COURT FILE NO.: FS-21-44768 DATE: 2022-03 -17

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: William Patrick Owen Marshall, Applicant AND: Wayne Snow, Colleen Dutcher-Snow, Respondents

BEFORE: Kurz J.

COUNSEL: Amit Dror, Megan O’Neill, for the Applicant Deborah Perkins-Leitman, Sarah Young, for the Respondents

HEARD: February 22, 2022

ENDORSEMENT

Introduction

[1] The broad boulevards of family litigation are littered with hard cases and tough decisions. Among the toughest is what arrangements to make when a child’s primary caregiver dies, leaving their remaining relatives to battle over the grieving survivor. It is then that we have to go back to first principles. Children are not chattels. No one inherits title to them. And their best interests are the paramount consideration in any parenting decision. Period. That is the moral centre of family law in Canada.

[2] Here, the Applicant father (the “father”) and the Respondent maternal grandparents (individually “Wayne” and “Colleen”, collectively the “grandparents”) are fighting over primary care and decision-making for an eleven-year-old child, E (or the “child”). E’s mother has now died of a recent, swift, and devastating illness: brain cancer. E is presently residing in the grandparents’ primary care, as she has been for about the last nine months. In fact, E, along with her mother, has lived with one or both of her grandparents for most, of her life.

[3] However, the father now seeks primary care and sole decision-making responsibility over E. He points out that he was granted joint custody of the child in a 2016 New Brunswick decision that also gave the mother primary care of the child, final decision-making, and the right to move with E to Ontario. The father argues that he is the surviving joint parent. So, he should be entitled to step in to solely assume all parenting rights to E. The father also claims that the grandparents are alienating E from him and absent his full or at least equal shared parenting rights, he will lose his relationship with the child.

[4] The father’s arguments are encapsulated in the first three paragraphs of his factum as follows:

1. The Applicant (“Owen”) and biological father seeks an Order returning his daughter [E] to his primary care following the tragic death of her biological mother (“Amy”) on October 28, 2021.
2. Since Amy’s death the Respondents (the “maternal grandparents”) have been withholding [E] from Owen’s primary care absent any legal authority to do so and poisoning her relationship with him.
3. Prior to Amy’s death and with all due sensitivity for the situation, Owen advised the maternal grandparents that he would become [E]’s primary caregiver after Amy passed. He acknowledged the maternal grandparents’ loving relationship with [E] and confirmed his intention to facilitate ongoing contact with them. Owen attempted to negotiate a schedule directly and through counsel, but the maternal grandparents refused to discuss any changes in advance of Amy’s death.

[Emphasis in the original.]

[5] In response, the grandparents point out that the father never had primary care of E at any time in her life. So, she cannot be “returned” to him. Instead, it was the father who “advised” the grandparents, even before the mother died, that he would assume primary care of the child. In doing so, he invoked what he viewed as his right of succession under the New Brunswick joint custody order.

[6] The grandparents say the father invoked his unilateral assumption of sole parenting rights despite their intimate role in raising E for most of the child’s life. Further, his assumption that he would effectively inherit primary care of the child flew contrary to the stability and continuity the child requires so soon after her mother’s death, the dying wishes of the mother, and those of the child herself. The grandparents argue that E can only meet her immediate emotional needs in their care. That care will allow E to continue her existing relationship with her father within the contours of the arrangements in place since he returned to Ontario in 2017.

[7] The grandparents further deny attempting to alienate the child. They say the father is unwilling to accept that E’s behaviour, which has favoured their nurturing over his care, is the product of both the depth of their relationship and the extreme grief the child is suffering. Any mistakes they may have made can be understood within the context of their attempts to protect the child from further sorrow, not to mention their own profound grief at the loss of their daughter.

[8] For the reasons that follow, I find it is in E’s best interests to enjoy the stability and continuity that she has experienced in her grandparents’ care. Thus, I grant the grandparents interim primary care and final decision-making of the child. However, the order that I am granting is not intended to offer the grandparents carte blanche to exclude the father from decision-making over the child or to give the child the message that the father is a minor player in her life. It requires them to support the father’s role and to engage in a meaningful process of mediation (to which the parties have agreed) in order to attempt to resolve this matter without further damage to the child.

Background

[9] E was born on June 21, 2010, in Fredericton, New Brunswick. About three years later, her parents separated. In December 2013, Colleen purchased a home in Fredericton, where she, the mother, and E resided until July 2016. From July through August 2016, they resided together in Saint John, New Brunswick. The grandparents say that Wayne visited frequently.

[10] The relationship between the mother and the father was marked by abuse: each parent’s substance abuse, as well as the father’s verbal and emotional abuse of the mother. That verbal abuse extended to the grandparents. As Petrie J. of the New Brunswick Court of Queen’s Bench wrote in his endorsement of August 18, 2016 (O.M. v. A.S., 2016 NBQB 144, at para. 12), which resolved all parenting issues between the father and mother:

12 Regrettably the parties' relationship was a very difficult one. It was marked, at times, with many incidents of arguments and conflict. It was an abusive relationship. It is clear to this Court, and to some extent acknowledged by O.M., [i.e., the father] that he has struggled with anger management issues for much of his life. It is apparent that he has an easy trigger to frustration and that he can act out his frustrations inappropriately at times. Some examples of this include:

