FAMILY COURT OF NOVA SCOTIA
Citation: Nova Scotia (Community Services) v. B.R. , 2010 NSFC 3
Date: 2010/04/02
Docket: FANCFSA-066374
Registry: Kentville
Between:
Minister of Community Services (Annapolis County)
Applicant
v.
B.R. and T.S.
Respondents
v.
B.B.
Cross-Applicant
(Leave Applicant)
Restriction on publication:
PUBLISHERS OF THIS CASE PLEASE TAKE NOTE that Section 94(1) of the Children and Family Services Act applies and may require editing of this judgement or its heading before publication.
Section 94(1) provides:
No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding pursuant to this Act, or a parent or guardian, a foster parent or relative of the child.
|
Editorial Notice Identifying information has been removed from this electronic version of the judgment. |
Judge: The Honourable Judge M. Melvin
Heard: March 29, 2010, in Kentville, Nova Scotia
Counsel: W. Bruce Gillis, Q.C., for the Applicant
Misty R. Morrison, L.L.B., for Respondent, B.R.
Colin Fraser, L.L.B., for Respondent, T.S.
Peter Van Feggelen, L.L.B., for Cross-Applicant
OVERVIEW
I Application Before the Court
II Jurisprudence Considered by the Court
III Legislation
IV Evidence Before the Court
V Two -Step Process
VI Factors to be Considered
(I) Threshold Test and Considerations for Leave
(II) Test of Necessity
VII Evolution of Jurisprudence in Leave Applications
VIII Legal Arguments Adduced by Parties
IX Court’s Consideration of Leave Factors in Conjunction with Evidence
X Conclusion
By the Court:
I APPLICATION BEFORE THE COURT
[1] This is an application to vary an Order of the court, made by the maternal grandmother in these proceedings, B.B., to be added as a party, pursuant to Family Court Rule 5.09.
II JURISPRUDENCE CONSIDERED BY THE COURT
1. Daley v. Daley (1992), 124 N.S.R. (2d) 273, Gass, J.F.C. (As She Then Was)
2. Stewart v. MacDonnell (1992), 113 N.S.F. (2d) 41, Sparks, J.F.C.
3. B.D. et al. v. S.D. (1995), 145 N.S.R. (2d) 132, Daley, J.F.C.
4. Gray v. Gray (1995), 137 N.S.R. (2d) 161, Legere, J.F.C. (As She Then Was)
5. M.M. & S.M. v. I.B. v. P.E.M., FKMCA-065776, unreported, April 2010, Melvin, J.F.C.
6. B.(R.)v. C.A.S. (H fx.) & S.F., 214 N.S.R. (2d) 334, Chipman, J.A.
7. C.A.S. (Shelburne) v. C.(I.) and C. (H.R.) et al. 196, N.S.r. (2d) 70, Bateman, J.A.
8. Chapman v. Chapman (2001), 15 R.F.L. (5th) 46
9. Canadian Transportation v. Canadian Press et al., (2000), 184 N.S.R. (2d) 159
10. B.H. v. Nova Scotia (Community Services) (2009), NSCA 67 (CanLII)
11. Bell Express Vu Limited Partnership v. Rex (2002), SCC 52 (CanLII), 2002 SCC 42
12. McLaughlin v. Huhen [2004] O.J. No. 5981 (Ont. J.C.)
LEGISLATION CONSIDERED BY THE COURT
1. The Children and Family Services Act, S.N.S., 1990, ch. 5.
2. The Maintenance and Custody Act, 1989, ch. 160, s. 18(2)
3. The Family Court Rules, of the Family Court Act, R.S.N.S. 1989, c.159
ARTICLES CONSIDERED BY THE COURT
1. Article: “Answered and Unanswered Questions in Attachment Theory of Implications for Children of Divorce”, Dr. Pamela S. Rudolph, (2009), Journal of Child Custody, 6 (1 & 2) January.
2. “Grandparent Access: A Case Law Update”, Professor Martha Shafer, Faculty of Law, U of T, 2010.
