A.L. v. E.B., 2012 NLCA 39

Date: 201206 14 Docket: 11/96 Citation: A.L. v. E.B. , 2012 NLCA 39 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : A.L. APPELLANT AND : E.B. RESPONDENT Coram: Wells, White and Hoegg JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (Family) 2011 NLTD(F) 53 Appeal Heard: June 14, 2012 Judgment Rendered: June 14, 2012 (Orally) Reasons for Oral Decision Filed: June 20, 2012 Reasons for Oral Decision by White J.A. Concurred in by Wells and Hoegg JJ.A. Counsel for the Appellant: Amanda Barfitt Counsel for the Respondent: Mary Boulos REASONS FOR ORAL DECISION

White J.A.: [ 1 ] This is an appeal from an order of a judge of the Family Division in which she held that it was not in the best interests of a 12 year old child to have access to a person claiming to have been a partner of the child’s now deceased mother. The appeal was denied for the reasons set out by the trial judge with reasons from this Court to follow. BACKGROUND [ 2 ] T.B. is the daughter of S.B., who passed away in July of 2008 at the age of 25 as a result of a drug overdose. At the time of her death she was in what the trial judge described as a “close and loving” relationship with the appellant, A.L..

Ms. A.L. alleges that she and S.B. had a common-law, same-sex relationship. This was contested at trial by the respondent, E.B.. Ms. A.L. was 48 years of age at the time of the trial, is divorced and has a son, aged 22. [ 3 ] E.B. is S.B.’s mother and is the grandmother of T.B. For the first three months of T.B.’s life she lived with her mother and grandmother in her grandmother’s apartment. After this, S.B. and T.B. lived in an apartment on their own for approximately a year, until they moved back in with E.B.

The three lived together again between 2001 and 2003, at which point E.B. moved to Alberta, where she remained until 2007. [ 4 ] S.B., T.B. and Ms. A.L. began sharing accommodations in 2003. Between 2003 and 2008, S.B.’s care of T.B. was compromised by addiction issues. While the trial judge found that there was no evidence that drug use by Ms. A.L. during this period affected the care of T.B., Ms. A.L. did admit at trial that she did and continues to use marihuana. [ 5 ] Ms. A.L. and S.B. began renting an apartment on Mogridge Street in December 2006. Ms.

A.L. moved out in the summer of 2007 and S.B. was evicted in December 2007. Upon eviction, S.B. and T.B. went to live with Ms. A.L. [ 6 ] At this point, Child, Youth and Family Services (CYFS) became involved. S.B. then agreed to a CYFS safety plan which required that T.B. not be in the company of a named male who was reported to be a drug dealer. [ 7 ] In January 2008, S.B. was admitted to the Waterford Hospital, at which time care for T.B. was being shared by E.B. and Ms. A.L. By April 2008, Ms. A.L. and S.B. had separated, but remained close friends, and were living in close proximity to each other.

On April 10, 2008, S.B. signed a directive that gave Ms. A.L. permission to care for T.B. in case of emergencies. S.B. died three months later. The trial judge found that she died at […] S[…] Avenue in an apartment then occupied by Ms. A.L., S.B., T.B. and the male named in the safety plan. [ 8 ] Following S.B.’s death, T.B. was placed by CYFS in the care of her grandmother E.B. and has remained there since. [ 9 ] Ms. A.L. brought an Originating Application for custody or access on December 12, 2008. Subsequent to filing the Originating Application, Ms. A.L. was granted access on a couple of occasions.

At Christmas in 2008, T.B. visited with Ms. A.L. at […] S[…] Avenue so that she could give T.B. some gifts. E.B. testified that she believed that, during this visit, T.B. was exposed to the individual named in the safety plan and whom she believed to be a drug dealer. Her evidence was that she telephoned the residence only to have her call answered by the named individual who told her where Ms. A.L. and T.B. had gone. At Christmas time in 2009, Ms. A.L. was permitted telephone access to T.B.. She spontaneously told T.B. that her cat had died.