• An incident at the S. family's dinner table in Oakville just prior to the marriage when O.M. lost his temper towards her father, W.S. This incident, according to A.S. [i.e., the mother], was significant enough for her to postpone the couple's wedding.
• O.M. quite regularly and inappropriately used profanity, including the "C" word towards A.S. and her mother, C.S., likely on many occasions, even in front of E.
• O.M. lost his temper and smashed a bowl in an argument while the family resided on Carleton Street.
• While driving back from Nova Scotia earlier on in the marriage, O.M., clearly frustrated with a pregnant A.S. because she wished to stop to buy antacid medication, slammed the breaks [sic] and punched the car's dashboard.
• Dr. Rebecca McGinn testified about a very upsetting and intimidating O.M. attending her office to protest her advice to A.S. about the inappropriateness of E. sleeping at O.M.'s "rooming house" residence on Aberdeen. Dr. McGinn was very concerned for both A.S. and E.'s safety given O.M.'s behaviour that day.
• Carla Flynn, the owner of Fredericton Early Learning Center where E. attended beginning in May 2013 recalled an incident where O.M. became very frustrated and outwardly agitated to learn that E. has just been picked up by C.S.
• In addition, as a result of another incident at the Fredericton Early Learning Center where O.M. was inappropriately aggressive over a tax receipt issue, one of the staff members refused to deal with him, and as a result, E. had to change class groups.
• After separation the police became involved at A.S.'s request on at least two occasions and as a result of O.M.'s behaviour.
• Immediately after giving birth to E., one of the first comments O.M. made to A.S. was "Your mother is fucking crazy" or words to that effect.
• A.S. also testified to O.M. almost punching her in the face but he "held back at the very last moment."
• O.M. also experienced conflict with work supervisors on a few occasions, one in Toronto and one at St. Thomas University. While he denied it, it is likely the case that he referred to a particular female supervisor at St. Thomas, in the presence of both A.S. but also junior staff member work colleagues, as a "cunt".

[11] This passage offers an element of context to the difficult relationship between E’s parents, as well as the relationship between the father and the grandparents.

[12] Petrie J. concluded, at para. 12, that the father’s abusive behaviour was “in my view, relevant to the father's capability to parent E.” However, he noted that the father “now recognizes his past behaviours as inappropriate … [and] appears to sincerely regret his actions. He says that his anger and frustration levels are now better controlled. He says he is less compulsive.”

[13] Petrie J. found that the mother had been the child’s primary caregiver and psychological parent. At para. 15, he stated that she was:

[T]he one who E. would turn to for comfort. E. has experienced the security and stability of her relationship provided by her mother. A.S. has had day-to-day care of E. for almost all of her life. The Court was told that E. has not spend [sic] more than seven consecutive days away from her mom since birth and even that only occurred once this past summer.

[14] With regard to the relationship between E and the father, Petrie J. found at para. 66:

While there is evidence before this Court suggesting that [E] has, over the years, had some anxious moments quite possibly as a result of her father's behaviour, she no doubt loves him and the two likely have an affectionate and caring relationship. It is a fact though that O.M. has not had E. in his care for extended periods of time. While there is no doubt a real relationship between father and daughter here, it would not at all approach that of E. and her mother.

[15] While trying not to overly criticize the father, Petrie J. was in fact critical of the positional approach that he took regarding the mother’s proposed move to Ontario. Petrie J. found that the father’s approach was not aligned with E’s best interests, writing at para. 86:

Of course the central issue before me relates to Mom's wish to relocate with E. to Oakville/Toronto, Ontario. O.M. has stated previously that Toronto, being a very large city, is not a good environment for a young child to grow up in. Both A.S. and O.M. testified to the fact, however, that in April 2015 O.M. approached A.S. with a proposition that she could, in fact, relocate to Toronto with E., but there was a condition. This condition was that he would also move there and she would have to agree to a shared custody arrangement. A.S. would not agree to this proposal and the Court cannot fault her. It is evident that O.M. does not necessarily object to E. growing up in Toronto, but rather, his preoccupation and motivation appears to be about obtaining shared custody. The Court does not wish to be critical of any parent's true desire to spend more time with their child. In fact, I greatly respect O.M.'s wishes. O.M. testified that once that offer was rejected by A.S. it is now "off the table". Given all of the evidence in this case and my earlier conclusions I am afraid O.M.'s approach exhibits a focus on "his interests", however well intentioned. It is not child-centric, which is what this Court is most concerned. [Emphasis added.]

[16] Petrie J. continued, stating that the father’s approach, particularly his insistence on equal shared custody, was contrary to the child’s best interests. At para. 87 of his decision, he pointed to numerous examples of what he described as “behaviour that could be characterized as controlling and simply stubborn.” That behaviour failed to “reflect appropriate attention to the “real” issue which was E.'s best interests.”

[17] After much consideration, Petrie J. granted the parties joint custody of the child. But that joint custody order fell far short of the father’s insistence on a fully equal parenting arrangement. The father was not granted equal shared parenting time or decision-making rights. Instead, the mother was granted primary day-to-day parenting rights to E and the right to move with the child to Ontario. She was required to consult with the father on all major health or education decisions but in the event of dispute, she was granted final decision-making authority. The father’s right was to be consulted, not to finally decide.

[18] The father was granted “reasonable and generous access” to E, which was delineated as access for up to four weeks each summer (no more than two weeks consecutive), half of the child’s school Christmas break, six consecutive March break days, alternate Easter weekends, and reasonable times on seven days’ notice where the child resides.

Parenting Arrangements Following the Petrie J. Decision

[19] In August 2016, following the release of the Petrie J. decision, the mother and E, who were then living with Colleen in Saint John, moved into the grandparents’ home in Oakville. Three generations of the family lived together for the three following years. In September 2019, the mother and E moved into a two-bedroom apartment two blocks from the grandparents’ home. They remained there until May 2021, when the mother was diagnosed with cancer and mother entered the hospital. E moved back in with the grandparents. When the mother left the hospital in June 2021, she moved back in with the grandparents as well. When the mother went into hospice care, the child remained with the grandparents, in an arrangement approved by the mother.

[20] The grandparents assert, without contradiction, that when the mother and E were living on their own, E maintained her own room in the grandparents’ home. She visited them nearly every day. She often stayed overnight while the mother was working downtown. She also frequently spent weekends with them.

[21] Meanwhile, in August 2017, the father moved to Hamilton, Ontario. He and the mother did not immediately agree on a parenting arrangement as the father sought more parenting time than the mother was willing to offer. By December 2017, E’s parents arrived at a de facto arrangement whereby the father had E in his care one school night per week (Tuesday or Thursday) from 4:00 p.m. to 7:00 p.m., and alternate weekends. E split her Christmas holidays, March breaks, and summers between her parents.

[22] The father returned to school while in Ontario and earned a degree as a paramedic, a job he now holds. He planned to move to Oakville in time for the 2021-22 school year and has now made that move. He resides with his partner, Alexandra Stiver. Ms. Stiver is pregnant and due to give birth shortly.

