2023 NBKB 137, 2023 NBKB 137

IN THE COURT OF KING ' S BENCH OF NEW BRUNSWICK FDSJ-446- 2020 FAMILY DIVISION JUDICIAL DISTRICT OF SAINT JOHN Neutral Citation: 2023 NBKB 137 Date of Decision: August 7, 2023 BETWEEN: R.G. Applicant - and- S.B. Respondent DECISION BEFORE: AT: DATE OF HEARING: DATE OF DECISION: APPEARANCES:,

Madam Justice Chantal N. Daigle Saint John, N.B. October 13, 2022, December 9 and 12, 2022, and February 7, 2023 August 7, 2023 Applicant - self- represented Erin M. Beam -for theRespondent Daigle, J.: I. INTRODUCTION: [ 1 ] The child at the heart of this matter is N.l.G. She is currently 12 years of age and will be turning 13 in September. [ 2 ] N.'s mother died in February 2018 when she was just 7 years old. In August 2022, her father died as well. [ 3 ] . By virtue of a Court Order dated December 2020, N. resides with her paternal grandmother, the Respondent S.B. ("Mrs.

B."). [ 4 ] Her maternal grandmother, R.G. ("Mrs. G."), has filed an Application asking to have contact with the child. Mrs. B. is vehemently opposed. [ 5 ] Before proceeding any further, I note that the Record on Application which was referred to during the hearing was certain documents. The Applicant Mrs. G. filed an Application (Form 81A) in October 2020. In March 2021, she was ordered by the Case Management Master to file an Application for Contact Order (Form 81AA) instead. This was done in April 2021. At that time, Mrs. G. filed another short affidavit in support of her position.

This subsequent pleading and affidavit should have formed part of the Record before the Court. I have considered both Applications and affidavits as part of this decision. II. FACTS : [ 6 ] As stated, N. is 12 years old. N. lived with her mother from the time she was born in 2010 until the beginning of 2018. (7] There is disagreement as to where mother and child were living during the first three years of the child's life. Mrs. G. says they lived with · her for a year or two after the child was born. Mrs. B. denies this and says they were living with her and the father .

The debate need not be resolved as it is not germane to this case. I accept that at times, the mother and N. lived with Mrs. G. At times, they lived with the father and Mrs. B., and at other times, they lived with the father elsewhere than with Mrs. B. The exact time periods are not important. [8] There is no dispute that the parents broke up permanently in 2013 when the father went to jail. Similarly, there does not appear to be any dispute that the mother lived with her boyfriend J.J.G. for the last 3 years or so before she died. N. lived with them until the

beginning of February 2018. [9] In early 2018, N. went to live with her father. It would appear that the mother was struggling with drug issues at the time and the Department of Social Development had been involved with the family for a few months. N. had been missing a lot of school and there were concerns with the mother's ability to meet the needs of the child. As a result, the mother asked the father to take over the primary care of the child. This occurred in early February 2018, about three weeks before the mother died. [10] Mrs. G. is 57 years of age.

She resides with her mother R.G. who is approximately 75 years of age. (11] Mrs. G. testified that after N. was born, N. and her mother lived with Mrs. G. in an apartment on Pitt Street for one or two years. Then, over the next 5 or 6 years, the ' mother and N. lived together in various apartments in the Saint John area. [12) According to Mrs. G., regardless of where they were living, N. always had her own bedroom in Mrs. G.'s home. At times, N. would stay for a weekend. Sometimes she would stay longer, particularly in the summer. Mrs.

G. said that N. was always happy to be with her and often did not want to leave. She said N . particularly liked to go to Mrs. G.'s home to have bonfires. [13] Mrs. G. acknowledged that her relationship with her daughter was "off and on" and that the mother's substance abuse impacted their relationship. Nevertheless, she tried to be there for her as much as she could. [14] Notwithstanding their difficulties, Mrs. G. testified that in the last few years of the mother's life, Mrs. G. had contact with N. on a regular basis. She said they did many activities together. For example, they had bonfires.

They went to the playground in the South End. They went sliding in the winter. They went to the local fair. They also celebrated birthdays and holidays together. Mrs. G. also said that the mother brought N. to visit her in the hospital when she was sick. This occurred during the 2016 to 2018 period. [15] To corroborate her testimony that she was involved in the child's life and had regular contact with her, Mrs. G. provided the Court with many photographs of her and N. in various settings. These photographs depict N. at various ages and stages of development, mostly from age 3 or 4 to age 7.

The photographs were taken at Mrs. G.'s home, at the mother's home or at the great-grandmother's home. Others were taken in the community. Several photographs were taken at school events. One particular photograph shows Mrs. G. with N. on her first day of school in grade 1. [16] Mrs. G. testified that she was always there on N.'s first day of school until the mother died. During those years, Mrs. G. often attended various events at N.'s school. One particular photograph featured Mrs. G., the mother, N., her half-sister and the great- grandmother who were all in attendance at an award ceremony at N.'s school. Mrs.

G. had purchased flowers for N. on this special occasion. She said N. was very happy to see everyone. The photographs of this event support such a finding. [17] Mrs. G. also submitted into evidence a school form from the winter of 2018 which indicates that Mrs. G. was allowed to pick up N. from school. Again, this corroborates her involvement in N.'s life. A similar school form from 2015 stated that the father was not allowed to pick up N. from school without the mother's permission. [18] Another witness, J.C.M. testified at trial. She has known Mrs. G. for over 25 years. She described them as good friends.

