DLL v CCL, 2021 ABQB 283

Court of Queen’s Bench of Alberta Citation: DLL v CCL, 2021 ABQB 283 Date: 20210412 Docket: FL03 63934 Registry: Edmonton Between: DLL Applicant - and - CCL Respondent _______________________________________________________ Endorsement of the Honourable Mr. Justice M. J. Lema _______________________________________________________ A. Introduction [ 1 ] A maternal grandmother seeks permission to apply for, and if permission is granted, an order for contact with her granddaughter. The child’s mother is opposed. [ 2 ] I find that permission should not be granted in the circumstances here.

[ 3 ] Accordingly, I dismiss the grandmother’s application. B. Background [ 4 ] The child is currently 18 months old. When she was born (September 2019), her mother was living with the maternal grandmother and the grandmother’s husband.

Per the grandmother, she was closely involved in her granddaughter’s life, assisting with all kinds of care and doing so often. [ 5 ] The child’s mother acknowledges the grandmother’s assistance with the child, but says that she “never felt safe or that [she] fully trusted [her mother] around [herself] or [the child].” In July 2020, the mother and child moved out of the grandmother’s home. [ 6 ] The grandmother says she has not had contact with the child since November 21, 2020, when the child was approximately 14 months old. [ 7 ] Both parties provided more evidence about the state of their relationship and the grandmother’s presence in the granddaughter’s life.

I refer to that evidence further below. C. Law [ 8 ] I reviewed the governing law for permission-to-seek-contact-order applications in AB v CD , 2021 ABQB 152 (paras 6 and 7 ): The leave requirement come from ss. 35(2) and (4) of the Family Law Act :

(2) Subject to subsection (3), 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.

(3) A grandparent of a child does not require the permission 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, an d (

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 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] 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. Analysis Grandmother needs permission to bring an application [ 9 ] The grandmother here does not qualify for the “no leave required” exception in para 35(3).

While the evidence is not clear, it appears that one of the first parts of the exception is satisfied (“ guardians [of the child] are living separate and apart ”, assuming the child’s father is indeed a guardian). But the second requirement is not satisfied: we are apparently not dealing with a deceased guardian , and the apparent separation of the guardians is not the reason for the interruption of the grandmother’s contact with the granddaughter.

No evidence showed that the mother’s “no contact for grandmother” decision had, or has, anything to do with that separation. [ 10 ] All to say: the grandmother falls into the class of persons (non-parent, non-guardian, not a person standing in place of a parent) who require the Court’s permission to bring a contact application i.e. before the application (if leave is granted) is heard on the merits.

Test for permission [ 11 ] In AB v CD , I reviewed some of the Alberta decisions on permission applications and prepared this synopsis (at para 26): 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 a reasonable chance of success.

The Alberta courts have largely focused on the two “best interests” factors specified in ss 35(4): the significance of the relationship in question (e.g. grandparent-grandchild, aunt-niece, etc.) and the need for an order i.e. without any exploration 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 leave should be granted or the application should be winnowed out. For instance, the effect of the relationship on the child .

An applicant may have a significant relationship with the child but one which has harmed the child in one way or another, to such a degree that a contact application has no reasonable chance of succeeding. Or an applicant with a positive significant relationship may be ill-equipped to 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?

Application of those factors here [ 12 ] I first examine the two “best interest” factors expressly mentioned in ss. 35(4): “significance of the relationship” and “necessity of an order”, starting with the latter first. Necessity of an order [ 13 ] The mother is steadfastly opposed to contact between her mother and the child. [ 14 ] I find that the “ necessity ” element is satisfied: without an order, and assuming no change in the mother’s stance, it is clear that contact not happen without an order.

Significance of the relationship [ 15 ] The critical factor is “ significance of the relationship .” I first explore how to understand “significance”: is it that the relationship is significant to the child ? To the applicant (here, the grandmother)? To both of them ? Is otherwise significant ? [ 16 ] I find that the key, or at least a minimum, requirement is that the relationship is significant to the child , for these reasons: • the ultimate factor here is “best interests of the child ” i.e. what is best for the child ?

