ONTARIO COURT OF JUSTICE
BETWEEN:
A.L.S.
Applicant
— AND —
K.S. AND L. W.
Respondents
Before Justice C.C. Belda
Heard on January 31, 2025
Reasons for Judgment released on February 13, 2025
Ms. Theodora Millward counsel for the applicant
Ms. Kimberly Costa counsel for the respondents
BELDA J.:
1Ms. K.S. (“The Respondent grandmother”) and Mr. L.W. (“the Respondent grandfather””) (Collectively referred to as “The Respondents”) have brought a Notice of Motion, dated January 3, 2025 requesting contact with their grandchildren, A.S. (“A.S.”), born […], 2010 and E.S. (“E.S.”), born […], 2013, pursuant to s. 21 of the Children’s Law Reform Act, R.S.O. 1990, c.C. 12 (“CLRA”). I will collectively refer to them as the children.
2The relief requested includes a temporary order for the following:
(1) Access at the Supervised Access Centre (“SAC”) once every two weeks of 2 hours at a time for a period of one month;
(2) Access at the SAC once a week for 2 hours at a time or, in the alternative, a combination of visits through the SAC and supervision by a third party if the SAC is not able to accommodate weekly visits, for a period of one month;
(3) Unsupervised visits weekly to take place on Sundays from noon until 5:00p.m. for a period of one month;
(4) Unsupervised visits weekly to take place on Sundays from 10:00a.m. until 7:00p.m., with a review of same after one month;
(5) Unsupervised contact via telephone, video, chat function, e-mail or other means of communication between A.S. and the Respondents, in accordance with A.S.’s wishes;
(6) Contact between A.S. and the Respondents to not be interfered with by the Applicant father, including but not limited to, by limiting or removing A.S.’s access to a phone or other device used to communicate with the Respondents;
(7) All parties to contact and complete all necessary paperwork for the SAC within 7 days of the decision of this Court; and
(8) Costs on a substantial indemnity basis.
3The Respondents’ motion is supported through Ms. K.S.’s affidavits, sworn on January 3, 2025 and January 24, 2025 and Mr. L.W.’s sworn Affidavit of January 3, 2025. They also submitted caselaw with respect to grandparent contact.
4Mr. A.S. (“the Applicant father”) opposed the motion. His evidence is found in his affidavit, sworn on January 13, 2025, as well as the affidavit of S.C. (“Ms. S.C.) and C.W. (Mr. C.W.), sworn on the same date.
5The Office of the Children’s Lawyer declined involvement in this matter.
THE FACTS
6The Respondents are the biological maternal grandmother and step grandfather to the children. The children’s mother, D.S. (“the mother”) passed away on May 5, 2021 from an overdose. It appears that she was dealing with addictions, as well as mental health struggles.
7The Applicant father is the father of the two subject children. Ms. S.C. is the Applicant father’s current partner. Mr. C.W. is the biological mother’s oldest child, and stepchild to the Applicant father.
8The Respondents claim that they were actively involved in the family’s lives and, especially the children’s lives, before and after their mother’s passing in May 2021. They provided financial support, overnight care, and maintained close ties with the children. Following the mother’s death, they continued to be involved in the children’s daily lives, including attending field trips, working with the school, medical professionals, and child welfare agencies. While the Applicant father acknowledges their involvement in the lives of the children, he refers to their involvement as overstepping.
9Both parties note prior involvement with the Children’s Aid Society (CAS) around 2020. The Respondents state that A.S. was previously removed from their parents’ care due to concerns over home conditions and parenting concerns. The Applicant father indicates that CAS involvement resulted from A.S. making false statements about abuse, which she later recanted, and that his home was not unsafe. The Applicant father indicates that A.S. has a pattern of lying, which is part of her behavioral issues.
10The Respondent grandmother believes that the child was worried about her father’s reaction to her disclosures and so her disclosures may not have been a lie. Regardless, she believes CAS records will show that CAS and the police found the home to be unsuitable and that there were various other concerns that required the removal of the children, placing the children in their care. It is unknown to the court how long the placement lasted. However, it is clear that the children were in the Respondents’ care at some point.
11The Respondents’ pattern of involvement seemed to continue after the death of their mother. It is acknowledged by the Applicant father that the children did spend time with the Respondents, though not to the extent that they claim. While he minimizes the time, there seems to be acknowledgement that the children spent some weekends with the Respondents. He indicates that there were times when the children wanted to stay in the care of the Respondents but he attributes this to the Respondents lack of following his rules.
