Brooks v. Joudrey, 2011 NSFC 5

IN THE FAMILY COURT OF NOVA SCOTIA Citation: Brooks v. Joudrey , 2011 NSFC 5 Date: January 6 2011 Docket: FLB MCA 072172 Registry: Bridgewater Between: James Brooks and Agnes M. Brooks Applicants v. Nicola Joudrey Respondent Judge: The Honourable Judge Timothy Gabriel Heard: January 6, 2011, in Bridgewater, Nova Scotia Counsel: Franceen Romney, for the Applicants Nicholas Leblanc, for the Respondent By the Court : [ 1 ] At the conclusion of the hearing on January 6, 2011, I indicated that I was granting the application of James Brooks and Agnes M.

Brooks pursuant to s. 18(2) of the Maintenance and Custody Act for leave to seek an Order respecting access with their grandson, Seth William Joudrey born July [..], 2009, and that reasons would be forthcoming. [ 2 ] The following are my reasons. Background [ 3 ] The applicants are the paternal grandparents of Seth William Joudrey, born July […], 2009 (hereinafter “Seth”). The respondent, Nicola Joudrey, is Seth’s mother.

[ 4 ] Ryan Brooks, is Seth’s father. He was adopted by the applicants when he was eighteen months old. Ryan had been born with fetal alcohol syndrome, which caused him emotional and other issues throughout his lifetime. [ 5 ] Ryan and the respondent, Nicola Joudrey, commenced a relationship in June of 2008. Prior to her relationship with Ryan, the respondent had been living in Halifax in another relationship that had terminated one month previous. She had returned to Wileville to live with her mother, Deborah Joudrey (when this earlier relationship terminated).

However, from the beginning of her relationship with Ryan in June 2008, she began spending the vast majority of her days and nights at the residence of the applicants in Springfield, Nova Scotia. She essentially lived with the applicants. Aside from one or two days (and nights) per week, during which she occasionally returned to her mother’s home in Wileville, she remained with the applicants and Ryan. [ 6 ] This remained the case until some time in September of that same year, when Ryan and the respondent obtained an apartment of their own in Middleton, Nova Scotia.

This they secured with the assistance of the Applicants both in locating and furnishing it. [ 7 ] The evidence of the Applicants is that they assisted both Ryan and the respondent with frequent purchases of clothing, food, and hygienic supplies when needed. Initially, when the apartment in Middleton was obtained, both Ryan and the respondent had no income other than what they received from Social Assistance. This continued the pattern which had existed while they lived with the Applicants. [ 8 ] Shortly, after they moved into their apartment, things began to improve.

The respondent obtained employment at a Nova Scotia Community College Day Care, (an on call position, which ended up amounting to very few hours) and also secured a position at Tim Horton’s as a counter person. Ryan obtained employment with a flooring company, which although not full time did provide him with work “laying floors” on a fairly consistent basis. [ 9 ] Nicola Joudrey became aware that she was pregnant in November of 2008. She concedes that when the applicants found out about this development, they were excited.

She went on to say, however, in cross-examination: “I don’t know whether they were happy for us or if it was because they could get their hands on a baby”. [ 10 ] I am satisfied that the Applicants were genuinely happy for the respondent and Ryan and immediately volunteered to assist them in any way they could. [ 11 ] Shortly after the pregnancy was discovered, both Ryan and the respondent quit their jobs, he as a roofer, she her position at Tim Horton’s.

While, technically she did not leave her position with Nova Scotia Community College, since the respondent testified that she has not after that date received any hours at that facility, in essence it amounted to the same thing. [ 12 ] When the Applicants found out about this development, they were upset. More or less simultaneous with the Applicants discovery of what had taken place, they received a request from the respondent to transport Ryan’s GST cheque to them in Middleton.