III LEGISLATION
[2] Rule 5.09 of the Family Court Rules, supra., states:
“ any person may, with leave of the court and subject to enactments respecting confidentiality may intervene in a proceeding and become a party thereto where . . . the person claims and can show a direct interest and has the right to intervene.” (emphasis added)
[3] Family Court Rule 21.08 reads:
(8) Upon the application of any other person, pursuant to Section 36(1)(f), the court may add that person as a party at the interim hearing, only where that person’s presence as a party is necessary to determine the matters in issue.
[4] This Rule is under the heading of “Interim hearings”, but it is to be noted that it is upon an application pursuant to s. 36 (1)(f) of the Children and Family Services Act which states:
“The parties to a proceeding pursuant to Sections 32 to 49 are .. (f) any other person added as a party at any stage in the proceedings pursuant to the Family Court Rules”
[5] This matter is presently at the pre-disposition stage, clearly within the confines of the Sections noted in s. 36(1)(f), although no longer at the interim stage. Furthermore, were this application in the Supreme Court Family Division, the Cross-Applicant could avail herself of Civil Procedure Rule 69.07(8) which adds:
“ And otherwise the application shall be adjourned to the pre- hearing conference before the disposition hearing.”
[6] So as not to prejudice the Cross-Applicant due to the Application being made in the Family Court, and determining it to be in the best interests of the child that this Application be made, whatever the court may decide on its merits, the court finds that a Cross-Applicant may bring an Application for party status in the Family Court at this stage in the proceeding.
[7] The Court refers to B.H. v. Nova Scotia (Community Services) (2009), NSCA 67 (CanLII), Hamilton, J.A., wherein the court stated:
The judge referred to the preferred modern principle of statutory interpretations set out by Elmer Driedger in Construction of Statutes (2nd ed. 1983) and subsequently approved by the Supreme Court of Canada in Re Rizzo and Rizzo Shoes Ltd., [1998] SCJ No. 2 and Bell Express Vu Limited Partnership v. Rex, 2002 SCC 42 (CAnLII), 2002 SCC 42:
“Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intent of Parliament.”
[8] In Bell Express Vu Limited Partnership v. Rex supra., the Court stated:
The preferred approach recognizes the important rule that context must inevitably play when a court construes the written words of a statute: as Professor John Willis incisively noted in his seminal article “Statute Interpretation in a Nutshell:
(1938), 16 Can. Bar Rev. 1, at p. 6, “words, like people , take their colour from their surroundings”. This being the case, where the provision under consideration is found in an Act that is itself a component of a larger statutory scheme, the surroundings that colour the words and the scheme of the Act are more expansive. In such an instance, the application of Driedger’s principle gives rise to whatwas described in R. V. Ulybel Enterprises Ltd., 2001
SCC 56 (CanLII), [2001] 2 S.C.R. 867, 2001 SCC 56, at para.52, as “the principle of interpretation that presumesa harmony, coherence, and consistency between statutesdealing with the same subject matter”. (See also Stoddardv. Watson, 1993 CanLII 59 (S.C.C.), [1993] 2 S.C.R.1069, at p. 1079; Pointe-Claire (City) v. Quebec (LabourCourt), 1997 CanLii 3990 (S.C.C.), [1997] 1 S.C.R. 1015,at para 61, per Lamer C.J.)
[9] Therefore, the provisions of the Children and Family Services Act, supra., pertaining to adding a person as a party, must be read in conjunction with the Family Court Rules pertaining to intervening in a proceeding and becoming a party, with the leave of the court, using the preferred approach as set out in Bell Express Vu Limited Partnership, supra., which presumes . . . “a harmony, coherence and consistency between statutes dealing with the same subject matter.”
IV EVIDENCE BEFORE THE COURT
[10] B.B. filed an affidavit with the court and was sworn in. Her affidavit sets out
as follows:
1. That I am the maternal grandmother of the child M.R., born September [...], 2009 and as such have personal knowledge of the matter and facts hereinafter disposed to except where otherwise stated.
2. That B.R., the mother of M.R., was living with me throughout most of her pregnancy . . . and her plan upon the birth of M.R. was to remain in my home, allowing me to provide primary care for her son with her providing assistance to me.
3. That I am the maternal grandmother of M.R.’s brother, M.
4. When M. was born, B..R. was also residing with me and I provided primary care for M. and B.R. assisted. B.R. moved out of the home leaving me with the primary care of M. And this was formalized in a court order.