12The Respondents deposed that after the mother’s death, they communicated with and arranged their visits with the children with the paternal grandmother, who had taken a primary caregiving role for the children.
Termination of Contact
13The allegation by the Respondents is that Applicant father began limiting the Respondents’ access after entering into a relationship with Ms. S.C. . By January 2024, he cut off all contact between the Respondent grandparents and the children. He thereafter sought a restraining order, citing concerns about their effect on the children. The request for a restraining order has now been abandoned as he noted that the Respondents are adhering by his boundaries.
14The Applicant father states that the decision was triggered by disputes over parental authority and decision-making. He deemed the separation was necessary to protect the children from the Respondents influence, and to allow the children to process their own grief and emotions and to improve their mental health and coping mechanisms. Moreover, the Applicant father alleges that the Respondents repeatedly disregarded his parental instructions, including medication schedules, social media and food restrictions, and bedtime routines, to name a few.
15For example, the Applicant father claims that the Respondent grandmother overstepped boundaries by seeking medical advice from a pharmacist instead of following his instructions and by involving herself in parenting decisions beyond her role. The Respondent grandparents deny undermining the Applicant father and state that their actions were motivated by concern for the children’s well-being.
16The Respondent grandmother acknowledges occasional lapses in administering A.S.’s medication but attribute them to the Applicant father’s failure to provide refills. The Applicant father attributes them to the mother’s addiction, though the Respondents claim it continued after her death. The Respondents also state that his instructions were often inconsistent or not communicated directly, likely due to his own ADHD or the fact that he left it up to the children to communicate his rule to them, leading them to either not receiving them or to seek clarification from professionals for the safety of the children. The Respondents claim that they know a schedule is important to the children and they were instrumental in establishing a schedule for the children while they were placed with them.
17Another important issue for the Applicant father is what he deems as encouragement by the Respondents of the children, especially A.S., to lie and steal. He points to the Respondent grandmother encouraging A.S. to run away from home, which the grandmother denies, as the child did this numerous times on her own. She merely made sure the child was safe by taking her into her home. The Applicant father also points to an incident where the Respondent grandmother and the children took three items that were in a pile of the mother’s stuff at their old house: stickers, a picture of a dog and a piece of wire art. The Respondent grandmother admitted the items were taken by her and the children. However, they were in what appeared to be a pile of garbage and they did so with the permission of Mr. C.W., which he confirmed.
18Most poignantly, however, it appears that contact seized due to the Respondents refusal to return the mother’s urn, which the Applicant father claims was lent, not gifted. The Respondents claim the urn was given to them and that the father is involving the children in the dispute, as both children have expressed that they should return the urn so their relationship can resume.
19The Respondents state they accidentally encountered E.S. at a school event for another grandchild, where she expressed a desire to see them again if they would just return the urn. They claim the father’s partner accused them of attempting to kidnap the child, an allegation refuted on the spot by the school principal. The Applicant father claims that despite being asked to stop contact, the Respondents approached E.S. at school and encouraged A.S. to use a secret account to communicate with them against his wishes. The Respondent grandmother denies encouraging either child to contact the Respondents. Both children initiated contact on their own.
Concerns Over the Children’s Mental Health
20There are mental health issues for both children. A.S.’s needs are more complex, while E.S.’s are less so. Both children have been diagnosed with ADHD and suffer from anxiety. A.S. is being queried for possible autism spectrum disorder.
21A.S. has now completed the LIT (Live-In treatment) residential program through the Children’s Centre.
22The Applicant father indicates that A.S.’s behavioural issues include telling lies, being oppositional, emotional outburst, rapid mood swings, speaking aggressively to younger children and other problematic behaviour. He cites her improvement by noting that during Thanksgiving of last year, she was inconsolable when remembering her mother, hid in a room to read their mother’s diaries and was in a morbid head space, refusing comfort from the family. But by Christmas 2024, she was able to cope better with the loss by talking to Ms. S.C. about the loss. She is also doing better in school. Ms. S.C. also credits the end of contact between the children and the Respondent Grandparents as with an improvement in the children, including adherence to routine and protocols provided by treating professionals.
23Both children continue to struggle with grief.
