AB v CD, 2021 ABQB 152

Court of Queen’s Bench of Alberta Citation: AB v CD, 2021 ABQB 152 Date: 20210225 Docket: FL01 33849 Registry: Calgary Between: AB Applicant - and - CD Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice M. J. Lema _______________________________________________________ A. Introduction [ 1 ] An aunt seeks permissions under ss. 35(2) of the Family Law Act to apply for an order for contact with two nephews and a niece (currently 12, 10 and 8 years old, respectively). The applicant is the sister of the children’s mother, who died in June 2015.

The children’s father opposes the application. [ 2 ] The aunt argues that she had a significant relationship with the children through to November 2015, when the father cut off

her direct access. Between then and late 2018, she had limited contact with the children during access time for the maternal grandmother. Since late 2018, the aunt’s access has, via court order, been largely eclipsed.

She contends that no contact will occur without a contact order. [ 3 ] The father argues that the aunt did not have a significant relationship with the children, that their best interests are served by having no contact with her, and that they already have adequate contact with their mother’s family i.e. the grandmother and other maternal relatives. [ 4 ] I find a significant relationship here and that no contact would occur without an order. Accordingly, I grant the aunt leave to proceed with her contact application. B.

Issue [ 5 ] The issue is whether the aunt should be permitted to bring a contact application, which turns on whether that is in the best interests of the children, as discussed below. C. Legislation [ 6 ] The leave requirement come from ss. 35(2) and (4) of the Family Law Act :

(2) Subject to subsection (3) [applications by grandparents in certain circumstances], a person other than (

a) a parent or a guardian of a child, or (

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

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

(4) In determining whether to grant permission 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, an (

b) the necessity of making an order to facilitate contact between the child and the person for whom contact with the child is proposed. [emphasis added] [ 7 ] Subsection 18(2) is the full catalogue of “best interests” factors: 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. [emphasis added] D. Cases on permission to bring a contact application [ 8 ] A number of Alberta cases have considered ss. 35(2) leave. [ 9 ] In Hrycun v Theriault [1] , Veit J. explained the leave test: The statute sets a standard for leave applications [ss. 35(4) reproduced] … 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 . 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. [emphasis added] [Veit J. found no reasonable prospect for success and denied leave: paras 16-19] [ 10 ] The implicit focus on a reasonable chance of success was also emphasized by Rowbotham JA (in chambers) in Beck v Ackmann [2] , where she denied a time-to-appeal extension: The chambers judge’s focus [in denying ss. 35(2) leave] was on the best interests of the child, a consideration mandated by section 35(4) .

Given the standard of review of a discretionary order, the applicants have not satisfied me that this appeal has a reasonable prospect of success. Moreover, there was some acknowledgment on the applicants’ behalf that even if they were granted leave to bring the application, it was unlikely that a contact order would be granted in the circumstances.

Indeed, several judges before whom the applicants have appeared have so indicated. [emphasis added] [ 11 ] In Clarke v Hancharuk [3] , Bielby JA (in chambers) reviewed some of the “significance of the relationship” cases: Prior decisions address aspects of an application for a contact order under s [35](4)(

a) of the FLA , some of which consider the duration of the period of lack of contact relevant to the meaning to be given to “ significance of the relationship” as that phrase is used in that subsection; others do not. In B.D. v. S.W., 2007 ABPC 95 at para 20 , the degree of contact the grandparents had with the child since her birth was not in issue.

The evidence demonstrated significant ongoing contact and, while Judge McLellan (as she then was) took the opportunity to address the meaning of “significance” as something of import of or consequence , on the facts of that case she was not required to address, nor did she address, the degree of actual pre-existing contact required to establish the “significance of the relationship” between grandparent and child. … In Hrycun v Theriault, 2015 ABQB 794 , in refusing a grandmother leave to pursue an application for contact under s 35(4), one of the considerations taken into account was that she had had no access for the 1.5 years prior .

In J.F.B. v. C.L.B., 2008 ABQB 43 leave was granted because the child and the mother’s former common law spouse had been close at one time although had had no contact for the previous year , and because the spouse had ongoing contact with their own child, a half-sibling of the child in question. In Hardie v.