Apparently, this GST cheque had arrived for Ryan at the Applicant’s home. [ 13 ] The female applicant testified that she transported the cheque to her son in Middleton, and took the opportunity to give both he and the respondent a piece of her mind. She was upset and emotional, and forcefully advised the respondent and Ryan that they were being irresponsible. [ 14 ] The female applicant went on to say that no grandson of hers was going to be raised on Social Assistance, and that the Applicants were not going to continue to give them money to bail them out, (or words to that effect).

[ 15 ] Unbeknownst to the female applicant, the respondent and Ryan had visitors at that time. These individuals consisted of three or four others, who were (for some reason) all sitting in the apartment living room when this exchange took place (approximately noon time on January 8, 2009). [ 16 ] At this point it is also relevant to note that the respondent acknowledged that both she and Ryan used non-prescription drugs. She characterized Ryan’s use as problematic, and portrayed herself as a casual user, someone who quit as soon as she found out she was pregnant.

She claims she restricted her non-prescription drug use to marijuana. [ 17 ] The fact of this drug use no doubt exacerbated the Applicants’ concerns, in that the limited Social Assistance money which their son and the respondent now stood to receive in lieu of employment earnings, quite likely would be diluted further through the acquisition of non-prescription drugs. [ 18 ] Of the additional people in the respondent’s apartment when the incident with the applicant Agnes Brooks occurred, only the respondent’s friend, Holly Anne Gladys Longpré testified. In fact, until Ms.

Longpré testified there had been no reference made by either she or the respondent (in their respective affidavits) that there were other individuals in the apartment at the time the exchange took place between the respondent, Ryan, and the female applicant. Only upon cross-examination of Ms. Longpré did the existence of these other individuals at the apartment become known. [ 19 ] Ms. Longpré contradicted the respondent’s earlier evidence, which had been to the effect that she (the respondent) had initially been in bed when the female applicant arrived at her door. Neither Ms.

Longpré nor the respondent offered an explanation as to what all of these individuals were doing at her apartment while Ryan and the respondent awaited the delivery of his GST cheque. [ 20 ] In any event, since Ms. Longpré and the others were in the living room, and Ms. Brooks’ discussion with the respondent and her son occurred in the doorway area, the female applicant was unaware of the others that were present in the apartment at that time. [ 21 ] As I indicated at the conclusion of the evidence, I feel that the female applicant handled this situation somewhat badly.

In fairness, however, I did get the impression from her when she testified that, if she had to do it all over again, she would have taken a different approach. I accept the fact that she was genuinely concerned for Ryan and the respondent, as well as her unborn grandchild, and that this concern caused her to overreact. [ 22 ] After this encounter at the respondent’s apartment in January 2009, the Applicants did not communicate verbally with her for approximately five months. [ 23 ] There continued, however, to be some written communication between the parties, of the negative sort.

Without dwelling upon the specifics of that communication, suffice it to say that the court was presented with some selected e-mails emanating from applicants to the respondent, and/or Ryan, and from the respondent to the Applicants. [ 24 ] Those that originated from the applicants basically consisted of denials that they had ever encouraged or pressured the respondent to cease her employment, those from the respondent maintained the contrary, and a refusal to apologize (the Respondent had apparently told people in the community that it had been the female Applicant who counselled her to leave her employment). [ 25 ] By March 2009 the respondent and Ryan had broken up.

Ryan returned to live with the applicants, and never resumed his relationship with the respondent, aside from a couple of short attempts to reconcile. [ 26 ] In or around May of 2009 the female applicant was invited by her son Ryan to attend a meeting between himself and his counsellor. This counsellor had been assisting both Ryan and the respondent with a number of things, some of which arose out of drug use and/or relationship issues.

As a result of what she learned at that meeting with the counsellor, Agnes Brooks became concerned that the respondent was at a risk of self harm and was therefore a danger to herself and the unborn child. [ 27 ] As a result of this she initiated some MSN correspondence with the respondent, the ultimate object of which was to have the respondent’s mother, Deborah Joudrey, call her. After some initial resistance from the respondent, this call was arranged.

