NEWMARKET COURT FILE NO.: FC-19-58057-00 DATE: 20240624 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Leslie Kirshenblatt Marvin Kirshenblatt Applicants – and – Ryan Kirshenblatt Jacquelyn Kirshenblatt Respondents G. van Hoogenhuize, Counsel for the Children

P. Viater, Counsel for the Applicants M.J. Polisuk, Counsel for the Respondents HEARD: May 21, 22, 23, 24, 27, 28, 29, 30, 31, June 3, 4, and 6, 2024

reasons for trial decision

A. HIMEL J.:

I. OVERVIEW AND RELIEF SOUGHT

[1] The parties are embroiled in a long-standing power, control and rights-based dispute over contact between the paternal grandparents (“grandparents”) and two children, E. (age 13.5) and L. (age 10).

[2] As stated in the court-ordered assessment (“s.30 Assessment), [1] the parties “depict a genuinely “broken” family characterized by dysfunctional and fractured relationships between two well-meaning biological parents, two well-meaning paternal grandparents, and two exceptionally endearing children.” [2]

[3] Notwithstanding diligent attempts by the case management (“CM”) judge to resolve this dispute, and agreements to facilitate contact, E.’s visits with the grandparents have had challenges, and there is no in-person contact with L.

[4] While the parties are preoccupied with their competing versions of history, allocating blame and disputing boundaries, it is not my duty to vindicate either side. My role is to answer the following questions. (a) What grandparent contact, if any, is in each child’s best interests? (b) Is reconciliation counseling in the children’s best interests?

[5] For reasons that follow I order contact between the grandparents and children for a minimum of three hours once per month. I decline to order the requested reconciliation counselling.

II. PRELIMINARY MATTERS

[6] At the commencement of the trial the parents requested that the decision be initialized, which was not opposed by the grandparents. While I appreciate that these litigants (and many others) prefer not to have their personal histories aired in the public sphere, I am governed by the open courts policy. The reasons that support this policy and the test to deviate from same are aptly described by Chappel J. in M.A.B. v. M.G.C. [3]

[7] In the absence of a formal motion and without the benefit of caselaw and fulsome argument, I declined to make the requested order. [4] However, as is my usual practice, I am initializing the children’s names and omitting other identifying information. The children have a right to some measure of privacy.

[8] This trial was scheduled to be heard in November 2023 (after being adjourned from the May 2023 trial sittings to “road test” a temporary consent order). However, due to the considerable trial time allocated, the available judicial resources, and one counsel’s previously scheduled trial, the matter was delayed.

[9] Given the grandparents’ request for twenty trial days and the vast materials that each party intended to submit to the court, [5] the CM judge had no option than to allocate materially more time than is the norm for a trial in this jurisdiction (fourteen rather than three to seven days). The trial ultimately spanned twelve days which was largely due to the following factors. (a) First, the parties’ failure to recognize that the evidence the court needs to hear may be different (and is often considerably less) than what the parties want to tell the judge. Numerous historical incidents were described in detail when one or two examples would have been sufficient. It is not my role to undue damage caused by each party’s past actions. Rather, I am being asked to determine, on an ongoing basis, the children’s contact and family counselling, if any. (b) Many of the facts and incidents could (and should) have been provided by way of a statement of agreed facts, yet the partied failed to agree to any facts. (c) The grandparents requested that all direct evidence be presented orally rather than in a combination of affidavit and supplementary oral testimony. [6]

[10] Unnecessarily long trials lack proportionality and cause delays for the family justice system and the parties before the court. [7] Delays often advantage one party and disadvantage the other. Delays frequently cause undue stress and harm to children.

[11] There were no significant credibility issues in this trial. The parties provided their recollections of various incidents [8] and there are many emails/letters to support their evidence. The grandparents had difficulty remembering certain events that reflect poorly on them and declined to make certain admissions against their interest. The father was more open to acknowledging some mistakes.

