November 4, 2021
Subsection 18(2) of the Parenting and Support Act provides that a third party may make an application for access, but only with the leave of the court. (Parenting and Support Act)
Leave applications under section 18(2) of the Parenting and Support Act are not routinely granted. (Brooks v. Joudrey)
There are a number of factors to be considered in deciding whether to grant leave to a non-parent to seek an access order. Some of the relevant considerations include the nature of the relationship between the applicant and the child, the impact of contact on the child and the custodial parent, and whether there are extenuating circumstances such as the death or unavailability of a parent. Ultimately, the granting of leave is to be determined based upon the best interests of the child. (Doncaster v. Field; Brooks v. Joudrey)
In Casey v. Chute, the parties were in a common law relationship for more than 10 years. The mother testified that Mr. Chute was the biological father of Nathan but not the biological father of MacKenzie. Mr. Chute sought to have joint custody of both boys. Dewolfe J. dismissed Mr. Chute's application for a custody/access order with respect to MacKenzie on the grounds that Mr. Chute had not sought leave from the court.
In P.W. v. S.B., the stepmother to a five-year-old child sought specified access periods. The child's father died suddenly. Prior to his passing, he had primary care of the child. The stepmother lived with the father and the child for three years prior to his passing. DeWare J. of the New Brunswick Court of Queen's Bench confirmed that the court's sole concern and preoccupation is the best interests of the child. DeWare J. noted that the mother was now the child's sole custodial parent, and it was essential that the mother be able to raise the child unfettered by cumbersome access arrangements which could impede her ability to parent the child as she feels is best. However, DeWare J. held that it was in the child's best interest that sufficient access arrangements be put in place so that the child can continue to develop and maintain a meaningful relationship with the stepmother. Granting the stepmother access would help ensure the child retained the strong and meaningful bonds she had developed since birth with her paternal relatives, including the stepmother.
No other Nova Scotia decisions could be identified where a step-parent sought access. Guidance may be gleaned from cases where other non-parents sought access, summarized below.
The caselaw reflects the following legal principles when granting access to grandparents:
a. The paramount consideration in determining whether to grant grandparent access is the best interests of the child.
b. Parental decisions and views are entitled to a level of deference. However, the level of deference depends on the context.
c. There is no preferred judicial approach to determining whether grandparent access is in the best interests of the child, which approach is appropriate depends on context.
d. Under the Act the onus is on the applicant grandparent to prove that access is in the child’s best interest. (Spence v Stillwell)
In L.C. v K.T, L.C. and K.T. had a longstanding, positive relationship. That changed. Afterwards the mother refused to allow L.C. to have contact time with her son, whom L.C. had known since he was born. L.C. applied for leave and, if granted, contact time pursuant to s. 18 of the Parenting and Support Act. L.C. appealed the dismissal of her application. L.C. and K.T. met through L.C.’s daughter A.C., before the child was born. K.T., her son and L.C. had substantial contact over the years. The child called L.C. "Grammie". K.T. herself described L.C. before their rift as part of her “support system,” the people she trusted the most and thought were there for her. After K.T. and her son moved in with L.C., the relationship deteriorated. The Nova Scotia Court of Appeal affirmed that the paramount consideration was the best interests of the child. The Nova Scotia Court of Appeal affirmed that the judge considered most of the factors s. 18(6) of the Parenting and Support Act and the additional criteria set out in Brooks v. Joudrey. The Nova Scotia Court of Appeal affirmed the trial judge's holding that it was not in the child's best interest for L.C. to have court-ordered access.
In Simmons v Simmons, the mother appealed an order granting access to his paternal grandparents. The father had passed away. The relationship between the mother and the paternal grandparents was difficult. The mother claimed that, absent a finding of unfitness, she as the child’s mother was entitled to determine his best interests where contact with third parties, including grandparents, is concerned. Oland J.A. dismissed the appeal, finding that there is no requirement that a grandparent access case proceed from the parental autonomy paradigm. The trial judge considered what was in the best interests of the child in reference to several factors, including deference to the decision-making authority of parents.
