M.H. Applicant, v. C.R, 2023 NBKB 39

2023 NBKB 039 Court File Number: FDB-130-2022 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF BATHURST BETWEEN : MINISTER OF SOCIAL DEVELOPMENT Applicant, -and- C.R., M.H. and J.B. Respondents, Court File Number: FDB-2-2021 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF BATHURST BETWEEN: M.H. Applicant, -and- C.R Respondent, Court File Number: FDB-241-2022 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF BATHURST BETWEEN: R.R. and B.R. Applicants, -and- C.R., M.H. and J.B. Respondents, -and- Minister of Social Development, Third Party DECISION

BEFORE: Justice Michelle Boudreau-Dumas . AT: Bathurst, New Brunswick. DATES OF HEARINGS: February 6, 7, 8 and 9, 2023 DATE OF DECISION: March 7, 2023. APPEARANCES: Andrée Poitras, on behalf of the Minister of Social Development Donald Cormier, on behalf of C.R. Prisca Lévesque, on behalf of M.H. Marie-Hélène Haché, on behalf of R.R. and B.R. J.B., per se

Summary: Guardianship, decision-making responsibility, parenting time and contact [TRANSLATION] Boudreau-Dumas J. INTRODUCTION 1 . All three applications before this Court involve custody/decision-making responsibility for the same child. The Minister of Social Development is seeking guardianship of Z.R., the parents are litigating decision-making responsibility and parenting time, while the maternal grandparents are also seeking to be granted decision-making responsibility for the child or, failing that, a contact order. 2 .

The Rules of Court of New Brunswick 1 provide for the consolidation or hearing together of two or more proceedings. The Court of Appeal has dealt with this issue in the context of competing claims by the Minister of Social Development and non-parents, specifically addressing the process to be followed. 2 3 . Following this approach, the three matters remain separate and the hearings are held one after the other.

Accordingly, the grandparents’ request to cross-examine witnesses for the Minister of Social Development at the hearing of their application was denied. ____________________________________________________________________________________________________________________________________________________________ 1 Rules of Court of New Brunswick , Rule 6.01 2 Minister of Social Development v. T.A.P., A.H., F.M. and D.W., 2015 NBCA 39 and R.B. and T.R. v. The Minister of Families and Children and C.H. , 2019 NBCA 32 4 .

I ordered that the evidence gathered at the hearing of the Minister of Social Development’s application be placed on the parents’ record (FDB-2-2021). Thereafter, the evidence in the two matters heard previously became part of case FDB-241-2022. 3 5 . At the request of all four lawyers, I allowed their arguments to be presented at the end of all three hearings. Finally, I proceeded to analyze the three cases before the Court and issued this Decision.

6 . At the beginning of the trials, I granted the request of the Minister of Social Development that the proceedings be heard in the absence of the public. This is allowed under the Rules of Court of New Brunswick 4 and the Family Services Act. 5 The other parties either consented or made no objection. ____________________________________________________________________________________________________________________________________________________________ 3 Family Services Act , S.N.B. 1980, c.

F-2.2 , s. 9 Family Law Act , S.N.B. 2020, c. 23, s. 3 4 Rules of Court of New Brunswick , Rule 38.08 Rules of Court of New Brunswick, Rule 37.08 5 Family Services Act , S.N.B. 1980, c. F-2.2, s. 10 7 . The respondent, J.B., attended the proceedings. He was given leave to cross-examine the witnesses of the opposing parties. In addition, he was allowed to present evidence (in the matters in which he was involved) and to make submissions. He did not avail himself of any of these opportunities. 8 .

At the hearing of the matter involving the Minister of Social Development (FDB-130-2022), six people were called to testify and/or to be cross- examined by counsel for the parents. In addition, the Court received in evidence the affidavits and reports contained within the Application Record, the Supplemental Application Record, and the Book of Affidavits from the prior proceedings. 9 . M.H. did not present any oral or documentary evidence in this case, other than his responding document. C.R. testified in addition to having filed an affidavit in support of her responding document. 10 .

M.H. took the witness stand in the application he filed (FDB-2-2022). In addition, two affidavits from him, two from his mother, and a financial statement were submitted to support his position. C.R. presented no viva voce evidence during this hearing. However, twenty-two affidavits and supplemental affidavits plus a financial statement were filed in support of her responding document. All the documents submitted by the mother were dated January and February 2021, so they will not be given much weight because they do not contain any current or recent information.

Many passages and even whole paragraphs of these affidavits are also inadmissible, as they contain hearsay and/or opinion. The Court will therefore not consider the inadmissible portions. The evidence in case FDB- 130-2022 was also placed on this record. 11 . Eight witnesses were called in connection with the maternal grandparents’ claim (FDB-241-2022), including M.H., C.R. and the senior social worker assigned to the Minister’s case. Five affidavits were also filed, some of which are part of case FDB-2-2022.

C.R. did not file any documents in this case and M.H. did not submit any affidavits in support of his responding document. The Minister of Social Development filed an affidavit from the senior social worker assigned to their case. Again, the evidence in matters FDB-130-2022 and FDB-2-2021 is part of the R. grandparents’ case. OVERVIEW

12 . C.R. (the mother) and M.H. (the father) dated and cohabited for a period of approximately three years. One child resulted from the relationship, Z.R., born on [...], 2019. The parents were only 23 years old when their son was born. 13 . The couple broke up in around mid-November 2020, at which time the child remained in the care of his mother. A few days after the breakup, the Minister of Social Development (the Minister) received a report about the mother. Less than a week later, a second report was received from the community.

Following an investigation, a safety plan was signed making B.R. (the maternal grandmother) responsible for Z.R. The Minister’s concerns were the mother’s housing, her mental health, her cannabis use, and her failure to acknowledge the Department’s concerns. 14 . The situation did not improve. On the contrary, it deteriorated. Several complaints and reports, all of which were found to be groundless upon investigation, were made against the father. The mother continued to deny the reports against her. She claimed that the father and the Minister were framing her.

The grandmother joined with her daughter to challenge the Minister’s involvement, to denigrate and blame the father, and to justify the mother taking no responsibility. It remained difficult to get the mother and grandmother to cooperate. In addition, the mother-daughter relationship was sometimes strained. The Minister decided to open a child protection case and file an application to obtain a six-month custody order on December 18, 2020. 15 . The father could not exercise any parenting time with his child after the couple broke up.

In early January 2021, he brought legal proceedings (FDB-2- 2021) seeking sole decision-making responsibility for Z.R. The mother opposed this application and sought the same relief, among other things. 16 . Even more serious reports and complaints were then made against the father by different people. They were not pursued following investigation. The situation in connection with the mother continued to deteriorate to the point where Z.R. was placed in protective care on January 21, 2021.

The Minister then found it difficult to work towards the eventual return of the child to his mother, as the mother and grandmother denied the substantiated reports against C.R. and denigrated the father. The mother’s parenting skills were also a concern. 17 . Social services made the decision to place the child in the home of K.H. (the paternal grandmother), an accredited foster home, where the father lived. Although the Minister had no specific concerns about the father at the time, visits between M.H. and the child were still supervised. 18 .

After several appearances on the Minister’s matter (FDB-29-2021) and the parents’ matter (FDB-2-2021), an interim parenting order was issued granting the parents joint decision-making responsibility for their child, subject to any order of the Minister. The parents also agreed to a five-month (January 29, 2021, to June 29, 2021) custody order in favour of the Minister. 19 . Notwithstanding the mother’s agreement to these two orders, she offered very little cooperation to the Minister’s various workers. This resulted in a virtual inability to intervene productively with her. 20 .