She confirmed that Mrs. G. had always been in N.'s life until the mother died. She confirmed that Mrs. G. and the mother sometimes butted heads, mostly due to drug issues. When that happened, Mrs. G. would not see N. for a few weeks, but then the mother would come around and call Mrs. G. and ask if she would pick-up N. According to J.C.M., despite their differences, the mother-daughter bond between Mrs. G. and the mother was always there. [19] Mrs. G. testified that about a week before the mother died, the mother had stopped by Mrs. G.'s place of work and delivered a

note for her, wishing her a happy valentine's day. This note was submitted into evidence. [20] Another witness, L.L.W. also testified. She is Mrs. G.'s cousin. She also confirmed that N. was often at Mrs. G.'s home growing up. She testified that N. seemed very happy when she was spending time with her nanny. According to L.L.W., it was obvious that N. loved Mrs. G. [21] Mrs. G. testified that the mother has another daughter, R.H. who is 16 years of age. She would be N.'s half-sister. Mrs. G. testified that she has an ongoing relationship with R.H. and she sees her regularly. According to Mrs.

G., the two half-sisters got along well and loved each other. I note that R.H. is present in many of the photographs that were submitted into evidence. [22] Mrs. G. testified that the mother, N. and her were all very close. I accept this categorization of their relationship. Further, having reviewed all of the photographs that were submitted into evidence, I accept that Mrs. G. was a regular presence in the mother's life and in N.'s life in the years leading up to the mother's death.

They did many things together and had a positive relationship. [23] As stated, N. went to live with her father at the beginning of February 2018, a few weeks before the mother died. There is no dispute that Mrs. G. has had very little contact with N. since then. [24] N. remained in the care of the father until November 2019. At that point, she went into the care of the Minister of Social Development as a result the father's arrest. [25] N. remained in foster care for about one year. During that time, Mrs. G. had no contact with N. because the father would not allow it.

In December 2020, following a trial which involved the Minister of Social Development, N. went to reside with her paternal grandmother Mrs. B. [26] Mrs. G. acknowledged that she has had very sporadic contact with the child since the mother died in 2018. The father never allowed it. Mrs. G. testified that she was scared of him and did not want to press the issue. The father filed an affidavit with the Court in March 2021. It is clear that he was opposed to Mrs. G. having any contact with N. Mrs. B. has accused Mrs. G. of having contacted the Department of Social Development to complain about the father.

According to Mrs. B., the father would have allowed Mrs. G. to see N. if she would have "told the truth and acknowledged that she was the one who called Child Protection". [27] Mrs. G. testified that she saw N. two or three times in 2021. On one occasion, N. was visiting someone and they invited Mrs. G. to come for a visit. A photograph was taken. The child appeared to be happy to see her grandmother. Mrs. G. saw the child again on another occasion. This time N. was visiting J . J.G . and he brought the child over to visit Mrs. G.

J.J.G. had a relationship with the mother for three years or so before she passed away. According to Mrs. G ., on both occasions, N . seemed very happy to see her. [28] Mrs. G. saw N. on another occasion around July 2022 when she happened to run into her at an outdoor market in Saint John. On this particular occasion, Mrs. B. told N. to run away from Mrs. G. Mrs. G. nevertheless managed to have a brief conversation with her. She asked N. if she could hug her and take a photo of her and N. said yes. Again, that photograph was submitted into evidence. Mrs.

G. told her she had been fighting in Court to try to see her. She said that N. seemed surprised. After a short while, N. said she had better go, as Mrs. B. would be upset. [29] Mrs. G. testified that she called Mrs. B. several times over the course of a month in 2022 in order to have contact with N. Mrs. B. flatly said no.

[30] Mrs. G. denied that she was estranged from her daughter when she died in February 2018. She testified that the mother, N., her half-sister R.H., and the mother's boyfriend J.J.G. spent Christmas with her in 2017. She testified that N. celebrated every Christmas with her until the mother died. [31] Finally, I note that Mrs. G. is of ill health. She was diagnosed with lung cancer in 2016. She underwent treatment and went into remission. She had a recurrence of cancer in 2018, and at that point her cancer had spread. She received further therapy and again went into remission.

She continues to receive ongoing immunotherapy to maintain her remission. [32] As stated, N. has been in the full-time care of Mrs. B. since December 2020. Mrs. B. testified that N. is doing very well. She is involved in Tae-kwon-do and is apparently doing well in school. [33) Mrs. B. denied the allegation that she had very little involvement with N . for the first 7 ½ years of her life. She said it was Mrs. G. who did not have a relationship with N . She said that Mrs. G. was too busy with boyfriends, with drinking and with gambling to have a relationship with N.

No corroborative evidence was submitted to confirm these allegations which were levelled against Mrs. G. As for Mrs. B.'s involvement with the child, she testified that she had lots of photographs as well. However, no such photographs were submitted into evidence. [34) Mrs. B. testified that Mrs. G. was a toxic individual who was only trying to manipulate N. She also indicated that she did not know the G. family and could only go by what others had told her. Ill. EVIDENTIARY ISSUES AND CREDIBILITY: [35) First and foremost, I note that there was a dearth of evidence presented in this case. The Applicant Mrs.

G. was self-represented. The Respondent Mrs. B. filed an affidavit which was replete with hearsay, as well as personal opinions and personal remarks about Mrs. G. [36) For example, at paragraph 3 of her affidavit, Mrs. B. states: 3. [Mrs. G.] has hated everyone [her daughter] had a relationship with. Mind you, the hate temporarily disappears depending on what she can gain from the person. [Mrs. G.] is very self-serving and always has been. [37) For the most part, these statements consist of Mrs. B.'s own personal opinion.

The language used is inflammatory and is not helpful. [38] At paragraph 4 of her affidavit, Mrs. B. states: 4. (...) When [Mrs. G.] came for [the mother's] share of the rent, she knew that they had been evicted and locked out. As far as I am concerned, [Mrs. G.] stole the food right out of [N.'s] mouth that day. She did not care about her daughter or her granddaughter, she cared only about herself. [The mother] told me that not paying rent and moving was a lifelong pattern with [Mrs . G. ]. When [the mother] was a child, they moved constantly. [39) This statement contains Mrs.