Payne, 2010 ABQB 756 , 506 AR 200 the Court denied a sister leave, on a s 35(4) application, to apply for contact with her 13 year old brother due to minimal contact over the prior seven years . [emphasis added] [ 12 ] In Lucenko v Lucenko [4] , Veit J. denied leave because a contact order was not necessary (grandparent obtaining ample contact during his son’s (i.e. the child’s father’

s) parenting time): As to the factor described in s. 35(4)(

a) of the stature, clearly, the Lucenko children have had considerable contact with Ronald Lucenko [the grandfather]. Nothing suggests that anything in that contact has not been in the children’s best interests. However, as to the factor described in s. 35(4)(b), it is not necessary for the court to make an order to facilitate ongoing contact between those children and Ronald Lucenko .

Michael Lucenko supports his father in the latter’s application; therefore clearly Michael Lucenko will continue to facilitate contact between his father on the one hand and his children on the other . … Nor is this a situation where the father of the children has only infrequent contact with them, thereby allowing the paternal grandparent only infrequent contact with his grandchildren. The arrangement which the parents are currently working out, and to which each of the parent consents, will give the father access to the children for one week every month.

Such an arrangement will, in fact, give to the father of the children more access than alternate week-end access. In the circumstances here, the father exercises his access frequently and regularly. [emphasis added]

[ 13 ] In JFB v CLB [5] , Burrows J. applied ss 35(4) this way: … The relationship between C. and Mr. J.F.B. at one time appears to have been close though they have not had significant contact for a year now . The relationship will also of necessity continue at some level because Mr. J.F.B. is the father of C.’s half brother. It appears that since Ms. C.L.B. will not consent to the contact Mr. J.F.B. seeks, the only way for him to obtain that contact is by making this application.

I grant him leave to make the application. [emphasis added] [ 14 ] In BM v JM [6] , in upholding Yamauchi J.’s decision allowing a grandfather contact with a grandson, the Alberta Court of Appeal noted Yamauchi J.’s provisional finding on leave (i.e. if leave had been required): … The chambers judge went on to hold that if permission was required, he would have given it because it was in the child’s best interests , the child’s relationship with his grandparents was a significant, loving, healthy and meaningful one and a contact order was necessary to facilitate the continuation of that contact . [emphasis added] [ 15 ] In CCH v EEE-B [7] , Marceau J. granted leave on these grounds (after reciting ss 35(4)): … The child from birth until August 31, 2007 when he was four years old had no other grandparents on the side of the person he regarded as his father, other than the Applicants.

That is a significant relationship . In considering the necessity of bringing this application it is clear that without an order the present guardians of G.D.E. intend to prevent the Applicants from having any contact with G.D.E., therefore necessity has been proved. Leave to bring the application is granted. [emphasis added] [ 16 ] In JS v RW [8] , Greckol J. (as she then was) granted leave on these facts (after citing ss. 18 (“best interests” factors) and 35(4): Q.W. [the child] was born to C.W. while she was married to R.W.. When they separated, she maintained primary residential custody of Q.W..

The maternal family was very involved in Q.W.’s life. C.W. died prematurely in February of 2005 . By the terms of her holograph will, it is apparent that she left her estate in her family’s care to administer for Q.W..

In my view, given this history, it is in Q.W.’s best interests that leave be given to the [maternal] Aunts to apply for a contact order . [emphasis added] [ 17 ] In HB v AB [9] , Greckol J. (still as she then was) upheld the granting of leave in these circumstances: 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. [Subsection 48(2) lists various factors to assist in gauging whether a person has shown a “settled intention to treat a child” as one’s own, including the nature and duration of the relationship.] 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. [emphasis added] [ 18 ] In BD v SW [10] , McLellan PCJ comprehensively explored both elements of the ss 35(4) test: The child has a relationship with the applicants [maternal grandmother and step grandfather] who have had ongoing contact with the child since her birth. She knows them and is happy to see them. The applicants have played with her, cared for her overnight on occasion and spent considerable time with her during a lengthy hospitalization .

Pursuant to FLA , the court must consider the significance of the relationship between the child and the applicant. The word “significance” or term “significance of the relationship” is not defined in FLA and there is no case law on this

section or equivalent sections. FLA is recent legislation. According to the Oxford English Dictionary … , “significance” means “the meaning or import of something; importance, consequence.” … The significance of the relationship will depend on the facts of each case. At this hearing, the evidence indicates that the relationship between the grandmother and child goes beyond a biological connection (which might in some cases be sufficient for the purposes of leave) and is an established and positive relationship . The child also has an established and positive relationship with her step grandfather.