[23] It appears that the father never gave up on his desire to spend at least equal time with E in Ontario. It was a plan that Petrie J. rejected and the mother was unwilling to consider. Nonetheless, the father states that the level of his communication with the mother eventually improved after his move to Ontario.

The Mother’s Illness

[24] On May 23, 2021, the mother was hospitalized after she suffered a seizure. She was ultimately diagnosed with a fatal form of brain cancer. As set out above, E moved into the grandparents’ home, where she continues to primarily reside. The parties dispute the amount of time the father spent with E over the summer of 2021. He says he spent half of the summer with her, while the grandparents say that it was only 21 days. I am not in a position to make that determination. The father took E with him to New Brunswick for ten days that summer to visit family.

[25] By the end of the summer of 2021, it was clear that the mother would not live much longer. Plans had to be made for E’s care. There is no question that the mother intended for her parents to raise the child.

[26] The parties began corresponding with each other. The grandparents opined that maintaining the child’s status quo in their care after the mother’s death would offer her the best chance for continued stability and security. The father insisted he was entitled to take over care of the child as soon as the mother died.

[27] On September 7, 2021, the first day of E’s school, the mother was rushed to the hospital. The father complains that the grandparents did not allow him to speak to E that day or until the following weekend, when he had the child in his care. However, in light of the trauma of the hospitalization, any failure to accommodate the father appears to be understandable.

[28] The parties met on September 12, 2021, at the grandparents’ home. There is a dispute about what was said that day, although the views of the participants were clear. The father claims that the grandparents attempted to involve E in the discussion, while they adamantly deny the claim. They state that their son, Jordan, took E upstairs and ensured that her room was closed before the parties engaged in their discussion. They reached no consensus.

[29] The father decided to impose increased parenting control over the grandparents. He asked Wayne to inform him every time that E missed school. E was having difficulty adjusting to her mother’s terminal illness and was missing days at school. The father claims that Wayne agreed but reneged in the arrangement. Ignoring the obvious, the father deposes: “I cannot think of a valid explanation why [E] was held back from attending school so often.” The grandparents point to the obvious: the child was grieving the impending death of her mother and primary caregiver. They also point to the child’s report card, which shows that she is doing fine at school. I agree. Frankly, missing a few days will not keep E out of Harvard.

[30] Each of father and grandparents claims that the other spoke to the child about parenting arrangements, unnecessarily dragging her into their dispute. From the evidence, there appears to be an element of truth in each party’s claim.

[31] The father and grandparents met in late September 2021, hoping to agree on E’s parenting arrangements following the mother’s death. The father’s offer was to become the sole caregiver and decision-maker for the child while the grandparents would have contact rights to the child. A week later, on October 3, 2021, after having spoken to the mother, Wayne responded. The grandparents would not agree to the father’s parenting reversal proposal. They disagreed with any change to the parenting arrangements already in place. Wayne pointed to E’s need for “structure and stability” while “dealing with a monumental change in her life with Amy’s illness.” He added that E “should not have to deal with other stressors at this time.”

[32] Wayne suggested that the parties attend mediation after the mother’s passing. He suggested it would be best to wait for the mother’s passing but would respect the father’s desire to deal with the issue beforehand.

[33] On October 8, 2021, the father replied to the grandparents through a letter from his lawyer. The lawyer’s letter asserted, without reference to authority, that under the Petrie J. order, “If either joint custodial parent should pass, the surviving custodial parent becomes the sole custodian of [E]. This occurs as a matter of law without any need for court involvement.” The lawyer went on to announce the father’s intention to become the child’s sole custodial parent following the mother’s death.

[34] The lawyer’s letter left no room for further negotiation or basic compromise. It ended as follows:

If you would prefer to wait until a future date to discuss your access to [E] once Ms. Amy Snow passes, that is your decision and it is fine with Mr. Marshall to wait. However, waiting until a future time to discuss your access does not change the fact that once Ms. Amy Snow passes, Mr. Marshall shall be her sole custodial parent and he will be exercising his custodial decision-making authority in bringing [E] to live with him. In other words, this will happen whether you have agreed on an access schedule with Mr. Marshall by that time.

[35] The problems with this letter extend far beyond the dated use of the nomenclature “custody” and “access” to describe parenting and contact arrangements. Rather, the letter simply asserts, as if the issue were settled law, that the father will take the primary role as the “custodial decision-making authority”. The grandparents, like it or not, would be relegated to the role of “access” holders.

[36] The nonconfrontational response from the grandparents’ lawyer, four days later, asked whether there was an interim schedule the father was willing to maintain until the parties went through a mediation process. The reply of the father’s lawyer came later that same day. She stated the father “remains committed” to the sole parenting schedule he had proposed. She was clear in declaiming that, unless the grandparents concede the issue they were negotiating, there was no point in mediation, writing:

In short, my client’s firm position is that once Ms. Amy Snow passes, he will be [E]’s sole custodian and therefore he will be tasked with making the important life decisions for her, in accord with her best interests and own views and preferences. His firm position is that [E] will reside primarily with him, and that she will have generous access with your clients. To the extent that the purpose of mediation is to iron out your client’s access, there is no objection to mediating. To the extent that your clients have a firm position that they should make the important life decisions for [E], or that [E] should live with them, then there is no point in mediating because that will not ever be agreeable to my client.

[37] To say that the October 8 and 12, 2021 correspondence by the father’s lawyer was unfortunate is a gross understatement. It came when it was clear that the mother was in her last days. It ignored her dignity, as well as the sensibilities of her parents and the child. It was based solely on the father’s assumption he had the right to become E’s sole caretaker as soon as the mother was buried, no matter how that change affected E. He may have thought that he was in the right, but that consideration was not based on E’s best interests. The lawyer’s correspondence threw a lit match into a pool of jet fuel.

[38] The fact that the father’s negotiating position was that the grandparents must fully concede before he would even agree to mediate, acted only as an accelerant to the blaze he had set.

[39] That the grandparents rejected this view should come as no surprise. That it poisoned their trust in the father should elicit little further surprise.