Per ss 35(4) FLA, “significance of the relationship” with the contact seeker is one of the factors in gauging the child’s best interests. Advancement of those interests necessarily calls for a “child-centric” focus here: what does the relationship mean to, or for, the child ? The fact that, by contrast, the relationship may have great significance for the contact seeker is beside the point.

That may coincide, to a greater or lesser degree, with significance to the child, but the latter is the critical aspect; • to take an extreme example, imagine a newborn in a hospital ICU, visited, at a distance (through windows), by a relative (e.g. a grandparent) daily, for weeks (assuming no pandemic-related visiting restrictions). The grandparent might, from first sight, describe the onset of a significant relationship with the child e.g. a wash of feelings of love, care, concern, and hope for the infant, and one that grows visit by visit.

Yet the infant, a room away, would presumably have no consciousness of the grandparent’s feelings i.e. any sense of a relationship, let alone a developing one. This illustrates the core point here: the significance, or importance, of the relationship in question, in this contact-order context, is necessarily to the child i.e. as lived, experienced, and felt by the child . The grandparent in this example might be heartbroken if asked to break off these visits; he or she may see that as rupturing a meaningful connection between him or her and the child. But the child would be oblivious.

With (again) the overarching focus on the “best interests of the child ”, could it be fairly said that those interests require the continuation of this relationship e.g. if the grandparent moved for leave for a contact order? Or would the appropriate take be that, in the “galaxy” of relationships for the child , this relative is at the outer edges, if not simply off the map, exerting no particular gravitational force i.e. no discernible effect or impact on the child’s life at the time ?

Of course, the grandparent may hope that a true, two-way, relationship grows over time , with the child coming to know, and appreciate, and love, him or her.

But that would not be enough to constitute a “significant relationship” now, instead the hope for one; • per the statutory wording, the relationship’s significance is to be measured in the present i.e. it contemplates an existing relationship or, per the Alberta Court of Appeal in Clarke v Hancharuk , 2016 ABCA 389 (paras 3 and 4 ), a relationship that existed at some point and has not ebbed completely i.e. not merely a hope of a relationship in the future ; • that is what we have here.

The grandmother played a role in caring for the child during her first year or so of life, including: o attending the birth of the child in hospital; o when the mother and grandchild were living with the grandmother (for approximately ten months after the child’s birth), being “embedded into some of [the grandchild’s] daily routines”, including “helping feed, burp, soothe, dress, bathe and, best of all, play with her … as soon as [she] sees one of us [grandparents] she comes running.

She really loves dancing and playing [with us]”; o babysitting for the child, sometimes without advance notice and for spans from “a couple of minutes to half the day”; o taking the child on some outings unaccompanied by the mother; and o following the mother’s lead, trying to learn, and communicate (or additionally communicate) with the child in, sign language; • the evidence does not show, and I suspect that, given the child’s age, no evidence could show, an existing relationship with the grandmother that was significant to the child within the meaning of the statute, instead the hope of a relationship in the future.

That conclusion does not diminish the grandmother’s real efforts to support her daughter and to love and support the grandchild. It is more

that, given the child’s “age and stage”, with the bulk of the grandmother-grandchild interactions occurring between birth and ten months (and then diminished connections for about four months , and then no connections for the last approximately five months), it is hard to perceive a significant-to-the-child relationship here i.e. in the sense of a relationship perceived, felt, appreciated, and remembered by the child ; • the mother did not present any expert evidence on attachment or otherwise, aimed at showing the existence, or at least the possibility, of a meaningful-to-the-child relationship during infancy . (For contrast, see DP v Alberta (Child, Youth and Family Enhancement Act, Director) , 2016 ABPC 212 (Kvill PCJ), where extensive expert evidence on attachments between caregivers and children was provided (paras 143-163)); • how might such a meaningful relationship be manifested: the child reacting to the person? (“I see a person ; that makes me smile”).

Recognizing the person? (“I know this person from before”)? Being able to situate the person (“This person is part of my family ” or even “this person is my mother’s mother ”)? Being familiar with the person (“I have seen this person many times before … I feel comfortable with this person ”)? Anticipating connections with the person (“I have not seen this person recently … I miss the person ”)? Actually asking for connections (“ Can we see Grandma ?”)? Placing a priority on the relationship (“If I drew a picture of the important people in my life, Grandma would be in the centre, right next to my mom ”)?

