C.A.H. v. K.L.H., 2023 NBKB 110

2023 NBKB 110 COURT FILE: FDF-135-2023 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF FREDERICTON BETWEEN: C.A.H. and K.L.H. Petitioner and B.W. Respondent and C.H. Respondent Before: Madam Justice Krista L. Colford Dates of hearing: June 01, 2023 Date of Decision: June 20, 2023 Appearances: Petitioner C.A.H. and K.L.H Ms. Janik Collette Keddy

Respondent B.W. Ms. Ferne M. Ashford, KC Respondent C.H. Ms. Nadia Michaud DECISION COLFORD, J.: I. Introduction [ 1 ] On March 22, the Applicant grandparents in this matter applied for a contact order pursuant to

section 57 of the Family Law Act , S.N.B. 2020 c.23 with respect to their grandchild E.W. born [...], 2017. [ 2 ] They have also motioned the Court for interim relief. [ 3 ] The Applicants and their son Mr. C.H. who is E.W.’s biological father, reside in Alberta. [ 4 ] The Respondent mother Ms. W and the child reside in New Brunswick with Ms. W’s husband, M.W. Ms. W opposes the motion. She has served notice to Mr. C.H. of her intention to relocate E.W. to Ontario by the end of June 2023. M.W. is in the military and is being posted to Petawawa Ontario.

She has not yet received any Notice of Objection to the relocation request from Mr. C.H. Accordingly, the family’s plan to relocate is proceeding and it is anticipated the move will be completed by the end of June 2023. [ 5 ] Despite this and the inevitable loss of jurisdiction that will occur before a final hearing of the Application can be scheduled, the parties agreed the motion should proceed. Accordingly, the matter was heard June 1, 2023. The Applicants appeared via telephone from Alberta with counsel who was present in the courtroom. The Respondent Ms.

W attended the motion in person also represented by counsel. [ 6 ] The Respondent father Mr. C.H. did not respond to the motion or appear at the hearing. II. Facts A. Background Overview [ 7 ] The Applicants are the biological grandmother and step-grandfather of the child E.W. born [...], 2017. [ 8 ] They reside in Edmonton Alberta. [ 9 ] Ms. H was previously employed as a registered nurse in the province of Alberta and is retired but continues to work on a casual basis. Mr. H is also retired, having previously worked in the health care industry.

Combined the couple have 5 adult children and 10 grandchildren. [ 10 ] The collective evidence of the parties establishes that the child's biological parents, Mr. C.H. and Ms. W had an on-again off- again relationship between the years of 2016 and 2019. That relationship ended permanently in or around May/July of 2019. [ 11 ] Subsequently, in or around November 2019 Ms. W began a relationship with M.W. They relocated to New Brunswick with E.W.in March of 2021. They are now married. [ 12 ] Ms. H is of the view that during the period her son and Ms.

W were in a relationship and subsequent to their separation, she maintained a positive relationship with Ms. W. [ 13 ] Ms. W disagrees. She maintains her relationship with Mr. C.H. was a toxic one defined by significant abuse. Her issues with the Applicants, mainly Ms. H, stem in large part from her allegation they were aware she was victimized in the relationship and trivialized their son's conduct. In her view Ms. H was always supportive of her son despite his abusive behavior and was unable or unwilling to provide the assistance she and E.W. needed.

She states that she was regularly "intimidated and bullied" by Ms. H and that she was always “fearful" of her. [ 14 ] The Applicant's deny Ms. W at any time disclosed an abusive relationship with their son. They refute the allegation in its entirety. Ms. H concedes she was aware the couple struggled in that Ms. W would routinely confide in her about many of the couple’s issues and disagreements. [ 15 ] For the period between the birth of E.W. and the onset of the pandemic the Applicants maintain they had regular contact both

with Ms. W and their granddaughter. This was the case even throughout periods of the couple’s separation. [ 16 ] The Applicants state there were even short periods when the couple resided with them when in between apartments. They also were routinely asked to assist with childcare for E.W. This was something the Applicants state they did willingly, always happy to share whatever time they could with their grandchild. [ 17 ] Ms. H states they would also regularly see E.W. when their son had parenting time. In sum they characterize contact in the initial years following E.W.’s birth as “weekly”.

A sampling of text messaging between the parties for the period 2018-2019 confirm Ms. W was reaching out regularly for childcare support. The text messages depict a cordial relationship between the two and flexibility on the part of the Applicants to accommodate Ms. W's requests. [ 18 ] Each Applicant articulates a loving relationship and significant bond with the child who they state referred to them as "nanny and pops". The Record includes photos of the Applicants enjoying family time and special occasions with E.W. [ 19 ] At paragraph 61 of her affidavit, Ms.

H describes her time with E.W. as follows: [E.W.] and I had been closely bonded. We loved to play music and dance and were often seen dancing in front of our huge window. We loved to do puzzles together, reading books, bake and ice cookies (with her wearing an apron and chefs cap), play in the nearby parks and visiting aunts, uncles and cousins. Family time is so very valuable and we are so blessed with our large family. [ 20 ] Mr. H provides similar evidence in his supporting affidavit. [ 21 ] Ms. H concedes that post-separation it did become more difficult to maintain her relationship with her granddaughter.

She attributes this to Ms. W restricting Mr. C.H.'s parenting time. This had an impact on their ability to see E.W. The onset of the pandemic added another layer of complexity to the situation but the Applicants state they attempted to maintain contact through Facetime calls. [ 22 ] For her part, Ms. W denies that the Applicants ever had regular contact with E.W. This is the case she states both during her relationship with Mr.

C.H. and certainly after that relationship came to an end. [ 23 ] She argues the Applicants contact was sporadic at best, and states that on separation she initially provided contact information to Ms. H but over time felt harassed and threatened by her. As a result, she blocked her cell phone number in or around February of 2021, prior to her move to New Brunswick. [ 24 ] She does concede they had access to E.W. during Mr. C.H,’s parenting time but alleges that the last physical contact they had with E.W. was in October of 2020 when E.W. was only three years old.