In Doncaster v. Field, the father had no access to the children of the marriage. The father's sister sought access to the children. The court considered the leave application and the merits of the application for access in the same hearing. Wood J. was satisfied that the aunt's application passed the leave application threshold on the grounds that (a) the father had no access rights, therefore his family could not have contact with the children through him and (b) there was a sufficient historic relationship between the aunt and the children. Wood J. found that it was in the best interests of the children for the aunt to have access to them.
Subsection 18(2) of the Parenting and Support Act, RSNS 1989, c 160 provides that another person may make an application for access, but only with the leave of the court:
(2) On application by a parent, guardian or grandparent or, with leave of the court, on application by another person, the court may make an order respecting
(a) contact time;
(b) interaction; and
(c) any other matter the court considers appropriate.
In Brooks v. Joudrey, 2011 NSFC 5 (CanLII), the Court noted that leave applications under section 18(2) are not routinely granted. The Court considered a number of factors in deciding whether to grant leave to a non-parent to seek an access order. These factors included the nature of the relationship between the applicant and the child, the impact of contact on the child and the custodial parent, and whether there are extenuating circumstances such as the death or unavailability of a parent. Ultimately, the granting of leave is to be determined based upon the best interests of the child:
 Leave applications under section 18(2) are not routinely granted. In the present case, there are a number of factors which require consideration.
 First, the Applicants are Seth’s paternal grandparents. (Obviously, the fact that Ryan was their adopted son does not weaken their status in this respect, see, for example, M.D.S. v. S.A.M., 1999 CanLII 19099, 182 NSR (2d) 337 (N.S.F.C.)).
 I was impressed by the Applicants’ evidence, and conclude that they are willing to work with the respondent in order to surmount earlier difficulties and “ put them in the past”. They strike me as the sort of people who would try their hardest to do so.
 Another factor involves the negativity of the Respondent. As noted earlier, her attitude is extreme, to the point where she could not even bring herself to offer condolences to the Applicants upon the death of their son, the father of her child. She characterized her opposition to the Applicants in this matter as being predicated (in part) upon the fear that they would attempt to control her interaction with her son, and undermine her parenting. While, as in any case of this sort, there is the potential for that sort of interference, upon listening to the Applicants it did not appear that they represented a danger of that sort. The parties got along very well under the same roof for four months during which time, as noted, the Respondent all but lived in the Applicants’ home and relied upon them for financial support during that interval.
 Most of the basis for the parties’ estrangement appears to rise from the Respondent’s (and Ryan’s) precipitate action in quitting her(their) job(s) in late 2008, and the female applicant’s decision to share with the respondent (and her son Ryan) her views as to the wisdom of that move. This was the meeting in January 2009, noted earlier.
 I have previously indicated that I agree with the Respondent, to a limited extent, that the Applicants’ views appear to have been conveyed to Ryan and the Respondent with unnecessary force by the female Applicant. As I also noted, however, I am satisfied that if a similar stressor were to arise in the future, the Applicants would handle it very differently.
 In short, I am of the view that the Applicants are not interested in attempting to interfere with or undermine the Respondent. Rather, they are simply of the view that, since Ryan is now deceased, it is only through themselves that Seth will have any exposure to his father’s family and heritage at all.
 This is a legitimate and compelling concern. Indeed, I was left with the distinct impression that without the involvement of the Applicants in Seth’s life in some fashion, he would never be presented with information of any sort with respect to his father.
 This concern is particularly pressing when one considers that Ryan was Aboriginal, and had status. Seth would derive benefit through exposure to and participation in this culture, access to community supports, and the other tangible benefits that would flow through to him if this connection to his ancestral community were maintained. The Applicants have the ability, and the desire, to nurture and strengthen this connection (even though they are not of the First Nations Community themselves) and this places them in a position to benefit Seth immeasurably.
 As to the Respondent’s indication that she has fears for Seth’s safety if he should be alone in the Applicants care, due to the male Applicant’s “propensity” to excessively consume alcohol, and the alleged abuse by the female applicant of prescription medication, I find that these fears have been exaggerated. They do not appear to have any substance whatsoever. In particular, I am satisfied on the basis of the evidence given by Reverend Mitchell, Jean Agecoutay, and the Applicants themselves, that the male applicant does not have a drinking problem and in fact it appears that he is someone who at most will occasionally take a drink on social occasions. Further, as indicated earlier, Agnes Brookes does not abuse prescription medication or any other substance.