I am not sure whether all of these factors are needed to qualify a relationship as “significant” within the meaning of the provision, but there must be some minimal level of consciousness of, and appreciation of, the relationship, in the eyes of the child, for it to be “significant” within the meaning of the statute. Again, if the aim is to maximize the child’s best interests, if those interests do not seem to have any particular connection, or through- line, to a particular relationship, can it really be said that the relationship is “significant”?

Unless we can see a positive correlation between the relationship and the child’s best interests, it is doubtful that the relationship can be “significant” per the statute ; • viewed the other way, if the diminishment, or even disappearance, of the relationship has, or would have, no discernible impact or effect on the child, can it fairly be said that the relationship was “significant” to the child within the meaning of the statute? I do not think so.

And while it is only engaged at the contact (not leave) stage, ss. 35(5) expressly calls for that inquiry: Before the Court makes a contact order , the Court shall satisfy itself that contact between the child and person for whom contact with the child is proposed is in the best interests of the child , including whether (

a) the child's physical, psychological or emotional health may be jeopardized if contact between the child and the person for whom contact with the child is proposed is denied …. • a person seeking a contact order is, by definition, asking the court to override the no- contact decision of a parent or guardian. The court should only be prepared to do that where, at minimum, the proposing-contact person can point to a meaningful, discernible impact of the relationship on the child .

To get past a parent’s decision that no contact should occur, the contact seeker must be able to say (in effect): “Look at the tangible, beneficial impact of my relationship on this child … imagine how they would be hurt, diminished, prejudiced if contact were not restored.” Unless the contact seeker can show at least that, the court should defer to the “no contact” decision of the parent or guardian i.e. trust their instincts about which persons should be allowed into the orbit of their child’s or children’s lives; and • recall that the statute requires a “significant relationship”, not a “significant relationship or one which may, over time, become significant ”, and that the Legislature could have started from the premise that the relationship between grandparent and grandchild is implicitly significant . [ 17 ] In BM v JM , 2019 ABCA 503 , the Court of Appeal confirmed that a contact order requires an existing and reciprocal relationship .

After first noting that Yamauchi J.’s description of the (at least) nine-year relationship with grandparents as a “ significant, loving, healthy and meaningful one” (paras 2 and 7), the Court of Appeal commented: … [A contact order] is simply an order designed to promote the child’s best interests by preserving contact he or she had with a significant other (in this case, the grandparents) in circumstances where the person seeking contact obviously loves and enhances the quality of the child’s life and where the child reciprocates that love and enjoys the enhancements . [para 19] [emphasis added] [ 18 ] Many other Alberta cases confirm, at least implicitly, that significance of the relationship to the child is the key, or at least a minimum, requirement.

All of the following cases feature a child or children old enough to perceive, experience, and even reciprocate in , the subject relationship: • “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 [just under three years ].

The visit reports portrayed a loving relationship, although tinged with some unease on the part of the Child”: VN v PS (PB) , 2014 ABPC 86 (Tousignant PCJ at para 429): • “significant relationship” accepted as existing between grandmother and seven-year-old child, with contact for at least five years : MAM v DJM , 2013 ABPC 101 (Cook-Stanhope PCJ at paras 103 and 105); • same where a grandmother had close-in contact for the first four or so years of her granddaughter’s life : KS v BC , 2019 ABPC 318 (Benns PCJ at paras 7, 8, 13 and 35); • same where maternal aunts had had close-in contact with their nephew for approximately seven years: JS v RW , 2008 ABQB 358 (Greckol J. as she then was at paras 1 and 40-44); • in BD v SW , 2007 ABPC 95 , where the child was apparently pre-school age, McLellan PCJ emphasized these “significant relationship” factors: The child has a relationship with the applicants 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 withher during a lengthy hospitalization. Pursuant to FLA, the court must consider the significance of the relationship between the childand the applicant. The word “significance” or term “significance of the relationship” is not defined in FLA and there is no case law onthis

section or equivalent sections. FLA is recent legislation. According to the Oxford English Dictionary, Second edition, 1989 OxfordUniversity Press, Online edition, http://dictionary.oed.com, date of access, March 28, 2007, “significance” means “the meaning orimport of something; importance, consequence.” … The significance of the relationship will depend on the facts of each case.