What followed during this time was the appearance of fake emails regarding certain social workers, in addition to petitions, publications and malicious messages on social media. Z.R. was referenced in some places, as were photos of the toddler. Social services, the father and his family were all targeted. M.H. and his family also reported being threatened and harassed, among other things, by C.R. and people close to her. 21 .

The intervention of members of the association Protecting Canadian Children (Association) in the mother’s case, multiple unfounded 911 calls alleging the abuse of Z.R. and attempts to obtain further medical assessments of the child certainly did not help to build trust and cooperation so that the mother could work on the Minister’s concerns about her and towards the return of the child to her care. In addition, C.R. refused to undergo the court-ordered psychological and parenting skills assessment. 22 . The father underwent the parenting assessment, as requested by social services.

The expert recommended, and the Minister agreed, that M.H. be allowed to move back into his mother’s home and have unlimited unsupervised access to his son. It should be noted that M.H. moved out of his mother’s home between February and June 2021 in an effort to ease the tensions caused by C.R. and her family. 23 . The Minister filed an application (FDB-167-2021) on June 29, 2021, seeking an extension of a custody order for an additional six months. The father consented to this claim while the mother objected. 24 .

Following a hearing, the Court made the order sought by the Minister for the period between December 2, 2021, and June 2, 2022, on the basis that little or no progress had been made since the application was filed. The mother was ordered to distance herself from the Association to improve her cooperation with social services and her participation in the proposed services. 25 . Despite the withdrawal of the Association’s members from C.R.’s life, the mother’s cooperation with the Department and her acceptance of her challenges continued to be a problem.

The drug tests (that could be done) all came out positive for cannabis. However, the mother did not report any difficulties

controlling her marijuana use. Treatment with Addiction Services was therefore not an option. 26 . The same situation arose with respect to difficulties related to her mental health. C.R. admits to being anxious and having had psychological health problems in the past. However, she says that she does not need treatment for it and that therapy would not be beneficial to her. 27 .

Because of C.R.’s conduct and attitude (e.g., managing her emotions, controlling her anger, dealing with her frustrations and slurring her words during interventions, among other things), workers refused to go to her home to supervise visits with her son. Instead, visits with her son took place at the Minister’s office, under the supervision of at least one social worker. As a result, contact between the mother and Z.R. was not as frequent as it had previously been. Challenges in relation to C.R.’s parenting skills were observed more and her ability to care for her child was called into question. 28 .

The PPC Committee recommended an extension of a custody order in lieu of a guardianship when the application (FDB-130-2022) was filed on June 2, 2022. 29 . Following the filing of the psychological and parenting skills report on the mother prepared by Ms. Christine Martin, the Minister filed an amended Notice of Application for guardianship of the child Z.R. with no access reserved for his mother, maternal grandparents or extended family. 30 . The plan is to facilitate the adoption of the child by the paternal grandmother, who has also been Z.R.’s foster family for two years.

In the meantime, the Minister plans to allow access by the father. As M.H. currently lives with his mother, he will continue to have contact with his son on a daily basis. 31 . The parents oppose the Minister’s application and each is seeking the return of the child to his or her care. 32 . B.R. and R.R. (maternal grandparents) filed a Notice of Application (FDB-241-2022) on October 26, 2022, seeking sole decision-making responsibility for their grandson. Failing that, they seek a contact order. 33 .

The maternal grandparents maintain that they had a special relationship with Z.R. from his birth until his apprehension. The parents lived at their home with the child for approximately six months. During this time, the grandparents actively contributed to the care of their grandson. This involvement continued after the family moved into an apartment. The grandparents report that they continue to care for the child about half the time. 34 . Z.R. was placed in the care of B.R. for a period of approximately one and a half months when a safety plan was signed through the Minister.

Since Z.R.’s apprehension, however, the grandparents are only allowed to communicate with their grandson via FaceTime during the last 15 minutes of each visit between mother and child. CREDIBILITY 35 . As in most family law matters, credibility is an issue in this case. The witnesses’ versions of the events differ, contradict each other and are sometimes irreconcilable. 36 . In A.(A.) v. B.( M) 6 , Wooder, J. provides some guidance to assist in assessing the credibility of the parties. She writes at para. 97: 97.

Assessing credibility is a sifting of nuances, impressions and observations, impacted by such things as a witness’ demeanour, tone and candor, as well as the context of his or her evidence. I have in other decisions referred to Kitely, J’s observations in Passarello v. Passarello 1998 CarswellOnt 2983 (Ct.Jus.) and the criteria established by her by reference to “ The Law of Evidence in Canada ” by Sopinka J., and Lederman, J.:

________________________________________________________________________________________________________ 6 A.(A.) v. B.(M.), 2014 NBQB 197 ● the reasonableness of the evidence ● whether there are contradictions in the evidence (“internal consistency”) ● whether the witness’ character has been impugned ● personality, demeanour and corroboration (“internal consistency”) ● self-interest ● powers of observation and recollection ● capacity of expression The late and distinguished Walsh J. of this Court comments as follows in discussing credibility: 7 [103] Credibility assessments are required to be made.

There are in essence two aspects to credibility - veracity (i.e. truthfulness) and reliability (i.e. accuracy), but one does not necessarily lead to the other. Put differently, a court must be cautious for even a witness endeavouring to be truthful can be inaccurate. As well, it must be recognized that a court can accept all, part, or none of a witness’s evidence, although a finding that a witness was deliberately untruthful on one aspect of the evidence might infect that witness’s entire evidence. [104] There are any numbers of factors that can guide a court in assessing credibility.

They include plausibility, internal and external consistency, powers of observation, ability to recollect, self-interest, etc. (See: O'Brien v. O'Brien 2011 NBQB 179 at para. 102 (B.M. Robichaud J.) and D. (G.) v. D. (M.) 2005 NBQB 253 at para. 95 (Wooder J.) ); common sense and logic being the underlying assessment tool. I refer often to the following: There can be no rule as to when and to what extent inherent improbability must be taken into account by a trial judge.

As Lord Hoffman observed...: ... common sense, not law, requires that in deciding the question, regard should be had, to whatever extent appropriate, to inherent probabilities. ( F.H. v. McDougall , 2008 SCC 53 , at para . 48 ) ____________________________________________________________________________________________________________________________________________________________ 7 Grover v. Ecerova , 2018 NBQB 8 37 .

Baird, J.A. of the Court of Appeal 8 summarized the role of a trial judge responsible for assessing witness credibility as follows, citing McLachlin C.J. of the Supreme Court of Canada, among others: [30] McLachlin C.J. in R. v. R.E.M. , 2008 SCC 51 , [2008] 3 S.C.R. 3 , writes: While it is useful for a judge to attempt to articulate the reasons for believing a witness and disbelieving another in general or on a particular point, the fact remains that the exercise may not be purely intellectual and may involve factors that are difficult to verbalize.

Furthermore, embellishing why a particular witness’s evidence is rejected may involve the judge saying unflattering things about the witness; […]. In short, assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization. [para. 49] [31] At the end of the day, assessing conflicting evidence is a weighing exercise which requires a trial judge to use his or her common sense and experience . (Emphasis added) 38 . During these hearings, conflicting evidence was presented regarding the role each parent played in the care of Z.R.