She states that from the onset of pandemic until they relocated to New Brunswick, the Applicants only had a handful of Facetime calls, seven to be exact. The last call was in January of 2021. [ 25 ] Ms. W in her evidence indicates that E.W. was uncomfortable during these Facetime calls. In her view, the Applicant's did not know how to communicate virtually with E.W., who was only two and three years of age at the time. [ 26 ] On March 1, 2021 in anticipation of Ms. W's relocation, she and Mr. C.H. executed a consent order which provided as follows, (“Consent Order’): • The Respondent Ms.

W would have primary care of the child and be allowed to relocate to Gagetown New Brunswick with the child; • There would be scheduled weekly face time every Sunday at 12 PM with one additional option of face time per week, provided 48 hours notice was given; • Ms. W was to return to Alberta at least once per year on a date and time to be scheduled by her and paid for by her with Mr. C.H. being notified in advance of the date; • Mr.

C.H. had the option of travelling to New Brunswick to have parenting time with the child and this travel as well was to be planned two months in advance; • Christmas vacation was to be alternated between New Brunswick and Alberta [ 27 ] The Consent Order also put in place a progressive

schedule of parenting time for E.W.'s first visit back to Edmonton. Parenting time for Mr. C.H. ultimately graduated to overnights. It was further agreed between the parties that from the ages of five through six, E.W. would have extended visits for up to a week based on Mr. C.H.'s work schedule. At the age of six the parties agreed that visits to Alberta and the length of parenting time would be negotiated and agreed upon by the parties. [ 28 ] Lastly, the Consent Order provided that in the event Mr. C.H.'s work

schedule interfered with his parenting time, appropriate childcare would be provided by either set of grandparents. [ 29 ] Subsequent to the relocation, Ms. H maintains that attempts to contact Ms. W via phone and text messaging and through social media accounts, were all collectively unsuccessful. She states that she did not have an email or civic address for Ms. W. [ 30 ] As part of her affidavit evidence Ms. H tendered text messages sent to Ms. W between September 2, 2021 and September 2, 2022, asking how E.W. was doing. She states that all went unanswered.

A voice mail message left in July 2022 also was not responded to. Subsequently she and Mr. H retained counsel in an effort to gain contact with their granddaughter. This attempt as well was unsuccessful. [ 31 ] The couple were advised by their son that Ms. W had set up a P.O. Box in New Brunswick. A package for E.W. was sent to that address in September of 2021. However, Ms. W had closed the P.O. Box by that point and the package was returned.

[ 32 ] Ms. H states she is cautious not to interfere with Mr. C.H.’s efforts to maintain a relationship with his daughter for fear of angering Ms. W. For that reason, she has not pressed him to share information. [ 33 ] The Applicants have participated in only one of their son’s Facetime calls with E.W. and that was in June of 2021. Ms. H was frustrated at the logistics of the call which she describes at paragraph 55 of her affidavit as follows: I was present for one of [Mr. C.H.’s] weekly Facetime calls with [E.W.]. It was his wedding day. We were at my parent’s farm getting ready to go to the wedding. [Mr.

C.H.] advised me and I very believe that he never really sees [E.W.] when they have Facetime calls and I witnessed it that day. The phone was pointed somewhere else while he was trying to speak to [E.W.] you could see the roof and there was no [E.W.] in sight. I said Nana and Pops are here but could not hear anything and [Ms.W] abruptly ended the phone call. [ 34 ] Post relocation Ms. W states that the Applicants made little to no effort to remain in contact with E.W. She denies ever receiving the text messages allegedly sent by the Applicants. She confirms that she did provide a P.O. Box address to Mr.

C.H. because she did not want her New Brunswick address disclosed. She also confirms it remained open only between June and until September 2021 because it was not being used and she did not want to continue to incur the associated costs. [ 35 ] She maintains that avenues of contact always remained open had the Applicants wished to contact her. She states that her email address has always remained the same and that the Applicants are aware of it. Additionally, while she did block Ms. H’s cell phone number, the Applicants home phone number and Mr. H's cell phone number were not.

In support she acknowledges receiving one voice mail message. Her evidence however does not confirm she responded to it. [ 36 ] She states that Mr. C.H. has consistently exercised his weekly Facetime calls with E.W. and has not at any time advised her that the Applicants wanted to get in touch or have contact with E.W. She further states that the Applicants have always remained free to join those calls if they wish but they have not. [ 37 ] In Ms. W’s evidence she provides answer to the Applicants concerns about the poor quality of the Facetime calls E.W. has with her father.

She states that in or around June of 2021, just a few months after relocating, E.W. began refusing to be "on camera" during calls. In her view E.W.'s willingness to engage in the calls has not improved over the years. At paragraph 40 of her affidavit, she states that her daughter “has refused to talk to him for two years." She calls him the "other guy." [ 38 ] In or around the fall of 2021, within 6 months of relocating to New Brunswick, Ms. W indicates that she engaged a child therapist to work with E.W. and assist with her reluctance to participate in Facetime calls. Ms.

W states that recommended strategies arising from those counseling sessions have been communicated to Mr. C.H., but that he has not engaged with those suggestions. As a result, in her view the calls continued to cause E.W. distress. [ 39 ] Ultimately, she states that the "forced calls" were such a source of stress that both she and E.W. sought therapy. As a result, in April of 2023 Ms. W ceased complying with the virtual parenting time set out in the March 2021 Consent Order.

She does not believe it remains in her daughters’ best interests. [ 40 ] She confirmed that post-relocation the Applicants have joined in on only one Facetime call exercised by Mr. C.H. The experience she states was not a positive one for E.W. who presented as confused because she does not remember her grandparents. She concedes ending the call as a result. [ 41 ] Ms. W also concedes that despite the obligation imposed on her in the Consent Order, she and E.W. have not traveled back to Alberta since moving to New Brunswick. In large part, she attributes that decision to the fact Mr.

C.H. had organized a trip to N.B. in the fall of 2021 to see E.W. Ultimately, that trip did not come to fruition and for whatever reason, she is of the view this absolved her of her obligation to travel back to Alberta annually. [ 42 ] It does not appear from the Record that either parent has sought a variation of the Consent Order or that Mr. C.H. has taken steps to enforce the Consent Order. [ 43 ] M.W. in his affidavit evidence corroborates that of Ms. W in that he states the Applicants efforts at contact, since he has been involved with Ms. W and her daughter, have been minimal.