[12] In contrast, there were some challenges related to reliability. The parties’ respective “truths” are marred by their perceptions and lack of insight into their own behavior and the other parties’ experiences. However, the factual correctness of each party’s recollection is not particularly important – both parties engaged in problematic interactions that negatively affected the children.

III. RELEVANT FACTS AND LITIGATION HISTORY

[13] The facts as I find them are set out below and form part of the analysis. Further details will be referred to as required. I opt not to include many facts provided in this hearing. The omitted facts are not needed, reflect poorly on the parties, and may cause unnecessary embarrassment.

[14] The grandparents (alternately referred to as “Leslie” and/or “Marvin”) are the parents of three children, including the father (or “Ryan”), Lauren and Lindsay. Ryan married the mother (or the “Jacquelyn”) in November 2008.

[15] The grandparents provided significant financial support to Ryan before and after the marriage and were actively involved in his life. Soon after Ryan partnered with Jacquelyn, conflict arose between the two couples (the “adults”).

[16] For example, at the conclusion of the wedding reception the grandparents pressured the father to visit their hotel room (which he did not want to do). They then pressured him to stay much longer than he wanted. When Ryan returned to the suite an argument ensued, with Jacquelyn expressing feelings of hurt and abandonment. Ryan felt guilty and was concerned that his wife doubted his love. The parties went to bed angry and upset.

[17] Before having children, Ryan (and Jacquelyn) engaged in counselling to address ongoing issues relating to the grandparents. The issues included disrespect for their boundaries, excessive demands for Ryan’s attention, and their attitude/treatment of Jacquelyn. Ryan determined that his family of origin was “enmeshed” and took steps to set limits and create stronger boundaries.

[18] Ryan never explained his new behavior to the grandparents. Over time, the couple opted to be less involved with the grandparents and Ryan’s sisters.

[19] Ryan also never informed the grandparents about the counselling, what he had learned, and his intention to transform the relationship between himself and the grandparents. The grandparents blamed Jacquelyn for the rift and other personality changes that they saw in Ryan (less social/less humorous/more serious/more distant).

[20] On one occasion the grandparents attempted to discuss the challenges in their relationship over dinner. However, Ryan and Jacquelyn refused to do so, and threatened to leave the restaurant.

[21] E., the first child of the next generation, was born in December 2010. Both parents and both extended families were very happy.

[22] E. was diagnosed with an anaphylactic allergy to peanuts when she was two years old. Consequently, E. must avoid direct and indirect contact with peanuts. Two EpiPens must be available, and caregivers must know how to use the device.

[23] In 2014, Leslie deleted Jacquelyn from her Blackberry telephone contacts, advising Ryan that she had no need for it.

[24] Notwithstanding some distance between the parties, they came together when L. was born in May 2014.

[25] In the months and early years following the birth of the children, the grandparents had reasonable contact. Over time, this decreased from one visit every week or two (grandparents) or two to three weeks (parents), to something less.

The Estrangement

[26] Tensions increased by 2015, and the parents started to actively withdraw from the relationship. They took steps to limit the grandparents’ time with the children. The parents did not bring the children to the grandparents’ home for Rosh Hashanah in September (due to E.’s illness and L.’s bedtime).

[27] When Marvin learned that the family may not attend the big family celebration in December for E.’s birthday, Channukah and a goodbye party for Lindsay, he called Ryan and made disparaging remarks. The parents chose to stay home.

[28] The grandparents did not acknowledge E.’s fifth birthday the following week, nor did they call Jacquelyn (in March) or L. (in May) for their birthdays.

[29] A visit was planned for May 2016, shortly after Mother’s Day and L.’s birthday. As per an email dated May 17, 2016, the grandparents waited all weekend for a call from Ryan to schedule the visit. Marvin’s email referred to the situation as tragic, with everyone losing out. Marvin wrote, “you will be free of any relationship with your parents. It appears that is the direction you want to proceed with. We won’t bother any of you again.”

[30] Ryan felt rejected by the grandparents, who felt rejected by their son. The rift continued to grow.