 As to the Respondent’s indication that she is concerned that the Applicants would tell Seth at some point that she was responsible for his father’s death, the mildest thing I can say about it is that it is extremely speculative. To put a finer point upon it, after having listened to the evidence of the Applicants, I do not believe that they would ever do such a thing to their grandson. Moreover, the female Applicant testified that they (in fact) do not believe that the Respondent is to blame for Ryan’s death, notwithstanding the note that he left behind attributing his suicide to his inability to secure access with his son. While the Applicants very much grieve the loss of their son (their emotion in relation to this loss was palpable), they clearly testified that Ryan’s decision to end his life was his alone, and that he must alone bear the responsibility for that decision.
 The Applicants’ have proceeded properly with respect to the timing of their court application. While Ryan was alive, they undertook no legal action. Their son had retained counsel and was pursuing access himself. After Ryan’s death, the Applicants attempted to obtain some contact with their grandson informally by requesting it of the Respondent, which requests were ignored.
 However, this factor leads to another consideration. Aside from the brief exposure of the female Applicant to the child on the occasion of her accompanying Ryan on his only access to visit with Seth in August 2009, there has been no contact between the Applicants and the child at all.
 This, coupled with the aforementioned negativity of the Respondent towards the Applicants, serves to emphasize the difficulty of the task of constructing a visitation schedule which will not exacerbate the mother’s hostility, thereby potentially increasing the stress level all around. If this should occur, it would be inimical to the child’s needs, and his best interest.
In Doncaster v. Field, 2014 NSSC 181 (CanLII), the father had no access to the children of the marriage. The father's sister sought access to the children. The court considered the leave application and the merits of the application for access in the same hearing. Wood J. was satisfied that the aunt's application passed the leave application threshold on the grounds that (a) the father had no access rights, therefore his family could not have contact with the children through him and (b) there was a sufficient historic relationship between the aunt and the children:
 Both parties rely on the decision in Brooks v. Joudrey, 2011 NSFC 5 as setting out the factors to be considered in deciding whether to grant leave to a non-parent to seek an access order. The Court, at para. 56, of that decision summarized some of the relevant considerations. These include the nature of the relationship between the applicant and the child, the impact of contact on the child and the custodial parent, and whether there are extenuating circumstances such as the death or unavailability of a parent. Ultimately, the granting of leave is to be determined based upon the best interests of the child.
 In many respects the considerations involved in determining whether leave should be granted are the same as those which will arise on the ultimate question of access. The purpose of the leave requirement is to screen out applications which should not proceed to a more fulsome consideration of the merits.
 I am satisfied that Ms. Doncaster’s application gets over this initial threshold for several reasons. The first is that Mr. Doncaster has no access rights and, therefore, members of his family, such as Ms. Doncaster, cannot have contact with the children through him. This would normally be the situation where a non-custodial parent has access rights.
 I am also satisfied that there is a sufficient historic relationship between Ms. Doncaster and her family and the children. There were a number of examples of shared positive experiences. I am satisfied that Ms. Doncaster’s request for access is sincere and motivated by a desire to provide love, affection and guidance to the children. It is by no means frivolous or vexatious. For these reasons, I believe that it is in the children’s best interests to have a full consideration of Ms. Doncaster’s request for access and I will, therefore, grant her leave to do so.
Wood J. found that it was in the best interests of the children for the aunt to have access to them for the following reasons:
 The governing principle of access applications is the best interests of the children. It is not to be decided in the abstract, but rather with the particular circumstances of the children and family in mind.
 I accept as a general principle that contact between children and their extended families is a good thing; however, that does not advance Ms. Doncaster’s application terribly far. I need to consider whether giving her access to Max, Mia, Grace and Kate is in their best interests.
 In a situation such as this, where one parent has custody and the non-custodial parent has no access, the court must give significant weight to the wishes of the custodial parent in terms of contact with extended family members. That parent is frequently in the best position to assess what is in the best interests of the children.
 It is also important to keep in mind that the custodial parent may have difficulty being completely objective, particularly where there is a highly stressful family dynamic at play. In this case, Ms. Field frequently expressed concern for the physical and emotional safety of her children and said that her decisions to refuse access to Ms. Doncaster and others was motivated by those considerations. These safety issues appear to relate almost exclusively to the conduct of Mr. Doncaster. There was very little evidence in this hearing with respect to Mr. Doncaster’s past behaviour; however, it is apparent from the decision of Justice Bourgeois to deny him access that Ms. Field’s concerns with respect to safety have a reasonable basis.