A consequence of the child’s relationship with the applicants is that she has the opportunity to be involved with extended family which is a consideration in the significance of the relationship. … Is an order necessary to “facilitate” contact? Facilitate is a word that courts often use in reference to contact/access. Facilitate is not defined in FLA .

According to the Oxford English Dictionary, supra, “facilitate” means “to render easier the performance of (an action), the attainment of (a result); to afford facilities for, promote, help forward (an action or process); to make easier or less abstruse; to simplify; to lessen the labour of, assist (a person). Fruman, J. in Re K, 1198 A. J. No 1373 (ABCA) considered the word “facilitate” as used in the Child Welfare Act, S.A. 1984,c.C-8.1 . She held that: “The term “facilitate” is not defined in the Act, and the case law on the Alberta legislation and equivalent sections in other legislation is sparse.

Some assistance can be drawn from other sources. The dictionaries suggest that the term means to make performance of an action easier, or to assist in attaining a result . Canadian cases, which have considered the term “facilitate” in a context different than the present one, have given it the meaning of making easier.” Fruman, J was considering the meaning of “facilitate adoption.” She holds that “obviously what constitutes facilitation is a question of fact, with each case to be considered on its own merits .” When section 35(4)(

b) of FLA is viewed in context and against the background of the Act , I am satisfied that the

section does not require that the court must consider an order to be necessary for any contact to occur or that there should be no leave granted in cases where some voluntary contact has already occurred . … There was a hiatus when the mother refused contact. I am satisfied that a court order may assist or facilitate access . … [emphasis added]

[ 19 ] In Carty v Boucher [11] , Cornfield PCJ denied leave on these grounds (after reciting ss 35(4)): … While the Cartys may not have tried to pursue a relationship with Nevaeh through the mother since 2014, it does not change the fact that there has not been one [i.e. a significant relationship]. Section 35(4)(

b) also requires the Court to look at the necessity of making an order to facilitate contact. In this case, the only request since June 2014 has been to serve a claim under the FLA . There is evidence that the mother offered to discuss the potential of the Cartys having contact, but they did not take her up on it . As a result, when you consider the criteria in s 35(4), the Cartys unfortunately have not established that a hearing is in the best interests of the child . … [ 20 ] In DK v CD [12] , en route to finding that leave was not required, Lipton PCJ described the (or

a) purpose of the leave requirement: I am cognizant of the fact that the leave provision was inserted into s 35 of the FLA in order to provide a means by which the courts could efficiently prevent significant and unwanted intrusion on the rights of parents by grandparents absent defined circumstances.

The courts were given the role of “gatekeeper” to ensure that only applications with a reasonable chance of success ought to move forward (see Bridgewater v Lee , 1998 ABPC 133 (“ Bridgewater ”), and Hrycun v Theriault , 2015 ABQB 794 (“ Hrycun ”)). [I note that the leave requirement applies to grandparents in some circumstances and generally to other (non-grandparent) relatives, such as the aunt here.

I also note that Bridgewater did not examine the leave requirement, instead the merits of a grandmother’s bid for access to grandchildren.] [ 21 ] In MAM v DJM [13] , Cook-Stanhope J. granted leave in these circumstances: Under s. 35(4)(a), a Court considering a Leave application must first determine whether there exists a significant relationship between the child and the applicant. I am prepared to accept that [a significant] relationship existed [between a grandmother and grandson] until the time of the Emergency Protection Order and events which immediately proceeded it.

I find, as well, that these events injected an unacceptably high level of stress into this child's life and appears to have caused her unwarranted upset. Finally, I accept that if Contact were to be considered, it would be unworkable, as contemplated under s.(4)(b), without some kind of court order. [emphasis added] [ 22 ] In KS v BC [14] , Benns PCJ granted leave on these findings: The initial investigation the Court must undertake is the application of s 35(2) and (4) and the requirement for permission to apply for contact to a child in certain circumstances.

At the commencement of this trial, the Court addressed the factors in s 35(4) and found that:

a) The Applicant did have a significant relationship with the Child; and

b) That it would be necessary to make an order to facilitate contact should I find that contact would be in the child’s best interest. That is to say that I did not believe that the Respondent was prepared to volunteer contact for the Applicant in an unstructured fashion and an Order was therefore necessary to facilitate contact if that was in the Child’s best interest. [emphasis added] [ 23 ] In VN v PS (PB) [15] , Tousignant PCJ’s leave denial turned on lack of necessity: There is no question that there was at one time a significant relationship between the Child and the Grandmother.