5. In April of 2009 M. was placed in a Temporary Care and Custody of the Family and Children Services of Annapolis County.
6. B.R. and I have regularly attended visits involving M. ever since M. was taken into care.
7. That B.R. resided with me throughout her pregnancy with M.R. Prior to the birth of M.R., B.R. moved into a residence with me in Kentville, Nova Scotia which was suitable for M.R. The plan was M.R. and B.R. would reside in the home for a short period of time at which time B.R. planned to obtain accommodations of her own with her boyfriend R. leaving M.R. in my primary care and her assisting in the care of M.R. on a daily basis.
8. That M.R. was taken into care by the Family and Children Services of Annapolis County from the hospital following his birth. I was present during the birth of M.R. and assisted in the care of M.R. for the short time he was in hospital with B.R. The home was ready for M.R. to come home to.
9. That since M.R. was taken into care, I have attended every visit that has taken place with respect to M.R. I attend regularly and provide transportation to B.R. on a regular basis to maintain contact and regular visitation with M.R. I have attended all proceedings involving M.R. since they commenced before the court.
10. That since this matter was before the court, the applicant Agency has resisted attempts to have M.R. placed in my care on a temporary basis. The Agency has cited concerns about me as reasons for them not considering the plan. The concerns the Agency raises about me, they indicated, commence long before B.R. was even born (when I was taken into care myself by the Agency as a child). There is no possible way, in my opinion, that B.R. can respond to or even attempt to address issues and matters which occurred long prior to her birth and when she was a very young infant.
V TWO-STEP PROCESS
[11] Unlike an application under the Maintenance and Custody Act, supra., for leave, an application under the Children and Family Services Act, supra., in conjunction with the Family Court Rules, is a two step process.
VI FACTORS TO BE CONSIDERED
(I) Threshold Test:
[12] Clearly, pursuant to Rule 5.09, a person must have leave of the court to intervene in a proceeding to become a party to the proceeding.
[13] “Leave” essentially means the “permission” of the court. Based on the jurisprudence and the facts particular to this case, there are a number of factors a court must consider in leave applications which, when weighed, allow the court to determine if granting leave would be in the best interests of the child.
[14] The considerations are:
1. Is there a significant and substantial connection between the party applying for leave and the child and is there an obvious benefit to the child?
2. Is the connection one of which the child is aware?
3. Is the application frivolous or vexatious or both?
4. Is the child emotionally attached or bonded to the leave Applicant, or is it that the Applicant who believes there is an attachment and wants it fostered?
5. Does the leave Applicant have a familial relationship she/he wants to foster?
6. Are there more appropriate means of resolving the application, for instance, access while a parent has parenting time?
7. Are there risk factors apparent on the evidence that would preclude the Applicant from having contact with the child if the leave application were granted?
8. Is there a possibility, if leave were to be granted, that the child would be at risk of further litigation and uncertainty?
9. Is the involvement of the third party destructive or divisive in nature?
10. Would leave put undue stress on the custodial parent, if the Cross-Applicant were successful in her application for custody and would it threaten the stability of the family unit?
11. Would a court order preserve a positive relationship between the child and the Cross-Applicant?
12. Are there extenuating circumstances such as a change in the access parents’ access or a denial of access to the access parent?
13. In a case involving an application for permanent care of a child by child welfare authorities, would the granting of a leave application provide the child with a potentially feasible plan to re-integrate into the child’s own family that would be in the child’s best interests?
14. Considering all of the above, is it in the best interests of the child for the court to grant leave?
(II) Test of Necessity:
[15] Once a Court has considered the above and once the issue of leave has been determined, a court can then move to the second step in the process and consider whether that person’s presence as a party is necessary to determine the matters in issue, pursuant to Family Court Rule 21.08.
VII EVOLUTION OF JURISPRUDENCE IN LEAVE APPLICATIONS
[16] The court has considered a number of cases on the evolution of leave applications.
[17] In Daley v. Daley, supra., Gass, J.F.C. as she then was, stated at page 274:
Section 18(5) of the Act states that:
“In any proceeding under the Act concerning care and custody or access and visiting privileges in relation to a child, the court shall apply the principle that the welfare of the child is the paramount consideration.”