[40] The mother died on October 28, 2021. Eight days before she died, the mother swore an affidavit in which she affirmed her desire to have her parents raise E. In doing so, she spoke of her parents’ role in raising E, the child’s relationship with her brother, and her own abusive relationship with the father. She also spoke of the child’s emotional state and fears regarding a change in her parenting schedule.

[41] The father objects to the admission of the mother’s affidavit, describing it as hearsay. He further questions the capacity of the mother to swear so detailed an affidavit when she was dying of brain cancer. In doing so, he ignores the facts that:

1. the affidavit is not hearsay. It is a first-person account; albeit by a person who cannot be cross-examined.
2. Certain hearsay is admissible in motions under r. 14(18) and (19) of the Family Law Rules, O. Reg. 114/99. The mother’s affidavit arguably buttresses the grandparents’ own admissible hearsay evidence in this motion regarding the mother’s intentions for the child following her death (which do not appear to be disputed).
3. Further, the mother’s affidavit may be admissible as a dying declaration: R. v Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 42; R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 20.
4. It may also be admissible under the principled exception to the hearsay rule: R. v. Khelawon, at para. 47; R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at paras. 23-24.

[42] Looking to the principled exception to the hearsay rule, there is no question of necessity, with the mother’s death. However, the father questions the reliability of the mother’s evidence. But the evidence that he relies upon to challenge the mother’s capacity to swear an affidavit is itself, at best, single or double hearsay.

[43] Nonetheless, I informed the parties that, at this stage of the proceedings, I will not rely on the mother’s affidavit for anything but the expression of her wish that her grandparents raise E after her death. That expression does not require an affidavit. It is in line with virtually all the other evidence proffered in this motion and stands uncontested. I will leave the ultimate determination of the admissibility of the affidavit, within the context of any further evidence, to another day.

[44] On November 2, 2021, the father wrote to Wayne about arranging bereavement counselling for E. He stated he was less concerned about who provides the counselling than that the child builds a rapport with the counsellor. He also stated:

[My] core concern is that we come to a consensus as quickly as possible regarding what is best for [E]. We need to work together – collaboratively and transparently – to support her, and that requires agreeing to a plan for her care as soon as possible. I am seeking your input so that we can collectively take some action.

[45] The father’s counsel says that this email demonstrates a change in the father’s direction; one that the grandparents should have discerned. But while there is a different tone in his email, nothing in its contents walk back the unilateralist premise of his lawyer’s correspondence of October 8 and 12, 2021.

[46] On November 5, 2021, the father began his previously scheduled weekend parenting time with the child. He picked up E just eight days after her mother had died and only one day after her funeral. The child was obviously grieving, while the grandparents were extremely protective of her. Wayne deposes that the child was very reluctant to attend her father’s home that weekend, but that the grandparents convinced her to go.

[47] The father complains that, at the drop-off, Colleen told E that she could call her at any time. For his part, the father attempted to find a balance that evening between supporting the child and giving her the necessary space to grieve her loss.

[48] Colleen and E exchanged texts that afternoon and evening, the theme of which was that E missed her grandmother and wanted a hug. Colleen spoke of coming to get a hug, to which E responded that she did not think her grandmother could do so. Early that evening, the grandparents attempted to arrange to come over to the father’s home to offer the hug. They also wanted to bring the child’s melatonin pills because she was having trouble sleeping. The father demurred and said he and his partner had picked up the pills themselves.

[49] In the middle of the night on November 6, 2021, E texted and called her grandparents to complain of her inability to sleep. The grandparents decided to come over but did not first clear that plan with the father. Wayne texted the father at 1:46 a.m. to say he and Colleen were downstairs at the father’s home. Wayne texted that E “called us and was crying about Mama.” Wayne tried to call the father nine times between 1:51 a.m. and 2:06 a.m. The father appears to have slept through it all.

[50] At 2:15 a.m., the child woke her father, stating that she wanted to go to her grandparents. The father tried to reassure her, but the child responded that the grandparents were outside his home. When the father went to the door, the grandparents were standing right there. While they said they had called him before arriving, their attempts to text and call came once they attended at the father’s home. The father says Colleen created a scene by trying to hug the child and then insisting the child come with her. He says Wayne tried to de-escalate the situation, but Colleen was insistent. The father complied on the understanding that the child would be returned the next morning. Looking back, he states he should never have trusted the grandparents.

[51] The next morning, Wayne texted the father asking that he come over to the grandparents’ home to discuss what had happened the night before. He wrote that E “is having great difficulty processing her feelings over the passing of her mother. She needs more time for the grieving process to continue. As her father we invite you, at this critical time, to listen to [E] as she expresses her feelings of grief.”

[52] The father rejected the offer. He stated that, as her father, he would “like to sit and listen to [E] express her feelings of grief 1:1, daughter to father. That is how we have always navigated challenging topics and feelings together.” He wanted to know when the child would be dropped off at his home. They were either doing so or not, there was no middle ground.

[53] The grandparents did not drop E off with the father the next day, because, they stated, of the child’s distraught state. The father did not come to her.

[54] The father swears in his affidavit of January 21, 2022, that “[f]rom November 6, 2021 to December 26, 2021, the maternal grandparents withheld [E] from my care.” [Emphasis in original.] That is not entirely true, although the father’s contact in that period was limited.

[55] Looking back, Wayne states he wished the events of the November 5, 2021 weekend had gone differently. He spoke of the child’s extreme anxiety and reluctance to go to her father’s home one day after her mother’s funeral. But, as he stated, they respected the existing parenting schedule. Nonetheless, Wayne implicitly admits to having erred in showing up, unannounced, to the father’s home in the middle of the night to create or exacerbate the scene. He deposes:

We wish that we had approached that weekend with clearer heads and made a plan that honoured [E]’s mental state and her feelings at the time, which would have enabled us to avoid the events that transpired after midnight on November 6. In fairness, Colleen and I were also grieving at the time and continue to grieve the loss of Amy. We had no idea what would transpire that night. Colleen and I did not make the decision to pick up [E] lightly.