He confirms they last saw her around her third birthday in 2020 and only attempted a handful of Facetime calls. He observed those calls and states that E.W. spoke minimally avoiding conversation by hiding under the blankets. [ 44 ] He states that he and E.W. have had a very strong bond and she has been calling him "dad" since she was 2 years old. He believes he is the only one that has ever filled the role of father in her life. III. The Issue [ 45 ] The sole issue before this Court is whether it is in the child’s best interests that a contact order be granted on her behalf with the Applicants. IV. Analyses A.

Position of the Parties

• Applicants [ 46 ] The Applicants submit that from the time of E.W.'s birth until she relocated to New Brunswick, they had opportunity for regular contact and to enjoy holidays and special occasions with their granddaughter. As a result, they developed a loving relationship and a significant bond. Subsequent to her move to New Brunswick they argue that Ms. W has frustrated their attempt to have any relationship with their granddaughter. [ 47 ] In their view a contact order is the only vehicle by which they can ensure their relationship with E.W. is rekindled.

Absent this they fear E.W.’s opportunity to experience the benefits that flow from a relationship with her paternal side of the family will be forever lost. This circumstance they argue is attributed to the fact Ms.

W is not complying with the Consent Order and has unilaterally frustrated all aspects of their son’s parenting time. [ 48 ] They ask that they be permitted to have regular Facetime communication with E.W, and in person contact with her both in Alberta and in Ontario once the family is settled in that Province. [ 49 ] They agree that considering the time that has elapsed since they last saw E.W. a graduated

schedule of contact is appropriate. They are also agreeable to working with and following whatever recommendations her counsellor suggests are advisable to assist with re-establishing the relationship. • Respondent Ms. W [ 50 ] Ms. W argues that the Applicants have never had a significant bond or relationship with E.W. While she concedes they were involved with their granddaughter sporadically until her separation from Mr.

C.H., she argues that on balance their contact has been "minimal", "superficial" and "not truly meaningful". [ 51 ] In support she points to their lack of effort to maintain contact on her relocation to New Brunswick. Most notably she references their failure to participate in Mr. C.H.’s weekly Sunday Facetime calls over the last two years. [ 52 ] The end result is that E.W., who was only three years old when she moved to New Brunswick has no memory of the Applicants.

In her view, the absence of any relationship with her grandparents, while it may be a source of sadness for them, poses no negative consequences for E.W. She states that E.W. lives a full life with her new family. She currently has three sets of grandparents stemming from her marriage to M.W. They all play a significant role in her life and she is bonded to them all. [ 53 ] Lastly, weekly Facetime contact with Mr. C.H. has proven to be a negative experience for E.W, one that counselling has not in her view been successful in improving.

She argues that forcing additional Facetime obligations for this young child with extended family that she does not remember will be an additional source of stress and anxiety for her. [ 54 ] In her view, ordered contact with the Applicants, who are strangers to her now, is simply not in E.W.’s best interests. [ 55 ] As the primary parent she asks this court to give her wishes considerable weight. B. Credibility [ 56 ] Neither party requested leave to present viva voce evidence.

As a result, the Court did not have opportunity to observe the demeanor of the parties on the witness stand or asses the veracity of the conflicting affidavit evidence tendered. [ 57 ] Despite this, the Court at this interim juncture must still render an interim decision based on the integrity of the record of evidence before it. Accordingly, the strengths and weaknesses of the party’s respective affidavit evidence must be considered and weighed. [ 58 ] On balance, the evidence presented by the Applicants in my view presents the more plausible version of the facts presented. The evidence of Ms. H and Mr.

H is clear and unequivocal. Most importantly it is supported and corroborated in the documents tendered as exhibits. [ 59 ] Conversely, the affidavit evidence presented by Ms. W suffers from internal and external inconsistencies. It also presents a conflicting narrative on one of the central issues presented, namely the relationship between Ms. W and Ms. H. [ 60 ] Throughout her affidavit, Ms. W vacillates between presenting Ms. H as a “disinterested” and “uninvolved” grandparent with one that threatened, intimidated and bullied her way into and the middle of the young family’s life.

She asks this Court to accept that Ms. H triggered such a fear in her that she felt threatened she would loose her child if she did not comply with Ms. H’s demands. It is difficult to reconcile this persona with the one Ms. W asks the Court to accept, post relocation. Specifically, a grandparent who cared so little, she made no effort to remain a presence in her daughter’s life. [ 61 ] In the end, I accept neither proposition put forth by Ms. W. [ 62 ] Ms. W has made serious uncorroborated and unsupported allegations against both Mr. C.H and Ms. H.

She alleges she has detailed records documenting her turbulent relationship with Ms. H, however none were tendered into evidence. She states that as of November of 2017 she was "afraid and unsure of what they were capable of, so she sought legal advice." Again, no corroborating evidence was provided of this or the alleged Court order she states she obtained in December of 2017. [ 63 ] Notably, she does however confirm attending at Ms. H's home on December 26, 2017 for a "family Christmas". [ 64 ] In my view the documentary record that was tendered is in keeping with Ms.

H’s characterization of the relationship between she and Ms. W. Conversely, it can not be reconciled with Ms. W's position on this front.

[ 65 ] In paragraph 4 of her affidavit, Ms. W summarizes the relationship as follows: I disagree that I ever had a good relationship with [Mr. CH’s] mother, [Ms. H ]. I spent years in an abusive relationship with her son. Given her support of [Mr. CH] and her inability or unwillingness to assist me and my daughter, and I believe that [Ms. H] is both self- centred and a bully. I spent years being intimidated by [Ms. H] as she manipulated me and threatened me throughout my on/off relationship with her abusive son.

I was cordial with her for my own protection and my child’s well-being because she did have contact with my child while I was out West. I always tried to make the best of things, but I never felt comfortable around [Ms. H ]. I did not trust her and was uncertain as to what lengths she would go to protect [Mr. CH] and her family if I ever disagreed or stood up to her. [ 66 ] This is simply not the relationship reflected in the text messages tendered into evidence.