T.B. did not react well. [ 10 ] By order of the trial judge dated October 9, 2009, Ms. A.L. was granted standing to make her custody application. At the hearing of October 19, 2011, Ms. A.L. indicated to the Court that she was seeking access only. [ 11 ] In her judgment, the trial judge canvassed the evidence before her and applied the factors in section 31(2) of the Children’s Law Act , RSNL 1990, c. C-13. Further, she discussed the principles in the cases of G.E.S. v. D.L.C. , 2006 SKCA 79 , [2006] 11 W.W.R. 101; Elliot v. Mumford , 2004 NSCA 22 ; and Kott v. Tiegen , 2010 SKQB 145 .

These cases relate to requests for access from applicants who are not parents, step-parents or blood relatives of a child. [ 12 ] The trial judge noted that the cases establish that the burden on a third party applicant is demanding. Significant weight should be given to the view of the person having custody of the child (See G.E.S. ).

Consideration must given to the confusion, turmoil and disruption that could result to the child should access be granted (See Elliot ). [ 13 ] As well, it has to be considered that a child in an otherwise stable situation would need to adjust to a significant change in her or his life and that the existence of an emotional bond between an applicant and the child is, of itself, an insufficient reason to grant legal access (See Kott ). [ 14 ] After completion of her analysis of the evidence and law, the trial judge ordered that it would not be in T.B.’s best interests to have access to Ms. A.L..

ANALYSIS [ 15 ] I agree with the legal principles identified by the trial judge. Ms. A.L. has not successfully demonstrated error on the part of the trial judge. There is no basis for this Court to interfere with her analysis of the law, or her findings, inferences or conclusions on the facts. She properly applied factors set out in the Children’s Law Act and fully considered and balanced the evidence before her. [ 16 ] The onus was on Ms. A.L. to establish her right to access to the child. She has not discharged that onus.

In particular, she has not established that her lifestyle is now such that access would be in the best interests of T.B., nor did she demonstrate appreciation of the necessity for a plan to reintroduce herself to T.B. It was open to her to lead independent evidence in this regard. These are important considerations when a child is at the impressionable age of 12, where Ms. A.L.’s historical relationship with T.B. was fraught with instability and illegal drug use, and where Ms. A.L. has not had any meaningful contact with T.B. for nearly 4 years.

[ 17 ] To the contrary, there was evidence before the trial judge (Ms. A.L.’s admission) that she continues to use marijuana, which, logically, would involve at least some degree of association with a drug dealer. As to a plan, the trial judge noted that Ms. A.L. had no firm plan for management of her access to T.B.. [ 18 ] While Ms.

A.L. did provide evidence of a lengthy and loving relationship with S.B. and T.B., the indicia of the nature of the relationship among them were not considered by the trial judge to be sufficient to establish a parental or other relationship such that access, prima facie , might be considered to be in the best interests of T.B. [ 19 ] The trial judge further fully considered the overall best interests of the child, weighing the previous relationship of Ms.

A.L. to T.B. against the uncontroverted evidence of T.B.’s grandmother with whom she has exclusively resided (for some 4 years) since the death of her mother – a relationship sanctioned by CYFS. The trial judge further accepted the evidence of Ms. Carol Waters, a social worker with CYFS, that during 5 or 6 interviews T.B. made no reference to Ms. A.L. [ 20 ] Ms. A.L.’s main argument is that the trial judge failed to give proper consideration to her current lifestyle.

It is clear from the reasons of the trial judge that she did fully consider this and that her conclusion that there is potential danger to the child if access were granted was based on evidence and reasonable inferences from the evidence. [ 21 ] Lifestyle issues were not the only reason for the trial judge’s decision. She also found that T.B. was well adjusted and otherwise doing well. She did not wish to potentially cause upset to a stable environment, and, further, that Ms.

A.L. had no firm access plan and did not demonstrate an appreciation that she ought to have one. [ 22 ] Based on the evidence before her, and in the proper exercise of her discretion, the trial judge concluded, that, at this time, the best interests of the child are served by her being parented by her grandmother, E.B., and that granting legal access to A.L. may cause a risk and would likely cause “confusion and disruption”. That was the trial judge’s job. There is no error in her reasons. CONCLUSION [ 23 ] For these reasons, the appeal was denied. _______________________________ C. W. White J.A.

I Concur: ___________________________ C. K. Wells J.A. I Concur: ___________________________ L. R. Hoegg J.A.