[ 28 ] When the female applicant and Deborah Joudrey spoke, the latter was resistant and/or dismissive of the thought that her daugher was in any danger and/or that there was “anything wrong” with her. [ 29 ] As for the respondent, herself, although she conceded on cross-examination that it was reasonable for the female applicant to attempt to do something to remedy the situation, if she genuinely felt that the respondent was in danger, the fact that Agnes Brooks had taken this step was nonetheless treated by the Respondent as an additional pretext for deepening the discord/estrangement between the parties. [ 30 ] The respondent had initially been pregnant with twins.

Although one of the twins had earlier miscarried, she gave birth to Seth on July 26, 2009. [ 31 ] The Respondent and Seth thereafter resided with her mother Deborah Joudrey. Ryan continued to reside with the Applicants. [ 32 ] This arrangement was not conducive to Ryan’s exercise of access or contact with his son.

There were vague allegations by the respondent that he had assaulted her prior to their break-up, however, it appears that Ryan’s ability to gain access with his son was mainly compromised by the estrangement between he and the Respondent after their break-up. [ 33 ] After Seth’s birth, Ryan had only one visit with his son. This occurred on August 2, 2009 and lasted from 9:30 am to 11:00 am that day.

The female applicant, who had transported Ryan to Deborah Joudrey’s house, was required by the Respondent and her mother to sit in the kitchen while Ryan, under the supervision of Deborah Joudrey, spent the time with Seth.

Seth was asleep during the visit. [ 34 ] Various additional access efforts made by or on behalf of Ryan were frustrated, either because of the inability of he and the respondent to agree as to the timing of the visits, the respondent’s requirement that the visits be supervised, her stipulation that the female applicant was not to attend, or a combination of same. [ 35 ] Ryan retained counsel to try to bring about a resolution of the custody/access/parenting issues.

Tragically, on March 19, 2010, before any resolution could be achieved, Ryan committed suicide. [ 36 ] The Applicants thereafter left several telephone messages for the respondent, at her mother’s home, advising her of what had taken place and offering, if the respondent wished, to arrange a private viewing of Ryan’s remains (if public visitation and/or attendance at the burial would prove too stressful for the Respondent). [ 37 ] Both the respondent and her mother Deborah Joudrey testified that, while they did receive these messages, they deliberately ignored them and did not respond, either to offer condolences, or for any other purpose. [ 38 ] As might be expected from the foregoing, efforts on the part of the Applicants in the aftermath of their son’s death, to have contact with their grandson have proved unavailing.

In the end, they bring this application as they feel that they have exhausted all other means of bringing about contact between themselves and their grandson. [ 39 ] They point out, among other things, that unless they have contact with Seth, he will have absolutely no knowledge of, or contact with, his father’s family at all. They further point out that Ryan was Aboriginal, had status, and that they would be able to foster this cultural connection with Seth.

Indeed, although the applicants are not Aboriginal themselves, they have had considerable exposure to Mi’kmaq culture and heritage through their parenting of Ryan and his brother Kristopher (who is also aboriginal and adopted), their extensive work with Nova Scotia Department of Community Services and Mi’kmaq Family and Children’s Services, and their work with troubled youth and youth with disabilities. [ 40 ] The respondent opposes the application, essentially on the basis of her fear that

“...they would try to undermine my parenting. I am also afraid that they (the applicants) would eventually tell Seth that I was the cause of Ryan’s death and that they will disrespect me in front of Seth.” [ 41 ] The Respondent goes on to add that she does not believe Seth would be safe in their care.

She says James Brooks “has problems with alcohol and I believe Agnes abuses her prescription medication.” [ 42 ] The Respondent amplifies this theme in one of her affidavits when she states, inter alia ; “I believe they (the applicants) will not respect me or my decisions as a parent and that they will continue to make disparaging comments to Seth about me and my family.” [ 43 ] As to the Respondent’s contentions relating to alcohol abuse by the male applicant, and abuse of prescription medications on the part of the female applicant, Agnes Brooks took the stand and vehemently denied both allegations.