“Thus the principle must apply, not only in considering an application on its merits, but also on the question of leave. However, to simply apply the ‘welfare of the child’ test to both proceedings would seem to eliminate any separate inquiry into the question of leave, thus negating any reason for the provision in the first place.”
“Therefore, while the welfare of the child is the paramount consideration, other factors and considerations ought to be weighed to determine whether a party should have leave to apply for access.”
“I am of the view that unless there are grave extenuating circumstances, children can benefit from the involvement of the extended family, as long as that involvement is not destructive or divisive in nature. However, I am not convinced that court ordered access is necessarily in the best interests of the child, even where access is a good thing, unless there are extenuating circumstances. If this were the case, the potential is there to have a child’s entire life scheduled by the court order to be with those with whom the child’s interaction is considered appropriate and important.”
“Therefore, the court must take into account other considerations in determining whether or not leave should be granted in the first place.”
“A major consideration is whether the applicants have any other way to have their views or interests put before the court . . . ”
[18] In Stewart v. MacDonnell, supra., Sparks, J.F.C. held:
“While a person may indeed be interested in the overall welfare of a child in a purely general sense, this does not mean that the courts should permit them to enter or reenter the life of a child without the approbation of the custodial parent. If the interest is a fleeting one or one which is more directed toward the mother, as suggested here, the courts should not intervene. However, I do not suggest that there will not be cases when the best interests of the child would force the court to intervene in regard to family and non family contacts, which are ordinarily in the sole and private purview of the custodial parent. In effect, if standing is granted, the court is agreeing that a legal stranger 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 strong and 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.”
[19] It is interesting to note that part of the Honourable Judge Sparks reasoning regarding parental autonomy was reflected in a more recent case in the Supreme Court of Canada, Chapman v. Chapman, supra.
Sparks, J., goes on at page 44:
“ . . . before standing should be granted by the court, the legal stranger to the child must establish, at the very least, a prima facie case connecting the welfare of the child with continued visits. This may be proven by demonstrating a lengthy and meaningful prior relationship, positive bond with the child and a substantive reason for disregarding the contrary wishes of the custodial parent.”
[20] In B.D. et al. v. S.D., supra., Daley, J.F.C., summarizes the law on leave applications as follows:
“First, the welfare of the child rule applies to both an application for leave as well as for access.
Second, a prima facie case substantially connecting the best interest of the child with the applicant is necessary to be granted leave.
Third, there must be strong and cogent reasons asserted before the court will question the wisdom of the custodial parent respecting contact of a child with family or non family members. There must be substantive reason for disregarding the contrary wishes of the custodial parent.
Fourth, unless there are grave extenuating circumstances, children can benefit from involvement with extended family provided the involvement is not destructive or divisive in nature.
Fifth, leave should not be granted if access can be achieved in some other manner such as through an access parent.
[21] In Gray v. Gray, supra., Legere, J.F.C. (as she then was), having reviewed all of the relevant case law at that time, and sets out as follows:
[189] Taking from the cases then, the guidelines outlined include an application overall of the best interests test having regard to the nature of the application; is it frivolous or vexatious; is there a sufficient interest and/or connection and should the custodial parents be called to respond to this application; are there other more appropriate means of resolving this problem or having the court hear the issue; is there a justiciable issue; are there risk factors associated with this case that call for court intervention, again the in the best interests of the child? Will the leave application, if granted, place the child in more risk of litigation and uncertainty? Are there extenuating circumstances, such as a change in the natural order of access or denial of access? Does the death of one of the custodial parents constitute extenuating circumstances? Is the involvement of the third party destructive or divisive in nature?
[190] Any one of these factors in and of itself is not the test. It is a weighing of a combination of these factors in light of the facts presented on the application that leads one to the appropriate conclusion in allowing or denying an application of this sort with serious repercussions.
VIII LEGAL ARGUMENTS ADDUCED BY PARTIES
[22] Counsel for the Applicant Minister argued that the Minister was opposed to leave being granted because B.B.’s plan was exactly the same as that of the Respondent, B.R.
[23] He argued that the case of Canadian Transportation v. Canadian Press et al., supra., was analogous to the case before the court in that if one of the parties is presenting a plan, it would be redundant to add another person as a party to present the exact same plan. He highlights Gruchy, J.’s comments at page 164:
[19] It is my conclusion that those interests, while entirely legitimate, are identical to those of Canadian Press.
