K.W. v. J.W.,, 2022 NBKB 204

NBKB 2022 204 FDSJ-255-2017 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF SAINT JOHN BETWEEN: K.W. and J.W., Applicants - and- K.L.L. and Z.G.O., Respondents DECISION AND REASONS BEFORE: The Honourable Madam Justice M. Deborah Hackett DATES OF HEARING: August 30 and 31, 2021; August 29, 2022 DATE OF DECISION: November 1, 2022 APPEARANCES: K.W. and J. W., appeared per se Charles M. Bryant, appeared for K.L.L. William H. Watts, appeared for Z.G.O.

NATURE : Parenting / Contact Order Hackett, J.: OVERVIEW [ 1 ] H.C.O. was born […], 2011. She will be referred to as “H”. [ 2 ] K.W. and J.W. are H.’s paternal grandmother and grandfather, respectively. They will be referred to as “the grandparents” or “the grandmother” and “the grandfather.” [ 3 ] The respondent K.L.L. is H.’s mother. The respondent Z.G.O. is H.’s father. They shall be referred to as “the mother” and “the father”. The mother and the father were in a relationship when H. was born. It ended in 2013.

The father is currently incarcerated. [ 4 ] H. resides with the mother and the mother’s fiancé E.C., the mother and her fiancé’s daughter R.C., born […], 2019, and E.C.’s two children from a prior relationship, B.C., born in 2008 and H.C. born in 2009. [ 5 ] The mother has an older daughter A.L. born […], 2008 (referred to as “A”.) Her father is Z.M. The mother testified A. usually lives with her and with Z.M. week on week off. [ 6 ] The grandparents ask the Court for either primary care of H. or shared parenting time with the mother.

They say they were H.’s primary caregivers for most of her life until November 2016, when they say the mother removed her from their care. The grandparents say they should be granted decision-making authority for H. because the mother does not make good decisions for her. [ 7 ] The mother acknowledges H. spent a lot of time with the applicants. However, she denies H. was ever in the grandparents’ primary care. The mother also takes the position H. is not safe in their care. The mother asks the Court to dismiss the grandparents’ application.

She submits if any order in favour of the grandparents is made, the appropriate relief would be a contact order that requires the grandparents’ contact with H. to be professionally supervised. [ 8 ] The father requests an order for parenting time. While he is in the penitentiary, he requests telephone contact and possibly in- person visits with H. The mother submits the father’s parenting time should be professionally supervised.

PROCEDURAL HISTORY [ 9 ] The grandparents filed an application on May 16, 2017, seeking an order for custody of H. and A. [ 10 ] On June 22, 2017 the mother and the father signed an agreement that the mother would continue to have primary and day-to- day care of H., who would reside with her at her residence. [ 11 ] The grandparents filed an amended application on July 21, 2017 in which Z.M., the biological father of A., was added as a respondent to the proceedings. [ 12 ] The mother filed an answer on October 4, 2017, Z.M. filed an answer on October 30, 2017, and the father filed an answer on November 2, 2017. [ 13 ] The parties attended an interim hearing with their counsel on November 9, 2017.

As reflected in the interim order dated November 21, 2017, the Court ordered the June 22, 2017 custody and access agreement between the mother and the father would be followed, taking into consideration Z.M.’s access with A. The grandparents would have telephone or FaceTime access with the H. and A. once per week. The matter was ordered to be set for a three-day trial. [ 14 ] The father filed a motion on April 18, 2018 regarding his parenting time with H. A hearing was held April 26, 2018.

By interim order dated April 30, 2018, the Court granted the father weekly parenting time with H. from noon to 5:00 p.m., alternating between Saturdays and Sundays. The Court acknowledged in the recitals of the order that the grandparents were having regular access with H. [ 15 ] At a court appearance in June 2018 the parties advised through their counsel they were working on a consent order.

The matter was adjourned sine die . [ 16 ] On August 6, 2019 the grandparents brought the matter back to court with a motion seeking, among other things, an order for interim custody and care of H., or in the alternative, an interim order for generous and liberal access with H., and that a Voice of the Child Assessment be carried out for H. [ 17 ] The parties appeared before the Case Management Master on September 25, 2019.

By order dated January 21, 2020, the grandparents’ request for interim custody was ordered to be set for a two-day hearing, which was scheduled for August 30 and 31, 2021. [ 18 ] As reflected in a procedural order dated June 14, 2021, all claims with respect to A. were discontinued and Z.M. was removed as a party to the matter. [ 19 ] The parties attended a pre-trial conference on June 24, 2021. The grandparents no longer had counsel.

By order dated June 25, 2021, the Court ordered on consent that the hearing of the grandparents’ amended application filed July 21, 2017 would be joined with the hearing of their motion filed August 6, 2019, set for August 30 and 31, 2021.

[20] Following a hearing on July 8, 2021 the Court ordered that a Voice of the Child be prepared with respect to H. It was filed onAugust 20, 2021. [21] At the July 8, 2021 hearing the Court also ordered that a motion filed by the father on June 23, 2021, seeking an order forenforcement of his parenting time with H., be heard at the same time as the grandparents’ motion and application. [22] The matter proceeded to trial on August 30 and 31, 2021.

It was not completed. [23] On Apri1 12, 2022 the grandparents filed a motion seeking an order that the mother follow the terms of the interim ordermade November 21, 2017 with respect to their telephone or FaceTime contact with H. At a hearing on June 8, 2022 an agreement wasreached that the grandparents would have weekly telephone contact with H. on an interim basis. [24] The trial resumed and was completed on August 30, 2022. ISSUE [25] The issue I must determine is what parenting or contact order is in H.’s best interests.

LAW AND ANALYSIS [26] Although the application and motion were brought under the Family Services Act, the provisions of the Family Law Act(“FLA”) that came into force subsequently govern the disposition of these proceedings. (See

section 97 of the FLA.) [27] Pursuant to section 52(2) of the FLA: The Court may make a parenting order providing for the exercise of parenting time or decision-making responsibility in respect of anychild on application by (

a) one or more parents, or (

b) a person, other than a parent, who stands in the place of a parent or intends to stand in the place of a parent. [28] Also, pursuant to section 57(1) of the FLA: On application by a person other than a parent, the Court may make a contact order providing for contact between that person and achild. [29] Section 57(3) of the FLA provides that the Court may make a contact order for a definite or indefinite period, or until aspecified event occurs, and may impose any terms, conditions and restrictions that it considers appropriate. [30] Section 57(4) states that: In determining whether to make a contact order under this section, the Court shall consider all relevant factors, including whether contactbetween the applicant and the child could otherwise occur, including during the parenting time of another person. [31] Pursuant to section 57(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. [32] Section 50(1) of the FLA states: The Court shall take into consideration only the best interests of the child in making a parenting order or a contact order. [33] As was stated by this court in J.F.G v C.G.D., (NB QB): 130) In this matter, it is the maternal grandmother T.M.H.D. and her partner, J.F.G. that seek primary care of L.M.W. The best interestof the child, from a child-centred perspective, is the sole test to determine child custody disputes, even where there is a custody disputebetween a parent and a non-parent. (J.F. v.

T.E. and G.E., 2010 NBCA 14, at paragraphs 19, 20 and 21.) [34] Section 50(2) states: 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 personwho 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 withone 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. [35] Section 50(3) of the FLA states: When considering the factors referred to in subsection (2), the Court shall give primary consideration to the child’s physical, emotionaland psychological safety, security and well-being. [36] In his closing submissions on behalf of the grandparents, the grandfather referred to a recent case from the Supreme Court ofCanada, B.J.T. v. J.D., 2022 SCC 24 .