She indicated that her husband drinks very sparingly (this was also the evidence of Jean Agecoutay, who testified that she is a good friend of the Applicants, has known them for a long time, and was rarely seen the male applicant consume alcohol and even then, only sparingly at social functions.) [ 44 ] As to herself, the female applicant, testified that she has 5 missing vertebrae resulting from a work place accident some years ago, and has been prescribed medication for the resultant pain.

The only comment that she ever directed to the respondent in relation to that pain medication was an off hand comment on one occasion, which was to the effect that the Workers Compensation Board was contesting its obligation to bear the expense of this medication and that she was going to have to push them on it. The female Applicant indicated that, far from abusing this medication, she rarely ever takes the prescribed dose, since she is a person who dislikes taking pills anyway. ANALYSIS [ 45 ] On the whole, I was more favourably impressed with the evidence of the Applicants, than that of the respondent.

In some instances the evidence given by the respondent was contradicted by the other witnesses that she called on her behalf, most notably her mother, Deborah Joudrey, and Holly Lagacé. Both of these individuals felt that both the Respondent and Ryan had problems or issues with consumption of non-prescription drugs, while the respondent indicated in her testimony that only Ryan had such a problem.

As previously noted, Holly Lagacé testified that, on the occasion of the January 2009 “encounter” between Agnes Brooks and the respondent at the respondent’s apartment, the respondent was, in fact, not in bed when Agnes Brooks arrived, and moreover, the respondent and Ryan had several guests in their apartment at that time (approximately twelve o’clock noon). The respondent was also somewhat contradictory in terms of her reasons for leaving her employment, and generally tended to exaggerate incidents and her own fears so as to portray the Applicants in the most negative light possible.

Consequently, whenever the Respondent’s evidence differed from the Applicants, I preferred the Applicants’ evidence. [ 46 ] Dealing with the substance of the application, s.18(2) of the Maintenance and Custody Act reads as follows:

(2) The court may, on the application of a parent or guardian or other person with leave of the court , make an order (

a) that a child shall be in or under the care and custody of the parent or guardian or authorized person; or (

b) respecting access and visiting privileges of a parent or guardian or authorized person (Emphasis added) [ 47 ] All individuals falling under the auspices of “other persons” noted in 18(2), must apply for and obtain leave, as a precondition to an application for either custody or access under subsections (

a) and (b). There is no guidance set forth in the legislation itself as to the circumstances under which such leave shall be granted. Rather, the test has evolved over time.

In developing the test, Courts have necessarily wrestled with the idea of when it is appropriate for the state to interfere with the right of aparent (or parents) to decide with whom their child shall have contact. It is trite to observe that cases such as this always come before theCourt because the parent(

s) or guardian(

s) of the child are opposed to the Applicant(

s) having contact as of right. [48] One of the earliest “grandparent leave” cases was Daley v. Daley (1992), (NS FC), 124 N.S.R. (2d) 273(F.C.). In that case the mother and father were separated and the father had access which took place at his parents’ home. These paternalgrandparents wanted more time and did not wish to encroach upon their son’s access. Gass, JFC (as she was then) stated: “I’m of the view that unless there are grave and extenuating circumstances children can benefit from the involvement of the extendedfamily as long as that involvement is not destructive or devisive in nature.

However I’m not convinced that the court ordered access isnecessarily in the best interest of the child, even where access is a good thing unless there are extenuating circumstances. If this were thecase, the potential is there to have a child’s entire life scheduled by court order to be with those to whom the child’s interactiveness isconsidered appropriate and important. “ [49] In Daley (supra) the Court observed that the paternal grandparents had another venue through which contact with the childcould be achieved. They were on good terms with their son, and could see the child when he exercised access.