24The Respondents expressed concern over A.S.’s well-being, citing a history of self-harm, running away, and messages she sent expressing distress over being placed in a therapeutic group home. They claim A.S. has reached out to them despite being forbidden from contacting them, stating that she feels isolated and mistreated by the father’s partner.
25The Applicant father acknowledges A.S.’s struggles, though she claims her self harm is picking at her skin, which is a symptom of ADHD. The Respondent grandmother indicates the child is cutting. Regardless, he believes that A.S.’s symptoms are improving due to the stability he and his partner provide. He attributes past behavioral issues, including A.S.’s defiance, emotional distress, and self-harm, to the Respondents’ influence. His partner, Ms. S.C., supports this view, stating that after visits with the Respondents, the children became more aggressive and struggled with boundaries.
26The Applicant father, as well as Ms. S.C. and Mr. C.W., feel it would be detrimental to the children’s mental health to have any contact with the Respondents are they “trauma dump”, use them as a crutch to deal with their own grief, thus placing pressure on the children. This is aggravated because they are under the impression that the Respondent grandmother does not believe in mental health issues, largely due to hearsay evidence provided with respect to the mother’s own struggle with own mental health. However, the Respondent denies this. She cites having 30 years’ experience supporting individuals with mental health and developmental disabilities. She supported her own child through her struggles in various ways, even if she was unable to ultimately help her.
27The Respondents believe that being cut off from the entire maternal extended family, aside from Mr. C.W. is causing both children additional anxiety and stress. The Respondents advise that the children have been forbidden from contacting them and that the Applicant father has historically punished the children by not letting them see their grandparents.
28The Respondents also believe the children are not being allowed to properly grieve their mother, including not being permitted to attend their mother’s celebration of life.
Role of the Father’s Partner in the Children’s Lives
29The Applicant father’s partner, Ms. S.C., is a family support worker with training in ADHD and autism. The Applicant father credits her with helping stabilize the children’s emotional and behavioral health due to her own experiences with ADHD and mental health.
30The Respondents claim the children are fearful of her due to her strict discipline methods, which allegedly include physical exercises as punishment. The father denies this and states that S.C. has been a positive influence, providing necessary structure and support.
Involvement of the Mother’s Eldest Son
31Mr. C.W. confirms in his affidavit that he has severed ties with the Respondents as of July 2024. He does not indicate why though he mentions that the Respondents talk incessantly about the Applicant father and his partner and that the Respondent grandmother likes to play the victim. The Respondent grandmother denies obsessively talking about the Applicant and his partner, through she acknowledges having conversations about them with Mr. C.W.. She acknowledges that the conversations have not always been positive.
32Because Mr. C.W. uses the exact same words in cutting off contact with them, the Respondent grandmother believes that the Applicant father’s alienation of the children did not stop with the subject children.
POSITION OF THE PARTIES
33The Respondents take the position that the Applicant father is alienating the children from their maternal family, returning gifts they sent and involving the children in adult disputes. They believe cutting off all maternal family ties is detrimental to the children’s mental health.
34The Respondent grandparents believe that the limited access they are seeking to the children is in their best interests. They had a close and loving relationship before and after their mother’s death and they seek to re-establish that relationship. They are the only ties the children have to their maternal extended family. Moreover, the death of the children’s mother puts them in a position that requires more contact than other grandparents.
35Moreover, they are concerned for the children’s mental health and the possibility that they are being alienated from them without valid reason.
36The Applicant father, however, is of the position that there should be deference to his decision to end contact as the Respondents are emotionally manipulative and that their interactions placed undue pressure on the children. He alleges that the Respondent grandmother made A.S. feel responsible for her emotional well-being.
37The Applicant father claims that the Respondents’ relationship with the children became “chronically negative and they have repeatedly put them at risk of harm.” Moreover, he is concerned about a rekindled relationship because E.S. is a “people pleaser” who will take on stress rather than upset anyone.
38The Applicant father submits that contact between the children and the Respondents is not in their best interest due to their fragile mental state. Any gains made in the last year could be lost by mere contact. He submits that the Respondents’ lack the ability to respect his parenting choices and acknowledge the children’s needs, and that their failure to prioritize the children’s best interests are enough for any contact to not be beneficial to the children or their household.