That case involved competing claims for custody of a child brought by the child’s fatherand by the child’s maternal grandmother who had provided primary care to the child. [37] In its decision the Supreme Court of Canada indicated that a parent’s biological tie is simply one factor among many that maybe relevant to a child’s best interests. Courts are not to place too great an emphasis on a biological tie.

The Supreme Court of Canadastates at paragraph 109: For these reasons, I disagree with the majority of the Court of Appeal that biology must be a tie-breaker when two parties are otherwiseequal under this legislation. A court is not obliged to turn to biology and engage in a fraught determination of who may be a closer bloodrelative. While biological ties may be relevant in a given case, they will generally carry minimal weight in the assessment of a child’sbest interests.

Credibility [38] Credibility is an issue in this case, in light of the highly conflicting evidence from the grandparents and the mother inparticular. [39] Overall, I had concerns with the credibility of all the parties’ evidence. [40] I found the grandfather’s testimony was vague and lacked specifics, despite the grandparents having filed multiple affidavitsin this proceeding.

For example, on cross-examination by counsel for the mother, the grandfather was unable to specify when he and thegrandmother had H. in their care in the period between November 2016 and the fall 2019. [41] The grandmother’s testimony was difficult to follow. She digressed and changed topics frequently. Her evidence was alsocontradictory in some respects.

For example, despite the grandparents having sworn in their affidavit of July 20, 2017 that they were theonly permanent fixture in H.’s life since her birth, I understood the grandmother’s evidence to be that up until Easter of 2012, she wasaway most of the time, attending university in British Columbia. [42] I found the mother’s direct evidence was more detailed than the grandparents’ with respect to specific events, although shehad difficulty recalling certain dates and there were some inconsistencies between her affidavit and oral evidence. [43] On cross-examination by J.W. the mother was combative and nonresponsive to certain questions about the allegations ofsexual molestation against the grandfather.

The Court had to direct her to answer the questions. [44] I found the father’s oral evidence tended to digress and was difficult to follow. [45] In these reasons, where the parties’ evidence conflicts on significant issues, I will address credibility in my assessment ofwhose evidence I accept. Best Interests analysis

e) History of care of H. [46] A major point of disagreement between the grandparents and the mother is the history of H.’s care. I will therefore start withthis factor in my analysis. Events After H.’s Birth to November 2016 [47] H. was born a couple of months premature in 2011. She was in the neonatal unit of the hospital for almost two months before

she went home to the mother and the father’s care. She had pneumonia at the end of October 2011 and was in hospital again for most of November 2011 before she was released back to her parents’ care. [ 48 ] The grandfather testified he and the grandmother were at the neonatal unit all the time after H. was born and that the mother was rarely there.

However, the grandfather agreed on cross-examination he and the grandmother only went to see the child at hospital for one week before the mother then “banned them” from seeing her. [ 49 ] The grandparents say the police “placed” H. and A. with them after the mother had a mental health crisis. The grandfather testified H. was eight months old when this happened. [ 50 ] The grandfather said the father and mother were in the process of breaking up and the mother threatened suicide. The police asked them to take H. and A. for a few days.

According to the grandfather, the father was in Ontario at the time. [ 51 ] The grandfather testified A. stayed with them for a few days but H. was with them until kindergarten. He said H. was not with him and the grandmother every day, but she stayed mostly with them. The mother would take her occasionally, once every few weeks, for a few days. He said she had very little interest in seeing H. [ 52 ] The grandmother testified H. was in the grandparents’ care 90 percent of the time from the age of 18 months until November 2016.

She said between the age of nine months and 18 months she went back and forth, but was with the grandparents approximately 75 percent of the time. [ 53 ] In their supplementary affidavit filed July 20, 2017, the grandparents depose the mother banned them from having H. in their care between November 30, 2014 and February 13, 2015, because she was upset they cut H.’s hair without asking the mother’s permission. [ 54 ] H. began school in September 2016.

The grandfather testified he and the grandmother enrolled H. in kindergarten and they put her on the bus, as she went to school from their home. [ 55 ] The grandfather entered as an exhibit a document from H.’s school which was marked as trial Exhibit A-4. It is correspondence from the principal of H.’s school dated November 7, 2016. It indicates that at the time of H.’s entry, the information provided to the school was that H.’s father was her first contact (the father was residing with the grandparents at that time). The mother was listed as H.’s second contact.

The document notes that on November 1, 2016 the mother indicated she had changed her address. [ 56 ] The grandfather testified he went to Costa Rica in November 2016. When he came back, he learned the mother had banned him and the grandmother again. He said the father told him H. was with him at a friend’s home. The grandfather went to the friend’s home. H. ran over to him and the grandfather picked her up. The friend told the grandfather to put H. down.

The grandfather expanded on cross-examination that the friend and his wife told him to get off the property, and the friend’s wife came at him with a pipe. [ 57 ] The grandfather testified he called the father’s friend over the next two days, but he hung up on him. The grandfather heard from the RCMP he was going to be charged with harassment and the mother was going to try to charge him with attempted kidnapping. [ 58 ] The grandfather said a few weeks later when he was visiting the father (who presumably had H. with him), the mother drove up and told him to get out before she called the police.

He said he told the mother the banning was not good for H. or for the grandmother’s mental health and fibromyalgia. The grandfather testified the mother told him he and the grandmother never looked after H. and she was always in the mother’s custody. She also said she got the Child Benefit cheques. Before they could argue any further, the police arrived. [ 59 ] The grandfather said this incident started the “Child Tax Credit wars.” He testified he decided that if that was how the mother felt, he would apply for the Child Benefit. He said it was awarded to him retroactively, which made the mother furious.

He also said the mother appealed it and was successful. [ 60 ] The father testified he and the mother were “off and on” until he went to jail in 2013. He said his access with H. was unsupervised, pretty well every second weekend. He also said he went to Ontario at some point before he went to jail in 2013. [ 61 ] The father was in jail from approximately May 2013 until sometime in 2015. The father testified the only condition of his parole was to stay away from the mother. However, as soon as he got out (which appears to be around June 2015), he stayed with the mother for a week.

His parole officer found out and moved him to a halfway house and then he went back to the penitentiary for the balance of his sentence. It appears he was then released in December 2015 and returned to live with his parents. [ 62 ] The father testified his recollection was that H. was in his parents’ care at least two thirds of the time up until August or September 2015, and from then until November 2016 she was at his parents’ 90 percent of the time. [ 63 ] The father testified that around the fall of 2016 he may have started messing around with drugs again. He said he would not do drugs when H. was present.

He would leave and come back. He said he stayed with friends J. and S., and then got his own place. [ 64 ] The father said when he got his own place he would have H. for a period of time and then she would go home and be “interrogated,” and the mother would “turn things around.” He said because he let H. and A. walk across the street to go get ice cream he was the worst father in the world, according to the mother. [ 65 ] On June 22, 2017, after the grandparents filed their original application, the mother and the father signed the agreement regarding H.

It is attached as exhibit “A” to the mother’s October 2, 2017 affidavit. Paragraph 2 of the agreement states: The parties acknowledge and agree that [the mother] has been the child’s primary caregiver since birth. [The mother] shall continue to have primary and day-to-care of the child, who shall reside with her at her residence.

[ 66 ] The father testified the mother did not “hold a gun to his head” to force him to sign this agreement, but she told him if he did not sign it, she would see him in court. He said she made a threat to beat him with a bat if he showed up in court. [ 67 ] The grandfather’s sister, M.W., was called as a witness for the grandparents. She testified she recalled when the grandparents were “banned from the incubator.” She said she saw H. on a few occasions over the years, and stayed with the grandparents when H. was younger. She testified she believed H. was living with them.