B.'s personal opinion as well as hearsay. The statements are argumentative and inflammatory.

[40) At paragraph 5, Mrs. B. goes on to state: 5. [Mrs. G.] has twin boys. At [the mother's] wake, they would not go into a room if [Mrs. G.] was there except during the funeral service when they had no choice. Until recently, [Mrs. G.] did not have a relationship with those boys. (...) [41] Again, these statements appear to reflect Mrs. B.'s personal opinion as to the extent of the relationship between Mrs. G . and her adult children. Further, there was no evidence before the Court which would explain how or why Mrs. B. would have personal knowledge of the relationship between Mrs. G. and her children.

There was no suggestion that Mrs. B. has ever had contact with them. I also question the relevance of this information. [42] At paragraph 6, Mrs. B. states: 6. [Mrs. G.] has used her sickness time and time again. When I had a telephone conversation with her, she said she was being maintained. When I saw the court papers she submitted at that same time, she stated she was in remission. It appears to me that [Mrs. G.] changes her diagnosis to suit her. It depends on what she wants. She thought by telling me she was being maintained that I would feel sorry for her.

I suspect she thought by telling the court that she was in remission, that they too would feel sorry for her and allow visits. (...) [43] Other than the substance of her conversation with Mrs. G., the rest of this paragraph consists of Mrs. B.'s personal opinion. The statements are also argumentative and inflammatory. [44] At paragraph 9 of her affidavit, Mrs. B. states: 9. (...) I know [Mrs. G.] will manipulate [N.] into giving her money. I know [Mrs. G.], even if I had control of [N.'s] bank card, she would manipulate [N.] into sneaking it. [Mrs. G.] is that type of person. ( ... ) [Mrs.

G.] and her mother are noted to have a gambling addiction. [45] Deponents must limit themselves to facts. The above statement solely consists of personal opinion, argument and conjecture. It is inflammatory and unhelpful. More importantly, the affidavit contains no facts to explain why Mrs. B. holds this opinion. These kinds of inadmissible gratuitous comments affect the weight given to the rest of the admissible affidavit material (Ulrich v. Ulrich, 2004 BCSC 95 ). [46] At paragraph 10 of her affidavit, Mrs. B. then states: 9. [Mrs.

G.] has been to the Psychiatric Ward of the Saint John Regional Hospital more than once from what I understand. Years ago she tried to set her common-in-law husband's house on fire because she didn't get her own way. Her daughter and her step daughter were in the house at the time. To avoid jail time, she went to the Psychiatric Ward. [47] This paragraph again raises a number of concerns. It appears to contain Mrs. B.'s personal opinion. As well, there is no indication where the information is derived from and the statements are beyond the personal knowledge of the deponent, Mrs.

B. [48] Information contained in an affidavit must be more than mere conjecture or speculation. [49] Pursuant to Rule 39.01 of the Rules of Court, affidavits must be confined to facts within the personal knowledge of the deponent. An affidavit filed in support of an Application may contain statements as to the information and belief of the deponent with respect to facts that are not contentious but when such statements are included, the source of the information and the deponent's belief in

the statement must be specified in the affidavit. [50] At paragraph 7 of Mrs. B.'s affidavit, she states that Mrs. G. claims that her son is not N.'s father. According to Mrs. B., Mrs. G. believes that the child's father is an individual by the name of P.D. Mrs. B. then states in her affidavit: 7. (...) This man and [the mother] never had that kind of relationship. There was no sexual contact between the two of them. [51] It seems improbable that Mrs. B. would have first-hand knowledge of such information. This statement is simply not within her knowledge.

Yet, it is included in her affidavit as though it is within her knowledge. If this is something the mother told her, the affidavit should say so and should confirm her belief in the statement. Otherwise, it is inadmissible hearsay. [52] These are but a few examples of the difficulties raised by the evidence presented by Mrs. B. Overall, both her affidavit evidence and her oral testimony raised so many concerns that at times, it was difficult to distinguish between fact, fiction, rumors and conjecture.

To the extent that her evidence contained anything that was not factual or otherwise admissible, I have had to disregard it. [53] The Record contains an affidavit from the father S.B. It was sworn and filed in March 2021, more than a year before he died. There were similar issues with his affidavit as well. For example, the father states at paragraph 6: 6. From what I was told, [Mrs. G.'s] deceased father was a convicted pedophile. Rumour has it that he molested his own children, that there was incestuous pedophilia in the family. [Mrs.

G.'s] brother, [E.G.], is also a convicted pedophile, having raped and sodomized an eight-year-old girl many years ago. This brother visits [Mrs. G.] to this day. Just this past summer, [Mrs. G.] met up with this 18- year- old girl who is now a grown woman. How she treated the woman was scandalous. [Mrs. G.] was angry because her brother_went to jail for what he did to an innocent child. [Mrs. G.] was asked to leave the residence that day due to her behaviour. In my opinion, this shows that [Mrs. G.] finds it acceptable to rape and sodomize children. [N.] would not be safe around [Mrs.

G.]. [54] Again, this paragraph contains inadmissible personal opinion, as well as gratuitous comments about Mrs. G. and her family. Rumours are not facts and should not form part of an affidavit. Furthermore, I question whether the father was present when Mrs . G . allegedly met this " grown woman "? Did he witness the interaction he talks about? The affidavit does not say so. If he did not witness the interaction himself, who did? Who told him about it? The affidavit does not say so. [55] The same applies to paragraph 8 where the father states: 8. [Mrs. G.] has had mental issues in the past.