I will also have to determine whether the mother made multiple complaints against the father, as indicated in the police reports, or whether the mother is being truthful in maintaining the contrary. I will also have to determine if the maternal grandmother exerted any influence on her daughter’s resistance to the Minister’s interventions. The parties do not agree on the extent of the parents’ drug use and whether there was domestic violence against either of the parties and the child. I will indicate my findings with respect to the credibility of the witnesses throughout this decision.

____________________________________________________________________________________________________________________________________________________________ 8 S.F.D. v. M.T. , 2019 NBCA 62 ISSUES 39 .

Two issues arise in this case. (Ia) Should a guardianship order be granted to the Minister on the basis that the security and development of the child Z.R. are endangered by the father and mother? (Ib) If so, should Z.R. have rights of access with his parents and/or extended family members? (II) If the Minister’s guardianship application is dismissed, who should be granted decision-making responsibility for the child and what parenting time and/or contact should be granted with Z.R.?

LAW (Ia) Should a guardianship order be granted to the Minister on the basis that the security and development of the child Z.R. are endangered by the father and mother? 40 . The right of the Minister to apply for guardianship is set out in s. 56(1) of the Family Services Act . 9 41 . For such an application to be made, the Minister must be concerned that the security and development of the child is in danger. 10 42 . The concept of minimal state intervention in families and the least invasion of the privacy of their members is recognized in the

preamble to the Act. 11 The Minister must therefore adhere to it. ____________________________________________________________________________________________________________________________________________________________9 Family Services Act , S.N.B. 1980, c. F-2.2, s. 56(1) 10 Family Services Act , S.N.B. 1980, c. F-2.2 , s. 31(1) 11 Family Services Act , S.N.B. 1980, c. F-2.2 ,

preamble 43 . Subsection 53(2) 12 recognizes that the best interests of the child must be placed above all other considerations. The case law states that this must be done from the perspective of the child and not the parent. 13 44 . The best interests of the child test in child protection matters is set out in s. 1 of the Family Services Act . 14 I will review the various aspects of this test.

a) The mental, emotional and physical health of the child and his need for appropriate care or treatment, or both 45 . Z.R. needs parents who can provide for his health and care as required. Since they first became involved, social services have received reports and conducted investigations related to concerns about both parents’ mental health, drug use and parenting skills.

____________________________________________________________________________________________________________________________________________________________ 12Family Services Act, S.N.B. 1980, c. F-2.2, s. 53(2) 13Minister of Health and Community Services v. P.(M.)., [NBCA] 14Family Services Act, S.N.B. 1980, c. F-2.2, s. 1 46. The father’s position regarding the mother has been the same and his concerns unchanged since the first social services investigation.

In addition, heacknowledged his weaknesses, participated in the services offered by the Minister (counselling and domestic violence in particular) and accepted the support andassistance his mother offered him. He also agreed to move out of his mother’s home for several months in an effort to ease the tensions with the R. family. TheMinister and the RCMP dismissed all the many reports and complaints made against M.H. 47. The father underwent the parenting assessment conducted by Dr. Yves Turgeon. Dr.

Turgeon concluded in his report and confirmed in his testimony thatthe father showed no signs of serious mental illness and had no significant vulnerabilities that would prevent him from caring for his child. 48. The father spends quality time with his son, especially when he is not working. He makes himself available to care for Z.R., is attentive and participatesin Z.R.’s evening routine, among other things. In the expert’s opinion, he is certainly capable of meeting his child’s immediate needs.

When the child was placed inthe paternal grandmother’s home after his apprehension, Z.R. was head-to-head with his father, was very affectionate with him and did not feel any fear towards him,contrary to what was alleged by several witnesses supporting the mother’s position. I therefore accept the account of the social workers, who are neutral in this case. 49.

From the first unannounced visit, and throughout their involvement, the social workers noted: ● The mother did not acknowledge the Minister’s concerns or the reasons for their involvement, in addition to having a negative perception of her child’s familysituation; ● The mother tried to justify her shortcomings or blame others for them; ● The mother took a negative attitude towards the father and the paternal family, criticizing them and denigrating them regularly; ● The mother involved her parents and some family members to support her claims and thwart the Minister’s interventions; ● The mother was defensive, arguing with the various workers and revisiting the past.

The social workers had to redirect the discussions as well as her focus; ● The mother was disrespectful towards social services, became arrogant, interrupted, raised her voice and twisted the words of those who intervened with her.

Thismade it difficult to speak with her and compromised the interventions; ● The mother felt that she was being persecuted and framed by the Minister and the father; ● The mother looked for signs of neglect and/or abuse of the child without good reason, to the point of undressing the child to examine him and take pictures; ● The mother became more concerned with making false accusations than with her son’s welfare; and ● The mother became hysterical, frustrated and crying out of control during meetings with social workers; 50.

As a result of the mother’s actions and conduct, the Minister was unable to intervene, assess her parenting skills, provide the necessary services toaddress her shortcomings and return the child to her care. 51. Psychologist Christine Martin conducted a psychological and parenting skills assessment of the mother. She concluded as follows:15 [TRANSLATION] […] What is most predominant in Ms. R. is her ability to deflect a simple discussion into paranoid accusations and delusions of persecution.

It is my opinionthat this technique is used to divert attention from the discussion and avoid having to answer or take responsibility for her wrongdoing and failures as a parent. Given this difficulty taking responsibility and this oppositional attitude, little progress was observed in her parenting skills. In addition, the environment provided toZ. by his mother is not conducive to healthy and safe development. The family atmosphere is filled with negative feelings such as hostility, emotional instability,

distrust and intolerance. This type of family atmosphere fosters insecurity in children and increases their chances of developing these dysfunctional traits themselves. 52 . The mother’s involvement in the smear campaign against social services, the father and his family on social media was more extensive than she claims. The evidence presented shows that C.R. and certain members of her family were indeed aware of these activities. Moreover, some of the information on these sites could only have come from them. 53 . The same is true for the Association’s interference in the mother’s life.

C.R. and those close to her encouraged or certainly accepted their intervention for some time. The mother did not report their actions to the authorities, she gave them information that she alone had in her possession and she authorized their involvement in certain telephone conversations and meetings with social services. She also complied with their requests for information. ____________________________________________________________________________________________________________________________________________________________ 15 Report of Christine Martin , page 184, Supplemental Application Record 54 .

The more the Association interfered in the mother’s case with the Minister, the more difficult, if not impossible, it became to work with her. This began with the first fake email received from the supervisor and continued for several months with petitions and unwarranted calls to the emergency department. If the mother was not encouraged by family members to continue associating with members of the Association, she was certainly not dissuaded from ending all contact with them and encouraged to cooperate more with the Minister. 55 .

Expert Christine Martin noted the following in this regard: 16 [TRANSLATION] In addition, regardless of her level of involvement in the scandal on social media, her son was caught in the middle of it, adversely affecting him and the management of his case. All of this is certainly not in the best interests of her son and speaks to her poor judgment. 56 . The psychologist offered the following opinion regarding the mother’s support network: 17 In terms of support, Ms. R. is surrounded and supported by her family. However, I question the quality of this relationship given that they did not discourage Ms.

R. in her antagonistic efforts and oppositional attitude towards the Department when this was clearly not in the best interests of her son. This is also cause for significant concern. ____________________________________________________________________________________________________________________________________________________________ 16 Report of Christine Martin , page 185, Supplemental Application Record 17 Report of Christine Martin , page 185, Supplemental Application Record 57 . The mother maintains that she is cooperating with social services. However, the evidence shows otherwise.