[56] While Wayne spoke of an “impossible situation” that night, I agree with the father when he says that the grandparents did not improve the situation by attending at his home as they did. They did not even bother to call before leaving. Colleen should not have spoken to E about coming over to give her a hug that night. It only made the child more homesick. Further, they should have encouraged the child to stick it out with her father that night and spoken to her and the father the next morning. Their failure to do that only exacerbated the conflict and distrust between the parties. But I agree with the grandparents that perhaps the weekend visit, beginning a day after the mother’s funeral, was not a good idea.

[57] I also understand that the grandparents too were grieving and not at their best a day after they watched their daughter’s coffin being placed in the ground. In Giansante v. Di Chiara, Nelson J. offered an understated note of caution against overly judging the immediate actions of distraught grandparents whose lose their adult child far too early. He wrote at para. 34, “To hold people responsible forever for their actions at a time when they were emotionally raw and vulnerable might not be appropriate.”

[58] On November 11, 2021, after the father changed counsel, the parties finally agreed to attend mediation without precondition. They selected Christine Kim as mediator. The grandparents submitted their intake forms on December 15, 2021. It does not appear the father did so before coming to court. He has now agreed to go through with the mediation.

[59] On December 21, 2021, Wayne advised the father he had received an email stating E had been in close contact with someone who had developed COVID-19. The father’s response was to contact the school to complain he had not received the email directly and insist he be the child’s primary contact.

[60] The parties attempted to arrange a holiday parenting schedule. But when the father wanted to take the child on a date where she already had a planned activity, he felt that he could not trust the grandparents any further. He brought a motion to “return” the child to him, even though, as set out above, the child had never been in his primary care. He further sought Christmas holiday parenting time and full decision-making rights.

[61] The father’s motion was heard by Mills J. on December 23, 2021. Mills J. granted the father parenting time from December 26, 2021 to January 2, 2022. She ordered that the child could contact the grandparents any time she wished, but that the grandparents could not interfere with the father’s parenting time. The parties and their extended families were prohibited from discussing the litigation in the child’s presence.

[62] Mills J. stated the Applicant, as the “sole surviving parent” under a “joint decision-making authority” order has sole decision-making for the child. She prohibited the grandparents from making “any decisions regarding the care of [E], except in emergencies, and with immediately informing the Applicant.” Mills J. adjourned the balance of the motion to January 20, 2022, with a case conference in the interim.

[63] During the father’s Christmas parenting time, Wayne warned him that E sounded on the phone as if she may have developed COVID-19. The father dismissed Wayne’s comments as “fantastical”, feeling that as a paramedic he knew better. He didn’t. He and E developed COVID-19 and had to quarantine for the balance of their holiday time together.

[64] During the case conference of January 5, 2022, Chozik J. requested that the Office of the Children’s Lawyer (“OCL”) engage in a clinical investigation of the parenting issues between the parties under s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended (“s. 112”). The OCL has accepted the request. It has assigned a clinical investigator, who will report her findings and parenting recommendations to the court.

Applicable Law

[65] Parenting decisions are determined under ss. 16 and 16.1 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). Under s. 16.1(1), a "court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage on application by (a) either or both spouses". Under s. 16.1(2), the court may make an interim parenting order in respect of the children pending the hearing of the parent's application.

[66] This court has the jurisdiction to make broad range of parenting orders under s. 16.1(4) and (5), as follows:

16 (4) The court may, in the order, (a) allocate parenting time in accordance with section 16.2; (b) allocate decision-making responsibility in accordance with section 16.3; (c) include requirements with respect to any means of communication, that is to occur during the parenting time allocated to a person, between a child and another person to whom parenting time or decision-making responsibility is allocated; and (d) provide for any other matter that the court considers appropriate. (5) The court may make an order for a definite or indefinite period or until a specified event occurs, and may impose any terms, conditions and restrictions that it considers appropriate.

[67] The sole consideration for the determination of parenting decisions under the Divorce Act is the best interests of the child: s. 16(1). Under s. 16(2) and (3), the court is required, in determining the child's best interests, to "give primary consideration to the child's physical, emotional and psychological safety, security and well-being," while considering "all factors related to the circumstances of the child".

[68] The factors that relate to the child's best interests are set out in s. 16(3) as follows:

Factors to be considered (3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including (a) the child's needs, given the child's age and stage of development, such as the child's need for stability; (b) the nature and strength of the child's relationship with each spouse, each of the child's siblings and grandparents and any other person who plays an important role in the child's life; (c) each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse; (d) the history of care of the child; (e) the child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained; (f) the child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; (g) any plans for the child's care; (h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; (i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child; (j) any family violence and its impact on, among other things, (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and (k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

[69] As I wrote in Phillips v. Phillips, 2021 ONSC 2480, at para. 47: "The list of best interests factors is not a checklist to be tabulated with the highest score winning. Rather it calls for the court to take a holistic look at the child, her needs and the people around her."

Parental Contact Principles of the Divorce Act

[70] A further parenting factor that this court must consider is the provision in s. 16(6) of the Divorce Act, which states that "[i]n allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child." [Emphasis added.] The previous iteration of this clause of the Divorce Act contained that wording but also included the heading "Maximum Contact" to describe it.

[71] Here, the father did not raise the maximum contact principle. I do not see it as determinative in this motion as the grandparents are not seeking to exclude the father from the child. Instead, they are seeking the continuation of the status quo of the father’s contact with the child since he moved to this jurisdiction, albeit interrupted by the mother’s death and the child’s response to that event. They say that such contact is consistent with E’s best interests. For his part, the father says he is willing to allow generous parenting time to the grandparents, which would presumably mirror the time that he presently enjoys with E. However, his concern is that he be the primary parenting figure and that the grandparents be reduced to a secondary role. The key issues at this point are the amount of parenting time that is consistent with E’s best interests and how parenting decisions for her will be made in accord with those interests.

Interim Variation of a Final Order

[72] Without explicitly saying so, the relief that each party requests amounts to an interim variation of Petrie J.’s final custody order. In Epshtein v. Verzberger-Epshtein, 2021 ONSC 7694, at para. 126, I found that the test for an interim variation of a final parenting order requires:

1. A strong prima facie proof that there is a material change in circumstances regarding a parenting issue;
2. The parenting issue must be an important one;
3. The circumstances arising since the final order must be urgent or pressing; and,
4. The moving party must then prove that the remedy sought is in the child's best interests.