She once tried to burn her boyfriend's house down with him and his daughter in it as well as her own daughter. From what I understand, to avoid jail time, she signed herself into the psych ward of the Saint John Regional Hospital. And if I am not mistaken, she was there more than once. In my opinion, [Mrs. G.] is not stable. [56] Again, this statement appears to be entirely based on speculation. It then concludes with the father's unqualified personal opinion. [57] The above are a few examples of the problems contained in the father's affidavit.

Again, statements such as these affect the weight to be given to the rest of the affidavit. [58] The Respondent also submitted the affidavit of N.A. in support of her position. N.A. did not testify in Court. This individual is known to both parties but her relationship with either is unclear. N.A. acknowledged in her affidavit that she has had no contact with Mrs. G. for years. It is the Court's understanding that she knows or might have a

relationship with J.J.G. [59] Her affidavit is also problematic. [60] N.A. states in her affidavit that she and Mrs. G. communicated "a number of years ago", that N.A. was unstable at the time and was suffering from mental health issues. She states that she was "smoking an abundant amount of Marijuana every day at that time which didn't help and caused [her] to do impulsive things and make [her] mental health worse since it messes with the brain". She says that she continues to suffer from mental health issues at present. [61] N.A. acknowledges having lied to Mrs. G. and to others at some point in time .

She accuses Mrs. G. of trying to concoct a plan to obtain custody of the child some time ago. However, there is no evidence before the Court that Mrs. G. has ever sought custody of the child or even had plans to seek custody of the child. [62] Mrs. G. testified that she met N.A. on two occasions. The first time, N.A. brought the child to visit with Mrs. G. On another occasion, N.A. called to say that N. was visiting and she invited Mrs. G. to go for a visit so she went. [63] Overall, N.A.'s affidavit was somewhat incoherent. She did not testify in Court and as such, I was unable to assess her credibility.

For this reason, it is difficult to put much weight on her affidavit. [64] I do accept however, that Mrs. G. threatened to call social assistance at some point in order to report that N.A. and J.J.G. were residing together. This was confirmed by Mrs. G. during the hearing. There is some suggestion in N.A.'s affidavit that Mrs. G. made those threats when either N.A. or J.J . . G. refused to testify on her behalf. It is unknown to this Court whether they were asked by Mrs. G. to testify and if so, why they refused.

Credibility [65] The evidence of the parties was conflicting in several areas, and more particularly Mrs. G.'s involvement with N. prior to the mother's death. [66] In Grover v Ecerova [2018] N.B.J. No. 72 , Walsh J. rrovided some guidance as to the criteria to consider in assessing credibility. At paragraphs 103 and 104 he stated: 103 Credibility assessments are required to be made. There are in essence two aspects to credibility - veracity (i.e., truthfulness) and reliability (i.e., accuracy), but one does not necessarily lead to the other.

Put differently, a court must be cautious for even a witness endeavouring to be truthful can be inaccurate. As well, it must be recognized that a court can accept all, part, or none of a witness ' s evidence, although a finding that a witness was deliberately untruthful on one aspect of the evidence might infect that witness's entire evidence. 104 There are any numbers of factors that can guide a court in assessing credibility. They include plausibility, internal and external consistency, powers of observation, ability to recollect, self-interest, etc. (See: O'Brien v. O'Brien 2011 NBQB 179 at para. 102 (B.M.

Robichaud J.) an_d D. (G.) v. D. (M.) 2005 NBQB 253 at para. 95 (Wooder J.) ); common sense and logic being the underlying assessment tool. I refer often to the following: ... There can be no rule as to when and to what extent inherent improbability must be taken into account by a trial judge. As Lord Hoffman observed...: ... common sense, not law, requires that in deciding the question, regard should be had, to whatever extent appropriate, to inherent probabilities. (F.H. v. McDouga/12008 sec 53 at para. 48)

[67] Further, in S.F.D. v. M.T., 2019 NBCA 62, Baird, J.A. commented as follows: 30 Mclachlin C.J. in R. v. R.E.M., 2008 sec 51, 2008 SCC 51 , [2008] 3 S.C.R. 3, writes: While it is useful for a judge to attempt to articulate the reasons for believing a witness and disbelieving another in general or on aparticular point, the fact remains that the exercise may not be purely intellectual and may involve factors that are difficult to verbalize.Furthermore, embellishing why a particular witness's evidence is rejected may involve the judge saying unflattering things about thewitness; [...].

In short, assessing credibility is a difficult and delicate matter that does not always lend itself to precise and completeverbalization. [para. 49] 31 At the end of the day, assessing conflicting evidence is a weighing exercise which requires a trial judge to use his or her commonsense and experience. [68] In this case, I found Mrs. G. to be to be more credible than Mrs. B. [69] Mrs. G. acknowledged that her daughter used drugs. She acknowledged that their relationship was tumultuous at times whichimpacted her ability to see the child at times.

She acknowledged that she has had very limited contact with the child since 2018. She didnot appear to embellish facts. More importantly, on key issues she presented corroborative evidence. [70] Overall, I have grave concerns with regard to the evidence presented by Mrs. B. As previously stated, a good deal of theevidence she presented was not within her knowledge yet it was portrayed as such. As another example, I note that in an attempt topersuade the Court that Mrs. G. was lying and that she had had minimal involvement with the child, Mrs. B. testified that N. had spent amaximum of five nights with Mrs.