On cross-examination she testified that she may have visited New Brunswick twice since H. was born. [ 68 ] The mother acknowledged there were interventions and involvement by the Department of Social Development with respect to H. almost her whole life, most of which she says were at her request. However, the mother denies that H. was ever placed with the applicants. [ 69 ] The mother testified she and the father coparented H. until she was about three or four months old. She said around July 2012 the father overdosed on drugs. When the RCMP arrived, they mentioned having the children go somewhere for the night.

However, the father left the home and went to the grandparents’ home. H. and A. remained with her. [ 70 ] She said the next day the father was threatening to hang himself. The Department of Social Development became involved. A safety plan was made and the Department required the father’s parenting time with H. to be supervised. [ 71 ] The mother’s evidence is that the father continued to have supervised parenting time with H. until just before he went to prison in May 2013.

At this time their relationship ended. [ 72 ] The mother testified that when the father went to jail in May 2013, she and the grandparents started doing a “week on, week off kind of thing.” She said she felt that it was not H.’s fault that her father was in jail, and that the rest of H.’s family should be involved, as she was not seeing her father.

However, she denied she ever changed H.’s residence from hers to the grandparents’. [ 73 ] With respect to the grandparents’ evidence they were banned by the mother for a period of several months in 2014 – 2015, the mother says the issue with the grandparents getting H.’s hair cut without permission occurred in 2013, not 2014, as the grandparents said. She said H. was with the grandparents on alternate weeks for the majority of time the father was in jail. [ 74 ] The mother said she did stop visitation briefly when H. almost drowned in 2013. She testified H. and A. were at the grandparents’.

She alleges they were unsupervised as the grandfather was building a retaining wall while the grandmother was inside sleeping. She said H. fell in the water off a boat they were playing in and A. had to pull her out of the water. [ 75 ] With respect to the issue of school registration, the mother testified she was moving residences in September 2016, and so as not to mess up H. and A.’s school, she allowed them to go to school from the grandparents’ residence. The father was living with his parents at that time.

She also testified that the father offered to assist with registering H. for school. [ 76 ] However, the mother was upset when she later learned that the father had been listed as the first contact for the school, as set out in correspondence from the principal of H.’s school, dated November 7, 2016 (Trial Exhibit A-4) . [ 77 ] The mother testified the father and the grandparents “forged documents” at H.’s school and she had to change H.’s address back to hers.

She said she found out about it when the grandparents applied for the family allowance. [ 78 ] The mother testified that H. missed four days of school in September 2016, and when she asked the grandparents about it, they said H. did not want to go to school. She then said that before Christmas break, H. had missed 17 or 18 days of school on the grandparents’ week. [ 79 ] It appears H. did miss many days of school.

Trial Exhibit A-4, the correspondence from the principal of H.’s school dated November 7, 2016, indicates the following with respect to H.’s school attendance: Sept. 6, 2016 – November 7, 2016, 19.0 /43 total possible days. [ 80 ] The mother also says that in 2016 the grandmother was driving H. She left the road and flipped the vehicle and blamed it on another vehicle passing her.

The mother testified the grandmother told her she had taken prescription “OXY 40s" before driving. [ 81 ] The mother testified she allowed the father to have unsupervised access with H. at the grandparents’ residence while he was living with them, after his release from prison in 2015. She said it was not every weekend but he had regular contact with H. until September or October 2016, when she found out about the school forms and the family allowance and everything “blew up.” [ 82 ] The mother stopped contact between the grandparents and H. in November 2016.

She testified she forgot exactly what caused the big blowout between them, but then said “all of it” led to it. “All of it” included issues with the grandparents taking H. to horseback riding, but then taking her to their home after, when she had said H. was to come home immediately afterwards to do homework; the fact that the grandparents had H.’s hair cut without her permission; and the car accident H. was in when the grandmother was driving. [ 83 ] At paragraph 25 of her affidavit sworn October 2, 2017 the mother deposed she made the decision the grandparents would not see H. or A. anymore, in part because the grandmother was caught smoking marijuana in her car, and also because she was concerned the grandparents took H. and A. to a pageant at a Lions Club and said they were H. and A.’s parents. [ 84 ] The grandmother swore a supplementary affidavit responding to the mother’s October 2, 2017 affidavit on October 31, 2017.

She does not directly respond to the mother’s allegations in her affidavit. [ 85 ] At paragraph 34 of the grandmother’s affidavit she deposed that she takes prescriptions for anxiety, was recently diagnosed with breast cancer and is prescribed marijuana.

[ 86 ] With respect to the claim that the grandparents said they were H. and A.’s parents at the pageant, the grandmother says at paragraph 32 of her affidavit that A. did not tell everyone she and the grandfather were her parents. [ 87 ] With respect to the haircut issue, the grandmother says H. had been begging for short hair for years. [ 88 ] Yvonne Spence, family support worker, assisted the mother with parenting, arranged through the Department of Social Development. She testified that her first involvement started when H. was three months old (in late 2011) and continued for approximately seven months.

She testified H. was living primarily with the mother at the time. [ 89 ] Ms. Spence said the father was involved in this period, and there was domestic violence between the father and the mother. About a month after she began working with the mother, the father was no longer living with the mother, and he was having supervised visits. [ 90 ] Ms. Spence again provided parenting assistance when H. was three or four years old (H. would have been three in 2014). She said she worked with the mother on bedwetting issues for six or seven months. [ 91 ] Ms.

Spence said she was in the mother’s home about twice a week for two hours and did some drop in visits. She testified she observed that H. was living with the mother. She said H. would go for weekend and extended visits with the grandparents and went on vacations with them, but to her knowledge she was not permanently living with them. [ 92 ] Ms. Spence testified she had a few interactions with the grandparents during this period of involvement.

She said she tried to teach the grandparents parenting, but they said they did not need it and did not want anything to do with “us” (presumably her agency or the Department of Social Development.) She said she received some calls from the grandparents complaining about the mother. She blocked the calls as the mother was her client, not the grandparents. [ 93 ] When asked why she tried to teach the grandparents parenting, Ms.

Spence said the mother felt they needed to be on the same page with respect to discipline. [ 94 ] In support of their competing positions that they were primary caregivers for H., both the grandparents and the mother referred to documentation from medical professionals, Family and Child Education (FACE) and Stepping Stones autism centre. [ 95 ] The grandparents rely on Trial Exhibit A-1, a letter from public health nurse Joan Johnston. It indicates on June 20, 2013 the grandmother brought H. to an immunization appointment. The grandmother informed Ms. Johnston H. was currently living with her and the grandfather.

She and the grandfather expressed concerns about H.’s development, physiological issues and behaviour. [ 96 ] Ms. Johnston determined H. should be referred to a pediatrician. She indicates she obtained permission to refer H. to a pediatrician by phone from the mother. [ 97 ] The grandparents also refer to Exhibit A-1 to their affidavit sworn July 20, 2017, which is an Early Intervention Referral form dated September 24, 2013 from Dr. Sarah Gander, the pediatrician to whom H. was referred. It indicates the “parent’s” name as the grandmother’s. [ 98 ] However, this form was sent following Dr.

Gander’s appointment with H. the same day. Dr. Gander indicates in her correspondence marked as Exhibit A-2 to the grandparents’ affidavit of July 20, 2017 that she saw H. with her paternal grandparents and the grandmother was the one offering most of the information. [ 99 ] At some point following her referral to Early Intervention, H. was diagnosed as being on the autism spectrum.

The grandparents say they enrolled H. in an autism support group, Stepping Stones. [ 100 ] In her affidavit sworn October 2, 2017 the mother acknowledges she asked the grandmother to call and assist with intake to Stepping Stones. [ 101 ] Trial Exhibit A-2 is correspondence from Heather MacFarlane, Client Supervisor with Stepping Stones, to the grandparents’ former solicitor, dated November 15, 2016. Ms. MacFarlane indicates the main contacts she had for H.’s services were the grandparents and the father.