The two resided under the same roof for a large portion of the Child’s life. The visit reports portrayed a loving relationship , although tinged with some unease on the part of the Child. I must also consider the necessity of making an order to facilitate contact between the Child and the Grandmother. In my view, it is not necessary to make a contact order. The Grandmother provided very little evidence of a denial of contact . The Mother demonstrated her willingness to provide contact to the Child by the Grandmother .

Rather than agreeing to discuss the issue in a neutral setting, as requested by the Mother, the Grandmother filed a Claim for contact with the Child, less than three months after her son died. In determining whether the granting of leave is in the best interests of the Child, I rely upon my analysis below where I conclude that it is not in the best interests of the Child to grant any kind of contact order in favour of the Grandmother.

It follows that it would also not be in the best interests of the Child to grant Leave to make the application in the first place . [emphasis added] [I note that, in deciding on leave, it is not necessary, and in any case may not be possible, to perform the downstream analysis of whether contact would be in the child’s best interests.] [ 24 ] In Moore v Szelei [16] , Lipton PCJ explored the “necessary” aspect: Given the acknowledgment by the parties that the Paternal Grandmother has had contact with the Child since the Parents separated , it is questionable as to whether the Paternal Grandmother has satisfied the prerequisite in section 35(4) (b).

The dispute here is as to the amount of time that the Paternal Grandmother would like to spend with the Child, and not whether she is able to even see the Child. In my opinion, the Paternal Grandmother has not demonstrated to the court that she has satisfied the provisions of sections 35(4)(

b) of the Act . I therefore am of the opinion that the Paternal Grandmother’s leave application must be dismissed. A fortiori , her application for contact with the Child must fail. It is arguable, however, that the Paternal Grandmother has satisfied the leave requirements. If a grandparent is only able to see a child when the child is in the care of the non-custodial parent, there is authority for the proposition that by virtue of the limited

contact time, the leave requirements of section 35(4)(

b) have been met. In the Lucenko decision, Veit J. stated at paragraph 4: “ ...

Without in any way attempting to list the types of situations in which leave might be granted, one can envisage a court grantingleave where, for example, contact is not against the child’s best interests, and although a grandparent can have contact with thegrandchildren when the parent with whom the grandparent has a connection has access, but where the parental access is, for whateverreason, extremely limited ...” On the assumption that leave ought to be granted in this case, I am nevertheless of the opinion that the Paternal Grandmother has notsatisfied either of the requirements in section 35(5) of the Act to be given contact to the Child.

Law reform perspective [25] In its Final Report on Grandparent-Grandchild: Access[17], the Law Reform Commission of Nova Scotia examined theleave requirement for such access: The Commission’s Advisory Group considered the issue of whether or not the existing requirement in the Maintenance and Custody Actto obtain the leave of the court in order to apply for access should be retained. The Advisory Group was of the opinion that the leavestage provided a useful threshold test affording an opportunity to screen cases that were frivolous on their face or otherwiseunmeritorious. In the case of Gray v.

Gray, Justice Goodfellow discussed the leave requirement of

section 18 of the Maintenance and Custody Act andstated: The purpose of the legislation is to promote the welfare of the child, and the legislation specifically mandates that this is the paramountconsideration. It follows that on an application for leave the person who is applying must meet a threshold test showing that thegranting of leave is likely to be of benefit to the welfare of the child. This is the threshold or test that must be met by an applicant . . .

The existence or absence of sufficient interest, existing relationship, etc., etc. are all important considerations to be taken intoaccount in determining whether or not the threshold has been met. In some cases a particular factor will be weighed more heavily, ieif the applicant were a stranger to the child, normally the result would follow with the applicant not having an existing relationship orsufficient interest and would be hard pressed to convince a court that there is likely to be a benefit to the child. [(1995) (NS SC), 147 NSR (2d) 369 at 375] Judge Sparks, in deciding Manuel v.

Hughes, a case discussed earlier in this Final Report, refers favourably to Justice Goodfellow’sdecision and also cites an earlier decision of Judge Daley’s in which he summarizes the primary considerations on a leave application asfollows: First, the welfare of the child rule applies to both an application for leave as well as for access. Second, a prime facie casesubstantially connecting the best interest of the child with the applicant is necessary to be granted leave.