For example, the Minister had to send a letter to C.R. on two occasions as he was unable to contact her by other means. In addition, the agency responsible for supervising visits withdrew from the mother’s case at one point, as no worker wanted to work with her. This meant that visits had to take place at the social services office with less frequency because a social worker had to do the supervision. 58 . C.R. refused to participate in an initial psychological assessment, contrary to a court order.

When offered a second opportunity, the mother threatened not to complete the exercise and refused to meet with the psychologist to have the results explained to her.

59 . The mother’s position as to the existence of a conspiracy involving the Minister and the father and/or a frame-up by the father or his family is not supported by the evidence. Rather, I find that it is the mother who is trying to achieve her ends (i.e., the return of her child) by demeaning, denigrating and seeking to harm M.H. and his family. 60 . C.R. did not speak the same way about her former partner at the beginning of the Department’s interventions and before legal proceedings were initiated by the father as she did afterwards.

The more social services failed to see the mother’s situation the same way she did and the more the father asserted his rights, the more serious the allegations against the father became and the more resistance towards social services increased.

b) The views and preferences of the child, where such views and preferences can be reasonably ascertained 61 . Z.R. is too young for the Court to consider his views and preferences.

c) The effect upon the child of any disruption of the child’s sense of continuity 62 . When Z.R. was taken into care, he remained with his mother. The mother maintains that she is the child’s primary caregiver and has been since birth. 63 . The mother has exercised virtually all the access she has been granted since her son’s apprehension. The frequency and duration of access varied during the placement and is now limited. The Minister maintains that C.R. alone is responsible for this situation. 64 . C.R. and those around her indicate that the child feared M.H. when the couple was in a relationship.

When the child was placed with the paternal grandmother, Z.R. was quite happy to see his father. The two showed a great deal of affection for each other and the father proved to be a good caregiver for his son, contrary to the mother’s allegations. 65 . In contrast to his former partner’s claims, M.H. claims to be his son's primary parent at times. He even had to take time off work on more than one occasion to look after his son when the couple lived in an apartment. This is corroborated by an independent source and I accept this version. 66 .

M.H. has been involved in his son’s life on a daily basis for the past two years. He has become increasingly involved in his son’s care. M.H. wants his role to continue to grow and he wants to take full charge and direction of Z.R., with the support and help of his mother. The father also proposes to continue living with her along with his son. The Minister’s position is that he will only grant the father access to the child. 67 . Z.R. had very little contact with his paternal grandmother prior to his placement in her home. However, he adjusted as the months went by because of his father’s daily presence.

The Minister’s plan is for the child to be adopted by his paternal grandmother. Regardless of whether guardianship is granted to the Minister or whether the child is in the primary care of his father, Z.R. will continue to have daily contact with his paternal grandmother. 68 . The evidence shows that the maternal grandparents have been very involved in their grandson’s life from the time he was born.

The small family lived with the maternal grandparents for the first six months after Z.R. was born, with B.R. and R.R. involved in providing the child’s daily care, stimulating him and supporting the parents, among other things. 69 . According to them, this involvement continued after the parents moved into an apartment. The grandparents continued to be responsible for their grandson almost half the time. B.R. and R.R. testified that in addition to caring for their grandson regularly, they spent quality time playing with him, educating him and including him in the extended family. 70 .

Shortly after social services became involved, Z.R. was placed in the temporary care of his maternal grandmother. He remained there for a period of just over a month. After the apprehension of their grandson, contact with the grandparents was limited to 15-minute FaceTime calls during visits with the mother. The Minister maintains that no access should be granted to the mother and the maternal grandparents. 71 . Therefore, the only consistency and continuity in the child’s life since birth has been the presence and involvement of his father.

d) The love, affection and ties that exist between the child and each person to whom the child’s custody is entrusted, each person to whom access to the child is granted and, where appropriate, each sibling of the child and, where appropriate, each grandparent of the child

72 . Z.R. was accustomed to the presence of his maternal grandparents, uncles, great-grandparents and the rest of the extended maternal family from birth until his apprehension. There is no doubt that these people love him and that there was a real attachment with his grandparents at the time of his apprehension. The testimony of B.R. and R.R., as well as the numerous photos in evidence, prove this. 73 . Unfortunately, there has been only limited contact with the maternal grandparents and extended family in recent years.

The Department wanted to focus its efforts on trying to work through the mother’s challenges to return Z.R. to her care. In fact, this was the Minister’s plan until the Amended Notice of Application was filed in October 2022. 74 . Although C.R. attended most of the visits she was granted, she failed to maintain focus in the right place. Instead of strengthening her bond and relationship with her son, improving her parenting skills and working on her substance use and mental health challenges, she put her energy into trying to discredit, accuse and blame the Department, the father and the H. family.

As a result of her attitude and actions, she was given less time with her son instead of having him returned to her care. Nevertheless, the evidence shows that the mother can be affectionate, play with her son and see to his basic needs when her child is her priority. Z.R. also responds more favourably to his mother when visits are longer and more frequent. 75 . When the child was placed in his paternal grandmother’s home, Z.R. did not see his father for about two months. He soon reconnected with him and their relationship developed, as the father was allowed to see Z.R. frequently.

Over time, the father-son relationship solidified and M.H. took on more parental responsibility. 76 . The non-existent relationship between Z.R. and his paternal grandmother was able to develop when the child was placed in K.H.’s home as a foster child. As a result, a strong bond was formed. 77 . I find that Z.R. demonstrates an ability to adjust when given the opportunity. He formed some relationships and/or developed others further when given the opportunity to do so.

e) The merits of any plan proposed by the Minister under which he would be caring for the child, in comparison with the merits of the child returning to or remaining with his parents 78 . C.R. seeks the immediate return of her child to her care. She maintains that she has cooperated to alleviate or dispel the Minister’s concerns about such things as:

a) Her parenting skills;

b) Her mental health;

c) Her drug use;

d) The care of Z.;

e) Her lack of cooperation; and

f) The condition of her housing. 79 . According to Department officials, C.R. has only addressed the last concern during their involvement over the past two years. 80 . The mother claims to have the support of her partner, friends, parents and extended family to ensure the return of her child. However, those around her have not been able to get C.R. to acknowledge her weaknesses and make her realize that she needs help with her mental health and her cannabis use. 81 .

Instead of convincing the mother to cooperate with the Minister and work toward her son’s return to her care, they allowed themselves to be influenced by C.R.’s oppositional attitude and her rivalry with the Department. 18 ____________________________________________________________________________________________________________________________________________________________ 18 Report of Christine Martin , page 185, Supplemental Application Record 82 . The Association’s involvement did not help the situation. On the contrary, it made it chaotic.

In addition, the relationship between the mother and the Minister’s employees was almost non-existent for some time. At the height of the crisis, B.R. even lodged a 67-page complaint with the Association of Social Workers against Camille Arseneau, among others. 83 . The father’s plan is to continue providing basic care for his child and increasingly assume all decision-making responsibilities for him. M.H. does not intend to move out on his own with his son, as the current arrangement allows him to have his mother’s support and assistance at all times. He also recognizes the

importance of his mother’s presence in terms of parental organization in particular, as well as the advice she can give. 19 84 . The Minister proposes that Z.R. be adopted by his paternal grandmother, with access for the father in the meantime. However, no access would be granted to the mother or her family, despite the involvement of the maternal grandparents in their grandson’s life. 85 .

Although the outcomes of the father’s plan and the Minister’s plan appear to be virtually identical (i.e., the child would continue to live at the paternal grandmother’s residence with the father and they would care for Z.R.), the legal ramifications of these plans are certainly not. ____________________________________________________________________________________________________________________________________________________________ 19 Report of Dr. Turgeon, page 128 of the Book of Affidavits from the prior proceedings 86 .