G. when she was young. However, the child was in the primary care of the mother for the first 7 ½years of her life and as such, Mrs. B. would have had no personal knowledge of the number of times N. stayed overnight at Mrs. G.'shome. Comments like these impacted her credibility. IV. THE POSITION OF THE PARTIES: .[71] Mrs. G. is not challenging the child's custody. She only wants to be able to see her grandchild. Mrs. G. asks to be able to visitwith the child every second weekend. [72] Mrs. B. is steadfast that Mrs. G. should not have any contact with the child whatsoever. She denies that Mrs.

G. has ever hadany relationship with the child. [73] She argues that the child would be at risk of harm because of alleged events that took place some 35 years ago between anotherchild and Mrs. G.'s brother. Mrs. G. testified that her brother has been living in British Columbia for 20 years. She has not seen him in 12years. Accordingly, the likelihood of him coming into contact with N. is negligeable. Mrs. B. also raised decades old allegationsinvolving Mrs. G.'s father. However, this individual died in 2018. [74] Mrs. B. argues that Mrs. G. does not have the child's best interests at heart. Mrs.

B. is convinced that Mrs. G. has called the Department of Social Development and made referrals regarding N.'s caregivers in the past.She argues that contacting the Department would not have been in the child's best interests. Here, I note that there was no evidence to confirm who made referrals to the Department. If an individual truly had concerns about the child's safety, then it

was appropriate to contact the Department. More importantly, the Department took protective care of the child on at least one occasion while she was in the care of the father. The Department filed two applications against the father. The Department would not have proceeded in this fashion if it did not have concerns with regard to the child's safety. [75] Mrs. B. testified that Mrs. G. has repeatedly said that her son is not the child's father. This was acknowledged by Mrs. G. when she testified. Mrs. B. is concerned that Mrs. G. would repeat this to the child. Mrs.

B. voiced concern that this could somehow alienate her. However, the fact remains that J.B. is the only father N. has ever known, and Mrs. B. has been entrusted with the primary care of N. since at least 2020. [76] Mrs. B. testified that if contact was allowed, Mrs. G. would "alienate everybody". She referred to her and J.J.G. However, it is Mrs. B. who has alienated the child from the mother's side of the family, not the other way around. Further, there was no evidence that the mother or Mrs. G. have tried to alienate the father or Mrs. B. in the past. V.

ISSUE : [77] The only issue before the Court is whether it is in the child's best interests to have contact with her maternal grandmother. VI. LAW AND ANALYSIS: [78] This matter falls under subsection 57(1) of the Family Law Act, which allows the Court to make an order allowing a grandparent to have contact with a child.

Pursuant to subsection 57(3), when making such an order, the Court may impose any terms, conditions or restrictions that it considers appropriate, including a requirement that contact be supervised. [79] Subsection 57(4) of the Act provides that in making a contact order, the Court must consider all relevant factors, including whether contact between the applicant and the child could otherwise occur, including during the parenting time of another person. [80] Subsection 57(5) states that the Court may provide for contact between an applicant and a child in the form of visits or by any means of communication and the Court may provide for any other matter that the Court considers appropriate. [81] Subsection 50(1) of the Act further stipulates that when making a contact order, the Court shall take into consideration only the best interests of the child. [82] The factors to be considered when determining the best interests of the child are outlined at subsection 50(2) of the Act: 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 particularwith 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 issuesaffecting 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. [83] When considering the factors listed under the "best interests test", the Court must give primary consideration to the child'sphysical, emotional and psychological safety, security and well-being. [84] In support of her position to disallow a contact order, Mrs. B. relies on Morecraft v. Morecraft (1991), (NB KB), 122 N.B.R. (2d) 271 (Q.B.). She also relies on the Ontario Court of Appeal decisionin Chapman v. Chapman, (ON CA), [2001] O.J.

No. 705 which recognized parents' autonomy to decide who theirchildren can see: 21 (.·..) In the absence of any evidence that the parents are behaving in a way which demonstrates an inability to act in accordance withthe best interests of their children, their right to make decisions and judgments on their children's behalf should be respected, includingdecisions about whom they see, how often, and under what circumstances they see them. [85] In N.V.R. v. J.K. 2001 NBQB 43, Robichaud J. provided a useful

summary of principles to apply in an application for a contactorder. She stated as follows starting at paragraph 20: 20 In resolving the "best interests" issue in these matters, the British Columbia Court of Appeal in N.F. v. H.L.S. (1999) 1999 BCCA398 , 127 B.C.A.C. 66, adopted the lower court's determination of the evidentiary burden. The Court stated at para. 8: [8] Another authority which was cited is the decision of Mr. Justice Brenner of the Supreme Court of British Columbia 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 interests of a 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 as a basis for denyingaccess to non-parents, in cases of real conflict and hostility, the child's best interests will rarely, if ever, be well served by grantingaccess." 21 On the whole of the evidence, I am not satisfied that there exists "real conflict and hostility" between Ms.

J.K. and the grandmother.There is a certain degree of mistrust that has developed between them, due mostly to the fact that the grandmother sided with her sonduring the criminal proceedings. Although Ms.

J.K. may be unwilling to set these differences aside, should her unwillingness beacquiesced in if the court is satisfied that the children derive benefits from the access? (...) 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, comfortand support, cannot be overlooked. They also allow children to gain a better awareness of their heritage. 24 In Chapman v.

Chapman { (ON CA), 2001 Carswell Ont 537), a decision of the Ontario Court of Appealrendered on March 2, 2001, Abella J.A., on behalf of the court aptly summarized the benefits of a relationship with one's grandparents.She stated at para. 19: A relationship with a grandparent can - and ideally should - enhance the emotional well-being of a child. Loving and nurturing

relationships with members of the extended family can be important for children. When those positive relationships are imperiled arbitrarily, as can happen, for example, in the reorganization of a family following theseparation of the parents, the court may intervene to protect the continuation of the benefit of the relationship (S. {L.) v. 8. {S.)[1999] O.J. No. 3271 (September 8, 1999), Doc. 98-FA-7242, D273/98 (Ont. S.C.J.) a judgment of the Ontario Superior Court of Justice,released ; Chabot v. Halladay [1992] O.J. No. 2636 (November 19, 1992), Doc. 28898/89 (Ont. Gen. Div.); Padbury v. Lee [1994] O.J.