[73] There is no dispute here that the first three elements of the test are met:

1. The mother’s death is indisputably a material change in circumstances.
2. The issue of E’s parenting and decision-making is an important one.
3. The present circumstances are pressing, if not urgent. The key issue is then E’s best interests.

The Father’s Claim to a Right of Joint Custodial Survivorship Under the Petrie J. Order

[74] In her December 23, 2021 endorsement, Mills J. referred to the final order of Petrie J. While Mills J. made comments about the application of the Petrie J. order following the death of the mother, those comments were made within the context of the terms of an adjournment of a motion to be heard as a long motion upon full evidence and analysis. My order is an interim one.

[75] I add that the Petrie J. order may have granted the father what it described as “joint custody”. But it gave the mother exclusive primary care and final decision-making authority over the child. What the father was granted was access rights and the right to consultation on parenting issues. He was not granted the right to a final say on parenting issues or to have the child reside with him, other than during specified access times. And he was not granted some right of parental succession in the event of the mother’s death.

[76] Parenting of a child is not analogous to ownership of property, in which joint title to the asset passes to the other in the event of death. The change in language of the parenting terms in the Divorce Act, from “custody” and “access” to “parenting” and “contact” deeply reflects this understanding, which existed long before those changes. The Divorce Act’s change in descriptive terms is reflected as well in the analogous provisions of the Ontario Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended.

[77] Petrie J. could not have foreseen the circumstance of the mother’s death while E was still a child. His decision said nothing about anticipating that event. The mother was not ill in 2016. There has clearly been a material change in circumstances since the time of the Petrie J. order. Effectively, that means that parenting of E must be based only on her best interests rather than some outmoded view of the child as an object to which a parent may hold or relinquish custody. While the father implicitly acknowledges that understanding when he asserts that the mother cannot pass on guardianship of the child to her parents, it applies equally to him, as set out above.

Analysis of the Best Interests of E

[78] In addition to his legal argument regarding his succession rights to primary parenting of the child, the father says the child must now be placed in his care to avoid the grandparents poisoning her mind against him. He says that, since Mills J. reinstated his normal parenting time, E has now changed. She is far more reluctant to see him than she was before her grandparents withheld her from him.

[79] The father argues the only possible explanation for E’s changed view of him is that the grandparents have poisoned her mind against him. He speaks of Colleen describing his parents to him as “drunks” and referring to him as a “sociopath”. This occurred during what appears to have been an argument about the parenting schedule. He wonders whether Colleen said the same to the child. The grandparents do not respond to the claim but deny derogating the father to the child.

[80] The father also argues that he has not made any bad decisions utilizing the final decision-making rights granted to him by Mills J., ignoring the fact that he downplayed Wayne’s early and allegedly “fantastical” concerns about E’s COVID-19; asserting he knew better. On the other hand, the grandparents are, in his view, ignoring the Mills J. order and making decisions, such as school attendance, without consulting him. One of his key arguments is that they do not respect his final say on all parenting issues, granted for the terms of the adjournment by Mills J.

[81] The father points to numerous photos and cards showing the child happily in his care. He also speaks of the child’s burgeoning relationship with his partner, Alexandra Stiver. Ms. Stiver is an exceptionally accomplished woman, with a Ph.D. and degrees from Princeton University and the London School of Economics. She appears to lead a global market research consultancy. She and the father are expecting a child. E will soon have a half-sister. Ms. Stiver has been involved with the father since August 2020 and met E in the fall of 2020. They seem to have hit it off.

[82] The father argues that, if he is not granted full parenting responsibilities for the child, the grandparents will turn her against him. E will then lose her relationship with her father, Ms. Stiver, and her expected half-sister. If he is not granted full parenting rights, he feels that he should at least be given equal shared parenting rights, provided he has the final say on all parenting issues.

[83] The father’s argument is compelling in the abstract, but far less so in the real world that E inhabits. He says much in his materials and his lawyer’s correspondence about his rights as a parent. He takes great umbrage when he feels that his parenting rights and position are not honoured. He also asks the court to accept that he has become more conciliatory since the days of his last lawyer’s “my way or the highway” correspondence five months ago. Yet he remains firm on the centrality of his parental rights, as opposed to whether his proposed level of control of the child is in her best interests. He takes that as a given. He also rejects the notion that the child’s key bond right now is with the grandparents, not him, despite evidence to the contrary.

[84] In all of this, the father ignores what appears to be the child’s heartfelt wishes at a time of great emotional trauma. The fact is that E has lived with one or both of the grandparents for the majority of her life; both in New Brunswick and Ontario. She only lived with her father on a fulltime basis for the first three years of her life, a period which she likely barely remembers. After that, the father’s contact with the child was at first intermittent and then regular but still secondary or even tertiary.

[85] The father’s contact is potentially tertiary because, even when E lived solely with her mother, she maintained a bedroom in her grandparents’ home. It was her second home. She was there almost daily. Her grandmother was effectively her second mother. With the death of her mother, and only a recent relationship with Ms. Stiver, the grandmother is E’s closest maternal figure.

[86] When the grandparents say that, following the devastating loss of the mother, the child requires stability and security, they are speaking of E and not some abstract child. They want to nurture and protect E by giving her as much of a simulacrum of her previous life as possible.

[87] They also point to an alternate and unsurprising reason for E’s changed approach to her father: it occurred after her mother died and while she was grieving. Whoever is at fault for E knowing that the father wants to take primary care of her to the exclusion of the grandparents (and both sets of parties likely share some fault), she is aware. She is old enough to be aware and to have a say (although not a vote) in where she will live: Divorce Act, s. 16(3)(e). There is no dispute, at least today, that she does not wish to be taken away from her grandparents’ primary care and “returned” (as he erroneously describes it) to the father.

[88] Having said that, the grandparents went too far, particularly on the night of November 5 and 6, 2021. Also, even if Colleen spoke only to the father when she derogated him and his family, that is not acceptable in these circumstances. She should be looking to heal any rifts with the father, for the benefit of the child, not expand them. There always is a risk that a child like E can overhear the conversation or just understand the degree of animosity that Colleen expressed to the father. That must change for the benefit of the child. Further, Colleen must be careful that she does not interfere with the father’s parenting time or increase the child’s homesickness at this most vulnerable time.