A guardianship order extinguishes all parental rights and gives the Minister full discretion over reserved rights until adoption. Upon adoption, it confers full parental rights to the new parent. This includes final decision-making authority regarding access to the child. 87 . If the Minister’s proposed adoption plan fails, the father could be given limited access to his son in order to facilitate another permanent placement. Contact between Z.R. and his father could also be cut off completely if he is adopted by another family. 88 .

Imagine that the paternal grandmother adopts her grandson and that a conflict arises with M.H. The father could also be removed from his son’s life. However, this situation could not occur under the father’s plan, as he would have the care of and be responsible for his child, which entails parental rights.

f) The need to provide a secure environment that would permit the child to become a useful and productive member of society through the achievement of his full potential according to his individual capacity 89 . To date, the mother has not admitted any responsibility and continues to deny the Minister’s concerns about her mental health, drug use and challenges related to her parenting skills. 90 . When the Minister first became involved, the mother indicated that she got along well with the father.

As the Minister drew her attention to areas for improvement, and as the father initiated legal proceedings, the allegations against him escalated in intensity and number (e.g., excessive drug use, sexual and physical violence against the mother, neglect of his son, incidents where Z.R. was allegedly shaken and gagged, the child’s fear of his father, among others). The mother did not mention the most serious allegations at the beginning of the social services intervention or in her initial complaints to the RCMP. This, in my view, makes them less plausible and credible. 91 .

Most of the reports were based on facts known to or related by the mother. The other complaints were made by other individuals (friends or acquaintances). Some clearly told the authorities they had been asked by the mother to act to bolster her position. Finally, others claimed to be against the father. As a result, none of the complaints was upheld against the father due to a lack of direct evidence, a lack of credibility or simply being found to be groundless. I concur with these findings. 92 . M.H.’s record with the RCMP was virtually spotless prior to his break-up with C.R.

Thereafter, within a few months, several allegations were made against him and in connection with the safety of his child, all of which proved to be unfounded. 93 . The Affidavit of Constable Félix McManus 20 mentions in part: ● (2020-11-29) A call from C.R. to indicate that she had custody of her son (without legal documentation) and was not allowing the father to see him because R.L. was threatening that she would lose the child.

R.L. and the father maintained that C.H. was the one harassing them. ____________________________________________________________________________________________________________________________________________________________ 20 Affidavit of Constable Félix McManus, page 187, Supplemental Application Record ● (2020-12-04) A call from C.R. wanting the father to come pick up his belongings and to stop using a photo that includes their son on dating sites.

Of note, Z.R. was placed in the care of his maternal grandmother on December 3, 2020. ● (2020-12-18) A call from C.R. reporting that M.H. was using speed, yelled at their son and was rough in changing his diaper but never hit him. Of note, the PPC’s decision that same day to proceed with opening a child protection case and file a six-month custody application.

● (2021-01-13) A call from C.R. reporting that M.H. had allegedly sexually assaulted her and that she had suffered years of domestic violence. When asked for more details, she stated that it was her lawyer who told her to report these events. This date coincides with the first court appearance in the case involving the parents (FDB-2-2021). ● (2021-01-22) A call was received from the mother and maternal grandmother for a welfare check on the child. Upon verification, the complaint was found to be groundless.

The paternal grandmother testified that this police intervention took place just a few hours after the child was placed in her home. The mother denied making the 911 call. I believe the police because very few people were aware of the child’s placement, the RCMP identifies people who make complaints and this was not the first time that C.R. contacted the police. ● (2021-02-11) A call was received from the mother stating that her son was in danger having been removed by social services and placed with the paternal grandmother.

The mother reported a conspiracy between the police and social services to take her child away and the possibility that her conversations with the RCMP and social services were being recorded. ● (2021-04-05) A call from a member of the Association stating that Z.R. was reportedly showing signs of physical abuse, was sick and vomiting, should be removed from the care of the paternal grandmother or he would be dead within 24 hours.

Authorities went to the scene to find that the child was in perfect health. ● (2021-04-21) A call from the same member of the Association reporting that the child needed to go to the hospital for immediate care. This person knew that the child was at the mother’s residence for a visit. Emergency personnel were dispatched. The child showed no signs of trauma or neglect. He was taken for a medical examination anyway. After a third unfounded complaint was received, this member was arrested for public mischief. ● (2022-04-22) A call from another member of the Association requesting a welfare check on the child.

She reported that she had obtained photos showing substantial injuries. Police again attended the child’s location. No injuries were observed. K.H. testified that following the last two police interventions, Z.R. was frightened, became nervous and his sleep was disturbed. ● (2021-05-30) A call from a different member of the Association indicating that it was the paternal grandmother’s partner and the father who were caring for Z.R. These individuals reportedly used drugs and should not be around children.

Police officers were dispatched to the scene and found that Z.R. was playing outside with friends and was in a safe place. 94 . The mother maintains that her resistance to the Minister’s interventions and her cooperation improved after the Association’s members withdrew from her case and her life in late 2021 and after the Court’s December 2021 Decision (FDB-167-2021). Social worker Camille Arseneau acknowledges this and the evidence presented confirms the mother’s assertions. However, that progress was not maintained and C.R. reverted to her pattern of resistance and denial. 95 .

The observations of the workers and social workers responsible for supervising visits between C.R. and her son found no sustained improvement in the mother’s parenting skills despite the various services offered by the Minister over the past few years, including parenting skills sessions.

Some of the things noted during the visits include: ● The mother did not follow safety guidelines (e.g., giving large pieces of banana and whole orange segments to the child, despite multiple instructions to the contrary); ● The mother used her cell phone extensively during visits despite being told not to do so; ● The mother did not interact much and did not really stimulate her son, choosing instead to watch him play, engage in parallel fun with him and continue an activity on her own when the child had moved on to something else; ● Z.R. seemed rather attached to the counsellor (going to her or taking her hand instead of his mother’s); ● The mother did not handle discipline well, doing virtually nothing when her child engaged in inappropriate behaviours, did not enforce a “no” and did not set limits for him; ● The mother kept contradicting the workers' safety instructions, blamed others instead, made false accusations or misrepresented facts, and called family members for support; ● Two specific incidents took place on May 12 and May 17, 2022, when the child almost fell down the steps of a rather steep staircase.

A counsellor had to intervene even though their role was to observe. The mother did not take kindly to the intervention, started screaming and the maternal grandmother got involved. The child cried and had to be comforted. ● After a third incident of the mother not being alert to safety (May 26, 2022), and because the counsellors felt threatened by the mother’s actions, all subsequent visits took place at the social services office.

96 . The mother admitted to using cannabis but denied that it was a problem. As a result, self-referral to the Addiction Center did not lead to any follow-up or reduction in her drug use. 97 . All of C.R.’s drug test results have been positive. Although no evidence was presented regarding the

interpretation of the results, some of the numbers are still higher than others and than the father’s results. The mother maintains that her neurologist prescribes the cannabis. However, no reports or prescriptions were produced to support her claims. 98 . The following is the psychologist’s opinion regarding the mother’s cannabis use: 21 [TRANSLATION] The results of the psychometric tests also suggest that she has not been honest with her substance use, as some of her personality traits are often associated with alcohol or drug/medication use.