39In addition, the Applicant father submits that E.S. is too young, and that A.S. is not emotionally mature for their wishes and preferences to be strongly considered. In any event, A.S.’s wishes are inconsistent, and E.S. just wants to make people happy. If contact is to be granted, he would prefer for it to be evaluated after the end of the school year, with decisions to be guided by their emotional improvement.
THE LAW
40Grandparents do not have a legal right of contact with their grandchildren. The onus is on the grandparents to show contact is in the children’s best interests.
41The starting presumption is that deference should be given to a parent’s decision whether to award a grandparent contact with a child. See: Chapman v. Chapman, 2001 CanLII 24015 (ONCA). It is always important to defer to the decisions of parents regarding their children. However, deference is only accorded when those decisions are reasonable, and the parents are acting in the child’s bests interests. See: M.M. v. K.M., 2023 ONCJ 314, McLaughlin v. Huehn, 2004 ONCJ 426; Bennett v. MacFarlane, 2021 ONSC 3700; Arbuzova v. Scriver et al, 2024 ONSC 832.
42In Giansante v. DiChiara, 2005 CanLII 26446 (ON SC), [2005] O.J. No. 3184 (SCJ), the court reviewed the decision in Chapman, and held that deference should generally be given to a custodial parent’s decision regarding access unless the following three questions are answered in the affirmative:
(1) Does a positive grandparent-grandchild relationship already exist?
(2) Does the parent’s decision imperil this relationship?
(3) Has the parent acted arbitrarily?
43In determining if there is a “positive relationship”, the case law notes the following:
(a) There must generally be substantial pre-existing relationship between relative and child. Strong loving ties must exist based on time spent with each other.
(b) That relationship must be constructive one for child in sense that it is worth preserving. If relations between parties are too poisoned, previously positive relationship may not be capable of preservation.
(c) This determination must include consideration of child’s age and time since child last saw relative.
(d) If a young child has lost a parent, the existence of strong pre-existing relationship may not be necessary when it is the relative of the lost parent who applies for access.
See: M.M., Ibid.
44The Ontario Court of Appeal in Torabi v. Patterson, 2016 ONCJ 210 and B.F. v. A.N., 2024 ONCA 94 set out that there is now a two-part test to determine contact cases. The three questions posed in Giansante are now the first part of the test to determine if the court will defer to the parent’s wishes.
45However, “less deference may be owed when one of the parents ha[s] died, meaning that the child may lose a relationship with the other side of the family. See: Torabi, ibid.
46The court in B.F. stated that if the court determines it will not defer to the parent’s wishes, the second part of the test requires a best interests analysis taking into account many factors, including the following:
(1) The nature and strength of the child’s relationship with the grandparent;
(2) The history of the child’s care;
(3) The child’s needs, including special needs;
(4) the grandparent’s willingness and ability to meet the child’s needs;
(5) their willingness and ability to co-operate with the child’s parent and other caregivers;
(6) the child's cultural, linguistic, and religious upbringing; and
(7) any criminal proceeding, order, condition or measure relevant to the safety of the child.
47In F.S. v. N.J. and T.S., 2024 ONCJ 199, the court considered the date it should determine if a positive grandparent/grandchild already existed. The grandmother had a close relationship with the child while the mother and child lived with her. However, once the mother moved out, the grandmother only saw the child a handful of times. Then the mother cut off the grandmother for a long time before the grandmother started her application for contact.
48The court found the appropriate date to determine if there was a positive pre-existing relationship was the date when the mother cut off contact with the grandmother. The court found the relationship was not positive at that time.
49This approach was also taken by Justice Andrea Himel in Kirshenblatt v. Kirshenblatt, 2024 ONSC 2896. In Kirshenblatt, Justice Himel also found she could order contact even if the three Giasante questions were not answered in the affirmative.
50In Ninkovic v. Utjesinovic, 2019 ONSC 558Ont. S.C.J. , 23 R.F.L. (8th) 172, paragraphs 72-74, inclusive, note the following with respect to the second part of the test:
72In considering, at the second stage, whether access to the grandparent is in the best interests of the child, an important consideration is the extent to which this would cause anxiety and stress for the parent, which in turn could have a deleterious impact on the child. For example in Barber v. Mangal, 2009 ONCJ 631, Justice Brownstone found that the intensity of the conflict between the parents and the grandmother seeking access was such that any access would be extremely stressful for the parents and "given their personalities, there is a very real and substantial risk that such stress would be visited upon the child." See para. 17. At the same time, animosity does not necessarily preclude an access order. See para. 18.