[20] In addition, it is my conclusion that the addition of a third party which would be in a position to “whipsaw” the Board would unquestionably complicate and delay the proceedings and may well prejudice the rights of the Board.
[21] I tend to agree that Southam’s interest in this matter is virtually indistinguishable from that of Canadian Press. Southam has said that the distinction is that Canadian Press is essentially at the other end of the spectrum of the news gathering and dissemination spectrum. While that may be correct, I cannot agree that is a sufficient variation of interests to warrant intervention.
[24] The Applicant Minister argued that “ . . . there is nothing she [BB] can say as a party that she can’t say as a witness; her plan and her daughter’s plan is exactly the same thing.”
[25] He further argued, by adding the Cross-Applicant as a party, it had the potential to extend, delay and complicate the proceedings.
[26] Counsel for Cross-Applicant, B.B., argued that it was necessary for B.B. to be added as a party because only B.B. is aware of her past as it may related to the Respondent, B.R.’s plan for B.B. to care for the child. He also argued that B.B., historically, is the primary caregiver of M.R.’s sibling, M., although M. is now in the care of the Minister. Further, he argued, B.B. was present at the child’s birth, participated in all access visits with the child, and attended all court proceedings.
[27] Counsel for the Respondent, B.R., confirmed her client’s position to support her mother, B.R., and counsel for the Respondent, T.S. took no position.
IX COURT’S CONSIDERATION OF LEAVE FACTORS IN CONJUNCTION WITH EVIDENCE
(1) Is there a significant and substantial connection between the party applying for leave and the child?
The party applying for leave is the maternal grandmother of the child who was present at the child’s birth, planned to take the child home with her and has attended all of the access visits and court appearances, so there clearly is a significant and substantial connection between B.B. and the child, at least from B.B.’s perspective.
(2) Is the connection one of which the child is aware?
Given the age of the child - six months - there is no evidence that if B.B. were not in the child’s life that the child would be negatively affected, and no evidence the child at that age would be aware of the connection.
However, this is tempered by the fact that the Respondent mother of the child intends for the child to live with the Applicant, should she be successful in this matter.
(3) Is the application frivolous and vexatious?
For all of the reasons stated in number (1) above, it is the court’s determination that the application is NOT frivolous and vexatious.
(4) Is the child emotionally attached or bonded to the leave applicant?
There is no evidence of that.
However, as an aside, and perhaps only for the court’s benefit in this case, the court has reviewed an article on Attachment Theory by Pamela S. Ludolph: “Answered and Unanswered Questions in Attachment Theory With Implications for Children of Divorce”, (2009) Journal of Child Custody, 6 (1 & 2), January. Dr. Ludolph, a clinical and forensic psychologist - lecturer at the University of Michigan, Ann Arbor - notes that research shows infants start to form meaningful relationships at six to seven months; however, attachment status is not necessarily stable as the child develops and matures. She further notes that research shows that children often change attachment status during their preschool years.
(5) Is there a familial relationship?
As noted above, there is.
(6) Are there more appropriate means of resolving the application?
The child’s mother, B.R., plans to place the baby in B.B.’s care should be successful at the disposition hearing. Therefore, a more appropriate means of resolving the application would be for B.B. to support B.R.’s plan and testify for B.R. to their mutual benefit.
A further, even more appropriate means of resolving the application would be by virtue of Section 21 of the Children and Family Services Act, supra., should the parties wish to consider the beneficial nature of mediation, although it is not for a court to order, but rather for the parties to mutually agree upon in the best interests of the child. Whenever a matter can be resolved amicably and civilly between the parties without the necessity of what can often be a vitriolic battle in court, it is in the child’s best interests. Mediation therefore is a valuable and unfortunately under-utilized potential means to that end: the best interests of the child.
(7) Are there risk factors apparent on the evidence that would preclude the applicant from having contact with the child if the leave application were granted?
There are numerous risk factors before the court concerning the potential care of the child by B.B., many of which she refutes. However, in an affidavit filed by agent for the Minister of Community Services, Stephanie Finney on January 20th, 2010, she alleges:
6. THAT although I have asked for information, I have been unable to determine the address where B.R. currently claims to be living in . . . with her boyfriend and therefore have been unable to attend to assess the suitability of the home for a child.