However, she indicates the mother attended a needs assessment meeting for H. before she began receiving services on October 14, 2014. From December 2014 to April 2015 H.’s services were put on hold due to lack of attendance. H. returned to intervention on March 23, 2015. [ 102 ] Ms. MacFarlane indicates H. was transitioned to Kindergarten in September 2016 and transition support was provided throughout the month of September. Ms. MacFarlane writes that she contacted the mother by phone to attend transition meetings but was not able to reach her or leave a message.

The grandparents and the father were contacted and meetings were held regarding transitions. She writes: Information for the school records concerning the home address for [H.] was listed as the Paternal Grandparents home as requested by the [grandparents/ father]. [ 103 ] Ms. MacFarlane indicates she met with and spoke over the phone to the mother several times, but the mother did not attend any intervention observations.

She notes the mother met with H.’s autism support worker at some point in 2016. [ 104 ] The grandparents attached as Exhibit “B” to their affidavit sworn July 20, 2017 a letter from the grandmother’s therapist Jeffery Lucas dated May 9, 2017. Mr. Lucas writes that the grandmother was a client of his starting February 9, 2014. He indicates they had weekly sessions, and in early sessions he made note that H. was “always” at the grandmother’s house. He offers the view that the grandparents were the primary caregivers for H. for a number of years.

[ 105 ] I do not put weight on Mr. Lucas’s opinion that the grandparents were H.’s primary caregiver. He did not provide an affidavit, nor was he called as a witness. He was the grandmother’s therapist, and it appears his information was based on what the grandmother told him. [ 106 ] In her October 2, 2017 affidavit the mother deposed she made H.’s application to the Family and Child Education (FACE) program.

The only referral/intake documents for FACE before the Court were filed by the grandparents as Exhibit A-3 to their July 20, 2017 affidavit. [ 107 ] Exhibit A-3 is a referral by Social Worker Mary Ellen Guptill dated October 18, 2013. It was signed on November 1, 2013 by the grandmother as “legal guardian” for the child.

The form notes, however, that H.’s mother is K.L. and that the mother “lives in the home.” It also indicates the father is Z.O. and that he “does not live in the home.” There are handwritten notes on the form indicating “dad is incarcerated” and “dad is signing legal guardianship to grandmother.” [ 108 ] The mother attached as (a second) Exhibit “A” to her affidavit sworn October 2, 2017, a document called “Anecdotal Report” dated September 17, 2014, prepared by FACE. It indicates the parents of H. are the mother and the grandmother. The address listed is the mother’s.

In the background information the report states H. lives at home with her mother and sister, A. [ 109 ] Following this is another document signed August 11, 2014 by the mother and Shelley Thompson, FACE educator. It states H. is currently residing with her mother and that H. has limited visitation with her grandparents. [ 110 ] Exhibit “B” to the mother’s October 2, 2017 affidavit is a record of contact from FACE.

The mother deposes at paragraph eight of the affidavit that the entries show her as the primary caregiver to H. [ 111 ] A review of Exhibit “B” indicates the FACE workers were reporting conflict between the grandparents and the mother over who was H.’s primary caregiver. It appears FACE workers were receiving information from social workers that the mother was H.’s custodial parent. Events Between November 2016 and September 2019 [ 112 ] The grandfather testified that after the mother banned them from H. in November 2016, contact with H. was reestablished a month or two later.

He said it was as if nothing happened. The mother called and asked if they could take the kids (H. and A.) [ 113 ] The grandfather testified that between November 2016 and the fall of 2019, he and the grandmother had H. about half the time. He also said whenever the mother wanted her back, they would send her back. [ 114 ] The grandfather said there were a couple of “bans” in between because they did something without consulting the mother.

He said these bans would last for a few days to a few weeks. [ 115 ] When asked on cross-examination about these bans, the grandfather said there was one when they were in PEI with H. and they got her hair trimmed. However, according to the grandparents’ affidavit evidence, this occurred before 2016. [ 116 ] The grandfather said another time H. and E.C.’s daughter, H.C., “were bugging” the grandparents to go riding. He testified the mother was upset at the grandparents for taking the girls riding.

The grandfather testified the mother said, “You never consulted with me.” He agreed on cross-examination the mother wanted the grandparents to respect her authority. [ 117 ] The grandfather was asked how many nights H. would have stayed with the grandparents between 2016 and 2019. He said he thought H. spent a week with them [presumably he meant H. went back and forth between them on a weekly basis] but he would have to look at the calendar and talk to his wife.

He said he did not keep records day by day. [ 118 ] The mother testified that after the big blowout in November 2016, she put in place a new arrangement for H. where she was with the grandparents approximately every other weekend. In the summers the grandparents would have more time with H. [ 119 ] In her oral evidence she said this started at the end of 2016 or early 2017.

However, in her affidavit sworn June 30, 2021, the mother says the grandparents had no in-person access from October 2016 until January 2018, when she allowed visitation to start again. [ 120 ] In any event, the mother acknowledged that after she allowed the grandparents to resume access with H., she let her travel with the grandparents for extended periods, including taking a road trip to British Columbia for a month. [ 121 ] In 2019 the mother restricted the grandparents’ contact with H. again, leading the grandparents to file a motion on August 6, 2019 seeking an order for interim custody, or in the alternative, generous and liberal access with H. [ 122 ] In the grandfather’s amended affidavit sworn September 20, 2019, he deposed that over the September 2018 to June 2019 school year H. spent almost every weekend in the grandparents’ care and spent three out of five weekdays after school in their home.

He says H. went back to her mother’s house at about 8:30 in the evening. [ 123 ] He says around the first week of March 2019 the mother withheld access with H., but she allowed the arrangement to recommence, and over the course of the next few months H. began spending more time with the grandparents, and that at the end of the school year in June 2019, H. was living with the grandparents full-time. [ 124 ] However, at the end of July 2019 H. went to spend some of the day at her mother’s home and the mother banned her from returning to the grandparents’.

The grandfather deposes this was puzzling as the mother had told them while they were in Ottawa with H. that she expected H. would spend the summer with them. [ 125 ] The grandfather says he and the grandmother were not able to have access or speak with H. since the end of July 2019, and the mother refused to facilitate weekly FaceTime access, as set out in the provisions of the interim order made in 2017.

[ 126 ] The grandfather also says he and the grandmother registered and paid for H. to attend a horse camp the week of August 12-16, 2019. However, the mother banned them from taking her to the camp. [ 127 ] In the affidavit the grandfather describes a confrontation on the Labor Day weekend 2019 when the grandparents intended to drop off some bags of clothes for H., even though the mother had banned them from seeing her. He says he and the grandmother ran into H. at a chip stand and she ran over to them. The grandmother gave H. the bag of clothes she had brought for her.

The mother and E.C. and the other children appeared, and the mother screamed at the grandfather to get away from H., and called him a pedophile. [ 128 ] In her September 20, 2019 affidavit the mother deposes at paragraph 41 that over the past year or so H. had spent every other weekend with the grandparents, and there was a point when H. was spending frequent weekends with them. [ 129 ] The mother denied, however, that she agreed H. would spend the summer with the grandparents in 2019.

She alleges in her affidavit sworn September 20, 2019 the grandparents withheld H. from her without her consent from the time school ended around the end of June 2019 until July 18, 2019. She deposed the grandmother always seemed to have an excuse for why H. could not come home, such as they forgot and went to Saint John. She said when she would go to pick H. up from the grandparents, they would not be home or they would say in front of H. she would miss out on fun plans, and H. would beg to stay with them. [ 130 ] The mother testified she agreed to the grandparents taking H. to Québec from July 13-16, 2019 only.

