IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           This is a Family law dispute. Pursuant to section 3(6) of the Provincial Court Act, I will not set out the names of any of the parties or the child so as to protect the privacy of those individuals. I will be referring to the witnesses by way of description only and in doing so I mean no disrespect.

[2]           The applicant is the grandmother of a four year old child.

[3]           The respondent is the mother of that child.

[4]           The applicant has applied for an order for contact with the child, specifically to have regular visits with the child once or twice a week as set out in the Application to Obtain an Order.

[5]           The respondent opposes the application. She states in her Reply that she does not trust the child’s safety after receiving threats from the applicant. The respondent counterclaims, seeking a protection order that the applicant grandmother have no contact with the child.

[6]           There are no formal orders of guardianship in place. The child’s father was served with the application and has filed a Reply agreeing to the application for contact. The father also filed a counterclaim seeking guardianship, parenting time and parental responsibilities. The mother filed a Reply and Counterclaim seeking child support. The issues between the parents of the child are being dealt with separately from this application which only involves an application for contact with the child by the applicant. The father has not appeared during any stage of these proceedings.

[7]           At the trial, I heard evidence from the applicant’s husband (the respondent’s stepfather), their son, a family friend and the parties.

[8]           During her youth, the respondent mother was admittedly a troubled teenager, who was repeatedly skipping school. Sometime in 2008, the applicant sent the respondent to live in Nicaragua with the hopes that the applicant’s behaviour would improve. While in Nicaragua, the respondent began a relationship with a boyfriend. Although the respondent was only 16 years old at the time, the pair married in 2009. The applicant said that the marriage was voluntary and cited the fact that the respondent went with the applicant to purchase a wedding dress. The respondent disputes this and says she was forced to marry.

[9]           The applicant believes this marriage ended in divorce and is uncertain when this occurred. The respondent confirms that this marriage ended in divorce although she was also uncertain when this occurred.

[10]        The respondent returned to Canada in 2011.

[11]        At some point the respondent returned to Nicaragua, where she met the child’s father. In 2014, they married.

[12]        In approximately July or August 2015, the respondent, who was about 5 months pregnant at the time, returned to Canada. The child’s father remained in Nicaragua.

[13]        In January, 2015, the child was born.

[14]        In December 2015, the applicant, the respondent and the child returned to Nicaragua where the applicant and her husband intended to run a restaurant.

[15]        While in Nicaragua, the child developed health problems. A decision was made to return to Canada. This occurred in May 2016. The respondent then secured employment and during the day while she worked, the applicant cared for the child.

[16]        The applicant and respondent have differing views of their relationship. The applicant said they had a good relationship and she denied favouring her son over the respondent. The applicant however acknowledged that the respondent had a bad relationship with her husband and that her son wants nothing to do with the respondent.

[17]        The respondent described the relationship with her mother as “toxic”. The respondent felt the applicant was trying to control every aspect of her life. The respondent said she has a closer relationship with her own grandmother and her aunt, than with her mother. The respondent felt that the applicant gave priority to her husband, her work and to her friends. The respondent said that the applicant questioned the respondent’s ability to care for the child. She also felt forced into a marriage when she was 16.

[18]        The respondent went on to say that the applicant was an example of what not to be as a parent.

[19]        I heard descriptions of only a few incidents between the parties. Nevertheless, it was clearly evident that the respondent had tremendous animosity toward her mother. The applicant on the other hand expressed her love for the respondent although at times she questioned the ability of the respondent to care for the child. For instance, the applicant was critical of the respondent smoking near the child.

[20]        In June 2016, the respondent and the child left the family home. The departure was abrupt and from the applicant’s point of view, unexpected. The applicant has not seen the child since.

[21]        The respondent and child went to live with her grandmother, specifically the applicant’s own mother. Sometime after, the respondent and the child moved to their own home. Their current address is unknown to the applicant.

[22]        After leaving, the respondent said that the applicant called her a few times on her cell phone. According to the respondent, her mother was sad. The respondent said that the applicant kept calling her back, telling her that she loved the respondent and that the respondent would regret her decision. The respondent finally changed her telephone number. The respondent stated that she wanted to live her life free of the applicant.

[23]        The applicant grandmother is not a guardian of the child within the meaning of the Family Law Act. A person who is not a guardian may seek a court order pursuant to s. 59 of the Family Law Act for contact with a child.