By way of example, the following exchange occurred between August 31, 2017 and [...], 2017, just prior to E.W.’s birth, ( Record at pages 31 and 32 ): [Ms. H] : How are you doing today? [Ms. W] : I’m doing ok today. Cramping this morning & a few on/off mild contractions this afternoon. Nothing like yesterday. The evening seems to be when things start to get stronger & close together. Guess it’s still not the real active labour though as they said last night but I am still hopeful she will come on her own, she’s just doing it her way. [Ms. H] : Seems she is yes. LOL [Ms. W]: She’ll be worth the wait though.

LOL [Ms. H] : I agree [Ms. W] : Thank you for checking in on us today, I really appreciate the support. [Ms. H]: Welcome [Ms. W] : She listened to her Nana!!! I had been contracting since about midnight but it wasn't very painful just more annoying, got up to the bathroom and it happened my water broke!" [Ms. H] : That is super exciting. I'm almost done my night shift but I'm going to need to get a little sleep. [Ms. W] : Yes of course! We will keep you updated & see you once you've rested. Please have a safe drive when you are off. [Ms. H] : Thank you and remember your yellow canoe! [Ms.

W] : Yes, best thing ever! [ 67 ] Following that Ms. W sent Ms. H a picture of the smiling couple holding the newborn E.W. on September 3, 2017. [ 68 ] In her affidavit Ms. W states that she and Mr. C.H. were not together when E.W. was born. Despite this, both he and Ms. H, “demanded to know when I went into labour”. She describes Ms. H’s presence at the hospital as unwanted. In fact, she states that she was so scared and uncomfortable with Ms. H being present, it impeded her labour. [ 69 ] This evidence can in no way be reconciled with the documented exchange the pair had just prior to E.W.’s birth. Ms.

W thanks Ms. H for her support, independently reaches out to tell her that her water broke and essentially invites her to the hospital. [ 70 ] From the point of E.W.'s birth forward for the next several years it is evident that Ms. W relied heavily on the Applicants for support. She initiated often weekly contact with them for that purpose. At no time does Ms. H ever refuse the request. [ 71 ] The text exchanges represented in the Record illustrate cordial and at times affectionate exchanges between Ms. H and Ms. W. At one point in an exchange on October 4, 2018, Ms. W asks Ms.

H to provide childcare for two consecutive days the following week. When Ms. H agrees, she responds with, " You're the best & I love you no matter what ", ( Record at p.77 ). [ 72 ] Similarly on February 19, 2019, when she asks Ms. H to provide childcare so she can attend a job interview, she responds, " Oh thank you so much! I really want this job! You both are amazing !", ( Record at p.88 ). [ 73 ] Ms. W often responded to Ms. H with heart emojis or some other similar sentiment of affection. [ 74 ] In the spring of 2018, Ms. H asked Ms. W to house sit for she and Mr. H while they were away on vacation. Ms.

W agreed. This appeared to be during a period of reconciliation between the young couple. The reconciliation did not last but Ms. W remained living with the Applicants for a few weeks until she secured alternative housing. [ 75 ] Ms. W states that after finding alternative living arrangements, the Applicants only saw E.W. “once” when they dropped off a plant and on a few occasions when she needed childcare. The text messages tendered however paint a very different picture. They illustrate that at least by October 2018 through to the early months of 2019 Ms.

W was initiating contact weekly for the purpose of securing childcare support, often for several days at a time. Again, a review of those exchanges suggests a very affectionate, cooperative and ongoing relationship between Ms. W and Ms. H. [ 76 ] The following exchange occurred on December 3, 2018, ( Record at page 79): [Ms. W] : Hi! Last night was so great! The people, the food, it was so nice to be part of it this year! I’m not sure what your work

schedule

is like this week or what [Mr. H] has on the go so I wanted to ask ahead. I work at the gym Monday-Thursday but [Mr. C.H.] is on afternoons so I will need to set up some child care for [E.W.]. If you and [Mr. H] are available that would be awesome or even if you were available Monday & Tuesday then I can see if A. can take her the other 2 days. [Ms. H] : I only work Thursday night. And Thursday I have an appointment at 3 but between the two of us we got it covered. It was a nice evening.

So glad you guys could be here. [ 77 ] The following text exchange on December 20, 2018 is also noteworthy, ( Record at page 80): [Ms. H] : Good Morning do you work this afternoon? [Ms. W] : Morning! Yes I do, I was going to call to see if I could drop her off at 2 today? [Ms. H] : [Mr. H ] says absolutely, I have an appointment but he’ll be here. [Ms. W] : Oh Awesome! Thank you both! [Ms. H]: Anytime! How is unpacking going? [Ms. W]: Slowly Lol But we’ll get there. The bins are becoming empty & laundry is being done so its progress! [ 78 ] At paragraphs 44 of her affidavit Ms.

W confirms that she “regularly” turned to Ms. H for advice and assistance during rough patches in the relationship. She maintains however that these requests for help were only met with threats that no one would believe her claims of abuse. Despite this assertion she tendered no independent evidence where she discloses abusive behavior or the responding threats by Ms. H. [ 79 ] The Record only includes one exchange between the two that contains a discussion about discord in the couple’s relationship. In January of 2019 Ms. H askes Ms. W, "Do you think you will talk?" Ms.

W replies, "Honestly I don't- I think if he comes here it will be to get his things not to try to work things out”, ( Record at p. 82 ). Again, there is no discussion of abusive behavior or threats from Ms. H contained in that exchange or in any of the exchanges tendered by Ms. H. [ 80 ] Ms. W’s admitted willingness to routinely involve Ms. H in areas of friction in the relationship is, in my view, inherently inconsistent with the fear she expresses in her evidence. Why would she continue, on a regular basis, to turn to Ms.