She says she was barely able to contact the grandparents during the trip. The grandmother returned H. to her care the night of July 18, 2019. [ 131 ] The mother testified that this was the last time H. had any overnight time with the grandparents. [ 132 ] With respect to the father, the mother testified she allowed him to have unsupervised parenting time with H. after his release from prison in late 2015.

She said he was living with someone, and they made an agreement for him to have beds and hairbrushes, etc. for the girls. [ 133 ] According to the mother, the arrangement between her and the father for his parenting time with H. ceased when she found out he was allowing the grandparents to come to his visits. She also said he left the girls alone once and went to the bank. She said as of 2018 he did not leave her residence with H. but he saw H. at her residence. [ 134 ] In April 2018 the father filed a motion for an order for parenting time.

He was granted interim access every weekend, alternating between Saturdays from noon until 5:00 p.m. and Sundays from noon until 5:00 p.m. [ 135 ] When asked when the father’s access resumed, the mother said it never really did. She testified the father was on drugs and he did not ask for H. or come to get her. Sexual assault allegations against the grandfather [ 136 ] Around September 2019 allegations were made by H.’s friend C. of inappropriate touching of H. by the grandfather.

The mother has not allowed H. to have in-person contact with the grandfather since then. [ 137 ] The mother deposes in her September 20, 2019 affidavit that H. informed her of concerning information about sexual molestation by the grandfather, and there was also third party information or disclosures relating to the issue.

She says the matter was under investigation by the Department of Social Development and the RCMP, and she was advised by the RCMP it would be best for H. to have no contact with the grandparents during the investigation. [ 138 ] During her cross-examination, when asked by counsel for the father what H. had disclosed, the mother did not want to discuss the nature of the allegations, stating she did not want to “give the grandfather ammunition”. [ 139 ] She eventually testified that H. had told her that she and C. were in the bathtub and the grandfather was washing H. between her legs with no face cloth, and was down there a long time.

H. was naked in the tub. C. had a bathing suit on. [ 140 ] The mother also says that H. disclosed that the grandfather would pick her up and put her in bed with the grandparents and that the grandmother would be naked. [ 141 ] The grandfather’s evidence is that C. later recanted the allegation she made. He testified Robin Crawford, a social worker with the Department of Social Development, came over and wrote a letter closing the file. A letter from Ms. Crawford dated August 26, 2019 was marked as Trial Exhibit A-5. [ 142 ] In Exhibit A-5 Ms.

Crawford writes: …the recent assessment of your present family situation is now completed. Upon evaluating all information obtained, we have concluded neither the security nor the development of your child(ren) is in danger. Therefore, there will be no further contact with you on this particular matter. [ 143 ] It is not clear if this letter relates to an investigation into the molestation allegations or not. The grandmother testified Ms.

Crawford came over to the grandparents’ house to see if the father was “using” in August 2019. [ 144 ] In the mother’s affidavit filed June 30, 2021 she deposed that the Department of Social Development, Family Enhancement Worker Yvonne Spence, and some members of the St.

George RCMP advised that H. should maintain no contact with the grandfather, as the investigation into the allegations ended due to the grandparents telling H. to recant her story and not talk to the police. [ 145 ] The mother provided no evidence from the Department of Social Development, Yvonne Spence or any members of the RCMP to support her claim the investigation ended because the grandparents told H. to recant her story and not talk to the police.

[ 146 ] With respect to a police investigation, the mother testified she contacted the RCMP after H. told her the allegation. When asked on cross-examination if the police concluded their investigation after a few months, the mother said that was not quite true. She said the RCMP said H. did not disclose anything, but she may do so when she is ready through counselling. [ 147 ] The mother took H. to two doctors with respect to the allegations.

When asked what they said, she responded that they could not confirm or deny anything happened. [ 148 ] I do not put weight on the mother’s hearsay evidence that the investigation by the Department of Social Development ended because the grandparents told H. to recant her story, or that the RCMP said H. may disclose something down the road. I accept that the Department of Social Development did an investigation into the allegation and did not substantiate it, and I accept the RCMP investigated the allegation and did not lay any charges.

I further conclude that there are no ongoing investigations. [ 149 ] In the Voice the Child report carried out in August 2021, the assessor, Ms. Brittain, reports what H. said about the allegation at page 4: ...She reported that she cannot see [her grandparents[ because her mom thinks “my granddad touched me down there”.

When I clarified this statement - [H.] said that she mom thinks her granddad touched her in her “private place”. [H] emphatically stated that “it’s a LIE”. [H.] said several times that this never happened and that her granddad would NEVER touch her in a private place. [H.] reported that her friend [“C.”] said that this happened- and [H.] admits that she went along with it and agreed with [C.] – but only because she is afraid of [C.] sometimes – as she is “much stronger”. [H.] did state that she is no longer afraid of [C.] now.

Although she brought the subject up - very early in our interviews - [H.] was clearly very upset when discussing this topic. [H.] feels that [C.] said this because she is jealous of [H.] because she has rich grandparents and they get or whatever she wants- even if she doesn’t ask. [H.] would like to tell her mom that this did not happen with her granddad and he did not do this – but she fears her mom’s reaction. [ 150 ] The mother indicates in her June 30, 2021 affidavit the grandparents coached or manipulated H. to “recant her story” to the police because the grandmother and the grandfather told her that the grandfather would go to jail for a long time. (Paragraph 25).

However, there is no evidence H. ever told the police that anything happened. [ 151 ] The mother also deposes at paragraph 24 of her June 30, 2021 affidavit: It is the [grandparents] who have attempted to coach H. and Tonya Quinn, Katie Munn, and Yvonne Spence can testify to this. [ 152 ] Ms. Brittain’s report does not suggest she felt H. was coached or manipulated in her statements to her.

The mother called no evidence from Tonya Quinn, Katie Munn or Yvonne Spence to support the claim that the grandparents coached H. with respect to the allegations. [ 153 ] The mother testified she believes the touching occurred, and that to this day H. tells her it did. It may be that H. has told her mother something did happen. She told Ms. Brittain she fears her mother’s reaction if she tells her it did not happen. [ 154 ] However, considering the evidence I find it is more likely than not that H. told Ms. Brittain the truth about the allegations; that they were a lie.

Events after September 2019 involving the grandfather [ 155 ] The grandfather accompanied the father to the mother’s residence on a couple of occasions after the father was released from jail in February 2021 after being incarcerated again in October 2020. These visits led to conflict. [ 156 ] In her affidavit sworn June 30, 2021 the mother says on May 30, 2021 the grandfather pulled up at the edge of her property after the father came down the road behind her house. She says she asked H. to go inside but the father told H. to stay outside. She informed the father she was calling the police.

She deposes that while she was on the phone with the police, the grandfather refused to leave and said things to H. like, “This is all your mother’s fault.” She says the grandfather was calling her names such as “Drama Queen” and “Child Abuser” for keeping H. from him. [ 157 ] The mother says at some point the grandfather picked up H. and started walking to his vehicle with her. He put H. in the car and started to drive away, but he only pulled the vehicle up a few feet. H. got out of the vehicle and came back on the mother’s property.

The grandfather and the father left before the police arrived. [ 158 ] The mother also says on June 5, 2021 the father and the grandfather arrived at her residence at 8:00 p.m. The father asked if he could give a few things to H., and the mother agreed. She says the grandfather then got out of his vehicle and started walking onto her property. She told the father this was unacceptable and that she would call the police. [ 159 ] The mother says the father asked her not to call the police and said he would get the grandfather back in the vehicle.

Initially, the grandfather complied with the father but he then started walking back towards the mother’s house screaming things like, “Are you scared of me?” and, “I am the boogeyman.” [ 160 ] On cross-examination the grandfather said he went with the father to the mother’s home on these occasions because the mother was denying the father his parenting time.