On that basis, theapplication for leave was denied. [50] As Sparks JFC noted in Stewart v. MacDonnell (1992) (NS FC), 113 N.S.R. (2d) 41 et al.(although theApplicant in that case was not a grandparent): While a person may indeed be interested in the overall welfare of the child in a purely general sense, this does not mean that the courtshould permit them to enter or re-enter the life of a child without the approbation of the custodial parent. If the interest is a fleeting oneor one which is more directed toward the mother, as suggested here, the court should not intervene.

However, I do not suggest that therewill not be cases when the best interest of the child would force the court to intervene in regard to family and non family contacts, whichare ordinarily in the sole and private perview of the custodial parent. In effect, if a standing is granted, the court is agreeing that a legalstranger to the child should be given the right to challenge the authority of a custodial parent. It seems to me that there must be a strongand cogent reason asserted before the court will question the wisdom of a custodial parent respecting contacts with family and non-family persons.

It is my view that the evidentiary burden is heightened when a non-family individual claims standing. [51] Without exhaustively listing all of the authorities, it suffices to note that two different types of approach began to emergeearly on in response to leave applications. Broadly speaking, the first type or group of cases was characterized by a presumptivedeference to parental autonomy unless there were grave and extenuating reasons for not doing so.

The second evidenced a greaterinclination towards contact with non-parent third parties, particularly grandparents. [52] Following Justice Goodfellow’s decision in Gray v. Gray, (1995), (NS SC), 147 N.S.R. (2d) 369confirming (NS FC), 137 N.S.R. (2d) 161, the correct approach appears to be one which requires a weighing of allextrinsic factors in an individual case prior to a determination of the issue. Factors considered important in one situation may not be assignificant (or even relevant) in another. [53] Indeed, as noted in paragraphs 19-21 of Gray (supra): 19 It seems to me that when you examine

section 18, it is clear that 18(5) mandates that in any proceeding relating to care,custody, access and visiting privileges in relation to a child, the Court shall ‘apply the principle that the welfare of the child is ofparamount consideration’” 20 The purpose of the Legislation is to promote the welfare of the child, and the Legislation specifically mandates that thisis the paramount consideration.

21 It follows that on an application for leave the person who is applying must meet a threshold test showing that thegranting of leave is likely to be of benefit to the welfare of the child.

This is the threshold or test that must be met by an applicant, and Iagree with Judge Legere’s review of many of the factors that constitute important considerations depending on the particular facts of thecase where she concluded at Page 38: ‘Any one of these factors in and of itself is not the test’ The existence or absence of sufficient interest, existing relationship, etc. etc. are all important considerations to be taken into account indetermining whether or not the threshold has been met.

In some cases the particular factor will be weighed more heavily, i.e. if theapplicant were a stranger to the child, normally the result would follow with the applicant not having an existing relationship orsufficient interest and would be hard pressed to convince a court that there is likely to be a benefit to the child. (Emphasis added) [54] The Court of Appeal has commented favourably on the approach in Gray (supra). In MacLeod v.

Theriault, (2008) 2008 NSCA 16 , 262 N.S.R. (2d) 184, 50 R.F.L. (6th ) 33, at paragraphs 17 to 21 Bateman JA stated as follows: [17]There is no single test to be applied on such leave applications. The court must balance a number of factors. The applicability andsignificance of a particular factor will depend upon the circumstances of the case. The relevant factors must be gleaned from the contextof a particular situation. [55] Many individual factors have been considered over the course of time. An exhaustive list can never be developed, since eachcase is determined on its own facts.