H for help if the overture was consistently met with threats? [ 81 ] Lastly, it is not lost on the Court that in March of 2021 when the Consent Order was negotiated and executed, she agreed that the Applicants remained a suitable option for childcare purposes. [ 82 ] Her answer to it all is that she remained cordial with Ms. H only for her own protection and her child's well-being. She states that the text exchanges simply illustrate her compliance with what “she was told to do by Ms. H and her son.” [ 83 ] I am not persuaded. If Ms.

W was simply being cordial in an effort to protect herself and her child, the question must be asked, why would she continue to initiate contact with Ms. H and trust her child to be placed into her care? [ 84 ] This established conduct, coupled with the absence of any independent corroboration in the Record supporting Ms. W’s allegations, lead this court to question the veracity of her evidence in its totality. [ 85 ] Accordingly, where there are inconstancies in the evidence, I accept that presented by the Applicants as the more reliable and credible. C. Law and Analysis 1. Family Law Act [ 86 ]

Section 57 of the Family Law Act governs the Court’s jurisdiction to grant a contact order. Specifically, section 57(2) grants the court jurisdiction to make the order on an interim basis. The remaining relevant provisions of

section 57 in this instance are as follows:

(1) On application by a person other than a parent, the Court may make a contact order providing for contact between that person and a child. …

(3) The Court may make a contact order for a definite or indefinite period or until a specified event occurs, and may impose any terms, conditions and restrictions that it considers appropriate, including (

a) requiring that any contact with a child or any transfer of a child from one person to another be supervised, and (

b) prohibiting the removal of a child from a specified geographic area without the written consent of any specified person or without a court order authorizing the removal

(4) In determining whether to make a contact order under this section, the Court shall consider all relevant factors, including

whether contact between the applicant and the child could otherwise occur, including during the parenting time of another person.

(5) In a contact order, the Court may provide for (

a) contact between an applicant and a child in the form of visits or by any means of communication, and (

b) any other matter that the Court considers appropriate. [ 87 ] The Family Law Act further provides that in making a contact order, the Court shall take into consideration only the best interests of the child. Subsection 50(2) outlines the factors on which that consideration must be base: 50(2) In determining the best interests of the child, the Court shall consider all factors related to the circumstances of the child, including: (

a) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including First Nations upbringing and heritage, (

b) the child’s needs, including the need for stability, given the child’s age and stage of development, (

c) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life, (

d) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent, (

e) the history of care of the child, (

f) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained, (

g) any plans for the child’s care, (

h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child, (

i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child, (

j) any family violence and its impact on, among other things, (

i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child, and (

k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. [ 88 ] Subsection 50(3) requires the Court to give primary consideration to the child’s physical, emotional and psychological safety, security and well-being when it considers the factors listed at subsection 50(2) above. [ 89 ] The Court is also required to consider any impact family violence may have on a child. Subsection 50(4) of the Act provides: 50(4) In considering the impact of any family violence under paragraph (2)(j), the Court shall take the following factors into account: (

a) the nature, seriousness and frequency of the family violence and when it occurred; (

b) whether there is a pattern of coercive and controlling behaviour in relation to a family member; (

c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence; (

d) the physical, emotional and psychological harm or risk of harm to the child; (

e) any compromise to the safety of the child or other family member; (

f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person; (

g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and (

h) any other relevant factor. [ 90 ] Subsection 50(5) stipulates the Court shall not take into consideration the past conduct of any person unless that conduct is relevant to the exercise of their parenting time, decision-making responsibilities or contact with the children pursuant to a contact order. 2. Best Interest Analysis [ 91 ] I will begin my analysis with a review of the factors set out in subsection 50(2) in order to determine whether a contact order is in the child’s best interests.

a) Cultural, linguistic, religious and spiritual upbringing. [ 92 ] The Court heard no evidence regarding this factor.

b) The child’s needs, including her need for stability. [ 93 ] There is undisputed evidence the child is well cared for by her mother and stepfather. There was no evidence presented to suggest the child’s basic needs are not being adequately supported. I am satisfied she is well cared for and loved in her current family unit. [ 94 ] The position taken by Ms. W is that the relief requested by the Applicants will impact the child’s current sense of stability. That position appears to be based on three assertions. Specifically, the threatening and intimidating demeanor of Ms.

H, the negative impact of forcing a relationship on E.W. with someone she no longer remembers and the fact that Facetime calls are already proving to be a source of distress for E.W., negatively impacting her psychological well being. [ 95 ] I disagree. Firstly, as already canvassed there was nothing in the evidence presented that substantiates Ms. W’s assertion Ms. H is an intimidating figure that in any way threatened the security or development of the child. Additionally, there was nothing presented in the evidence to suggest that either Applicant has ever attempted to undermine Ms.

W’s position as a parent. [ 96 ] To the contrary the evidence confirms that both Applicants were always at the ready, both willing and able to play the role of a supportive and loving grandparent. In the early years of E.W.’s life it is evident their role was quite critical in ensuring she was well cared for when Ms. W needed assistance. [ 97 ] Secondly while I accept E.W. struggles with video contact as many children of tender years do, the evidence did not satisfy me that the Court ordered Facetime contact with her father was having the negative psychological impact Ms. W asserts. It is acknowledged that Ms.

W has engaged a therapist to assist with strategies that will help E.W. engage with her father virtually. However, there was no independent opinion evidence tendered that corroborated or supported Ms. W’s position that the Facetime calls were in fact negatively impacting her psychological well being. [ 98 ] Attention spans are limited at young ages, but appropriately supported by Ms. W, I am not convinced video contact with the Applicants would be a negative experience for E.W. In fact, in my view it presents as a very non-threatening way in which to reintroduce the Applicants to the E.W.

She will have the comfort and security of her current family unit around her to assist. If Ms. W positively interacts with the Applicants in her presence, she in turn would trust the interaction. [ 99 ] I do not see any risk to the child’s security and stability if she is ordered to have interim contact with the Applicants at this juncture. Further, fostering the relationship with the Applicants now will inevitably provide an anchor of stability for E.W. going forward. The Applicants quite possibly may be her only source of knowledge of and connection to her paternal side of the family.

c) Nature and strength of the child’s relationship with the parties and other family members. [ 100 ] The child is clearly bonded to her mother and step-father. That evidence is uncontroverted and not in dispute. In terms of her relationship with the Applicant’s, the evidence in my view confirms that from birth until at the very least the onset of the pandemic, she did have regular and ongoing contact with her paternal grandparents. The Record persuades me their role was that commonly played by grandparents. They loved her and played a supportive role to the parents in whatever manner they could.

