom is 10 years old and the youngest of whom is approximately 1 month old. [ 7 ] The applicant asserts that she has had a relationship with the three oldest children since their births and that she has “unreasonably” been denied contact with her grandchildren since May or June, 2014.

She alleges that the break in the relationship has to do with the applicant’s bitter divorce proceedings from her daughter’s father; the applicant separated from her husband in approximately 2010. The grandmother acknowledges that she did go to the children’s bus stop on September 2, 2015 when she knew that their parents did not want her to contact the children.

The grandmother asks for overnight weekend visits once a month and for one day during the Christmas holidays; at the hearing, the applicant indicates that she would, if necessary, accept that her access visits with the children be supervised. [ 8 ] The mother of the children swears that the majority of the grandmother’s contact with the children occurred prior to mid- 2010 and that the grandmother has not had the children overnight since late 2013.

She also swears that the applicant has attempted to make decisions for her children that were contrary to the wishes of the parents: for example, knowing that the parents did not want their oldest child to be driven by a specific person, the grandmother allowed such a drive and encouraged the oldest child to keep that drive secret from the mother. The mother also alleges that the grandmother sent text messages to the respondents’ oldest child and told her to keep them secret from her parents.

The mother of the children also alleges that the applicant has a drug dependence problem and has suffered some emotional health problems. [ 9 ] The father of the children swears that the applicant has typically only ever wanted to babysit the oldest of the children. He swears that the decision he and his wife made to cease contact with the applicant occurred after years of attempting to have a relationship with the applicant and has nothing to do with her separation from his father-in-law as the applicant alleges.

He swears that he believes that the applicant is a “terrible influence” on the children and he feels that it is his obligation as a father and husband to protect the children from people like the applicant. [ 10 ] The mother of the children unsuccessfully applied for a restraining order against the applicant. As part of that application, even the applicant stated that although she knew that her daughter did not want to speak with her or have anything to do with her, the applicant nevertheless, deliberately, went to talk to her grandchildren at their bus stop at the beginning of the school year.

During that application, the grandmother informed the court that she realized that she had begun her effort at reconnection with her grandchildren improperly and had initiated the application which is the subject of this decision. In those circumstances, it is not surprising that the mother’s application for a restraining order against the applicant was denied. 2.

Test for granting leave to make an application for contact [ 11 ] In circumstances such as these, where the parents of a child are living, and living together, and the grandparent’s contact with the child has not been interrupted by the death of one of the child’s guardians or by the separation of the guardians, the Family Law Act requires a grandparent who wishes to have contact with a grandchild to obtain leave before bringing the contact application.

In other words, under that statute, a grandparent who wishes to have contact with her grandchildren is in the same legal position as a biological stranger to the children. In effect, then, this applicant is treated in this application as she would be if she had brought her application under s. 16(3) of the Divorce Act ; case law interpreting the latter subsection is equally applicable here. [ 12 ] The statute sets a standard for leave applications: 35(4) In determining whether to grant leave under subsection (2), the court shall consider the best interests of the child, including (

a) the significance of the relationship, if any, between the child and the person for whom contact with the child is proposed, and (

b) the necessity of making an order to facilitate contact between the child and the person for whom contact with the child is proposed. [ 13 ] There are many contested issues between the parties, including: the nature and timing of the grandmother’s contact with the children, whether the grandmother has alcohol, drug dependence and gambling problems, etc. It is not possible in this morning chambers application to resolve those issues.

Two options therefore arise: the court could set the contested issues down for trial or the court can proceed on the basis that the allegations against the applicant are not made out. In the circumstances here, it would obviously be counter- productive to order a trial of an issue on the leave application; therefore, I will proceed on the basis that the allegations against the grandmother have not been made out. [ 14 ] The statutory requirement for leave must not only be considered in the context of a purposive

interpretation of the legislation in which it is contained, I suggest that it must also be considered in light of the very nature of a statutory requirement for leave. [ 15 ] In my view, where a statute requires that a prospective litigant obtain the leave of the court to take or continue a proceeding, the legislator has, even if it has not been made explicit, imposed upon the court an obligation to ensure that some purpose which serves the ends of justice is advanced by granting leave. In some situations, the legislator makes the nature of that inquiry explicit: see, for example, Theratechnologies.

However, even where the purpose of leave is not made explicit, surely a court should only grant leave

where there is a reasonable chance of success on the predicate application: it can never be in the interests of the parties or in the interests of the public or in the interests of justice to allow litigation to go forward when it has no reasonable prospect of success. This is all the more important and poignant in situations where children’s interests are at stake: in those situations, not only is the expense of litigation more than a mere cost of doing business, participation in litigation is potentially emotionally challenging. 3.

There is no reasonable prospect of success on an application for contact in the circumstances here because contact would not be in the children’s best interests; therefore, leave to initiate such an application should not be granted [ 16 ] Case law has established that, where parents who are living together are able to meet their children’s needs, their decisions concerning their children, including who and where and when their children will associate with others will be respected: it is not in the children’s best interests to expose them to the animosity produced by forced access against both parents’ wishes.

Moreover, a lawsuit which has no chance of success will both deprive the children’s family of money which could be used for the benefit of the family, including the children, and likely prove to be emotionally draining for the children’s parents and for the older children themselves. [ 17 ] The Alberta case law referred to by the respondents is entirely representative of the weight of Canadian case law under both family law legislation and the Divorce Act for the last quarter century: see cases cited above. [ 18 ] Here, even the grandmother acknowledges that she has not had access with the three older children in a year and a half and that she has never had any contact with the youngest grandchild.

Even the applicant grandmother does not suggest that her grandchildren have lived with her for all of their lives, as is the frequent situation where a grandparent is granted access. This grandparent has, in the past, had what might be thought of as normal access to her children: she interacted with them on social occasions and occasionally babysat them for short periods of time. This level of contact with the grandchildren is collateral to the central parenting of the grandchildren.

Given the applicable case law, this is not a situation where a further exploration of the minutiae of contact could possibly put the grandparent in the class of grandparents whose right to have access to their grandchildren has been recognized by the courts. In order for the grandchildren to enjoy and benefit from a healthy parenting regime, it is not necessary to facilitate contact between them and their grandmother. [ 19 ] In

summary then, this is a situation where the best interests of the children would not be served by allowing the grandmother to pursue her application for access: the separation of the grandmother from her grandchildren has not deprived the grandchildren of a parent-like relationship with their grandmother or of any stability in their lives. The application for leave is denied. In the result, the grandmother will have no contact with her grandchildren. 4. Costs [ 20 ] 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 3 rd day of December, 2015.

Dated at the City of Edmonton, Alberta this 14th th day of December, 2015. J.B. Veit J.C.Q.B.A. Appearances: Marilyn Sheckter, Legal Family Crisis Clinic for the Applicant, Ms. Hrycun Caitlin E. Gerstel, Duncan Craig LLP for the Respondents