No. 1075 (May 6, 1994), Doc. Windsor 93-GD-27134 (Ont. Gen. Div.); Peck v. Peck (February 21,1996), Doc. Kitchener 1020/94 (Ont. Prov. Div.); Mclellan v. Glidden (1996), (NB KB), 23 R.F.L. (4th) 106 (N.B.Q.B.); Young v. Young, (SCC), [1993] 4 S.C.R. 3 supra). 25 Even in cases of high conflict between a parent and a grandparent, courts have ordered grandparent access where bondinghad occurred 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 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. 180,1995 Carswell Ont 2089 (Ont. Prov. Div.)). [Emphasis added] See also: C.A.H. and K.L.H. v. 8.W. and C.H., 2023 NBKB 110. [86] Courts often given considerable deference to a parent's wishes regarding contact between children and their grandparents (see:Morecraft v. Morecraft {1991}, 122 N.B.R. {2d} 271 and G.G. v. J.W. and P.G., 2008 NBQB 338). However, less deference may beowed when one of the parents has died (see: Giansante v. Di Chiara, (ON SC), [2005] O.J.

No. 3184 (ONSC) andTorabi v. Patterson, 2016 ONCJ 210). [87] These principles are well explained in Simmons v. Simmons, 2016 NSCA 2016 where the Nova Scotia Court of Appeal uphelda decision granting access to a 3-year-old child to grandparents whose son, the father of the child, had died of cancer. Historically, therewas a good relationship between the grandparents and the parents, which changed after the death of the father of the child when a disputearose between the mother and the paternal grandfather around estate finances.

The mother argued that the trial judge had based his order on hope and speculation for the future. The Court of Appeal disagreed and stated: 39 A review of the jurisprudence shows that while courts frequently cite Chapman as their legal starting point in a grandparentaccess case, they often distinguish it and order access, or interpret it as suggested in McLaughlin v. Huehn, 2004 ONCJ 426. In thatcase, Mcsorley, J. interpreted Chapman to mean that courts are to show deference to parental decisions where such decisions arereasonable. The judge wrote: 27 The case of Chapman v.

Chapman and Chapman does not stand for the proposition that the wishes of a parent on the issue of accessby a member of-the extended family should take precedence over the factors in

section 24 of the Act. It is but one factor that must beconsidered. It is always important to defer to the decisions of parents regarding their children. But deference is only accorded whenthose decisions are reasonable. When the decision to end all contact between a child who has a positive relationship with grandparents,aunts, uncles, cousins and great aunts and grandmothers is made entirely because of hurt feelings from 3 to 5 years ago, then the decisionis not reasonable and is no longer entitled to deference.

This reading of Chapman has been accepted in many of the decisions of the Ontario Superior Court of Justice whose judgments form thebulk of Canadian grandparent access cases. See, for example, Barber v. Mangal, 2009 ONCJ 631; Giansante v. DiChiara, ( (ON SC), 2005] O.J. No. 3184; (2005] W.D.F.L. 4015 (Ont. S.C.J.); Nichols v. Herdman, [2015) W.D.F.L. 4127, 255 A.C.W.S. {3d) 650 (Ont. S.C.J.); Blackburn v. Fortin, [2006] O.J. No. 2256, [2007] W.D.F.L. 1297 (Ont. S.C.J.); Torabi v.

Patterson, 2016 ONCJ 210; O.{L.M.) v. 5.(5.), 2015 BCPC 328. 40 In making this observation, I am not saying that our courts should necessarily follow the same analytical path that the Ontario courtshave developed. I am simply noting that Chapman has not had the effect of making the parental autonomy model the singular way to

proceed in grandparent access cases. Sometimes when it has been applied, a different approach in determining the best interests of the child may have led to the same result as so much depends on the particular circumstances of the case. (...) 41 In addition, judicial deference to parental authority can be tempered by the court's willingness to recognize benefits that extended family bring to a child whose life has been marked by the loss of a parent, such as love, support, and stability.

These cases sometimes present best interest factors not apparent in cases with two living parents, including the fact that a child can know his or her deceased parent, including his or her personality, heritage, and culture, through his or her grandparents. See, for example, White v. Matthews, [1997] N.S.J. No. 604 (N.S. Fam. Ct.) and Brooks v. Joudrey, 2011 NSFC 5 . [Emphasis added] [88] Mrs. B. argues that she is the child's "parent", and as such her wishes should be determinative. While Mrs. B. is the child's primary caregiver and thus, fulfills the role of a parent, she is not a biological parent.

As such, her role would not give rise to the same deference. [89] Ultimately, whether contact should be ordered between Mrs. G. and the child must solely be considered through the lens of the best interests of the child. [90] I now turn to those factors which form part of the test. - The child's cultural, linguistic, religious and spiritual upbringing and heritage. [91] Mrs. B. testified that the father was bi-racial.

As N.'s primary caregiver, she should be able to transmit that particular heritage to the child. [92] The Court was not informed of any particular culture or heritage specific to the mother that would militate in favour of a contact order. [93] That said, I note that while a child's cultural and linguistic heritage is a factor the Court must consider, at a more basic level, I find it relevant to consider general familial heritage. In the particular circumstances of this case, as a result of the mother's death, N. has no exposure whatsoever to her maternal lineage.