When asked if he was aware both times were outside of the April 2018 order for parenting time on the part of the father, the grandfather said he was not aware of this, that he thought it was between the two of them, and that he did not know what the father’s prescribed parenting time was. [ 161 ] The grandfather testified that on the May 30, 2021 occasion H. ran over to him and gave him a hug. The mother called the police. He agreed he did pick up H. and started walking towards his vehicle.

He said H. then went back into the house. [ 162 ] The grandfather denied he told H. it was all her mother’s fault but he did recall calling the mother “Drama Queen.”

[ 163 ] With respect to the June 5, 2021 incident the grandfather denied he went on the mother’s property. He said H. was kept inside the house. Events Involving the Father after September 2019 [ 164 ] The father was incarcerated again from October 2020 to February 2021. In June 2021, he brought another motion to enforce his parenting time. [ 165 ] In his oral evidence the father testified when he got out of jail in February 2021 he was released to his parents, on house arrest. The mother told him he could see H. but he had to come to her residence.

He said the mother was fearful he would take H. to his parents. [ 166 ] The father deposed in his affidavit sworn June 23, 2021 that the mother had denied him access with H. since approximately March 17, 2021. He deposed he called the mother consistently three or four times a week requesting access, and she would verbally abuse him whenever he called.

He says she hung up on him a lot and accused him of being a pedophile and insinuated other members of his family were pedophiles. [ 167 ] In the mother’s responding affidavit filed June 30, 2021, she deposed the father is unstable with a history of substance abuse, and that she denied him parenting time on three occasions because he was not sober or he behaved erratically.

She also said her primary concern, in addition to his ability to provide sober care to H., was his ability to keep the grandfather from taking H. during the father’s time with her. [ 168 ] The mother deposed that in March 2021 the father and the grandmother arrived at her house. She says the father was extremely intoxicated and lay across two chairs sweating and moaning. The children were present asking what was wrong with him.

According to the mother, she asked the father and grandmother to leave, and the father later admitted he took something because he abused his methadone and ran out of “carries”. [ 169 ] In his testimony the father denied he was intoxicated and said the mother was “not the greatest judge of what intoxication looks like.” He said he was not feeling well the night before and told the grandmother he did not want to go see H., but she said he needed to go.

He denied he admitted to the mother he had abused his methadone and ran out of “carries.” [ 170 ] The mother deposed that on May 30, 2021 the father came on her property yelling and swearing at her in front of H. The father testified he did not recall that. However, he did recall showing up at her place without her permission.

In his version of events it was the mother who flew off the handle and made a big scene because he had not texted beforehand. [ 171 ] The mother deposed in her June 30, 2021 affidavit the father made threats to have her evicted on June 4, 2021, and to shoot her on June 27, 2021 after she told him she had already made plans with H. when he wanted to have parenting time with her. The father did not deny these claims. [ 172 ] The father testified he feels he should be allowed to see H. and that it should not be so difficult. He said he has to choose between his relationship with his daughter and his mental health.

He either had to step back or “face home invasion charges,” as the mother would not give him his child. Events Involving the Grandmother after September 2019 [ 173 ] Although the grandfather has not been allowed to see H., the mother allowed the grandmother to have some in-person visits with H. in the mother’s home after September 2019. The grandmother said when she visited H. the mother would stand and watch them but then change her mind. There is a sitting room in the mother’s house where she and H. would sit and talk. They had the opportunity to be alone, but they could not leave the property.

The grandmother said it was insulting and offensive that she now has to be supervised when she sees H. when she used to raise her. [ 174 ] The grandmother testified over the last month (before she testified in August 2021) her access with H. was very limited. She said she was under the impression she was not welcome to see H. because she did not object to the Voice of the Child report being ordered. [ 175 ] The grandmother said she feels blackmailed by the mother and that she has to resort to bribes too often.

She testified the mother needed groceries and did not have gas money, so she dropped off groceries to the mother. She said she then was given a list of more groceries, which she brought over, and she got to play with H. a bit. The grandmother said following this the mother called and said she thought the grandmother had been spending a little bit too much time with H. [ 176 ] When asked how often the mother asked for groceries, the grandmother said not often.

However, over the years her granddaughter has asked her for groceries. [ 177 ] The grandmother testified that within the last two years (of August 2021) H. told her the mother was mad because the grandparents did not buy her a house. The grandmother said they were actually looking for a property with realtors. She then said the mother wanted her and the grandfather to help with a home, but the grandfather is not allowed on the property.

She said, “Why would we do something for someone who has been so awful to us?” [ 178 ] With respect to the grandfather’s ban, the grandmother testified that H. loves music and she sent the grandfather songs when she had her phone in her possession. She testified she did not think the mother knew H. was sending texts to the grandfather. She also testified that H. has pictures of her grandfather all over her room. She asked why the mother allowed that if she really believed H. was molested by the grandfather.

[179] In the grandfather’s affidavit filed April 12, 2022 in support of the grandparents’ motion to enforce paragraph two of the interimorder from November 2017, he indicates the mother banned the grandmother from seeing H. after the grandmother testified in August2021. [180] The mother agreed she stopped the grandmother’s in-person contact. She said the grandparents were “ignorant” with her. Shesaid the grandmother made an outcry by telling A. not to call her “Grandmum” and that she should call her “Ms.

W.” or nothing at all. [181] When asked why she had agreed to allow the grandmother to have contact with H. at her home for a time, the mother said it wasbecause H. still needed contact with her father’s side of the family. At that point the father was living in Fredericton. [182] The mother also testified H. has lost use of her phone indefinitely. She said H. would leave the house and call the grandparentsseveral times a day. She said she was 10 years old and technically she is not supposed to have a cell phone, and she only allowed it sothat H. could call the grandparents.

Finding regarding primary care of H. [183] The grandparents, supported by the father, tell a very different version of events than the mother, especially with respect toprimary care of H. up to 2016. [184] As was stated by the Court in M.T.P. v T.P., 2019 NBQB 80 : [17] When the veracity of a witness’s version is called into question, the plausibility of the evidence, along with its internal andexternal consistency, takes on a center role in the assessment.

In that, particularly when an emotional issue like the custody of a child isat stake for the parties, corroboration can be a key factor (i.e. confirmatory evidence). Simply, what can become very important iscredible, probative evidence on the relevant issue(

s) sufficiently independent of the evidence of the “interested” parties or their respectivefamilies: The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his [her] story to anexamination of its consistency with the probabilities that surround the currently existing conditions. (Faryna v.

Chorny (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.) at para. 357) [185] I find the party’s ongoing animosity has impacted their recollection or perception of past events and has led the grandparents,supported by the father, to overstate their role in caring for H., and the mother to minimize their role.

However, overall I find themother’s evidence is more credible than the grandparents’ with respect to the issue of H.’s primary caregiver. [186] The grandparents’ evidence that H. was placed in their care by the police is not supported by any affidavit or oral evidence fromthe police or from Social Development. [187] The evidence of the grandfather’s sister, M.W., was not helpful on the issue of primary care of H. She was only present in theirhome a couple of times. [188] I do not put weight on the father’s evidence about what was occurring up until November 2016.

I do not find it reliable as hewas not present for large periods of time due to being away and/or incarcerated. [189] Yvonne Spence was involved with the mother during the time period before 2016 when the grandparents say they had primarycare of H. I found credible her evidence that she was at the mother’s home regularly and it appeared to her H. was living with the mother. [190] The documentation relied on by the parties indicates the grandmother held herself out as a parent or legal guardian to H.

Shemay well have had the father’s permission to act in his place. [191] However, it is apparent the mother was still considered H.’s parent. Her permission was required to refer H. to Dr. Gander in thefall of 2013. She participated in some of the Stepping Stones meetings. She participated with FACE. [192] As well, H. successfully appealed the applicant’s retroactive application for the Child Tax Benefit. [193] Moreover, the grandparents acknowledge the mother had parental authority over H.

