Alberta court considers factors of necessity of contact order and significance of relationship
Contact-seeking relatives will find it difficult to comply with the statutory test to establish that their relationship has been significant to the child if the child is a newborn and or an infant, an Alberta court has recently ruled.
In DLL v CCL, 2021 ABQB 283, a maternal grandmother sought permission to apply for, and if permission was granted, an order for contact with her granddaughter. When the child was born in September 2019, the mother lived with the grandmother and the grandmother’s husband then moved out in July 2020.
The grandmother claimed that she was closely involved in her granddaughter’s life and often assisted with her care, but she had been unable to contact the child since November 2020. The mother, who opposed the grandmother’s request to contact the child, acknowledged that the grandmother had assisted with the child’s care but said that she could not fully trust the grandmother around herself or her child.
The Court of Queen’s Bench of Alberta declined to grant permission to the grandmother. It dismissed the grandmother’s application, finding that the grandmother fell into the class of individuals who need the court’s permission before they can initiate a contact application and failed to qualify for the “no leave required” exception in s. 35(3) of the Family Law Act.
The court said that, while one part of the exception was satisfied because the guardians of the child appeared to be living separately, the second requirement for the exception was not met because the guardian was still alive, because the apparent separation of the guardians did not cause the interruption of contact between the grandmother and the child and because no evidence suggested that the split caused the mother’s decision to end contact.
The court considered the two “best interest” factors stated in s. 35(4), which are the necessity of an order and the significance of the relationship. Regarding the need for an order, this factor was met because it appeared that contact would not happen without an order, presuming that the mother would not change her mind about preventing contact, said the court.
However, the court was unable to find a significant relationship between the grandmother and the child, which was a key or a minimum requirement for the permission sought.
“Given the age of the child here at last close-in contact (ten months) and at last contact (fourteen months) and the absence of evidence (expert or otherwise) about the particular impact (i.e. the importance) of the relationship to the child, and given that the Legislature requires more than the hope of a significant relationship and has not deemed that a grandparent-grandchild relationship is automatically to be regarded as significant, I cannot find the required significance here,” wrote Justice Michael Lema for the court.
The court noted that its finding was not commenting on the grandmother’s efforts but instead reflecting the decision of legislators to require a demonstrable correlation between contact with the grandmother and the lived experience of the granddaughter.