Given the information gathered during this process, I consider her cannabis use to be problematic and to contribute to her paranoid and delusional tendencies, distrust and dysfunctional thinking, and therefore to interfere with her ability to be a responsible and responsive mother to her child. ____________________________________________________________________________________________________________________________________________________________ 21 Report of Christine Martin, page 184, Supplemental Application Record 99 .

Challenges related to the mother’s mental health were identified throughout the period of social service involvement. To name a few, she was observed to have difficulty managing her anger and frustration and containing her emotions, even in the presence of her son. 100 . Despite recommendations from health professionals (including her family doctor and the hospital emergency department) and social workers, the mother has received no ongoing treatment in this regard. 101 . Ms.

Martin says the following about the mother’s mental health issues in her report: 22 [TRANSLATION] Considering the information gathered during this assessment process, Ms. R.’s clinical picture includes significant mental health concerns that affect her ability to care for her son appropriately. She later adds: […] Ms. R. does not recognize her weaknesses as a parent and is not motivated to make changes as demonstrated in her involvement with various professionals[.] 102 . The expert testified that C.R. has a personality with paranoid tendencies and is rigid in her thinking.

She also has poor introspection, thus denying her psychological and substance abuse issues. In addition, the mother tends to blame others and has a negative perception of her environmental stability as well as her ability. ____________________________________________________________________________________________________________________________________________________________ 22 Report of Christine Martin, page 184, Supplemental Application Record 103 . According to Ms. Martin, the mother must first recognize that she has a problem in order to understand it.

Then she can work on it to improve her situation and minimize the impact it will have on her child. 104 . The following are the psychologist’s conclusions about the mother: 23 [TRANSLATION] Unfortunately, since social services became involved in 2020, Ms. R.'s focus seems to be on the need to prove certain beliefs and enforce what she considers to be justice and not to improve her parenting skills or stabilize her mental health and substance use to enable her to be a responsible mother dedicated to her son's needs.

I believe that she is completely blinded by her dysfunctional, delusional and paranoid thoughts and beliefs, which certainly does not contribute to healthy relationships and improved parenting. 105 . Social worker Camille Arseneau testified that the Minister has no concerns about M.H. She added that there is no reason to believe that it would be harmful for Z.R. to live in the same residence as his father and paternal grandmother. 106 . Social worker Luc Basque was assigned to M.H.’s case from May 2021 to February 2022. He provided support to the father and services to help him

overcome personal difficulties experienced in connection with the mother. These include the arguments between the couple and the incidents of violence that followed in their relationship, as well as bullying, harassment and false accusations from the mother and some of her family members and friends since the break-up. ____________________________________________________________________________________________________________________________________________________________ 23 Report of Christine Martin, page 185, Supplemental Application Record 107 . During follow-up with Mr.

Basque, M.H. received counseling services from social worker Marc Plourde of Family Services and participated in a parenting assessment with Dr. Yves Turgeon. The father took his prescribed medication, cut down on his daily marijuana use and returned to work. The social worker also observed that the father's contacts and interventions with his son were positive. 108 . Confirmation was received from the RCMP on June 1, 2021, that the sexual and physical abuse complaint filed against him by the mother was dropped because he passed the polygraph test with an unusually negative score. 109 .

On June 21, 2021, the father was given permission to move back into his mother's home, where his son lives. He had moved out in February in an effort to ease tensions with C.R. and her family. At that point, the father was not ready to care for his son full time. He still fears reprisals from the R. family. 110 . M.H. reports that the mother and those around her continue to drive by his mother’s residence and to stop by at times. An incident involving the maternal grandfather and C.R. at his place of employment also resulted in the father’s temporary removal from his job. 111 .

When the father’s case was closed, M.H. was doing better and taking more initiative in the care of his son. It was not until the Amended Notice of Application was filed and the Minister sought guardianship of Z.R. that concerns about the father were identified. He was alleged to be unable to care for his son on his own and to need his mother’s help on a regular basis. In addition, there was the risk of reprisals by the maternal family against the paternal family. 112 . The parenting assessment report regarding the father is dated November 24, 2021. Therefore, more than a year has passed since Dr.

Turgeon’s findings. In

summary, he concluded as follows: 24 [TRANSLATION] ● The father is capable of meeting the basic needs of his child; ● Although he sincerely wants to be a father to his son, he realizes that it is necessary for his son’s full development that his parents (his mother and her partner) are also part of his life; ● M.H.’s vulnerabilities as a parent do not lie in his disposition toward Z. H. but in his ability to supervise him and provide him with the stability and predictability necessary for his full development, without his parents’ help, in the short term; ● In terms of M.

H’s place and roles within his family, he does seem to have evolved over the past two years. He has necessarily matured and is spontaneously applying himself in all aspects of his child’s life ; ● It is observable that he can make good decisions in parenting situations.

He can manage Z.R.’s behaviour in a measured way without being over the top; ● He is actually an excellent babysitter but more importantly he is a parent in the making ; ● He just seems to need the help of backup parents so he has time to reach his full potential as a parent ; ● M.H. welcomes help from his parents, whom he considers very important people to Z.R.; ● From a parenting standpoint, he can recognize his limits and therefore recognizes in his parents the people capable of bridging his gaps and deficiencies; ____________________________________________________________________________________________________________________________________________________________ 24 Report of Dr.

Turgeon, page 128 of the Book of Affidavits from the prior proceedings

● He can easily see himself in a co-parenting situation with his parents; (Emphasis added) 113. The expert’s recommendations were issued in consultation with the Minister and M.H., without M.H. having had the benefit of advice from his lawyer. Headvocated the active involvement of the paternal grandmother and her partner in the life of Z.R. The father has no objection to this. He concluded that M.H. shouldgive up his parental rights or have them terminated. This position may have been reasonable over a year ago. However, I do not agree that it is the best solutionnow. 114.

The evidence presented at the hearing is that M.H. has continued to grow as a father. In addition to caring for his son when he is not working, he doesactivities with him on weekends, is involved with his daily care and checks on him during his breaks from work. This involvement more closely resembles that of aparent than that of a babysitter. I find that M.H. is on his way to becoming a full-fledged parent if he is not one already. His mother's role as a backup parent is lessimportant than it once was, if it is even still necessary. 115.

It is noted that M.H. moved forward as a person and as a parent from the date of placement (01-21) to the time of the assessment (11-21), despite not beingable to live with or care for his child unsupervised for a period of approximately four months. 116. The father continued to make progress as an individual and became more involved in his son’s life and parenting. However, Dr. Turgeon has not beenable to gauge these improvements, as his assessment has not been updated. 117. The Minister’s preferred position is guardianship of Z.R. with a view to his adoption.

The result would be the extinguishment of all the parental rights,privileges and responsibilities of both parents. I am not of the view that this is the best course of action in the best interests of Z.R.

g) The child’s cultural and religious heritage 118. This factor was not considered relevant in this case. 119. As Baird, J.A. wrote in J.S. and J.N. v. Minister of Social Development (now Minister of Families and Children):25 11) Guardianship proceedings are described as “the capital punishment” in family law. This is so due to the fact a guardianship order has the effectof severing the legal rights, duties and obligations between a parent and a child.

These proceedings are lengthy, and often complicated by the fact the hearings arepreceded by interventions on the part of the Minister, in an effort to keep the family unit together as required by the Act. A guardianship order is sought when allother measures have failed. (Emphasis added) 120. Deschênes, J. reviewed the evidence required for a supervisory, custody or guardianship order to be granted to the Minister.26 ____________________________________________________________________________________________________________________________________________________________ 25J.S. and J.N. v.