Further, the facts establish that without a contact order, it is highly unlikely that this will change. - The child's needs, including the need for stability. [94] There is no evidence before the Court, nor has it been suggested, that Mrs. B . is unable to meet the needs of the child. Similarly, there was no evidence that N. lacks stability. [95] During the hearing of the Application, Mrs. B. went to great efforts to establish that a contact order with Mrs. G. would put N.'s physical and emotional safety, security and well-being at risk. However, the Court remains unconvinced that Mrs.

G. would be a source of harm for the child or would put the child at risk in any way.

[96) Mrs. G. has asked to have contact with N. every second weekend. While I believe that the

schedule proposed by Mrs. G. would be too disruptive, it is possible to allow N. to spend time with Mrs. G. without impacting her stability. I do not believe that contact every few months would be too onerous for the child. - The nature and strength of the child's relationship with the parties and other family members. [97] I accept that there is a strong bond between N. and Mrs. B. N. lived with the father and Mrs. B. from February 2018 until November 2019. Since December 2020, Mrs. B. has been her primary caregiver.

Given N.'s unique situation, the two are undoubtedly very close. [98] N. has an older half-brother on her father's side. She appears to have contact with this individual. [99] There was no indication that she has any other relative on her father's side of the family. [100) On her mother's side, she has her grandmother Mrs. G. She also has a great​ grandmother, two uncles and a half-sister. [101] I acknowledge that her bond with Mrs. G. would not be as strong because the bond would have inevitably diminished over time. As well, N. was much younger when Mrs. G. was involved.

Her memory ofthose years would not be as strong. She was only 7 ½ when her mother died. [102] I accept that Mrs. G. was a regular presence in the child's life until February 2018 when she went to live with the father. However, because of numerous factors including the fact that the father was opposed to any contact between the child and Mrs. G., Mrs. G.'s health issues, the Minister of Social Development's involvement with the child for over a year, the pandemic, and delays encountered in the court system once an Application was filed, Mrs. G. has had very little contact with the child in the last five years.

The passage of time has severely impacted the bond that existed between Mrs. G. and N. That does not mean however, that there is nothing there worth preserving. Many attempts were made by Mrs. G. to have contact with the child over the years, but these attempts were always rebuffed by the father and subsequently, by Mrs. B. [103] Along the same lines, N. has had very little contact, if any, with her great​ grandmother R.G. who is still living and was present throughout most of these proceedings. [104] N. has a half-sister on her mother's side. R.H. is 16 years of age and resides with her father.

When the trial began in the Fall of 2022, Mrs. G. testified that N. was still in contact with R.H. She said they would message back and forth from time to time when N. had access to wi-fi. Since then, it would appear that contact between them has come to an end. According to the Voice of the Child report that was prepared in December 2022, N. used to have contact with R.H. on SnapChat on her old phone, but does not anymore. N. reported that she does not know where her half-sister lives but knows that she is a teenager.

Based on these comments, it appears that N. does not have ongoing contact with this half-sibling. [105] Based on comments Mrs. B. made about R.H. ' s father during the trial, it would appear that Mrs. B. is opposed to N. having any contact with her half-sibling. In any event, there was no evidence that she has made any effort to maintain an ongoing relationship between the two. Each party's willingness to support the development and maintenance of the child's relationship with the other party. [106] The evidence before the Court confirms that Mrs.

B. is categorically opposed to developing or maintaining any form of relationship between N. and her maternal grandmother. [107] In fact, during the course of a case conference before the Case Management Master in March 2021, Mrs. G. asked if she could bring Christmas gifts to Mrs. B.'s house for the child. Mrs. B. said no. At trial, Mrs. B. was asked whether she had denied Mrs. G. the opportunity to deliver Christmas gifts to N. She confirmed that it was true and that she did not care what the Case Management

Master had said. She testified that she did not want Mrs. G.'s gifts and that N. did not need them. [108] It seems that arrangements could have been made to meet in a neutral location in order to accept Mrs. G.'s gifts. Knowing that she has extended family that loves her and supports her would have been beneficial to N. By dismissing Mrs. G.'s offer, Mrs. B. was placing her interests ahead of the child's best interests. Her decision is evidence of Mrs. B.'s inability to set aside her personal animosity toward Mrs. G. for the sake of the child. [109] Similarly, Mrs. B. acknowledged that Mrs.

G. had called her a handful of times in order to see N. She said that she hung up on Mrs. G. and blocked her number. [110] Mrs. B. accuses Mrs. G. of undermining her parenting and thus, her relationship with N. because Mrs. G. has seen N. on a few occasions without the father or Mrs. B.'s consent. Mrs. G . denied that she undermined their parenting but she acknowledged that she had seen N. on two occasions in 2021 "behind their back". On these occasions, Mrs. G. was contacted by individuals who were visiting with N. and who either invited Mrs. G. over or brought the child for a visit with Mrs. G.

I find that these visits were innocuous and I have not been convinced that these visits negatively impacted the child or her relationship with either her father or Mrs. B. or that these visits somehow undermined Mrs. B.'s parenting. [111] Overall, I find that Mrs. B.'s position has been so extreme as to be unreasonable and not in the child's best interests. If Mrs. B. was concerned about in-person contact, she could have arranged for telephone calls or even video calls through Facetime or the like. Instead, Mrs. B. sought to sever all ties between N. and her mother's side of the family.

This is not in the child's best interest given that both of her parents are deceased. [112] Mrs. B. plays a critical role in keeping the father's memory alive for the benefit of the child. She is able to answer questions about the father and to transmit information about him to N. An effort must be made to do the same with regard to the mother. [113] During my research, I came across the following statement from Cowling J. in L.M.O. v.

