NB Court of Appeal blocks grandmother’s attempt to gain custody of two children

A New Brunswick court recently held that a grandmother failed to demonstrate the ability or capacity to parent, or a settled intention to raise two children, who were in the custody of the minister of social development, as her own.

The parents had two biological children together. The first, born in June 2018, lived with her parents in her paternal grandmother’s house. The second was born in June 2020. He showed signs of drug withdrawal at birth and immediately went into protective care. The grandmother never parented him or lived with him.

In June 2020, the minister obtained a custody order over the two children and an elder child of the mother. In December 2020, the N.B. Court of Queen’s Bench extended the custody order.

The application judge made a guardianship order in the minister’s favour relating to the two biological children. The judge made the following findings:

• The parents could not properly care for their children
• The parents had criminal records with incarceration periods
• Serious drug addictions and repeated failed rehabilitative attempts affected the parents’ lives
• The grandmother, though a named respondent, did not have standing in the guardianship proceeding and did not ask for custody
• The grandmother was never in a parenting position
• The grandmother did not demonstrate the ability or capacity to parent

The parents and the grandmother filed a notice of appeal. Later, the grandmother alone filed a supplementary notice of appeal that sought to amend and to replace the previous grounds of appeal. The parents’ original notice of appeal was deemed abandoned since neither was present nor represented at the hearing.

Grandmother not deemed parent

In V.H., B.A. and W.P. v. The Minister of Social Development, 2022 NBCA 70, the New Brunswick Court of Appeal dismissed the appeal.

The appellate court contrasted this case with C.C. v. M.C., 2020 NBQB 234, where the court found that an aunt and uncle who raised a 15-year-old since he was an infant and who made all decisions affecting his life clearly formed a settled intention to raise him as their own.

In this case, the grandmother admitted that she played only a supporting role and never intended to replace the children’s parents. The parents lived within the household with the children whenever they were not incarcerated and made all the important decisions about the children’s lives before they went into protective care.

The appellate court ruled that the application judge fully canvassed the best interests of the child criteria and the procedural considerations for determining whether the grandmother had standing or was seeking custody. The judge reviewed the evidence, gave the grandmother full opportunity to be heard, and considered whether to place the children in her custody, the court said.

The appellate court agreed with the judge’s conclusion that the grandmother never had a parenting position and failed to show an ability or capacity to parent. This conclusion was consistent with the original notice of appeal, which did not ask the court to grant custody to the grandmother, the appellate court added.