[89] But that does not change the fact that the child requires the security and stability she finds with her grandparents. They are the closest connection to her mother. They are the boulder in the middle of a rapids to which she clings for fear of being swept downstream. It is unfortunate that the father is unable to recognize those facts.

[90] At this stage, the father’s concern and approach is far too directed towards his role and rights as a father rather than the child’s needs. Much of his affidavit material bespeaks his view that the grandparents do not honour his parental rights and refuse to “return” the child to his care.

[91] Right now, E needs as little change as possible in a world where anything has suddenly and grievously become possible. I must concur with Petrie J. that the father’s focus on his rights and his role as a father, rather that what is best for E, has not been child-focussed. Nor does it appear to have fundamentally changed. He offers words to the effect that his concern is centred on the child. But on the materials before me, I do not find that he comprehends the depths of his daughter’s loss at the death of her primary caregiver. The notion that the child can simply be removed from the care of her remaining caregivers, while the memories of her mother’s death and funeral are still fresh in her mind, ignores E’s needs and prioritizes the father’s own long-standing desire to equally or solely parent the child.

[92] As I stated above, the best interests criteria found in s. 16(3) of the Divorce Act is not a simple checklist, to be scored equally. It is a set of considerations that a court must consider for each individual case within the framework of the factual matrix before the court. Here, as stated above, the key factors in my decision are:

1. The child’s need for stability: s. 16(3)(a).
2. The nature and strength of E’s relationship with the grandparents and the need to maintain that relationship through these traumatic times: s. 16(3)(b). I note that this provision makes explicit reference to grandparents. That being said, E also has a need to maintain and even deepen her relationship with her father as well. But that must occur on her time, not his.
3. Despite the rancour and the angry words of Colleen, not to mention the events of November 5-6, 2021, the grandparents have been willing to try to work with the father: s. 16(3)(c). He has expressed the same sentiment, but refused to attend the grandparents’ home on November 6, 2021 and did not take the steps to attend mediation until this motion was heard. Recall that his lawyer told the grandparents in October 2021 that there was no point in mediation unless they first capitulated to his demand for primary care and sole decision-making.
4. The history of care of the child shows that the grandparents were always a second set of parents for the child and that she spent a great deal of time in their care: s. 16(3)(d).
5. The child’s views and preferences, as set out above and as presently known, favour a continuation of her primary parenting by the grandparents: s. 16(3)(e).

[93] Other relevant factors are the fact that both sets of parties are able to meet the child’s physical needs, but at this time, the grandparents are better able to meet E’s emotional needs: s. 16(3)(g) and (h). I am concerned about the ability of each set of parties to work with each other at this stage. But both have now agreed to mediation, which is a positive step: s. 16(3)(i). So too is their agreement set out below. I am not considering the history of family violence, as defined by the Divorce Act, by the father against the mother, as I have no evidence of any effect on the child: s. 16(3)(j).

Parties’ Consent

[94] As I was completing these reasons, I received an email sent by the father’s counsel to the court, on behalf of both counsel. The email stated that:

The parties have now consented to an interim schedule as set out below: a. Week 1 – Mr. Marshall shall parent [E] Wednesday and Thursday from after school until 8:00 pm; b. Week 2 – Mr. Marshall shall parent [E] from Thursday after school until Sunday at 7:00 pm; and c. The parties shall be flexible to accommodate changes to the schedule required by Mr. Marshall’s schedule.

The parties have further resolved the issue of costs in relation to the urgent motion on December 23, 2021, and the long motion on February 22, 2022. For reference, I attach a copy of the Endorsement of the Honourable Justice Mills, dated December 23, 2021, which provides that the costs of the urgent motion are to be determined by the Judge at the long motion. As such, the parties ask that His Honour note in his Endorsement that each party will bear their own costs of both motions.

In addition, [E]’s school has advised the parties that Mr. and Mrs. Snow cannot receive information from the school or have access to the school portal because they are not [E]’s legal guardians. The parties have tried to resolve this issue with the school but have been unsuccessful to date. The parties respectfully request an Order that provides that Mr. and Mrs. Snow can receive information from the school and have access to the school portal.

[95] I will defer to the parties in regard to the exact schedule to which they have agreed.

Conclusion

[96] For the reasons cited above, I order on an interim basis that:

1. E will primarily reside with the grandparents;
2. The father will have contact/parenting time with E: Week 1 – the father shall parent E Wednesday and Thursday from after school until 8:00 p.m.; Week 2 – The father shall parent E from Thursday after school until Sunday at 7:00 p.m.; and
3. The parties shall be flexible to accommodate changes to the schedule required by the father’s schedule.
4. The child’s cat and any personal items she wishes, will accompany her to the father’s home.
5. The grandparents shall not interfere with the father’s parenting time;
6. The grandparents shall not arrange any of the child’s activities on the father’s parenting time without his consent;
7. Each party is entitled to obtain all information regarding E from her school and any treating medical or counselling professionals (subject to the child’s right to privacy with regard to any counselling she may obtain). The grandparents shall be the primary contact for E’s school and treating professionals.
8. The grandparents shall consult with the father regarding all major decisions related to E’s health, schooling, and religion. In case of dispute, the grandparents will have the final say.
9. Each of the grandparents and the father may make day-to-day decisions about the child while she is in their care.
10. On consent, the parties shall complete the intake process for mediation with Christine Kim and attend to attempt to resolve all parenting issues between them.
11. Unless the parties agree in writing otherwise, the summer school holiday, Easter weekend, and spring break terms of the Petrie J. order shall continue to apply.
12. If the parties are unable to finally resolve their issues in mediation once the OCL releases its s. 112 report, they will immediately schedule a settlement conference with a Dispute Resolution Officer. That will allow them an expeditious opportunity to engage in a structured discussion regarding settlement. If that is not successful, they may arrange a judicial settlement conference.
13. On consent, there will be no costs of the motion before Mills J. of December 23, 2021 and this motion.