73See also MacDonald v. MacDonald, 15444 in which Justice Pazaratz found that the "level of conflict between the applicant and the respondent is so overwhelming that any future contact will invariably result in the children and their family experiencing more upset, commotion, and grief," and dismissed the grandmother's request for access to her daughter's children.
74A further consideration is whether an access order would destabilize the family unit. See Blackburn v. Fortin, 2006 CarswellOnt 3458. In that case, Justice Smith declined to grant access to a grandmother where significant tension existed between the grandmother and mother, the grandmother often imposed unsolicited views on proper child-rearing, and the grandmother had made a heavy-handed attempt to change the parents' decision regarding schooling. The court found that access could destabilize the family unit.
ANALYSIS
51The central issue in this case is whether the Respondent grandparents should be allowed contact with their grandchildren following the death of their mother. The dispute between the parties’ centers on whether the best interests of the children are served by restoring the relationship with the Respondent grandparents or maintaining the current separation.
52As stated, the onus is on the Respondents to meet the legal test.
Part 1 of the Test: The Giasante Analysis
53As noted, the mother passed away in 2021. The Respondents were involved in the children’s lives before and after. Though the frequency of the contact is contested, that there was a close relationship that included weekend sleepovers is not. The Respondents’ involvement with the children included a period of time when they were the children’ primary caregivers. There have been periods of time when A.S. has run away and sought assistance from the respondent grandmother. There was a significant time, almost 3 years, following the death of the mother, during which time the Applicant father permitted the relationship to continue. These are signs of a close, valuable and loving relationship. However, as noted, whether a positive relationship existed, is to be considered as of the time that contact ended.
54That date would be January 2024. It has been a year since the relationship was cut off. However, there is evidence that both children have made contact with the Respondents since and advised them that they love and miss them. Moreover this children are old enough to remember the relationship with the Respondents.
55While it appears that their relationship has been impacted by the conflict between the parties, the children seem to value the relationship. E.S. has sought to hug the Respondents when she has run into them. A.S. has voiced wanting to continue the relationship. Both children had wanted the conflict to end so the relationship could continue. Despite assertions from the Applicant father that the urn was not the reason for the falling out between the parties, I find that it was indeed the catalyst for the decision to end the contact. All of the Applicant father’s other concerns predated the death of the mother and seemingly continued thereafter, yet it did not seem to impact the frequency or relationship between the Respondents and the children, even if I were to accept a more limited involvement. The urn problem is a large portion of the Applicant father support affidavit and clearly a source of conflict. That the parties have not been able to abide by Mr. C.W. suggestion to split the ashes is unfortunate.
56The Applicant father, in his submissions, acknowledged the existence of a positive relationship between the children and the Respondent, despite claiming that it was imperfect due to the Respondents’ attitude towards himself and his partner. Yet he also maintains the relationship was unsafe for the children because the Respondents would grieve around the children and advise them that being around the children was good for the Respondents. Because of it, he found that the relationship did not advance the children’s emotional well being. Moreover, he submitted that their lack of deference to his rules compounded his concerns.
57I do not find his evidence to be sufficient to show that the relationship was not positive at the time it was cut off. This was a strong and loving relationship. The Applicant father examples of “emotional dumping” are not sufficient to show that the relationship was not constructive nor worth preserving, especially in light of the fact that they are the only ties to the maternal extended family, aside from their brother, who also seems to have cut off contact with his maternal family members. They seem to be misunderstood or misconstrued phrases used by the Respondents. They also seem to be hearsay evidence as there is no indication the Applicant father was present for discussions between the children and the Respondents. Yet the relationship was cut off abruptly, with no opportunity to rekindled it absent the court process.
58In this case, as noted in the case law, parental deference is less important following the death of a parent. The importance of the contact between the Respondents and the children is obvious. This is not just to give them ties to their mother, whom they clearly miss and wish to know more about, but to provide them with a sense of belonging and a history that they may not otherwise have access to. The Applicant father’s submissions that perhaps eventually, when the children have better coping mechanisms, they will be better prepared to have a relationship seems to acknowledge that contact is important.