Third, there must be strongand cogent reasons asserted before the court will question the wisdom of the custodial parent respecting contact of a child with family ornon-family members. There must be substantive reason for disregarding the contrary wishes of the custodial parent. Fourth, unless thereare grave extenuating circumstances, children can benefit from involvement with the extended family provided the involvement is notdestructive or divisive in nature.

Fifth, leave should not be granted if access can be achieved in some other manner such as through an access parent. [Manuel v Hughes ... [(2005) 2005 NSFC 14 , 20 RFL (6th) 313 (NS Fam Ct], citing D(

B) v D(S), (NS FC), 145 NSR (2d) 149 at 154] [The third and fourth factors strike me as downstream factors i.e. as bearing on the“contact or not” analysis i.e. if leave were granted.] An applicant for access is asking the court to override a custodial parent’s decision regarding what is best for his or her child. In additionto the potential interference with parental autonomy, the custodial parent also faces the cost and stress which invariably arise fromcontested proceedings. The consequences of litigation itself can have a negative impact upon the child.

The Commission thereforebelieves that as case law now provides, it is incumbent upon an applicant for access to satisfy a court that the granting of leave toapply for access is likely to be of real benefit to the welfare of the child.

The Commission recommends that the leave provision in section 18(2) of the Maintenance and Custody Act be retained. [emphasisadded] Distillation of these cases and analyses [26] Here are the key lessons of these cases and this law-reform commentary (with some added comments): 1. the function of ss. 35(4) seems to be to screen out contact applications that are destined to fail i.e. that do not have areasonable chance of success.

The Alberta courts have largely focused on the two “best interests” factors specified in ss 35(4): thesignificance of the relationship in question (e.g. grandparent-grandchild, aunt-niece, etc.) and the need for an order i.e. without anyexploration of any, or any other, s. 18 “best interests” factors; 2. other “best interests” consideration may be engaged at this preliminary stage i.e. in helping the Court decide whether leaveshould be granted or the application should be winnowed out. For instance, the effect of the relationship on the child.

An applicantmay have a significant relationship with the child but one which has harmed the child in one way or another, to such a degree that acontact application has no reasonable chance of succeeding. Or an applicant with a positive significant relationship may be ill-equippedto provide safe and secure care during proposed contact e.g. of a child with particular needs; 3. a full-on bests-interests inquiry is not required at this stage. If leave is granted, such an inquiry must be held before any

contact is ordered. The idea, effectively, is to conduct a brief best-interests scan, so going-nowhere applications can be sifted from those where, at first glance, the applicant has a reasonable chance of success; 4. the low-intensity review at the leave stage is reflected in most of the above cases, where the Courts decided the leave point on the basis of a factor or two, and only a brief exploration of the factor(s); 5. on “significance of the relationship” , the provision contemplates a successful leave bid by persons with no relationship, via the words “if any”.

However, most of the above cases reflect a clear “significant relationship” hurdle ( no such relationship, no leave ); 6. also, on “significance of the relationship”, a biological connection alone is insufficient; 7. the relationship need not have persisted through to the contract breach (if any) i.e. historical relationships may suffice, depending on the circumstances; 8. other “significance” factors include the formal nature of the relationship (e.g. grandparent, aunt, etc.), the kind of contact (e.g. socializing, babysitting, primary caregiving), the frequency and intensity of contact, the impact of the relationship on the child or children involved (positive or negative), the “ durability ” of the relationship, especially after a period of no, or limited, contact (e.g. are the children showing signs of missing the person and wanting contact), and the child’s preferences that the relationship continue, expand, diminish, etc., depending on the age and maturity of the child; and 9. as for the “necessary” element: it too seems designed to sideline another stream of destined-to-fail applications: if order not necessary e.g. because the applicant receives contact without an order, why grant order?

E.

Evidence on “significance of the relationship” Aunt’s evidence on “significance of the relationship” [ 27 ] The aunt pointed to the following markers of an asserted significant relationship with the three children: • her presence at the birth of the eldest child (2008); • between 2008 and 2015, when she lived in another province, her sending birthday and Christmas gifts to the children (second born in 2010, third in 2012); • during those years, visiting her sister, brother-in-law and the children one or twice a year; • the day after her sister’s death (in 2015), “I closed my [business], stepped away from [another] small business, and I moved to [the Alberta city where her sister’s family lived] to be near to my family [including the grandmother and step-father], and to help in any way that I could with my sister’s children.