Request for a Review When OCL Report is Completed

[97] Both parties were under the impression that, after arguing the issue of interim parenting and decision-making for a full day, I would make a decision that is subject to review once the OCL s. 112 report is released. That could be just a few weeks from now. While the courtroom door will not be closed in the event the OCL s. 112 report raises issues that require immediate attention, the release of its report will not, in itself, represent a material change in circumstances.

[98] In saying this, I refer to the caution that must apply before a court applies the findings of a parenting assessment prior to trial. That caution is reflected in the decision of Chappel J. in Batsinda v. Batsinda, 2013 ONSC 7869. At para. 32, Chappel J. summarized the applicable authorities regarding the use of an assessment at an interim motion as follows, beginning with the caution cited above:

1. As a general rule, courts would be very cautious about relying on conclusions and recommendations set out in untested assessment reports at a motion pending trial, and about implementing even some of the Assessor's recommendations at the temporary motion stage. The rationale for this approach is that there is no opportunity at the motion stage to undertake a thorough analysis and evaluation of all aspects of the assessor's report, including the assessor's credentials, methods, observations, findings, theories, and recommendations (see Mayer v. Mayer, [2002] O.J. No. 5303 (S.C.J.); Kirkham v. Kirkham, 2008 CarswellOnt 3644 (S.C.J.)).
2. It is only in exceptional circumstances that an assessor's recommendations should be implemented immediately before the parties both have an opportunity to fully test the assessor's evidence and recommendations (Verma v. Chander, 2009 ONCJ 136, 2009 CarswellOnt 1859 (O.C.J.); Winn v. Winn, 2008 CarswellOnt 7116, (S.C.J.)). In general, motions for interim implementation of assessment report recommendations should be discouraged. As Pazaratz, J. stated in Marcy v. Belmore at paragragh 27, "parties should not perceive the arrival of an assessment report as creating an automatic strategic opportunity to secure a more favourable status quo, heading into trial."
3. The court should not presume at the motion stage than an assessor's recommendations would or should inevitably prevail at trial.
4. The caution that applies with respect to the weight to be given to assessment reports at the interim stage of proceedings applies primarily to the conclusions and recommendations of the assessor, rather than the evidence and observations set out in that report. Information such as statements made by children to the assessor, the assessor's observations respecting the parties, and their impressions regarding the parties' interactions with the children may be of considerable value to the motions judge in their attempt to reach a decision respecting the best interests of the children, provided that the evidence appears to be probative (see Bos v. Bos, 2012 ONSC 3425, 2012 CarswellOnt 7442 (S.C.J.)).

[99] I also recognize that an OCL clinical investigation under s. 112 is not the type of full expert assessment called for under s. 30 of the Children’s Law Reform Act. An OCL clinical investigation report is, in its nature, a fact-finding exercise. The statute expressly provides for an investigation to be made and for a report that includes recommendations: Taylor v. Clarke, 2017 ONSC 1270, at para. 53. The clinical investigator’s recommendations set out in a s. 112 report are a starting point; not the last word: Ganie v. Ganie, 2015 ONSC 6330, at para. 21. If courts must be cautious about relying on a s. 30 report to vary interim parenting terms, it must be even more so with a s. 112 report. That is not to say that the parties may not themselves, in light of the contents of the report, decide to change their parenting arrangements.

[100] Further, as counsel are likely aware, this jurisdiction has a rule limiting the number of motions that can be brought without leave. That rule is set out in the Superior Court’s Notice to the Profession and Public Family Law Proceedings – Central West (effective 10 June 2021), regarding regular motions. It states:

The parties should assume they will only be able to bring one oral motion each, pending trial. A second short motion by either party will be discouraged unless the circumstances warrant it. Parties or counsel that bring a second or subsequent motion will require leave, either by bringing a 14B motion in advance, or by seeking leave of the judge before whom they appear. They will be required to address why a subsequent motion is reasonable and necessary in the circumstances of the particular family law proceeding, why was it not dealt with during the prior motion, and whether there have been intervening events or a significant change making the subsequent motion necessary. [1]

[101] Finally, I note that once the issue of parenting is raised, the court is not limited to the positions taken by the parties or even their settlement: Richardson v. Richardson, 2019 ONCA 983, 35 R.F.L. (8th) 265, at para. 26; Laliberte v. Jones, 2016 SKQB 192, 89 R.F.L. (7th) 468, at paras. 17-18; Spadacini-Kelava v. Kelava, 2020 ONSC 5661, at paras. 122-30. While that jurisdiction is to be used sparingly, particularly in the face of a settlement, it is available to the court in order to meet the best interests of the child.

[102] Thus, the release of the OCL s. 112 report will not automatically trigger a review of my decision.

[103] In this endorsement, I have adopted the consent of the parties regarding day-to-day parenting arrangements and determined the issue of decision-making for E. Accordingly, after the report is released, if either party wishes to bring a motion to change the order granted with this endorsement, they shall first arrange an attendance to be spoken to before me, seeking leave to bring a further motion to change my order.

A Note Regarding the Father’s Role with the Child

[104] Portions of these reasons are critical of the father and the rights-based approach he has so far taken to parenting. Others criticize the actions of the grandparents after the mother died. Ultimately, the grandparents were the more successful party in this motion. But that should not minimize the importance to E of maintaining and growing her relationship with her father going forward. He is the only biological parent she has left. He will be the father of her future half-sister. As they age, the grandparents may not always be able to offer E the level of care that they can offer her today. An older E may need to increasingly rely on her father.

[105] All of that means that the grandparents, for E’s sake, must find a way to make peace with the father and he with them. Together, they must find a way to parent E in a manner that both nurtures and protects her from further conflict or loss. She does not deserve to lose anyone else in her life or worry about suffering such a loss. All three of the parties owe it to E to make parenting decisions based only on what is best for her and what keeps all of them in her life. They can best accomplish that goal by resolving their parenting dispute through negotiation and mediation rather than further litigation. Happily, they appear to have recently taken some tentative steps in that direction.

“Marvin Kurz J.”

Electronic signature of Justice Marvin Kurz

Date: March 17, 2022

[1] https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/cw-notice/cw-family/