 Ms. Field testified that she felt that her children’s negative view of the Doncaster family was the result of viewing them through the lens of Mr. Doncaster and his behaviour. To some extent I believe that Ms. Field is doing the same thing. There was no evidence at the hearing of any behaviour on the part of Ms. Doncaster which could be reasonably interpreted to mean that she would intentionally or unintentionally cause harm to the children. Nor was there any indication that she has done anything which would justify a concern that contact might endanger the well-being of Max, Mia, Grace or Kate. The refusal of the children to have any contact or even acknowledge gifts cannot result from anything Andrea Doncaster has done.
 Because of my concerns about Ms. Field’s ability to be objective I do not believe that her opinion about the best interests of the children should be determinative. The purpose of court review is to provide an independent, evidence based analysis of that question.
 I was impressed by the testimony of Ms. Doncaster and Mr. Burgess. They present as people who have nothing but the well-being of the children in mind and sincerely believe that they have much to offer them. Ms. Doncaster has acknowledged that due to the passage of time and the stressors experienced by the children, any access must be carefully planned and incremental. Ms. Doncaster believes that contact with her immediate family would be beneficial for the children and provide them with positive experiences which would assist them in working towards a resumption of their relationship with the broader Doncaster family.
 I am satisfied that there was a positive and loving relationship between Ms. Doncaster’s family and the children, and that resuming this would be in their best interests. I am also mindful of the fact that Ms. Doncaster would be a good role model and mentor for the children, particularly with her ability to provide support and motivation for the girls to pursue education and careers in science, technology and math. According to Ms. Field, Grace has a particular interest in math and I am sure would benefit from exploring that further with Ms. Doncaster.
 In many respects, Ms. Field does not disagree with having contact between her children and Ms. Doncaster, or other members of the Doncaster family. The divergence of opinion relates to when that might be and who should set the parameters. Ms. Field believes that she should be the exclusive judge of that and, for the most part, is leaving it to the children to make their own decisions about when contact might occur. In my view, the evidence of Ms. Field about the children, their academic success and social adjustment suggests that the time has arrived for some contact to be initiated. They have not required counselling for more than a year and Ms. Field has seen no indication of psychological stressors in their behaviour.
 I am also satisfied that Ms. Doncaster will respect any court order and ensure that any limitations imposed will be observed, including excluding Mr. Doncaster from any participation in access or communication with the children which contravene any existing court order.
 For all of the above reasons, I conclude that it is in the best interests of the children to have contact with Andrea Doncaster and her family; however, I believe it should be subject to reasonable limitations which may change over time. I accept the expressed desire of both Ms. Field and Ms. Doncaster to avoid harm to the children. I also believe that as mature, professional women they should be given an opportunity to work out a mutually satisfactory arrangement for access. For that reason, I will not render my decision, at this time, on the particular terms under which access will be exercised. I will defer that determination until after June 6, 2014. If Ms. Field and Ms. Doncaster can agree on the terms and conditions of access, I would ask them to prepare a consent order and forward it to me by that date. If they are unable to agree then I direct that they each provide me with a letter by no later than June 6th, outlining the terms on which they believe access should be granted, following which I will issue my decision on those issues.
In Casey v. Chute, 2010 NSFC 8, the parties were in a common law relationship for more than 10 years. The mother testified that Mr. Chute was the biological father of Nathan but not the biological father of MacKenzie. Mr. Chute sought to have joint custody of both boys. Dewolfe J. dismissed Mr. Chute's application for a custody/access order with respect to MacKenzie on the grounds that Mr. Chute had not sought leave from the court:
7 Ms. Casey has applied for sole custody of both children, in relation to Mr. Chute, pursuant to section 18 of the Maintenance and Custody Act.
8 Sections 18(1), 18(2) and (2)(e) of the Maintenance and Custody Act provide as follows:
Section 18(1) In this section and section 19, "parent" includes the father of a child of unmarried parents unless the child has been adopted.