I was without employment while in was living in [that city] from July 2015 to December 2015”; • “Over the course of July and August 2015, I picked my nephews up from camp every day. I made arrangements to entertain my niece and nephews when they were not in camp through the week. We spent several days together at [a relative’s] farm in [a nearby town]. We went swimming, we hiked in dog parks, we attended movies, … , and generally spent numerous hours together”; • “When school started in September of 2015, with the exception of a [pre-arranged] one-week trip …, I picked up my nephews up from school every day.

I often picked [my niece, 3 at the time] up from the [family home] through the week so that she could spend the day with me. I accompanied [one nephew] one a school [field] trip … in October 2015”; • “Throughout July to October 2015, my mom and I were often asked to babysit at night for [the father] through the week. ...”; • “When [the father] was called away to a conference in September and again in October of 2015, I stayed with the children at the [family] house for several days. I prepared their breakfasts, I dropped them off to school and picked them up from school.

I often prepared their dinner and gladly entertained them through the evening and weekend. [Named person], the nanny [of the children], did not work evenings or weekends, and so I was alone with the children”; • the aunt and father had a falling out in early November 2015, after which the father decided against further contact between the aunt and the children; • the aunt made travel arrangements (from the other province, where she returned for a period) to visit the children in January, February, and March 2016, but the father ruled out those visits. (The aunt has since relocated from that province to the city where the children live, to be closer to her mother and step-father, as well as the children; she has restarted her business in that city); • “Between January and [mid-March] 2016, my mom allowed me to FaceTime with the children and she facilitated the weekly delivery of a weekly care package that included hand-written stories, drawings and gifts [from the aunt to the children]. …”; • “[In that period], my nephews would always ask me by FaceTime when I was coming back to [their city]. … [In mid-March 2016], … the boys [were] crying that it had been so long since we had seen each other ….”; • between March and May 2016, the aunt “was not allowed FaceTime with the children with any regularity.

The last time [as of mid-May 2017] I was able to FaceTime with the children was in May 2016”;

• in June 2017, in separate proceedings between the maternal grandmother and the father, Anderson J. made an ordered providing access parameters for the grandmother, which included the aunt not participating in such access; • the aunt’s contacts with the children since them have been limited, largely, to text messages with the children during monthly access visits with the grandmother (such visits curtailed since March 2020 on account of the pandemic and replaced by ad hoc phone calls with the children for the grandmother), resulting effectively in no further contact with the children for the aunt since then; and • [per November 2020, and presumably referring back to the period up to and including March 2020] “my eldest nephew … constantly tells me how much he misses me and loves me, and I assure him of the same …” Father’s evidence on “significance of the relationship” [ 28 ] The father says: • “[The aunt] had no relationship with the children prior to [my late wife’s] death.

She lived in [another province] and only saw the children briefly a handful of times in their lives, she never babysat or spent any meaningful time with them. … It was only starting in July 2015, following [my late wife’s] death, that [the aunt] started to have any involvement with the children. She and [my mother-in- law] took them for an outing periodically and would occasionally babysit between [our nanny’s] departure at 6 pm and my return from work.

At times in September and October [2015], [the aunt] would pick [the children] up from school and drive them home. [The aunt] only helped care for the children in any meaningful way [for three days in mid-September 2015], when I was away [on business]. Even then, [our nanny] provided childcare during the day, and the [two] boys were at school”; and • “I continued to drive the boys to school after [my late wife’s] death. … That [2015] summer, I remained very involved with the children and was with them when not at work but for a small handful of times …. Most weekends the children and I went out of town together.

In fall 2015, [the boys] were at school all day except Wednesdays [half-day for one of the boys]. I dropped off the boys at school in the morning while [our nanny] cared for [our daughter] during the day and for the boys upon their return from school until 6 pm.” F. Analysis of “significance of the relationship” [ 29 ] I find that the aunt’s relationship with the children is significant within the meaning of ss 35(4), for these reasons: • it does not matter that, through to summer 2015, when the aunt lived in another province, her contacts with the children were fairly limited.

In any case, I reject the father’s label of “no relationship” during that period. Plainly, some level of relationship, even if modest, existed on account of the semi-annual or annual visits and the flow of birthday and Christmas cards and gifts; • in any case, a significant relationship developed between the aunt and the children in the aftermath of their mother’s death in the summer and fall of 2015. The aunt was obviously moved to shore up the father’s family in this time of loss, including helping care for the children, out of which it is plain that a significant connection developed.