7. THAT respecting B.B.’s accommodation, I haven’t been allowed in the house on visits since before Christmas, although I have scheduled a visit for the home for Friday, 22 January 2010 and hope to be able to determine more at that point.
8. THAT I have been unable to determine the names of all the residents of that home, but based on statements given to me by B.R. it would appear that there will be at least 7 people living in the home, not counting the baby M.R. and the home has only three bedrooms and her sister, L., may also be moving back.
9. THAT I am advised by the Housing Authority from whom the accommodation has been obtained that B.B. is in arrears in her rent and no further people will be allowed to move into the home, and she would not be eligible for larger accommodation from them.
10. THAT respecting the concerns regarding B.B.’s husband, L.B., I refer this Court to the Affidavit of Melissa Keddie filed in parallel proceedings, a copy of which will be provided, and also to pages 3, 4 and 5 of the parental Capacity Assessment prepared by Jackie Trimper, on file in the parallel proceeding, in which it confirms that he was found guilty of sexually abusing B.R. in December 2005, and sentenced to two hears house arrest and three years probation and had failed to complete a Sexual Offender program.
11. THAT the same report notes that in discussing the problem with the child protection workers, “B.B. stated that L.B. had oral sex and intercourse with her (as alleged by B.R.). B.R. said it happened one time. B.B. confronted L.B. who denied it”.
12. THAT we have accessed the Child Abuse Register which shows that L.B. was entered onto the Register as a result of criminal conviction for sexual abuse in 2005.
13. THAT although it appears to be B.R.’s plan that M.R. will stay in her mother’s home with her assistance in his care, B.B.’s Affidavit says the plan is for him to return to her while B.R.’s Affidavit says that that would be short term, and the long term plan would be for her to prepare a home for M.R.
Given the information filed by the Minister in this matter and the other references in the file by counsel to other proceedings involving these parties, the court can only conclude there are risk factors which are apparent on the evidence that would or may preclude the Applicant from having contact with the child if the leave application were granted.
(8) Is there a possibility, if leave were granted, that the child would be at risk of further litigation and uncertainty?
There is always a risk of further litigation and uncertainty based on the number of parties involved. The more parties there are, the more likelihood there is for disagreement, hence litigation and uncertainty for the child.
If leave were granted and B.B. were added as a party, she would have to make further application under the Maintenance and Custody Act, supra., for an order for leave, as well as custody or care and control. This application would tailgate the Children and Family Services Act, supra., application, pending decision of the court on this matter.
(9) Is the involvement of the third party destructive or divisive in nature?
In this case, given the child’s mother wants M.R. to live with the leave Applicant, B.B.’s involvement at this time is unlikely to be destructive or divisive in nature.
(10) Would leave put undue stress on the custodial parent, if the Cross Applicant were successful in her application for custody and would it threaten the stability of the family unit?
The child has been in the care of the Minister of Community Services since birth, however, given the plan of care articulated by the child’s biological mother, based on the evidence, granting leave to the Cross-Applicant is unlikely to put undue stress on the biological mother, should she be the custodial parent.
(11) Would a court order preserve a positive relationship between the child and the Cross-Applicant?
As the child is only six months old, and there is no evidence before the court that the infant even recognizes the Leave-Applicant, or what the Leave-Applicant does during access visits with the child, the court is unable to make a finding on this factor.
(12) Are there extenuating circumstances such as a change in or denial of access?
In matters under the Children and Family Services Act, supra., it can be argued that there are, more often than not, extenuating circumstances, as in most instances the child has been removed from the home and is in foster care because of an allegation of potential and/or actual neglect or abuse, and these circumstances often differ significantly from those involving an application under the Maintenance and Custody Act, supra.
In this case, however, the child had never been at the Leave-Applicant’s home, as the child was apprehended at birth. Therefore, there was no change in access or a denial of access. There was simply a change in what B.B. expected would happen.
(13) In a case involving an application for permanent care of a child by child welfare authorities, would the granting of a leave application provide the child with a potentially feasible plan to re-integrate into the child’s own family that would be in the best interests of the child and in keeping with Section 2(1) of the Children and Family Services Act, supra., to “ . . . protect children from harm, promote the integrity of the family and assure the best interests of children?”