They indicate she would “ban” them fromhaving H. in their care for periods of time and they said they would return H. to her care when she requested them to do so. [194] It is apparent the mother relied heavily on the grandmother in particular to assist her with parenting.

However, in my view H.has remained primarily in the care of the mother since she and the father ceased coparenting. [195] After the ban in November 2016 the mother allowed the grandparents to have substantial time with H. in 2018 and part of 2019,when she stopped the grandfather’s in-person contact and restricted the grandmother’s in-person contact with H.

She has since ceased in-person contact by the grandmother with H. as well. [196] The father has had inconsistent parenting time with H. and has not been her primary caregiver. [197] Considering the other factors at section 50(2) of the FLA I make the following findings: (

a) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including First Nations upbringing andheritage. [198] The mother indicates in her affidavit sworn September 20, 2019, that H. was attending a youth group at a local church once a

week in the evening at that time. That is the extent of any evidence about religious upbringing or spirituality in H.’s life. I do not find this is a relevant factor. (

b) H.’s needs, including the need for stability, given her age and stage of development [ 199 ] H. was born premature and had several periods of hospitalization as an infant. [ 200 ] She was diagnosed as being on the autism spectrum in approximately 2013. Following this she received services through Stepping Stones until she started school in November 2016. She also participated in FACE services when she was younger. [ 201 ] While the Court has no medical evidence on the issue, it appears H. has issues with bedwetting both at her mother’s and at the grandparents’.

Yvonne Spence testified that during her second period of involvement with the mother, when H. was three to four years old, H. was having some problems with bedwetting. Ms. Spence testified this was not an issue after she finished working with the family for those six to seven months. [ 202 ] The mother alleges that the bedwetting started up again when she reinstated contact with the grandparents after the big blowout in November 2016. [ 203 ] H. told Ms. Brittain in August 2021 that most nights she wets the bed and she is not sure why this happens.

She reported that it happened at both her mom’s home and her grandparents’ home. [ 204 ] H. is now 11 years old. Last year, when she was starting grade five, she told the Voice of the Child assessor, Ms. Brittain, that she does not like school too much and does “okay” on her home reports. She said she cannot read or write very well and finds school can be hard. Her least favourite class is math, which she finds hard.

Her favourite class is gym. [ 205 ] The mother testified H.’s attendance at school has been great since September 2019 and it is a priority for her to get H. to school. [ 206 ] H. clearly loves horses and horseback riding. The grandparents facilitated riding lessons for H. but she does not have access to lessons at this point. H. told Ms. Brittain that sometimes she and her mother visit with horses at the stables. [ 207 ] It is apparent H. has been emotionally impacted by the absence of her grandparents in her life. [ 208 ] The mother agreed H. misses her grandparents.

When asked what steps she has taken to assist H. with emotional distress over this, she said at first she was working with Ms. Spence. She then reached out to a social worker, Katie Munn, at the Department of Social Development. She also arranged for a family support worker with Mental Health, Tonya Quinn, to do mental health work with H., which has finished. [ 209 ] The mother testified H. still sees a grief counsellor. However, her evidence suggests that it was more to repair her relationship with H.

I find the mother was minimizing H.’s grief over the absence of her grandparents. [ 210 ] The mother testified H. was upset on the phone a couple of weeks ago with her father and the grandmother talking about how the father’s girlfriend had just passed away from a drug overdose. [ 211 ] The mother testified that H. blames herself a lot with respect to her father and gets upset and thinks she is not good enough. The mother said she tells H. she is good enough and things will get better. (

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 [ 212 ] It is apparent H. loves her grandparents and her mother and her father. Her bonds with the grandparents remain strong even though the mother has restricted her relationship with them. [ 213 ] H.’s relationship with her father has been disrupted principally by the father’s issues which have led to his incarceration on and off since H. was born. [ 214 ] H. has many family relationships on her mother’s side.

As reflected in the Voice of the Child report, H. sometimes finds the number of siblings in the mother’s home difficult, and she liked having focused attention from her grandparents when she spent time with them. [ 215 ] However, I accept H. has a bond with her younger sister R.C., who was born three years ago, as well as with her older sister A., with whom she lives part of the time. I also accept she has bonds with E.C. and with his children. (

d) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent [ 216 ] The grandfather testified that he and the grandmother would never “ban” the mother if they had primary care of H., as she has done to them.

However, I am not convinced they would support H.’s relationship with the mother if they were granted primary care and/or decision-making authority for H., in light of the underlying animosity they hold towards her, which is apparent from their evidence. [ 217 ] The mother testified she feels, from a parental standpoint, it is important for H. to have relationships with her father and her grandparents.

However, her actions of banning the grandparents, and her statements that she does not trust or have confidence in them, and that she would like to cut off all ties with the grandparents contradict this. [ 218 ] The grandparents have provided H. with travel experiences, riding lessons and other things. The grandfather testified he and the

grandmother took H. on trips to Europe, including Disneyland and Paris and trips across Canada. When asked on cross-examination if the mother opposed these trips, he said it depended on her mood at the time.

However, he did not recall a time when she did not approve a trip. [ 219 ] The mother testified that she was happy for H. and A.L. to go with the grandparents and have experiences (trips to Disney and to British Columbia, horseback riding) that she could not provide them as a single mother on social assistance. [ 220 ] However, she deposes in her affidavit sworn September 20, 2019 at paragraph 19 that she has been concerned about the grandparents’ manipulation of H. through material gifts and spoiling.

She says the grandparents have not consulted her before giving H. big gifts like pets (they gave H. a dog at their residence) and horseback riding lessons. She says this puts her in a bad position because she cannot maintain these things and they become something H. can only enjoy at her grandparents’. [ 221 ] She testified the grandparents undermine all her parental decisions and get the kids to lie. As an example of this she deposes at paragraph 42 of her affidavit sworn September 20, 2019 that, if the grandfather and the grandmother had H. after school to go riding, she was supposed to be returned by 7:30 p.m.

She says she was told by the grandparents riding ended by 7:00 or 7:30 p.m., but she later found out from H. and her other children that riding always ended much earlier, and the grandparents took H. to their home after riding even though they were supposed to bring her directly home. The mother described this as manipulation and lies to obtain access and care of her daughter. [ 222 ] I find the mother has overstated things when she says the grandparents undermine all her parental decisions.

However, the grandparents claimed the Child Tax Benefit for H., knowing it was the mother’s position she was H.’s primary caregiver (and which CRA agreed with). They brought this court application based on allegations they were H.’s primary caregiver and that the mother neglected H. They have made significant decisions without consulting with the mother; for example, buying a pet for H. To some degree, her frustration with the grandparents is understandable.

However, the mother’s actions in banning the grandparents has negatively impacted H.’s emotional wellbeing. [ 223 ] To some extent the mother has supported the father having parenting time with H. in the past. It is apparent the conflict between the grandparents and the mother has impacted on the mother’s willingness to allow the father to have parenting time with H. However, the mother also has valid concerns about his sobriety and stability as a caregiver for H. (

f) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained [ 224 ] The grandfather and the grandmother say H. told them she wanted to live with them and was not happy at her mother’s. [ 225 ] The grandmother testified she feels H. wants to be with them half the time because she feels she was adopted and feels respected when she is with them. She said her mother gives her no respect. [ 226 ] The mother agreed H. misses her grandparents, although she takes the position that it is not in H.’s best interests to have contact with them.