And this is so even with the father remaining the central anchor of the children’s lives and the nanny also retaining a key role. Even with the aunt as a supporting player, I find that her connection with the children increased markedly that summer and fall, creating a real, meaningful, beneficial connection with them i.e. a “significant relationship”; • the father tries to diminish the aunt’s role but resorts to vague words and phrases like “periodically”, “occasionally”, and “at times” when chronicling the aunt’s connections with the children.

If they were truly de minimis connections, I presume he would have used actual figures (e.g. “one time”, “two times”); • while the parties’ evidence differs over whether the aunt provided effectively full-time care during out-of-town travel by the father (once versus twice that fall), would the father have entrusted his young children (6, 5 and 3 at the time) to someone with whom they did not have a significant relationship? I think not.

And same for entrusting them to her care for outings, babysitting, and school commuting; • obviously, in these early months after his wife’s death, the father did not turn away the sister’s continuing assistance with the children on the basis that she was some kind of interloper or effective stranger to them. Instead, I find that he welcomed her assistance and obviously found it beneficial for the children and even for him.

It is not really a stretch to infer from this fact alone that the aunt had a serious, meaningful connection with the children, even if it bloomed suddenly in the summer and into the fall of 2015; • another marker of “relationship significance” is whether the children are aware of the aunt’s effective absence from their lives over the last couple of years and, if so, whether they express any sense of sadness or loss over it.

The aunt’s evidence affirms this on all counts; the father did not refute that evidence or even address the children (or at least the two older ones) missing the aunt, at least through to her most recent connections with them. (And I cannot fault her for the lack of any more current information on this score, in light of her lack of access to the children); • the crux of the father’s position is that the aunt has a negative opinion of him and that this opinion will somehow taint the aunt’s contact with the children (presumably via the aunt expressing that opinion, directly or indirectly, to the children) and thus make such contact not in their best interests.

However, the father presented no evidence of any such overspill to date or grounds for believing that it is likely to occur down the road. At this preliminary stage, I am not prepared to infer a risk to the children’s best interests from this “negative opinion” concern (assuming it to be true); and • the father also emphasized that the children have significant connections with other maternal relatives and, by extension, that the proposed connection with the aunt is not necessary to assure sufficient contact with that side of the family.

This is not a relevant factor, at least as the leave stage, where the focus is on whether the relationship in question (aunt-children) is significant.

G. “Necessity” of an order [ 30 ] As noted, this is the other specific ss 35(4) factor i.e. whether, for any contact to occur, an order is necessary. [ 31 ] The answer here is clear: given the father’s consistent (since 2017) “no contact with aunt” position, all aside from the June 2017 order of Anderson J. barring the aunt from contact via during grandmother-children visits, an order would be necessary i.e. if leave is given, a contract application proceeds, and contact is found to be in the bests interests of the children. H.

Conclusion and closing comments [ 32 ] In light of a significant relationship and the necessity of an order (again, if contact is found to be in the children’s best interests), and with no other “best interests” factor signalling that the aunt has no reasonable prospect of success, I grant leave to the aunt under ss 35(4) to bring a contact application. [ 33 ] At the application argued on February 22, the parties differed over whether, if leave were granted, I should proceed to consider and decide separate applications by the aunt for joinder of this proceeding with another proceeding and for interim contact with the children. [ 34 ] I told the parties that I would consult with Yungwirth J., who had presided in Family Docket Court when this matter was scheduled, to see if the docket appearance had yielded any particular sequencing directions. [ 35 ] Indeed it had.

Yungwirth J.’s direction was clear: Once a determination is made on whether or not [the aunt] should be granted leave to proceed, there will be a Rule 4.10 case conference before Yungwirth J. to arrange for a Voice of Child Report, an oral hearing, and address any required steps to prepare for the oral hearing. [ 36 ] Accordingly, given this clear direction, I am dispensing with my self-imposed step to contact the parties to discuss sequencing, leaving them to follow up with Yungwirth J. per the outlined directions. Heard on the 22 nd day of February, 2021.

Dated at Calgary, Alberta this 25 th day of February, 2021. M. J. Lema J.C.Q.B.A. Appearances: AB Self-Represented Litigant CD Self-Represented Litigant