Some relevant factors have included (see, for example, Gray v Gray, (supra) and MacLeod v.Theriault (supra): 1) Is there a sufficient interest and/or connection between the child and the Leave Applicant and is there an obvious benefit to the child? 2) Is the child emotionally attached or bonded to the leave Applicant, or is the connection one of which the child is aware? 3) Does the Leave Applicant have a familial relationship she/he want to foster? 4) Is the application frivolous and vexatious? 5) Are there other appropriate means to resolve the issue? (For example, mediation (especially under C.F.S.C.), or access in conjunctionwith the other parent (if this is a grandparent application). 6) Are there risk factors apparent on the evidence that would preclude the Applicant from having contact with the child if the leaveapplication were granted? 7) Will the granting of a leave application place the child in more risk of litigation and uncertainty? 8) Are there extenuating circumstances? (Such as the death of a parent, or a parent not exercising parenting time due to being in jail, orout of the province for extended periods of time). 9) Is, or would, the involvement of the third party be destructive or divisive in nature? 10) Would leave put undue stress on the custodial parent, if the Leave Applicant were successful in the application foraccess? 11) Would granting leave, and the possibility thereafter, granting access, threaten the stability of the Family unit? 12) Would a Court Order preserve a positive relationship between the child and the leave-applicant? 13) To what extent does the custodial parent’s decision effect the child and is it a reasonable decision in the particularcircumstances of each case? 14) In a case under the C.F.S.A., would the granting of a leave application provide the child with potentially feasible planto reintegrate into the child’s own family that would be in the best interests of the child? 15) Considering all of the above, is the granting of leave, in the best interests of the child? [56] Leave applications under section 18(2) are not routinely granted.

In the present case, there are a number of factors whichrequire consideration.

[57] First, the Applicants are Seth’s paternal grandparents. (Obviously, the fact that Ryan was their adopted son does not weakentheir status in this respect, see, for example, M.D.S. v. S.A.M., , 182 NSR (2d) 337 (N.S.F.C.)). [58] I was impressed by the Applicants’ evidence, and conclude that they are willing to work with the respondent in order tosurmount earlier difficulties and “ put them in the past”. They strike me as the sort of people who would try their hardest to do so. [59] Another factor involves the negativity of the Respondent.

As noted earlier, her attitude is extreme, to the point where shecould not even bring herself to offer condolences to the Applicants upon the death of their son, the father of her child. She characterizedher opposition to the Applicants in this matter as being predicated (in part) upon the fear that they would attempt to control herinteraction with her son, and undermine her parenting. While, as in any case of this sort, there is the potential for that sort of interference,upon listening to the Applicants it did not appear that they represented a danger of that sort.

The parties got along very well under thesame roof for four months during which time, as noted, the Respondent all but lived in the Applicants’ home and relied upon them forfinancial support during that interval. [60] Most of the basis for the parties’ estrangement appears to rise from the Respondent’s (and Ryan’

s) precipitate action inquitting her(their) job(

s) in late 2008, and the female applicant’s decision to share with the respondent (and her son Ryan) her views as tothe wisdom of that move. This was the meeting in January 2009, noted earlier. [61] I have previously indicated that I agree with the Respondent, to a limited extent, that the Applicants’ views appear to havebeen conveyed to Ryan and the Respondent with unnecessary force by the female Applicant.

As I also noted, however, I am satisfied thatif a similar stressor were to arise in the future, the Applicants would handle it very differently. [62] In short, I am of the view that the Applicants are not interested in attempting to interfere with or undermine the Respondent.Rather, they are simply of the view that, since Ryan is now deceased, it is only through themselves that Seth will have any exposure tohis father’s family and heritage at all. [63] This is a legitimate and compelling concern.

Indeed, I was left with the distinct impression that without the involvement ofthe Applicants in Seth’s life in some fashion, he would never be presented with information of any sort with respect to his father. [64] This concern is particularly pressing when one considers that Ryan was Aboriginal, and had status. Seth would derive benefitthrough exposure to and participation in this culture, access to community supports, and the other tangible benefits that would flowthrough to him if this connection to his ancestral community were maintained.

The Applicants have the ability, and the desire, to nurtureand strengthen this connection (even though they are not of the First Nations Community themselves) and this places them in a positionto benefit Seth immeasurably. [65] As to the Respondent’s indication that she has fears for Seth’s safety if he should be alone in the Applicants care, due to themale Applicant’s “propensity” to excessively consume alcohol, and the alleged abuse by the female applicant of prescription medication,I find that these fears have been exaggerated. They do not appear to have any substance whatsoever.