59The issue was raised of the grandparents undermining parental authority. However, I am not sure I can find that it took place. The affidavits before me are conflicting and I cannot engage in a credibility analysis at this stage. Despite assertions and denials by the parties, there is a lack of evidence from the Applicant father with respect to how and when he communicated his wishes for the children. There were also texts and messages submitted by the Respondents that showed contradictions in the Applicant father’s story.
60However, as submitted by counsel, the Respondents have now abided by boundaries imposed by the Applicant father with respect to contact and there is no indication they will not follow court orders, which can include following the Applicant father’s directions with respect to the care of and communication with the children.
61It does give the court pause that the relationship between the parties has deteriorated to the point that their conflict has spilled onto the children. However, it appears that the perpetrator of this has been the Applicant father as the children are clearly aware of the primary source of the dispute between the parties. He should not benefit from his attempt to poison the relationship between the children and the grandparents. In addition, any additional involvement of the children in adult issues can be remedied through conditions in a court order to try and minimize possible concerns.
62Moreover, I do not take lightly the Applicant father’s submissions that contact could de-stabilize his household. However, there is little evidence to support this. A.S. has completed in-patient treatment but again that was for issues that predated her mother’s death, and they are ongoing issues that the parties will need to address. The child clearly needs coping mechanisms on an ongoing basis regardless. I am not sure the household is in stable at this time due to A.S.’s ongoing behavioural issues. There seems to have been improvement but that is not to say it is due to increased therapeutic intervention rather than the lack of contact with their grandparents.
63The level of access granted can also take into consideration the possible negative effects on a family unit and the children at this interim stage.
64As such I find that there was a positive relationship in place when the contact was terminated, and it was imperilled by the Applicant father’s decision.
65With respect to whether the Applicant father acted arbitrarily in cutting off contact, I find that he has. While he did have valid concerns with respect to the children’s mental health and the Respondents undermining his parenting decisions and overstepping in their role as grandparents, these concerns seem to have predated the death of their mother despite being exacerbated thereafter. I accept that the Applicant father wanted to act to protect the children’s well-being but that was not his only motivation. The conflict between the parties went above and beyond the children’s needs and were clearly a response to the perceived slights to his decisions, whether in parenting or with respect to the mother’s items and ashes. Based on the evidence before me, it was not motivated simply by the children’s best interests. This is further supported by his request for an apology for the minor incident involving the three items taken from a pile. In fact, in cutting off the children’s access completely and without notice, I find that it did a disservice to the children’s best interests.
66None of the issues raised by the Applicant father led me to find that the children were at a risk of physical harm. It is also hard to address emotional harm absent evidence from the children’s service providers due to their pre-existing conditions and grief. The Applicant’s father’s decision to end all contact rather than imposing terms that could address his concerns were disproportionate to the issues raised and hence unreasonable.
67I do wish to commend the father for attempting to ensure the children work with service providers to address their needs. However, there is no evidence other than A.S.’s Psychological Assessment to show what the children’s actual needs are and what other ongoing treatment they require. The Assessment showed the child has average cognitive abilities and had average results in most areas, though it did it note the requirement for ongoing support for school, as well as emotional and behavioural regulation.
Part 2 of the Test – Best Interest of the Children
68Havin answered all three Giasante questions in the affirmative, I turn to the best interest analysis in accordance with section 24 of the CLRA.
69Many of the best interest considerations have been touched upon in my analysis of the first part of the test. But I will summarize them here. Prior to the end of their contact, it appears that the children had a close, loving and trustful relationship with the Respondents. The Respondents have been very involved with the children before and after their mother’s death. At one point they were the children’s primary caregivers and enjoyed weekend overnight access.
70While A.S. has special needs consideration and E.S. is young, they have both expressed their wishes to have a relationship with the Respondents. A.S.’s wishes may have changed since last summer, but they were initially coloured by the Applicant father’s involvement of the child with adult issues. She has now expressed her wishes, in writing, more than once. There is no evidence that she is incapable of putting forth wishes and preferences. She is not cognitively impaired. She may be immature, though again I have no evidence of that. If I had, it may place her on the same level as her sister. But neither child is incapable of putting forth their preferences. While it may not be determinative of the issue, it is a factor to consider and one to which I can attribute some weight, especially since the Applicant father has not disputed those preferences.