In her September 20, 2019 affidavit, at paragraph 44, the mother acknowledged H. has stated she would like to live at her grandparents’ home. She indicates she asked H. why she said this and H. said it was because it was fun there. [ 227 ] The Voice of the Child report completed by Christine Brittain was filed with the court August 20, 2021. She was not called as a witness. However, her report was ordered pursuant to

section 11.4 of the Judicature Act , therefore the contents of the report are evidence in the proceeding. [ 228 ] Ms. Brittain met with H. for one to one and a half hours on three separate occasions without any of the parties present. [ 229 ] Ms. Brittain summarizes H.’s wishes at page seven of her report: [H.] wishes that she could ride horses again. This clearly is a love of hers and she focuses on this a lot and often. [H.] really wants to see her granddad again.

I asked her when she would like to see him and she stated “today or tomorrow.” [H.] wants to spent time with her grandparents at their home. [H.] would like to have equal time with her grandparents and mom. She suggested that she would spend one week at her mom’s home – and one week at her grandparents home. She would really like to have equal time with both. [H.] wishes to speak to her dad and see her dad.

However, after just learning that he is in jail – she understands this may not happen. [H.] wants everyone to know that she is telling the truth. [H.] worries about the adults reactions -and she doesn’t want anyone to be mad at her. [ 230 ] H. said her best memories are with her grandparents. These memories include riding horses mainly, but also playing with her friends, going to campfires and playing games together.

She is sad she is not allowed to see her grandparents and this causes a large void in her life. [ 231 ] On a scale of one to 10, 10 being happiest and one being saddest, H. chose a two because she is not allowed to see her grandparents. She said she would go from a two to an eight on the happiness scale if she was able to see her grandparents again. [ 232 ] H. also told Ms. Brittain when she had a problem she would talk to her grandparents and sometimes her mom. [ 233 ] When Ms. Brittain asked H. where her home was she said she did not know. H. reported she trusts her grandparents, her mother, her father and E.C.

She said she feels loved by her whole family and she loves all her family. She feels cared by for all of her family and safe and secure, but she feels closest to her grandparents.

[ 234 ] The mother opposed the Voice the Child report being ordered, claiming at paragraph 24 of her affidavit sworn June 30, 2021, that the grandparents have attempted to coach H. She deposed that Tonya Quinn, a family support worker who has provided mental health assistance to H., social worker Katie Munn and family support worker Yvonne Spence, can testify to this coaching. However, the mother did not call Tonya Quinn or Katie Munn as witnesses or present any evidence from these individuals.

Yvonne Spence testified, but she did not speak about any attempts by the grandparents to coach H. [ 235 ] When asked on cross-examination by the grandfather about H.’s statements to Ms.

Brittain that her grandfather did not touch her in her private parts, the mother said she had no trust in that and the grandparents were basically feeding her information. [ 236 ] The court order for the Voice the Child report, dated July 9, 2021, stated at paragraph 3 that: The purpose of the Voice the Child report is to ascertain [H.’s] wishes and preferences and views in terms of her attachment to her parents and the applicant grandparents, the effect on her of the reduction and/or denial of contact with her grandparents and her father, and her residential preferences, with special caution for any sign of coaching or manipulation. [ 237 ] Ms.

Brittain states at page six of her report that she tried in different ways on various occasions to get an understanding whether the adults were influencing H.’s wishes. H. reported that her mother and grandparents did not tell her what to say and only told her to be honest. I do not conclude that H. was coached or manipulated in her statements to Ms. Brittain by any party. (

g) any plans for the child’s care [ 238 ] The grandparents’ plan is for H. to be in their care at least half the time. They indicate they are retired and available to care for her. The father has resided on their property from time to time in between periods of incarceration.

It is possible they would allow him to do so again when he is released from the penitentiary. [ 239 ] The grandparents indicate in their Affidavit in Support of a Claim for Custody or Access filed in July 2017 their plan is for H. to have regular contact with her father and mother and her extended families. [ 240 ] The mother’s plan is for H. to continue to reside with her and E.C. and the other children. [ 241 ] The mother’s plan does not envision the grandparents being a significant part of H.’s life.

She testified she would prefer to cut all ties with them. [ 242 ] The mother testified if the Court orders contact between H. and her grandparents, if things were good, and provided the contact was supervised by a professional agency, she could not see a problem with the grandparents having some time with H. at their residence once a week or every second week for a couple of hours. She said if there was a special outing it could be longer. [ 243 ] The mother appears to support the father having contact with H.

However, she is of the view his parenting time would also need to be supervised professionally. [ 244 ] The father is hopeful that he will be released from penitentiary on parole in December 2022, but he said because of COVID lockdowns he could not partake in a program to be eligible for parole. His statutory release date is December 29, 2023. [ 245 ] The father’s plan while he is in the penitentiary is to have regular contact with H. by telephone. He would like to have an order that allows H. to have in-person contact with him and come see him in the penitentiary.

He said there is a program through the Red Cross that arranges long-distance drives for children to see their parents in jail. [ 246 ] The father testified he is not 100 percent sure where he will go when he is released. He said he will go back to Saint John area. He said his parents (the grandparents) are his support, but he has family ties to Saint John and the Charlotte County area. [ 247 ] The father testified that if he obtains his own place he does not feel he necessarily has to have supervised parenting time.

He said if he does anything wrong, the mother will “scold” him and the system will do a fine job (of addressing it) on its own. [ 248 ] When asked on his direct examination whether he would show up at the mother’s as he did in the spring of 2021, if he is on parole, the father said he might. He said he did not think the mother would be “a condition” in his upcoming release. (

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 [ 249 ] The high level of hostility between the grandparents and the mother is reflected in the extensive allegations of unfitness they make against each other. [ 250 ] Since filing their application in 2017 the grandparents have made many allegations that the mother neglected H., which the mother denies. [ 251 ] For example, the grandfather testified the grandparents took H. to see a nurse and found she was not immunized.

In support of this allegation, the grandfather referred to the letter from public health nurse Joan Johnston marked as Trial Exhibit A-1. However, Ms. Johnston makes no reference to H. having been overdue for her immunizations. [ 252 ] The grandfather testified he and the grandmother started to notice H. acting differently than young kids her age and thought she might have autism. He indicated that the mother did not seem to notice this and was angry at them for suggesting it.

He says she accused the grandparents of labelling H. a derogatory name. [ 253 ] The grandparents rely on the correspondence from Joan Johnston dated May 5, 2017 addressed “To whom it may concern” (Trial Exhibit A-1) This letter indicates that after the grandmother expressed her concerns about H.’s development, physiological issues and behavioural concerns, Ms. Johnson determined H. should be referred to a pediatrician, and she obtained the mother’s permission for

it by telephone. There is no suggestion the mother was resistant to the referral when she was contacted. [ 254 ] The grandparents also rely on correspondence from Dr. Sarah Gander, the pediatrician to whom H. was referred. In Dr. Gander’s letter to nurse Johnston dated September 24, 2013, (Exhibit A-2 to the applicants’ July 20, 2017 affidavit), she indicates H. had been neglected the first year to two years of her life and that there had been great gains since she had been with the grandparents.

However, it is apparent this history of neglect and great gains was provided by the grandparents, who brought H. to the appointment. [ 255 ] At paragraph nine of her affidavit sworn October 2, 2017, the mother says the Department of Social Development was involved with her family but never suggested the children should be removed from her home. She deposed there was no history of neglect and she believed nothing of that nature was recorded by the Department of Social Development. [ 256 ] The mother says at paragraph 10 of her October 2, 2017 affidavit that to the best of her knowledge H. has autism.

She says if H. has some delays they were not caused by neglect. She indicates that H. is very shy and introverted and has difficulty focusing on one task at a time. She said sometimes she goes into her own little world, which she believes is a consequence of what may be autism. These are the mother’s views. However, I cannot conclude, based on the evidence before the Court, H. has delays that were caused by neglect. [ 257 ] The mother acknowledged in her evidence she aske

[…]