In particular, I am satisfied on thebasis of the evidence given by Reverend Mitchell, Jean Agecoutay, and the Applicants themselves, that the male applicant does not havea drinking problem and in fact it appears that he is someone who at most will occasionally take a drink on social occasions.

Further, asindicated earlier, Agnes Brookes does not abuse prescription medication or any other substance. [66] As to the Respondent’s indication that she is concerned that the Applicants would tell Seth at some point that she wasresponsible for his father’s death, the mildest thing I can say about it is that it is extremely speculative. To put a finer point upon it, afterhaving listened to the evidence of the Applicants, I do not believe that they would ever do such a thing to their grandson.

Moreover, thefemale Applicant testified that they (in fact) do not believe that the Respondent is to blame for Ryan’s death, notwithstanding the notethat he left behind attributing his suicide to his inability to secure access with his son. While the Applicants very much grieve the loss oftheir son (their emotion in relation to this loss was palpable), they clearly testified that Ryan’s decision to end his life was his alone, andthat he must alone bear the responsibility for that decision. [67] The Applicants’ have proceeded properly with respect to the timing of their court application.

While Ryan was alive, theyundertook no legal action. Their son had retained counsel and was pursuing access himself. After Ryan’s death, the Applicantsattempted to obtain some contact with their grandson informally by requesting it of the Respondent, which requests were ignored.

[68] However, this factor leads to another consideration. Aside from the brief exposure of the female Applicant to the child on theoccasion of her accompanying Ryan on his only access to visit with Seth in August 2009, there has been no contact between theApplicants and the child at all. [69] This, coupled with the aforementioned negativity of the Respondent towards the Applicants, serves to emphasize thedifficulty of the task of constructing a visitation

schedule which will not exacerbate the mother’s hostility, thereby potentially increasingthe stress level all around. If this should occur, it would be inimical to the child’s needs, and his best interest. [70] Whether an appropriate access

schedule is available given this dynamic, and if so, how such a

schedule would be puttogether, having regard to all considerations, (not the least of which involve the child’s age and the Applicants’ relationship with theRespondent) is for the second stage of the hearing. [71] As Sparks, JFC, noted in Manuel et al v. Murphy 2005 NSFC 14 at paragraph 16: “It should be recalled in all matters involving access disputes, the pre-dominant consideration is the best interest of the child, with theCourt weighing various factors which may advance, or militate against, progression of the child’s inalienable right to love, nuturance,stability and safety.

While the legal test, generally speaking, is under the umbrella of the best interests rule, on a leave application underSection 18(2) (

b) of the Maintenance and Custody Act, the factors to be weighed by the Court will be specific and will differ fromthose key factors weighed at either a full custody or access hearing.

These factors, however, are assessed in the context of whether itwould be prudent to permit grandparents to pursue, with judicial sanction, access to a grandchild in the face of apparent opposition toaccess by the parents or guardians of the child, which is likely always accompanied by a measure of inter-familial conflict.” (emphasis added) [72] Judge Levy put the matter even more succinctly in M.D.S. (supra): “It is not for a court at this stage to determine the issue on its merits. The issue, rather, whether there should be a full hearing.” [73] Whether a suitable

schedule can indeed be constructed, having regard to the factors discussed earlier, and if so, whatsafeguards could be put in place to ensure that it continues to work to Seth’s benefit, is for another day. For the present, I have simplyconcluded that Seth’s best interest demands that the Applicants be permitted to proceed to the second stage of the hearing, at which timethe specifics of these latter issues may be squarely faced. [74] I have decided that the granting of leave in this matter is likely to be of benefit to the welfare of the child, for the reasonsoutlined above.

Accordingly, I allow the application, and grant leave to the Applicants pursuant to s. 18(2) of the Maintenance andCustody Act. [75] I would request that counsel for the Applicants prepare the order.