If this were a case where there was no other family member to put forward a plan, or the family member’s plan did not include the Leave-Applicant, then a court would have to seriously consider this factor in light of the best interests of the child, if indeed the Leave-Applicant ’s position were in the best interests of the child.
However, given the Respondent mother, B.R., plans to place the child with the Leave-Applicant, should she be successful, and given the possibility the Respondent father, T.S. may also put forward a plan, it would be redundant for the Cross-Applicant to put forward a plan, echoing that of the Respondent, B.R.
(14) Considering all of the above, is it in the best interests of the child to grant leave to the maternal grandmother to be added as a party?
The law is clear that a non-parent has neither a presumptive right to custody and access, nor a right to maintain an ongoing relationship with the child.
It is the non-parent (in this case, B.B.) who has an onus to prove that it is in M.R.’s best interests to have a relationship with her.
In “Grandparent Access: A Caselaw Update”, supra, it is noted:
“Courts tend to deny grandparent access in two types of cases:
1) where the parents are already providing a reasonable amount of contact but the grandparents are seeking more;
2) where the grandparents have behaved in destructive or meddlesome ways and are thereby overstepping their ‘grandparent’ role.”
Although grandparent access is one step further along in the process than the court has to consider today, it does clarify that if a grandparent has access already, their application for access is, essentially, redundant.
Similarly with custody, or care and control. As it is B.R.’s plan for B.B. to care for the child, B.B.’s application must be reviewed as redundant and duplicitous.
This factor, as well as consideration of all the foregoing, allows the court to conclude that it would not be in the best interests of the child to grant leave to the Cross-Applicant.
X CONCLUSION
[28] The Application before the court is made pursuant to Family Court Rule 5.09, supra., which clearly states that leave is required to intervene in a proceeding and become a party. This Rule applies to all applications before the court, however, Family Court Rule, 21, supra., applies specifically to matters under the Children and Family Services Act, supra., and is under the heading of Interim Hearings. Rule 21.08(8) sets out that the court may add a person as a party at the interim hearing only where that person’s presence is necessary to determine the matters at issue. However, it also notes that it is pursuant to Section 36(1)(f). This Section states that the parties to a proceeding, pursuant to Sections 32 to 49, include any other person added as a party at any stage of the proceedings pursuant to the Family Court Rule.
[29] A court must interpret the above sections contained in both the Family Court Rules and the Children and Family Services Act, supra., dealing with the same subject matter, so that they are harmonious, coherent and consistent.
[30] Therefore, an application made under Family Court Rule 5.09 is appropriate. It must be read, however, in conjunction with Rule 21.08(8) to determine the issue of necessity and consolidated with Section 36(1)(f) for harmony to achieve the intent of the Children and Family Services Act, supra.
[31] That being said, an application to be added as a party is necessarily more complex in a matter under the Children and Family Services Act, supra., than is a simple application for leave to apply for custody or access pursuant to Section 18(2) of the Maintenance and Custody Act, supra.
[32] In an application for custody or access under the Maintenance and Custody Act, supra., the child is subject only to the legal bufferings of usually a grandparent seeking time with the child. In child welfare matters, in most instances, the child has been subjected to neglect and/or abuse, or the potential of being neglected and/or abused. In these instances, the child may be perceived as more fragile, given the reasons that led up to state intervention.
[33] The process therefore is a two-step process, a double test by the court to safeguard the best interests of some of our society’s most vulnerable children.
[34] It is the conclusion of the court, having considered all of the evidence, legislation and jurisprudence before the court, and having applied the factors a court must consider in a leave application, that it would not be in the best interests of the child to give leave to the Cross-Applicant to be added as a party. Had the court determined the Cross-Applicant met the requirements to grant leave, the court would still have denied the Cross-Applicant’s application to be added as party as her presence as a party is not necessary to determine the matter at issue. Further, had the court determined in any way that in spite of or because of any of the above factors, that it would be in the best interests of the child that B.B. be added as a party, the court would have added her as a party. Best interests of the child should always trump any other considerations.
[35] The court would like to thank counsel for their excellent submissions.
_____________________________
M. Melvin
A Judge of the Family Court
for the Province of Nova Scotia