Atthis 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 alsohas an established and positive relationship with her step grandfather. … [para 20] [emphasis added] • a “significant relationship” was found to exist between a grandmother and two grandchildren on account of close-in contact frombirth through to approximately 4 and 2 years old, respectively, and then a further approximately half-year’s contact with both ofthem: HB v AB, 2010 ABQB 279 (Greckol J. as she then was, at paras 1-3 and 16-17); • same strength of relationship found in CCH v EEE-B, 2009 ABQB 707.

Per Marceau J.: “The child from birth until … he wasfour years old had no other grandparents on the side of the person he regarded as his father.

That is a significant relationship” (para 9); • in KM v BD, 2019 ABPC 327 (D’Souza PCJ), “significant relationships” were found in the case of a close connection with twograndchildren since birth (approximately 6 and 4 years, respectively) (paras 1, 2, 5, 6, 28 and 29); and • in AB v CD (cited above), I found a “significant relationship” existed between an aunt and two nephews and a niece, largely on thebasis of close-in contact between the aunt and the children for a few months after the children’s mother died, when the children were6, 5 and 3 years old. [19] I was unable to find any leave-for-contact-order or contact-order cases where the child or children were as young as the childhere (fourteen months when the grandmother last had contact; nineteen months now). [20] In the case of newborns and infants, which includes the fourteen-month-old here (age at last contact), I believe a contact-seeking relative will have a difficult time meeting the statutory test i.e. of showing a “significant to the child” relationship.

The contactseeker may be able to recount stories of happy times, for both grandparent and grandchild, during visits, but that does not necessarilytranslate into a “significant relationship” per the statute, as these cases (addressing best interests of a child in various contexts)illustrate: VF v Simcoe Muskoka Child, Youth and Family Services (CYFSA), 2019 CFSRB 22: In Children’s Aid Society of Toronto v VF, 2013 ONCJ 503, Justice Spence considered the

interpretation to be applied to this aspect ofthe best interests analysis. Specifically, he considered whether a biological connection was sufficient to meet this branch of the test.He found that giving it the broadest

interpretation the term “relationship” could include biological connection as well as inter-personal connections; however he goes on to find that there has to be something more than a biological relationship and that onemust consider whether a child is connected in a meaningful way to the other person, at para 62 emphasis in original: Obviously, there is a biological relationship between two of the children and the grandmother. However, there is certainly no inter-personal relationship between the grandmother (or any of the grandmother’s family in Jamaica) and these children.

It seems to me thatif we examine this from the perspective of these children, the existence of an inter-personal relationship, that is, whether thechildren themselves are connected in a meaningful way to another person, is more significant than mere biology, particularlywhere the children have never met the kin and do not even know of the kin’s existence. [para 49] [emphasis added] Family & Children's Services of Frontenac, Lennox, 2013 ONSC 2736 (Quigley J.): Where a child is made a Crown ward then the onus shifts to the party seeking access to show that any access would be beneficial andmeaningful to the child, and that such an access order would not impair the child’s future opportunities for adoption.

It is not enough that the child enjoys the visits or that there are some positive aspects to the visits. The relationship as it exists atthe time of the analysis and not potentially in the future must be advantageous and significant to the child. [paras 77 and 78][emphasis added] Children’s Aid Society of Toronto v. TS, 2011 ONCJ 732 (Waldman J.): The statute provides as follows: Section 59 (2.1) A court shall not make or vary an access order made under

section 58 with respect to a Crown ward unless the court issatisfied that, (

a) the relationship between the person and the child is beneficial and meaningful to the child; and (

b) the ordered access will not impair the child's future opportunities for adoption. The meaning of the phrase “beneficial and meaningful” was examined by Justice Quinn in Children’s Aid Society of the NiagaraRegion v MJ (ON SC), [2004] O.J. No. 2872 (Ont. Sup. Ct. – Family) where he said: What is a “beneficial and meaningful” relationship in clause 59(2) (a)? Using standard dictionary sources, a “beneficial”relationship is one that is “advantageous.” A “meaningful” relationship is one that is significant. Consequently, even if there are

some positive aspects to the relationship between parent and child, that is not enough - it must be significantly advantageous to the child. [para 45] The visits between mother and T.C.S. are good. He enjoys them, is happy to see his mother and is sad when the visits end. While it is clear that T.C.S. enjoys the visits, the requirements to meet the test of meaningful and beneficial go beyond enjoyment and require the relationship which is maintained through the access visits to be of consequence to the child’s development and well- being.