[24]        There are a number of court decisions dealing with applications for contact with a child where that contact is contrary to the wishes of a custodial parent. The leading decision is Chapman v. Chapman, 1993 CanLII 2598 (BC SC). This decision has been cited in later cases, including D.W.M. v. J.S.M. et al, 2003 BCSC 1229, T.F. v. K.R.C., 2010 BCSC 1808, D. D. v. A. C., 2017 BCPC 5 and M.M.F. v. C.T.F. and J.J.K., 2019 BCPC 19.

[25]        The principles established by these cases include the following:

[26]        When considering the best interests of a child, section 37(2) of the Family Law Act sets out a number of considerations. I will discuss each of them in turn.

[27]        I have no evidence before me that the child’s health or emotional well-being will be affected by contact or the lack of contact with the applicant. I am satisfied that the applicant loves the child. That would no doubt be beneficial. There is no evidence that the animosity between the applicant and the respondent will create any risk to the child. Any such concerns would be at best hypothetical.

[28]        As the child is only four years old, it would be inappropriate to consider her views.

[29]        The applicant has not seen the child in three years now. Prior to that I am satisfied that the applicant cared for the child during the day when the respondent worked and that the applicant played a significant role in the care and upbringing of the child.

[30]        As stated, the applicant played a significant role in caring for the child up until three years ago. Since then the applicant has not been involved in the child’s care through no choice of her own.

[31]        The child's need for stability, given the child's age and stage of development

[32]        The child has not seen the applicant for three years. At her age of four years, there is a great likelihood that the child may not even remember the applicant.

[33]        The respondent questions the applicant’s ability to exercise parental responsibilities based on the manner that she was raised. In this case though, the application deals with contact time and not the exercise of parental responsibilities.

[34]        There has been no evidence of family violence that would impact upon the child’s safety, security or well-being.

[35]        There is no evidence of actions that would impair the applicant’s ability to care for the child during any contact visits.

[36]        In dealing with contact with the child, the animosity between the parties makes it unlikely they can co-operate with arranging any schedule for contact with the child or to deal with any matters during the exercise of the contact.

[37]        There are no relevant civil or criminal proceedings.

[38]        What has been clearly evident during this trial is that the relationship between applicant and respondent has been severely damaged. This has not been the result of any one particular incident but due to the relationship between the parties over the years and the respondent’s view of this. There is genuine and real animosity from the respondent toward the applicant. I am not convinced the applicant has the same feelings toward the respondent. Nevertheless I am satisfied that the hostility that the respondent has toward the applicant is real and ongoing. As the caselaw has established, it is not in the best interests of the child to be placed in such a situation, to in effect be put in between two parties who remain in a state of conflict.

[39]        The break-up of a family is always a sad occurrence. It is too easy to focus on the past with anger and distrust. As time passes, the parties may gain additional perspective that may lead them to a reconciliation. If I were to impose an order for contact with the child, I believe that any prospect of reconciliation for the family would likely be lost. In the long run, that is not in the best interests of the child.

[40]        For the reasons set out, I dismiss the application for contact with the child.

[41]        The respondent counterclaims to seek a protection order against the applicant grandmother.

[42]        In order to obtain a protection order pursuant to the Family Law Act, the applicant grandmother must be a “family member” as defined by the Act. In this case, the applicant does not fall within that definition which is found at s. 1 of the Family Law Act. Specifically, the applicant is not a spouse or former spouse of the respondent. The applicant does not live with the respondent. The applicant is not a parent or guardian of the respondent’s child. The applicant is not the respondent’s child.

[43]        Furthermore, the respondent alleges that the applicant has made harassing calls to her. The evidence was that for a period of time the applicant was calling the respondent until the respondent blocked the applicant’s telephone number. At this time, the applicant does not know the whereabouts of the respondent or child, or their telephone number.

[44]        Given the above, the application for a protection order is dismissed.

[45]        I direct counsel for the respondent to draft the order for filing with the registry. Pursuant to Provincial Court (Family) Rule 18(4), the applicant is not required to sign the order and so there is no need to dispense with the requirement for her signature on the form of the order.

[46]        My order is as follows:

[47]        I am no longer seized of this matter.