Minister of Social Development (now Minister of Families and Children), 2018 NBCA 26 26Minister of Social Services v. M.L. (1984), (NB KB), 56 N.B.R.(2d) 343 121. The circumstances threatening the security or development of the child referred to by the judge are described in s. 31(1) of the Family Services Act.27 Inreviewing paras. 31(1)(

a) to (f), I can discern none that apply to the father. Indeed, the Minister does not identify any of these factors to support his guardianshipapplication against M.H. He simply states that the father needs his mother’s assistance on a regular basis and that he cannot care for his son alone. However, s.31(1) does not provide that a parent must care for his or her child alone and without any assistance. 122. I see nothing in the father’s proposed plan (i.e., to continue living with his mother while obtaining her support to better meet the needs of his child) thatwould support a guardianship application.

In discussing the evidence required for such an order to be made, Deschênes, J. writes at paras. 29 and 30:28 C. GUARDIANSHIP ORDER [29] This recourse is the most serious of those at the Minister's disposal.

Through this order, the court transfers to the Minister on a permanent basis theguardianship of the child, including the custody, care and control of the child and all paternal rights and responsibilities with respect to the child. [30] It goes without saying that a court will only grant such an order in the most serious circumstances and that the Minister must at least meet the basicevidentiary requirements as listed above regarding an application for a custody order.

In particular, it is essential that the Minister satisfy the court that there is only avery small chance that the circumstances threatening the security or development of the child will be corrected within the foreseeable future and that it isunreasonable to think that the child will be able to go back home within a delay compatible with the best interests of the child.

____________________________________________________________________________________________________________________________________________________________ 27Family Services Act, S.N.B. 1980, c. F-2.2, s. 31(1) 28Minister of Social Services v. M.L. (1984), (NB KB), 56 N.B.R.(2d) 343 123. The fact that the father has a passive personality in no way threatens Z.R.’s security or development. To his credit, M.H. has recognized his weaknesses,accepted the services offered by the Minister and sought support from his mother to better care for his son.

His goal is to gain the experience and confidence toparent as independently as possible. I believe the father’s plan represents a better alternative than ruling him out as Z.R.’s parent. 124. It is not uncommon these days for grandparents to be a significant part of their grandchildren’s lives. In fact, this was the case with the maternalgrandparents until Z.R. was taken into care. Does the fact that some parents need support in different areas mean that they are unable to meet their children’s needsto the point where their security or development is threatened and the children need to be removed from their care?

I do not share this opinion. 125. In the past, M.H. has taken steps to improve himself, his relationship with his son and his involvement in terms of parental care and responsibilities. Iencourage him to attend parenting skills sessions and therapy to help him be more assertive. This will surely benefit him and enable him to reach his full potential asan empowered and responsible parent. 126. The mother’s conduct, attitude, denial of her problems, failure to cooperate with the Minister and lack of judgment satisfy me that C.R. cannot ensure thesecurity or development of her child.

The Minister has thus discharged his burden of proof that it would not be in the best interests of Z.R. to return him to hismother’s care. 127. My opinion differs, however, with respect to the father. There is nothing to threaten Z.R.’s security or development at M.H.’s residence. He also lives inthe same location chosen by the Minister for the child’s placement following his apprehension. This is not a question of who has the better parenting skills asbetween the father and the paternal grandmother.

I must decide whether the Minister has proven on a balance of probabilities that it would be in the best interests ofZ.R. that his custody, care, control and all of the father’s rights and responsibilities should be permanently transferred to the Minister. I am not persuaded. 128. Accordingly, the Minister’s guardianship application is dismissed. A supervisory order for a period of six months is granted, however, to ensure a smoothtransition in the rights and responsibilities of each party. (Ib) If so, should Z.R. have rights of access with his parents and/or extended family members? 129.

There is no need for me to address this issue, as the guardianship application has been dismissed. (II) If the Minister’s guardianship application is dismissed, who should be granted decision-making responsibility for the child and what parenting timeand/or contact should be granted with Z.R.? 130. Three parties (the father, the mother and the maternal grandparents) seek a parenting order (including decision-making responsibility and parenting time)with respect to the child Z.R. In the alternative, the maternal grandparents seek a contact order. 131.

The legislative framework for making a parenting order is set out in s. 52 of the Family Law Act.29

Section 5330 refers to parenting time/schedule, whiledecision-making responsibility is addressed in s. 54.31 132. Subsection 52(2)32 defines who may make an application for a parenting order. It refers to a “parent” or a person who stands in the place of a parent orintends to stand in the place of a parent. The definition is set out in s. 133 of the Act as follows: “parent” includes a person who has demonstrated a settled intention to treat a child as a child of the person’s family, except when the person is afoster parent or kinship caregiver to that child under the Family Services Act. 133.

More than two years have passed since Z.R. has been in the care of his maternal grandparents. He also did not live with them when the application wasmade. 134. When they looked after their grandson, the aim of the maternal grandparents was to offer their support and assistance to their daughter and her partner. They therefore helped the new parents when the parents lived with them. For example, B.R. would sometimes get up at night with her grandson, help with his basiccare and look after Z.R. to give the parents a break.

R.R. was also involved in rocking the child, playing with him, entertaining him and helping his wife look after

his grandson, among other things. _________________________________________________________________________________________________________________________________________________________ 29 Family Law Act , S.N.B. 2020, c. 23 , s. 52 30 Family Law Act , S.N.B. 2020, c. 23, s. 53 31 Family Law Act , S.N.B. 2020, c. 23, s. 54 32 Family Law Act , S.N.B. 2020, c. 23, s. 52(2) 33 Family Law Act , S.N.B. 2020, c. 23, s. 1 135 . The grandparents probably missed their grandson's presence when the little family moved into an apartment. So, they went to see him and agreed to look after him as often as possible.

Z.R. visited R.R. and B.R. for at least a few hours almost every day and spent the night at their home up to three times a week. This continued following the couple’s breakup. Z.R. was not, however, in the care of his grandparents continuously or for significant periods of time. 136 . I find that R.R. and B.R. are fulfilling their role as grandparents, as many others do, but no more. Therefore, they never intended to take the place of the father or the mother. 137 . When Z.R. was placed in the care of B.R. by social services, the grandmother’s intention was not to take the place of her daughter.

Rather, she was acting as a kinship caregiver. 138 . I therefore find that the maternal grandparents do not fall within the definition of “parent” and cannot apply for a parenting order. 139 . Subsection 57(1) 34 provides that a contact order may be issued to a non-parent. I will therefore consider the alternative application of the maternal grandparents. ____________________________________________________________________________________________________________________________________________________________ 34 Family Law Act , S.N.B. 2020, c. 23 , s. 57(1) 140 .

Subsection 50(1) 35 of the Act codifies the Supreme Court of Canada’s decision in Young v. Young , 36 prescribing that the Court must take into consideration only the best interests of the child in making a parenting order or a contact order. Subsection 50(3) 37 also provides that the Court must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. 141 . The best interests of the child are defined in s. 50(2) 38 of the Family Law Act . As of March 2021, this province has two

definitions of the best interests of the child. 142 . I reviewed the factors in the other definition (found in s. 1 of the Family Services Act ) 39 when considering the Minister’s guardianship application. Comparing the two

definitions, many of the factors are similar. I will therefore not repeat what I have already discussed.

a) The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including First Nations upbringing and heritage 143 . The parties did not present any evidence in relation to this factor.