(2) The court may, on the application of a parent or guardian or other person with leave of the court, make an order
(a) that a child shall be in or under the care and custody of the parent or guardian or authorized person; or
(b) respecting access and visiting privileges of a parent or guardian or authorized person.
Section 2(e) "guardian" includes a head of a family and other person who has in law or in fact the custody or care of a child.
9 In the instant case, Mr. Chute is neither MacKenzie's parent nor guardian. Therefore to be a party to an application for custody or access in relation to MacKenzie, he must first seek leave (permission) from the court. He has not done so in this case. Therefore this court has no authority to make a custody/access order with respect to MacKenzie in this application.
10 It would indeed be unfortunate and sad if Ms. Casey chooses to impede Mr. Chute's access to MacKenzie, as clearly there is a bond between the two. However, it is beyond the jurisdiction of this court at this time to make a custody/ access order with respect to MacKenzie.
In P.W. v. S.B., 2018 NBBR 34, 2018 NBQB 34, the stepmother to a five-year-old child sought specified access periods. The child's father died suddenly. Prior to his passing, he had primary care of the child. The stepmother lived with the father and the child for three years prior to his passing. DeWare J. confirmed that the court's sole concern and preoccupation is the best interests of the child.
36 The pertinent legislation, the Family Services Act, in addition to the jurisprudence emanating from all levels of Canadian courts, confirm that in cases involving custodial issues for children, the courts' sole concern and preoccupation is the best interests of the child. The desires, needs and requests of the parents or guardians while of course considered by the Court do not factor into the analysis as to what custodial arrangement will best respond to the particular child's needs. In this case, we are only considering the issue of access, the issue of custody and primary care now resolved. However, the Court's focus must always remain what access arrangements are in A.M.L.'s best interests. This overriding principle is in no way sidelined or diminished by the particular circumstances of this case.
DeWare J. noted that the mother was now the child's sole custodial parent, and it was essential that the mother be able to raise the child unfettered by cumbersome access arrangements which could impede her ability to parent the child as she feels is best. However, DeWare J. held that it was in the child's best interest that sufficient access arrangements be put in place so that the child can continue to develop and maintain a meaningful relationship with the stepmother. Granting the stepmother access would help ensure the child retained the strong and meaningful bonds she had developed since birth with her paternal relatives, including the stepmother:
38 It is important to acknowledge that the respondent is now A.M.L.'s sole custodial parent. It is essential that the respondent be allowed to raise A.M.L. unfettered by cumbersome access arrangements which could impede her ability to parent A.M.L. as she feels is best. That said, I accept the applicant's position that A.M.L. is used to spending great periods of time with the applicant and S.L. Prior to M.L.'s untimely passing, A.M.L.'s regular routine involved living most of her time with the applicant. Further, the applicant was not a passive person in the home of A.M.L., but was actively engaged as a parent and actively involved in nurturing A.M.L. on a daily basis. It is important for A.M.L. that these strong bonds be maintained for her continuity and sense of stability.
39 A.M.L. is a fortunate little girl in the sense that she has a great number of adults in her life who are clearly dedicated to her and whom wish to support her as she grows. These relationships will be a source of strength for A.M.L. as she grows and slowly comes to terms with the reality that her father will not be coming back. In my view, the presence of the applicant and M.L.'s family in A.M.L.'s life is one of the best supports available for her as she adjusts to her new normal. Therefore, it is in A.M.L.'s best interest that sufficient access arrangements be put in place so that A.M.L. can continue to develop and maintain meaningful relationships with the applicant, S.L., and her paternal relatives.
41 This case is different than most custodial disputes which come before the Court. In this matter, A.M.L.'s life has been marked by the loss of a parent and that parent was her primary caregiver at the time of his passing. Given this factual reality, there are certain considerations the Court must keep in mind in regards to A.M.L.'s situation which are in addition to the typical best interests of the child analysis. Central to these additional factors is the need to ensure that A.M.L. retains the strong and meaningful bonds she has been developing since birth with her paternal relatives, including the applicant. In this case, the applicant and S.L. are willing to provide that stability as well as ongoing support for A.M.L. so she can retain these essential relationships. The challenge in this case is to balance the respondent's right to raise A.M.L. as she sees fit without unduly restrictive access arrangements against the need to ensure A.M.L. maintains those important bonds with her paternal relatives. In attempting to achieve this balance, the Court must approach the issue strictly from A.M.L.'s perspective. The Court's analysis must always remain centered upon the child.