71While the children have some special needs, I find that the Respondents have been able to care for those pre-existing needs while they were the primary caregivers and during access visits. Where there have been discrepancies in care, this can be resolved through being provided a list of rules to be followed in writing to avoid miscommunication or instances of a broken telephone should the children be used as messengers. Moreover, it appears that the Respondent grandmother has experience managing people suffering with mental health and disabilities. The Respondents have indicated that they are willing to abide by the Applicant father’s rules should they be properly communicated, and they will be held to that.
72While there has been a breakdown in the parties’ relationships, the Respondents have already showed the ability to abide by requests to the point that a restraining order is no longer being sought. It is clear they wish to see their grandchildren, even if it means having a restricted relationship.
73Moreover, I find that the Respondents are the parties best suited to provide ties to the maternal extended family and to answer any questions related to their mother’s history and family. The children, especially A.S., continue to grieve their mother. A.S. seeks comfort near her mother’s belongings and continues to be affected by her loss. These children have suffered a great loss; there is no need to suffer additional loses.
74The Applicant did indicate that he was willing to revisit access in the summer. However, due to the lack of involvement by the OCL or reports from counsellors or child psychologists, we have no metrics to determine if and when it would be a good time for contact to start. Even if it were discussed over the summer, any contact agreed to may start when the children are back at school so that is not a deterrent to starting contact now. Moreover, I do not believe the CAS records will impact on the Respondents ability to connect and interact with the children when CAS permitted a placement with them.
75Based on the above, I find that the risk of contact does not outweigh the benefits of no contact for these children. However, contact must be gradual and in a way that is sensitive to the children’s emotional well being due their continued delicate state. As such, the Respondents’ motion is partially granted in that there will be supervised contact.
76Supervision is not intended to be a long-term remedy but it will permit us to have some tangible and objective evidence of the interactions between the children and the Respondents so we can assess the appropriateness of contact.
DISPOSITION
77An interim order shall issue as follows:
(1) The Respondents, K.S. and L.W. shall have supervised contact with the children, A.S.A.S., born [..], 2010 and E.S.E.S., born […], 2013, at the SAC as follows:
(a) once every two weeks of 2 hours at a time, or the maximum amount of time available to the SAC, for a period of two months; and
(b) once a week for 2 hours at a time, or the maximum amount of time available to the SAC, for a period of two months.
(2) The parties shall complete their SAC intake and any required paperwork within 7 days of the receipt of this order.
(3) SAC visits shall commence as soon as possible when SAC is able to provide dates and times.
(4) The Applicant father shall provide to the Respondents, in writing, a list of rules to be followed with respect to the children’s dietary needs, social media stance and any medication they will need to take during their visits and any other parental rules expected to be followed during these visits, at least 48 hours prior to the first visit.
(5) In addition to in-person contact, the Respondents shall have unsupervised contact via telephone, video, chat function, e-mail or other means of communication between A.S. and the Respondents, in accordance with A.S.’s wishes, between the hours of 3:30pm and 7:30pm.
(6) Contact between A.S. and the Respondents shall not be interfered with by the Applicant father, including but not limited to, by limiting or removing A.S.’s access to a phone or other device used to communicate with the Respondents. Should access to devices be limited as a form of discipline, the Applicant shall facilitate access to a device for the purposes of a once daily phone call or e-mail should the child wish to exercise that contact.
(7) Following the completion of the supervised visits, the parties shall obtain a copy of the access notes, with a view of discussing expanded and/or unsupervised visits should the visits go well.
(8) The parties shall not discuss adult issues or this court process with the children.
(9) The parties shall not speak negatively about each other, nor will they permit third parties to do so, in the presence of the children.
(10) All communication between the parties shall be in writing, civil and child focused.
78Because the parties will be in the lives of the children, it would be in their best interest to try and mend their relationship. I am not ordering it but I would recommend that the parties attend counseling or a parenting program that targets parenting in high conflict situations. Should the children be involved in counseling and their counsel deems the participation of the grandparents would be beneficial, that should also be canvassed.
79I urge the parties to engage in negotiations with respect to costs. If the issue of costs cannot be agreed upon, I shall determine it by written submissions. These shall not exceed three pages plus attachments of Bills of Costs from counsel and Offers to Settle the motions, if any. The applicant's submissions are due by February 28, 2025, at 4pm and the Respondent's by March 14, 2025, at 4pm. If no submissions are received by the due dates, the issue of costs will have been deemed settled. Late submissions shall not be entertained.
Released: February 13, 2025
Signed: Justice Claudia C. Belda