[31] In 2016, contact between the grandparents and the children was limited to the four visits summarized below: (a) Marvin visited the family in February 2016, when the parties were home from Florida; (b) Leslie attended unannounced at the family home in August 2016; (c) the grandparents visited the children on Halloween, and Leslie helped E. with her makeup; and (d) the family got together in December.

[32] Details of the August 2016 visit are as follows. Leslie was at the end of her rope and drove to the parents' home to surprise the children with gifts. She knocked on the door and rang the bell, later walking around the home. After Jacquelyn refused to answer the door a heated telephone discussion took place between Leslie and Ryan. He demanded that she leave and not re-attend without notice.

[33] Leslie refused to leave and waited outside in the August heat for approximately one hour. Eventually, Leslie was permitted to enter the home and swatted the mother’s hand away. Both adults were upset yet disagree whether either child was crying or anxious. Leslie testified that she had a good visit. E. recalls being upset due to Leslie’s repeated door knocking and bell ringing [9] . Ryan now admits that he did not handle this incident well.

[34] In September 2016, Leslie re-attended and left balloons with “love notes” wishing the children a good first day of school. Ryan was upset. He removed and destroyed the balloons. Ryan called Leslie to report same and to reiterate that Leslie was not to attend at his home uninvited. Ryan now admits that he did not handle this incident well.

[35] The grandparents visited E. and the parents on December 18, 2016 (a visit missed by L. due to illness).

[36] The family travelled to Montreal to visit the maternal grandparents in Montreal. When Ryan returned home, he found an envelope in the mail dated December 19, 2016. It contained a Toronto Star newspaper article about legislative changes respecting grandparents’ rights and parents who alienate their children.

[37] The parents believed that the article was sent by the grandparents (or someone on their behalf). They did not contact them to ask about the article. The parents chose to retain family law counsel instead.

[38] The grandparents learned of the allegations made against them in the lawyer’s first letter. They consistently denied sending the article. The grandparents repeatedly offered to make a sworn statement or engage in any of the following tests: a polygraph, DNA, fingerprinting, handwriting examination, or whatever test required. The parents never accepted these offers.

[39] I am unable to determine whether the article was sent by Marvin, Leslie, Ryan, Jacquelyn, or someone else. In any event, this is not determinative of the issues before the court.

[40] Ryan feared the legislative changes. He perceived the grandparents as a threat to his marriage, parental authority, and family. Ryan testified that the grandparents initially threatened litigation in 2014 (which they did not deny). The 2016 legislative changes increased his anxiety.

[41] The newspaper article was, effectively, the last straw.

The Post-Estrangement Contact

[42] On January 13, 2017, the parents’ lawyer sent a letter directing that the grandparents would see E. (age 6) for one visit in alternate months, which could possibly increase. The parents offered no time with L. (age 2.5) believing that the grandparents did not want visits and stating that L. was fearful of them.

[43] The letter contained various rules and expectations that, while reasonable, were portrayed in an egregiously aggressive tone. The allegations contained in the initial letter (and many subsequent ones) set the stage for a long and drawn-out dispute.

[44] The grandparents followed the schedule and attempted to address concerns raised by the parents. However, the grandparents wanted additional time with E. and regular contact with L., which was not forthcoming. They eventually retained family law counsel.

[45] E. continued to visit the grandparents for six hours in alternate months. E.’s cousin (“P.”) and Lauren attended some visits. E. appears happy and relaxed in various photographs produced from this period. Leslie testified that the visits went well although tensions arose during contact exchanges (as the father barely spoke with her). E. appeared anxious near the end of the visits.

[46] Following visits, the parents and/or their counsel sent emails and/or letters accusing the grandparents of various wrongdoings, poor treatment of E. and favouritism towards P.

[47] The communications were aggressive and vindictive, causing the grandparents to experience considerable stress. Leslie testified that the events, as alleged by the parents, were twisted, misrepresented, and exaggerated. The visits with E. were positive and the child never experienced actual and/or risk of harm.