They ensured her needs were met. I am easily persuaded there was a relationship and a bond between child and the Applicants and vice versa. The photographic evidence presented clearly depicts a very happy toddler enjoying time with her grandparents. [ 101 ] I do not accept the position taken by Ms. W that the Applicants were uninvolved grandparents who only sporadically saw E.W. As already stated, I am further not persuaded the relationship between Ms. W and either Applicant was defined by intimidation and bullying. To the contrary, the record in my view confirms that the Applicants, in particular Ms.

H actively supported Ms. W throughout her relationship with Mr. C.H. and post-separation. The request for that support was initiated by the Ms. W. This resulted in regular contact between the Applicants and their granddaughter. They were a fixture in E.W.’s life with regular in person contact, at least up until the pandemic hit. [ 102 ] The affidavit evidence of Mr. H in large

part corroborates that of Ms. H in terms of the nature of the relationship they had with E.W. He states clearly that he considers E.W. his granddaughter and confirms that they have a very strong bond and relationship and that she refers to him as “Pop’s”. [ 103 ] Undoubtedly, the pandemic had an impact on the relationship as it did with so many. The protracted restrictions on “in person” contact was particularly impactful considering E.W.’s tender years at the time. There are inherent limitations in a two/three-year-old being able to engage in virtual visits with family.

It simply is almost impossible to foster a relationship with a child of that age through a camera’s lens. [ 104 ] It is clear that Ms. W’s relocation to New Brunswick had a further deleterious impact on the strength of E.W.’s relationship with the Applicants. [ 105 ] Despite the weakening of theses familial ties I am persuaded the relationship between E.W. and her paternal grandparents is an important one that at one time had significant meaning for E.W.

The loss of the relationship can not be devalued by simply saying “she was too young to remember them”. [ 106 ] underscored simply by is a loss of significant opportunity for E.W. to know her paternal side of the family. This is particularly true now that it appears her relationship with her father may also be in jeopardy.

d) Each parties’ willingness to support the development and maintenance of the child’s relationship with the other. [ 107 ] Ms. W appears initially to have appreciated that, despite her separation from Mr. C.H, the relationship between E.W. and the Applicants is an important one. In May of 2019 Ms. W in text messages to Ms. H acknowledges the close relationship between Ms. H and her daughter. She states: It’s important to me for her to always be close to you both because the love of grandparents is like nothing else.

Some of my greatest memories were with my grandparents, so it means a lot to me that she gets the same”. [ 108 ] Again, on July 9, 2019 she states. “[E.W.] will always be part of your and [Mr. H’s] life. I have always said that no matter what has been happening with [Mr. C.H.] and I, it’s best for her to have a relationship with her family on both sides”. [ 109 ] This sentiment remained a year later when on August 1, 2020 Ms. W again in a text exchange with Ms.

H states “you are a great mom and Nana she will be so excited to get to go to your house again next weekend”. [ 110 ] However, at some point something changed. The Record suggests that subsequent to the onset of her relationship with M.H., Ms. W became less open to continuing a relationship and regular contact between her daughter and the Applicants. She ultimately blocked cell phone and text communication with Ms. H and on relocating to New Brunswick declined to share her civic address with Mr. C.H. or the Applicants. [ 111 ] Despite her obligations pursuant to the provisions of the Consent Order, Ms.

W is not returning annually to Alberta for Mr. C.H. to exercise his in person parenting time. She has recently terminated his weekly video Facetime with E.W. I agree with counsel for the Applicants, this conduct and the position she has taken in response to the motion, suggests a hesitancy on the part of Ms. W to support and facilitate any relationship between E.W. and the paternal side of her family. [ 112 ] In her view, E.W. has a sufficient number of grandparents in her life and this negates the need for a relationship between E.W. and the Applicants.

Absent court intervention and a contact order issuing, it is unlikely E.W. will have a relationship with her paternal grandparents. I am not confident that Ms. W, on her own accord will ever take the steps necessary to restore the bond that was once there. [ 113 ] A contact order in my view presents the only opportunity for E.W.to rekindle that lost bond. Such as order poses no threat to the important familial relationships currently in E.W.’s life. The Applicants are not seeking to replace any of the newly established relationships E.W. has with M.W.’s extended family.

They simply wish to be added to the list of grandparents that can play a positive and beneficial role in E.W.’s life.

e) History of the child’s care. [ 114 ] Ms. W has had primary care of E.W. throughout her young life. She has been and continues to be the child’s psychological parent and has cared for all her needs. The historical role played by the Applicant’s in E.W.’s life, while it never extended beyond that of a supportive one, was nevertheless a critical one. As grandparents they complimented the role played by Ms. W as E.W.’s primary care provider. They stepped up when asked. They were an essential cog in the wheel so to speak to ensuring that E.W.’s needs were met. In supporting Ms.

W so that she could go to school, apply for jobs and ultimately go to work, knowing her daughter was in good hands, they indirectly supported the emotional, psychological and physical needs of their granddaughter. [ 115 ] There is nothing presented in the relief requested by the Applicants that suggest they are seeking to return to the role they once played in E.W.’s day to day care. The circumstances have changed considerably and that is no longer possible. They must accept that.

It appears they have. [ 116 ] They ask only for contact sufficient to ensure that E.W. as she grows and develops knows who they are and has opportunity to remain connected to them.

f) The child’s views and preferences. [ 117 ] The child is too young for the Court to reasonably ascertain her views and preferences.

g) Plans for the child’s care. [ 118 ] It would appear that Ms. W’s plan as the primary care parent is to maintain and support only those relationships that are currently central to her life and E.W.’s. Namely, the current family unit along with M.W.’s extended family and hers. It is clear from her affidavit evidence that she does not intent to support the child’s relationship with Mr. C.H. or the Applicants.