43 In considering the best interest of the child definition as provided in the Family Services Act, a holistic review of the situation is appropriate in this particular case. As noted, in this case, we are simply dealing with the issue of access; therefore, many of the issues which must be sorted through when determining the seminal question of custody are not present. That said, the best interests of the child criteria must also be weighed in determining the appropriate access arrangements for the applicant in this case. There is no doubt but that A.M.L.'s mental and emotional wellbeing are best served by regular, consistent and continued access with the applicant. This young child has experienced a significant disruption to her little world as a result of her father's untimely passing. It is important that she continue to have access to those people who have been a support to her throughout her life as she continues to adjust to her new routines. Further, it is clear based on the evidence, and certainly not contested by the respondent, that the applicant and S.L. are loving and caring individuals who only have A.M.L.'s best interests at heart. The evidence clearly satisfies me that A.M.L. benefits from the time she spends with the applicant and S.L.
44 In this particular case, A.M.L. is only five years old. She is far too young for her views and preferences to be considered by this Court. However, certain findings can be gleaned by the evidence of all who testified in this matter. I have no difficulty reaching a finding of fact that A.M.L. wants to have access with the applicant and S.L. As well, the respondent certainly does not deny this reality. It is clear that A.M.L. is very attached to all of these important people in her life and enjoys tremendously spending time with each one of them. Further, regrettably, A.M.L. has experienced a great disruption in her sense of continuity as a result of her father's death.
45 The respondent, to her credit, immediately stepped up to the plate and has put in place routines for A.M.L. that are working. Despite great changes in her life, A.M.L. is thriving and this is a testament to the respondent's efforts to insure stability for her. Likewise, her sense of continuity is well served by continued access with the applicant and S.L. Finally, it is conceded by all that A.M.L. does enjoy a bond and is attached to the applicant and S.L., as she is the respondent. One issue that is not a concern for the Court is that A.M.L. is lacking in support or loving caregivers in her life. Clearly, A.M.L. enjoys love and nurturing regardless of the home where she may be residing.
46 A.M.L. is doing very well under the current access regime. In my view, this is the best indicator that the arrangements are working. However, A.M.L. would likely benefit from additional time with the applicant now that the situation has stabilized and routines have been established. In my view, the best means with which to achieve this goal is by extending the Wednesday visits from after school or daycare on Wednesday until the start of school or daycare on Thursday. This will avoid the necessity of A.M.L. transitioning between the parties on Wednesday evenings and this also happens to work well with the respondent's schedule as she is frequently occupied on Wednesday evenings. In addition, it is reasonable to accord the applicant an additional Sunday night during her access weekend. In particular, this will be helpful as I have granted the respondent's request that A.M.L. attend church services on Sunday morning. Therefore, this will provide the applicant with Sunday afternoon and evening as well as avoiding the transition between homes for A.M.L. which can sometimes be difficult for her.
47 I accept the evidence of the respondent that she will be flexible in regards to access for the applicant. These parties have all experienced enormous disruptions in their lives over the course of the last eight months and have done their best to care for A.M.L. As the situation stabilizes and the parties become more acquainted with each other, strict access provisions may not be necessary. However, at this juncture, it is important for A.M.L. that she have as much stability as possible. A predictable routine will be beneficial for A.M.L. as well as the parties. The respondent is now a full-time single mother and the applicant's presence in A.M.L.'s life will no doubt be of assistance to the respondent given her parental responsibilities and work schedule.
In Spence v Stillwell, 2017 NSSC 152 (CanLII), the Supreme Court of Nova Scotia set out the legal principles on granting access to grandparents:
 The cases reflect the following:
a. The paramount consideration in determining whether to grant grandparent access is the best interests of the child.
b. Parental decisions and views are entitled to a level of deference. However, the level of deference depends on the context. Simmons v. Simmons, 2016 NSCA 86.
c. There is no preferred judicial approach to determining whether grandparent access is in the best interests of the child, which approach is appropriate depends on context. MacLeod v. Theriault, (2008), 2008 NSCA 16 (Can LII), 262.