S.S., 2015 BCPC 328 : 21 (...) life can be short and children generally benefit from inter-generational contact and being cut-off from it can create a vacuum that is more puzzling and haunting for a child than dealing with the real-life plus and minuses that are inherent in most family relationships. [114] These words are even more relevant in this case where the child has lost both parents. - The history of care of the child. [115] N. was in the primary care of the mother from birth until 2018. In early 2018, she went to reside with her father and Mrs. B.

She lived with them until November 2019 when she went into the care of the Minister. [116] Since December 2020, N. has been in the primary care of Mrs. B. - The child's views and preferences, giving due weight to the child's age and maturity. [117] A Voice of the Child Report was prepared and submitted into evidence in this case. N. was interviewed on three separate

occasions. According to the assessor, she presented as "a very organized, intelligent and talkative young lady". I take it from these comments that she displayed enough maturity to provide her views and preferences. [118] It is apparent from the report that N. is an intelligent and motivated child. She appears to do well in school and has plans for the future which is very encouraging.. [119] That being said, the report is troubling as it would appear that Mrs. B. has made negative remarks to N. regarding Mrs. G. For example, it would appear Mrs. B. has told N. that her mother did not want her to see Mrs.

G., that her mother used to have to lock the door to keep Mrs. G. away because Mrs. G. would arrive drunk asking for money, and that Mrs. G. is a dangerous person. None of these allegations were established at trial. Further, I do not understand how making such comments would be good for the child. [120] At page 6 of the report, the assessor states: [N.] reports that she has mixed feelings about having visits with [Mrs. G.]; she said it makes her mad because she says it stresses her Nanny out, but then [N.] doesn't know how to feel because [Mrs.

G.] is wanting to have visits with her. [N.] reports that she knows who [Mrs. G.] is, but does not know her well; [N.] stated it has been at least a year since she last saw her. [121] Having interviewed N. on three separate occasions, the assessor reports that N. does not want to have visits with Mrs. G. until she is older and is able to make decisions independently from others. He further elaborates as follows at page 7 of the report: [N.] states she does not want to have to visit with [Mrs.

G.] because it will just give her Nanny more stress; [N.] reports that she does not want to make her Nanny stressed. [N.] reports that her Nanny said she can see [Mrs. G.] when she is older so maybe when that time comes [N.] will want to. [122] Thus, it appears that the child's preference not to have visits with her maternal grandmother has been heavily influenced by what she has been told by Mrs. B.: that Mrs. G. is a dangerous person and that her mother did not want her to have contact with her. As well, the child is aware that Mrs.

B. is very apprehensive about N. visiting her maternal grandmother and N. does not want to cause Mrs. B. any more stress. [123] N.'s preferences and wishes are not determinative, particularly in light of the reasons behind her wishes. Nevertheless, I have taken her wishes into consideration. It is the reason why I am not ordering frequent contact. - Any plans for the child's care. [124] There is no dispute that the child will continue to be in the care of her paternal grandmother, Mrs. B. [125] Mrs.

B. has no intention of supporting or maintaining any type of relationship between N. and the mother's side of the family. 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. [126] The order would apply to Mrs. G. I have no reason to believe that she would not be able to meet N.'s basic needs during the

course of a short visit. Further, N. will be 13 years old this Fall. There would be different considerations if she were much younger. - The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate on matters affecting the child. [127] Without a doubt, there is a tremendous amount of animosity between the parties, some of which may even be generational. Mrs. B. exhibits deep seeded dislike towards Mrs. G. I recognize this. It is also why I am not ordering frequent contact - not to appease Mrs. B. but rather to minimize any stress for the child. [128] Mrs.

G. displayed a greater willingness to work with Mrs. B. for the benefit of the child. - Any family violence. [129] This factor does not apply. - Any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. [130] This factor does not apply.

Other factors to consider. [131] Pursuant to ss. 57(4) of the Family Law Act, when determining whether to make a contact order, the Court must consider all relevant factors, including whether contact between the Applicant and the child could otherwise occur, including during the parenting time of another person. [132] In this case, the evidence leads me to conclude that no contact will occur between N. and Mrs. G. unless a contact order is granted by the Court. Conclusion [133] The circumstances of this case are unique: both parents are deceased. N. is an orphan.

She is being raised by her paternal grandmother but is not allowed contact with her maternal grandmother. All ties with the. mother's side of the family have been severed. This is unfortunate and not in the child's best interests. . She deserves the love and encouragement that extended family can provide. [134] Overall, I find that a limited contact order under controlled circumstances would give N. the benefit of having her maternal grandmother in her life, without unduly disrupting the life that she has with her paternal grandmother. [135] Mrs.

G. shall have a visit with the child on Sunday, August 27, 2023 from 3:00 pm to 4:30 pm. That visit shall occur in a public setting.

[136] The next visit shall take place on Sunday, October 1, 2023 from 3:00 pm to 4:30 pm, and then again on Sunday, December 3, 2023 from 3:00 pm to 4:30 pm. These visits shall again occur in a public setting. I suggest that these first 3 visits occur in the atrium of Market Square but they may occur elsewhere such as a local mall. If the parties cannot agree, they shall occur at Market Square. The purpose would be for the child to refamiliarize herself with Mrs. G.

Thereafter, the visits will no longer need to be held in publk. [137] The next visit shall take place on Sunday, February 4, 2024 from 3:00 pm to 6:00 pm. Visits shall continue to be held from 3:00 pm to 6:00 pm on the first Sunday of every second month thereafter until further Order of the Court (i.e. the first Sunday of February, April, June, August, October, December and so forth). [138] Neither party shall make any derogatory comments about the other or about either parent to the child. _.2 :T"\- DATED at Saint John, New Brunswick this day of August, 2023. Chantal N.

Daigl Justice of the Court of King ' s Bench of New Brunswick - Family Division