Again, her reluctance or apathy in returning to Alberta annually to support in person time with the paternal side of E.W.’s family is indicative of this. [ 119 ] The Applicants are not seeking unreasonable contact with the child. Their plan is to gradually allow their granddaughter to get to know them again and build on the relationship from there. They ask only for an opportunity engage by Facetime and to be present during Mr. C.H.’s right to in person parenting time in Alberta. They also ask for the opportunity to have graduated in person contact with E.W. in the Province where she resides for a week per year.

h) Ability and willingness to care for and meet the child’s needs. [ 120 ] For all the reasons set out above, it is clear to me Ms. W is both willing and able to appropriately care for the child. As far as the Applicants are concerned, the evidence suggests they have always been very good to the child and appropriately cared for her when they assisted with childcare in the past.

i) Willingness to communicate and cooperate.

[121] The record establishes that there is little willingness on the part of Ms. W to communicate and cooperate with the Applicants onmatters affecting the child. The credibility of the reasons underpinning that position have already been addressed. As stated, I do notaccept those reasons as genuine or credible. In my view, the evidence presented suggests that Ms.

W maintained a relationship with theApplicants and fostered the relationship between them and her daughter, not because she appreciated the value in the relationship forE.W., but because quite simply, at the time she needed them. [122] The evidence suggests her communication and cooperation with the Applicants broke down around the time of the pandemic.Coincidentally, this was also not long after her relationship with M.W. commenced. [123] The Applicants from their affidavit evidence indicate they have always been and remain willing to cooperate with Ms.

W as itrelates to the extent of their engagement with their granddaughter. The evidence does not suggest they have attempted in any way toinappropriately interfere with Ms. W’s parental authority. [124] Ms. W states she has not frustrated the Applicant’s attempt to have contact with E.W. I disagree. She blocked Ms. H’s cell phone,has not returned text and phone messages and has declined to share her current address. Ms. W’s conduct in my view demonstrates an“unwillingness” to communicate and cooperate.

j) Impact of family violence. [125] The Family Law Act requires the Court to place enhanced weight on the issue of family violence. In this instance although familyviolence was raised in the context of the relationship between Ms. W and Mr. C.H, it was not independently corroborated. There isinsufficient evidence before me on which I can conclude the allegations are credible at this interim juncture.

The relevance of theallegations in the context of determining whether a contact order is in E.W.’s best interests, is grounded in whether or not the Applicantsknew about the alleged family violence and in any way acquiesced or enabled it. [126] I am satisfied their assertions that an abusive relationship was never communicated to them are credible. I do not have any reasonto think E.W. would be exposed to family violence if permitted to have contact with the Applicants. The Applicants argued they havenever placed the child’s safety at risk, and there was no evidence she was never in danger while in their care.

To the contrary, theevidence satisfied me Ms. W, at all times trusted the Applicants as nurturing responsible caregivers for E.W. 3. Other Factors to Consider [127] In considering the Applicants’ request for a contact order, subsection 57(4) of the Family Law Act requires me to consider “allrelevant factors” as well as whether the Applicants’ contact with the child could otherwise occur when the child has parenting time withher father. [128] In the present matter it is clear that Mr. C.H., despite Ms.

W’s failure to comply with the Consent Order, has not sought relief fromthe courts either by way of a motion for contempt or otherwise. There was no indication in the Record that any such motion will beforthcoming from him on this front. [129] Considering this and there being no indication that Ms.

W intends on her own to rectify the situation, I must accept the submissionof the Applicants that absent a contact order, there is no opportunity for E.W.to reap the benefit of a rekindling of what was once a closerelationship with her paternal grandparents. [130] I have not lost sight of this circumstance in my analysis. [131] In N.V.R. v. J.K, 2001 NBQB 43, this court was faced with determining the merit of access being awarded to grandparents incircumstances strikingly similar to those in this instance. In that case the parents in question separated after a short period of sporadiccohabitation.

The relationship was defined by domestic family violence. However, dissimilar to the facts here the father was convictedfor assaulting the mother. The mother as a result refused access by the paternal grandmother to the two children of the union. Thechildren were three and four years of age at the time. [132] The Court in resolving the “best interests” issue relied on a decision of the British Columbia Court of Appeal in F(

N) v. S. (H.L.)(1999), 1999 BCCA 398 , 127 B.C.A.C. 66 wherein that Court stated at paragraph 8 of the decision: [8] Another authority which was cited is the decision of Mr. Justice Brenner of the Supreme Court of British Colombia in Chapman v.Chapman, (BC SC), [1993] B.C.J. No 316 DRS 93-12683, Vancouver Registry 92-3512. … I refer to the case for thissummation of the relevant principles, which appears in paragraph 24: 1.The onus is on the applicant to demonstrate that the proposed access is in the child’s best interests. 2. The custodial parent has a significant role.

The courts should be reluctant to interfere with a custodial parent’s decision and should doso only if satisfied that it is in the child’s best interests. 3. It is not in the best interest of the child to be placed into circumstances of real conflict between the custodial parent and a non-parent.While the court must be vigilant to prevent custodial parents from alleging imagined or hypothetical conflicts on the basis for denyingaccess to non-parents, in cases of real conflict and hostility, the child best interest will rarely, if ever, be served by granting access. [133] Ultimately, in N.V.R. v.

J.K, supra the Court was not convinced the mother had established a relationship defined by “real conflict

and hostility” with the maternal grandmother. In coming to that conclusion the Court was influenced, as I am in the present matter, by themother’s willingness during the course of the parent’s relationship and initially after separation, to permit the grandparents to play animportant role in the child’s life. [134] In the end the Court in N.V.R. v.

J.K, supra stated at paragraphs 23 and 25 of the decision as follows: 23.I am of the view that in the normal course of events, it is in a child's best interests to have a relationship with his or her grandparents.The benefits flowing from such relationships, including opportunities to develop additional networks of love, affection, comfort andsupport, cannot be overlooked. … … 25.Even in cases of high conflict between a parent and a grandparent, courts have ordered grandparent access where bonding hadoccurred with the grandchildren, or where the court was satisfied that the parent was placing his or her own animosity andsatisfaction of personal needs ahead of the children's best interests. (See In M.(J.V.) v.