There is no evidence that allows me to conclude that the visits are significant to the child beyond his enjoyment of them. … There is no evidence that these [missed-visit] absences had an adverse impact on the child . T.C.S. has never lived with his mother and his contact has been limited to a maximum of six hours a week. Based on the evidence, I conclude that the access visits, while enjoyable, are not significantly advantageous to the child .

Mother therefore has not met the first part of the test. [paras 109, 113 and 114] [emphasis added] Windsor-Essex Children’s Aid Society v TLB , 2015 ONCJ 701 (Tobin J.): The relationship between the mother and child must be looked at from the child’s point of view. I cannot find on the evidence that the visits are meaningful in the sense that they are significant to the child. While the child enjoys the visits that do take place, the evidence does not support a finding that the child does or is developmentally able to look forward to or anticipate these visits.

The child went for a considerable period of time prior to the birth of D.G. not seeing the mother on a regular basis.

It does not appear that the child’s relationship with the mother transcends or extends beyond the visits at supervised access . [para 124] [emphasis added] CAS. v JD and TS , 2012 ONSC 5496 (McMunagle J.): According to ss. 59(2) and 59(2.1) of the CFSA, where a child is made a Crown ward, the onus shifts to the party seeking access to show that any access would be beneficial and meaningful to the child and that such an access order would not impede the child’s future opportunities for adoption. … It is not enough that the child enjoys the visits or that there are some positive aspects to the visits.

The relationship as it exists at the time of the analysis, and not potentially in the future, must be advantageous and significant to the child ( MJ , as cited in SW , at para. 71). [paras 72-74] [emphasis added] Children's Aid Society of Toronto v V(E) , 2007 ONCJ 83 (Justice Stanley B. Sherr): Whether relationship beneficial and meaningful to child … mother and grandparents had not seen 13-month old child for almost half year and thus had no beneficial or meaningful [relationship] with child … Access denied. [excerpt from headnote] [emphasis added] E.

Conclusion [ 21 ] For these reasons, I am unable to find a “significant relationship” here within the meaning of ss. 35(4). That is not a comment on the grandmother’s efforts here. Rather, it reflects the Legislature’s decision to require a demonstrable correlation between contact with the applicant and the lived experience of the child or children in question.

The contact seeker has to be able to say “look at these discernible, material, and positive impacts, on the life of the child, of my relationship with him or her.” [ 22 ] Given the age of the child here at last close-in contact (ten months) and at last contact (fourteen months) and the absence of evidence (expert or otherwise) about the particular impact (i.e. the importance) of the relationship to the child , and given that the Legislature requires more than the hope of a significant relationship and has not deemed that a grandparent-grandchild relationship is automatically to be regarded as significant , I cannot find the required significance here. [ 23 ] Having so found, I close by observing that the grandmother here appears to have much (positive) to offer to the child i.e. the seeds of a potential future significant relationship appear to exist.

However, it is for the child’s mother to allow that relationship to grow i.e. if she sees it as in the best interests of her child. [ 24 ] One last comment, for the mother: her view of the current legal issue has prevailed. But the years turn quickly, and who knows what life has in store for her and the child. She may find that having her mother in her corner (and the grandchild’s corner) may be beneficial to all, despite what she sees as the obstacles to that relationship.

She should consider carefully whether those obstacles should continue to block what could prove, in the long run, to be a valuable and mutually beneficial connection between the grandmother and grandchild. Heard on the 23 rd day of March, 2021. Dated at the City of Edmonton, Alberta this 12 th day of April, 2021.

M. J. Lema J.C.Q.B.A. Appearances: DLL Self-Represented Litigant CCL Self-Represented Litigant