____________________________________________________________________________________________________________________________________________________________ 35Family Law Act, S.N.B. 2020, c. 23, s. 50(1) 36Young v. Young, (SCC) 37Family Law Act, S.N.B. 2020, c. 23, s. 50(3) 38Family Law Act, S.N.B. 2020, c. 23, s. 50(2) 39Family Services Act, S.N.B. 1980, c. F-2.2, s. 1

b) The child’s needs, including the need for stability, given the child’s age and stage of development 144. This factor was discussed at length at paras. 62 to 71.

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 animportant role in the child’s life 145. This topic is addressed at paras. 72 to 77. 146. At the trial, I was also able to learn more about the special relationship Z.R. had with his maternal grandparents at a young age. 147. During their testimony, Mr. and Mrs. R. appeared to me to be quiet people and productive members of society. They raised three children as best theycould, as most parents try to do.

They have a full family life, regularly hosting their children and grandchildren, getting together with extended family members forparties and special occasions, etc. 148. Psychologist Christine Martin did not assess the maternal grandparents and made no recommendations regarding contact with them. 149. The evidence reveals that the maternal grandparents, especially the grandmother, interfered in C.R.’s conflicts with the paternal family and M.H. Thiscertainly did not help their daughter’s situation.

By way of example, I find that B.R. was present when the RCMP received a welfare check call regarding Z.R.shortly after he was placed in the paternal grandmother’s home. In addition, at least one of the two grandparents was at the public health office where the child wasreceiving his vaccine, when their presence was not required. Their vehicle either followed a member of the paternal family or ended up near their residence when itwas not required or by chance.

On at least one occasion, there was also contact between the maternal grandfather and M.H. that could have been described asthreatening, or at least inappropriate. 150. Unfortunately, we see this kind of behaviour all too frequently in family court cases. It certainly should not be encouraged. On the other hand, theevidence reveals that the maternal grandparents’ actions towards M.H. and the paternal family have abated over the months, and I did not observe any hard feelingstowards them at the hearing.

d) Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent 151. The many affidavits and the evidence in this case lead me to conclude that there was a great deal of tension between the two families. I could still see agreat deal of animosity on the part of the paternal grandmother towards the R. family.

With the answer “I’ll see” to the question as to whether contact would begranted to the maternal grandparents if she adopts Z.R., and her ongoing negative attitude towards the maternal family in relation to events that occurred over a yearago, I am far from satisfied that the maternal grandparents and their family would have seen Z.R. 152. With his passive personality, it is my opinion that the father will follow the provisions of this order, especially as it will contain specific provisions.

e) The history of care of the child 153. The parents, with the assistance of the maternal grandparents, were responsible for the care of Z.R. from birth until he was taken into care at the age of 14months. I believe M.H. when he says he was involved with his son's care before the couple broke up. Indeed, the results of Dr. Turgeon's parenting assessmentreport confirm this. 154. After the breakup and for approximately one month, C.R. was responsible for her son with the assistance of her parents.

The Minister subsequentlyintervened and the maternal grandmother looked after the toddler for a period of one and a half months. He was then placed in the paternal grandmother’s home as afoster child. The father’s involvement in the child’s care has been growing, especially since he was allowed to live at his mother’s residence again in the summer of2021.

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

155 . As noted above, this child is too young to express his views and preferences.

g) Any plans for the child’s care 156 . No specific parenting plan was submitted by the parties. The mother states that she is capable of caring for her child, with the assistance of her partner and her parents. 157 . The father intends to continue living with his mother. This will allow him to care for his son while having the support and assistance of his mother.

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 158 . Based on the analysis of factors (a), (

e) and (

f) of the best interests of the child under the Family Services Act 40 found at paras. 45-60, 78-88 and 89-117 above, it appears that the mother lacks the capacity to meet the needs of her child, even with the assistance of her parents and her partner. 159 . However, I am of the view that the father can be a responsible parent to his son, with the support of his mother. M.H. has demonstrated that he has taken charge of his life and gotten the help he needs to be able to fulfill his role as a father as opposed to a mere babysitter.

The fact that he agrees to continue living with his mother, agrees that she will continue to help him and be involved in his life and the life of his son confirms to me that he is thinking of his son first. This reassures me that Z.R. will be well taken care of. ____________________________________________________________________________________________________________________________________________________________ 40 Family Services Act , S.N.B. 1980, c. F-2.2, s. 1 160 . C.R. and M.H. have accused each other of abusing cannabis and other drugs during their relationship.

I accept that both parents used more than they should have and more when their relationship was on the rocks. Unlike the father, the mother did not curb her cannabis use after they broke up. In fact, she does not even admit that it could be a problem. This is despite the findings of psychologist Christine Martin. The expert who assessed the father determined that M.H.’s cannabis use is not a risk factor. 161 . The grandmother’s complicity with C.R. cannot be ignored. She has repeatedly intervened directly to defend her daughter’s inappropriate statements and actions.

She has been quick to answer C.R.’s phone calls and to comply with her requests to come to her daughter’s location when social services have attempted to intervene. She has not helped her daughter to take responsibility for her shortcomings and accept the Minister’s concerns. The fact that she filed a 67-page Association of Social Workers complaint against social worker Camille Arseneau confirms to me her feelings about them at that time. 162 . I agree that she and the maternal grandfather did not take the right path in trying to maintain or resume their relationship with their grandson.

However, they testified that they had taken a step back and were less involved in encouraging their daughter in her relationship of resistance to the Minister. I confirm that this is obvious after the December 2021 Order and the withdrawal of the Association from their lives. 163 . They will now have to play an active role in encouraging C.R. to undergo the necessary treatments and therapies to improve as a person and as a mother. In addition, they will have to accept M.H.’s new place, their daughter's place, and their own place in Z.R.’s life. 164 .

I believed the R. grandparents when they testified that they had learned from their mistakes and wanted to put the past behind them and focus on reconnecting with their grandson and rebuilding their relationship with him. 165 . Recently, Hackett, J. granted a contact order to grandparents in K.W. v. K.L.L. 41 despite their shortcomings and challenges. In this case, apart from the involvement of social services in their daughter’s life and in turn their own, there is no indication that R.R. and B.R. pose a danger or a threat to their grandson.

On the contrary, they have done a good job of caring for the child in the past and I find that they have much to offer him. 166 . However, it is Z.R.’s right to have parenting time or contact with his parents and grandparents and not the other way around according to the Supreme Court of Canada in Frame v. Smith . 42 167 . It is my view that this young child has a right to reconnect with his maternal grandparents and the R. family in order to have some sort of relationship with them.

Were it not for the involvement of social services, he would have continued to have frequent contact and a relationship with the R. family. I believe that Z.R. will adjust to this contact as he adjusted to living with his paternal grandmother when he was apprehended.

The grandparents will also have to accept that their involvement in their grandson’s life will be less than it has been in the past, but they will still be able to see him again on a regular basis. ____________________________________________________________________________________________________________________________________________________________

41K.W. v. K.L.L., 2022 NBKB 204 42Frame v. Smith, (SCC), 1987 2 SCR 99 168. C.R. has been part of her child’s life since he was born. She has also exercised most of the access that has been granted to her. I agree that some of themother’s interventions during supervised visits are not acceptable and the Minister was right to be concerned. On the other hand, the mother has displayed genuineparenting skills during some visits. This is reflected in the workers’ notes. Ms.

Martin was also able to highlight positives from the mother-son meeting and KarineJoly testified that this visit was representative of the others. 169. Under the supervision of someone from the R. family circle, I am satisfied that Z.R. will be able to have safe parenting time with his mother. This can bereassesse

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