S. (M.P.), [1997] B.C.J. No. 1631, 1997Carswell B.C. 1304 (BC Master), Peck v. Peck [1996] O.J. No. 755 (Ont. Prov. Div.) and Cleverley v. Harvey, [1995] O.J. No. 180, 1995Carswell Ont 2089 (Ont. Prov. Div.)). [135] It is acknowledged that traditionally, at least prior to the legislative changes established in Family Law Act, courts have givenconsiderable deference to a parent’s wishes when it came to making orders for access between children and their grandparents. (see:Morecraft v. Morecraft (1991), (NB KB), 122 N.B.R. (2d) 271 and G.G. v.

J.W.& P.G., 2008 NBQB 338).However, the best interest’s of the child ultimately is what must ground any determination on whether or not a contact order shouldissue. It is the paramount consideration for this court despite the authority provided in section 57(4) of the legislation to consider otherrelevant factors such as Ms. W’s wishes. [136] Ultimately, I agree with the reasoning of the Court in N.V.R. v. J.K., supra. [137] There is no doubt the Applicants for as long as Ms. W would allow, fostered a loving relationship with the child.

They cared forher regularly and provided assistance to both parents when it was needed. They were generous to Ms. W and E.W. undoubtedlybenefited from that generosity. [138] This Court in Minister of Social Development v. C.R., M.H. and J.B, 2023 NBBR 39 confirming it is the right of the child tohave contact with grandparents and “not the other way around”, found that despite a period of no contact, a rekindling of the relationshipwas in the child’s best interest.

At paragraph 167 of the decision Justice Boudreau- Dumas states: It is my view that this young child has a right to reconnect with his maternal grandparents and the R. family in order to have some sort ofrelationship with them. Were it not for the involvement of social services he would have continued to have frequent contact and arelationship with the R. family. I believe that Z.R. will adjust to this contact as he adjusted to living with his paternal grandmother whenhe was apprehended.

The grandparents will also have to accept that their involvement in their grandson’s life will be less than it has beenin the past, but they will be able to see him again on a regular basis. [139] In part, the Court in coming to this conclusion considered that there was no indication the grandparents posed any risk of danger totheir grandson in that they established previous appropriate care of him. Ultimately the Court was satisfied that the grandparents “hadmuch to offer him”. [140] I am similarly like- minded in this instance. On the whole of the evidence, I am not satisfied that Ms.

W’s allegations support afinding of “real conflict and hostility” between she and Ms. H. The position taken by Ms. W on the motion is fueled in my view by heranimosity towards Mr. C.H. and the fact she no longer needs the Applicants. She has an alternate support system in place now with herhusband and his extended family. [141] In short, Ms. W has moved on from her relationship with Mr. C.H. and with that any desire to maintain a relationship with theApplicants.

Should her unwillingness to maintain that relationship be acquiesced in if the court is satisfied that the E.W. derives benefitsform the relationship with her paternal grandparents? [142] I must answer that question in the negative. Ms. W’s position on the motion in my view is one of self-interest as opposed to what isin her daughter’s best interests.

I am easily persuaded it is in E.W.’s best interest that her relationship with her paternal grandparents begiven the opportunity to flourish. [143] I have carefully reviewed the entirety of the evidence of this case, the applicable provisions of the Family Law Act, the relevantcase law and the arguments presented by both parties. In doing so, I have given primary consideration to the child’s “physical, emotionaland psychological safety, security and well-being”. In light of all these factors and for the reasons set out in the above analysis, thefollowing interim contact order is granted: (

a) The Applicants are permitted Facetime contact with E.W. once per month commencing July 1, 2023 and proceeding thereafter forthe next three months at which time it will increase to twice per month. (

b) The date and time of the Facetime contact is to be agreed on between the parties and the duration shall not be less than thirty (30)minutes. Any recommendations and strategies put forth by health care providers including psychologists, social workers or counsellors toassist the child with continued engagement in Facetime contact will be respected and implemented by the parties. (

c) The Applicants, should they decide to travel to the Province of Ontario or any jurisdiction where the child habitually resides, arepermitted in person contact for a period of up to three hours (3) hours on three (3) separate occasions during a one week visit. (

d) The Applicants shall provide the Respondent Ms. W with not less than 60 days notice of their intended travel dates.

(

e) In the event the child travels to Alberta for the purpose of in person parenting time with her father, or for any other reason, the Applicants are permitted up to 3 hours of in person contact with the child at a time and place to be agreed upon by the parties. (

f) The Respondent mother shall ensure the Applicants at all times have current contact information in the form of an email address and/or telephone number. D. Dispositio n [ 144 ] The Applicants motion is granted and the following interim contact order shall issue pursuant to subsections 57 (2) and (3) of the Family Law Act : (a)The Applicants are permitted Facetime contact with the child E.W. born [...], 2017 once per month commencing July 1, 2023 and proceeding thereafter for the next three (3) months at which time it will increase to twice per month. (

b) The date and time of the Facetime contact is to be agreed on between the parties and the duration shall not be less than thirty (30) minutes. Any recommendations and strategies put forth by health care providers including psychologists or counsellors to assist the child with continued engagement in Facetime contact will be respected and implemented by the parties. (

c) The Applicants, should they decide to travel to the Province of Ontario or any jurisdiction where the child habitually resides, are permitted in person contact for a period of up to three (3) hours on three (3) separate occasions during a one week visit. (

d) The Applicants shall provide the Respondent Ms. W with not less than sixty (60) days notice of their intended travel dates. (

e) In the event the child travels to Alberta for the purpose of in person parenting time with her father, or for any other reason, the Applicants are permitted up to three (3) hours of in person contact with the child at a time and place to be agreed upon by the parties. (

f) The Respondent mother shall ensure the Applicants at all times have current contact information in the form of an email address and/or telephone number. [ 145 ] The Applicants having been successful on the motion are awarded costs in the all inclusive sum of $1,500.00. _____________________________ Krista L. Colford Judge of the Court of King’s Bench of New Brunswick - Family Division