[48] Ryan testified that these incidents are accurate (as portrayed by E.) and are examples of actual and/or risk of harm. He believes that the grandparents did not take the necessary precautions to protect E. from her peanut allergy, nor were they sensitive to the child’s genuine feelings and fears.

[49] One example of the parties’ contradictory perceptions is as follows. In July 2018, the grandparents took E., P. and her parents to a farm to celebrate their 35 th anniversary. They hired a photographer who took family pictures. The photographer asked E. to remove her EpiPen waist pack (which she always wore) and to stand behind P. (who is younger and smaller). Leslie described the visit as positive and provided pictures as evidence.

[50] In contrast, the lawyer’s letter that followed the visit accused the parents of favouring P., not attending to the peanut allergy, and using the child for a photo-op. E. has expressed feeling disrespected, uncomfortable, and fearful, just so the EpiPen would not appear in the picture. [10]

[51] The incident (and fallout) was upsetting to the grandparents, the parents and the child, yet the parties never met to discuss this event (or any of the other similar incidents).

[52] By November 2, 2018, the conflict escalated, and Marvin sent a lengthy email to the parents’ counsel after learning that the upcoming visit with E. was cancelled. He responded to allegations that he endangered E. by making FaceTime calls while driving. Marvin was also frustrated by accusations that the grandparents treated E. like a second-class citizen as compared to P., claims that E. hates the visits, and the conflicting reasons given by the parents to explain L.’s failure to attend visits. Marvin complained about E. wearing a recording device to visits (which was denied). The email included various allegations against the parents.

[53] Marvin’s email concludes as follows. When E. and L. are mature, they will receive couriered, hand-delivered copies of all correspondence to ensure the truth is revealed. The children will govern for themselves whether they were robbed of loving and doting grandparents and used as pawns and leverage in an unjustified war waged by their parents. We will not tolerate, nor overlook, being painted as monsters. We are exactly the opposite.

[54] In a subsequent lengthy email to the parents’ counsel dated November 7, 2018, Marvin questioned whether Ryan was a victim of psychological abuse. He again denied any involvement in the delivery of the article and repeated his offer to undergo testing. Marvin ends the email by stating an intention to, “take further steps to notify the Children’s Aid Society to launch an investigation into plausible maltreatment of the emotional health of our granddaughters.”

[55] On November 13, 2018, Leslie emailed Ryan with a link to Alienated Grandparents Anonymous. She stated that the grandparents were advised to send the link and alleged that the parents’ alarming behaviour is harmful to the children.

The Litigation

[56] In late January 2019, the grandparents retained new counsel and attempted to “negotiate meaningful and generous access to both children.”

[57] The grandparents requested bi-weekly access, Jewish holiday access, two telephone calls per week, attendance at special events and related terms. They also requested reunification counselling for the grandparents and L. (who, at age 4.5 years, continued to be fearful of them according to the parents). Finally, the grandparents offered to engage in therapy with the parents (at the grandparents’ expense) to explore the reasons why they chose to cut off the paternal extended family and to try to explore ways to amend their relationship.

[58] The grandparents commenced an Application on February 3, 2019, seeking the following relief: (a) alternate week access for seven hours, to be expanded to a weekly visit; (b) telephone contact twice per week; (c) an order that the children may contact the grandparents’ anytime; (d) one day for each of the three major Jewish holidays; and (e) an order that they may attend special events such as recitals. They also sought orders for a s.30 Assessment, the appointment of the Office of the Children’s Lawyer (the “OCL”), and an order that the children attend counselling.

[59] The parents filed an Answer dated March 10, 2019, consenting to the appointment of the OCL and seeking an order that the grandparents be trained to use the EpiPen.

[60] In July 2019, the parties attended a case conference and engaged in extensive discussions. However, the CM judge was unable to assist the parties to take a non-litigious approach.

[61] In August 2019, the parents offered to engage in counselling with the grandparents.

[62] Notwithstanding both parties’ recognition that counselling was needed (as per their respective offers in January and August), no counselling was agreed to or arranged.

[63] On January 15, 2020, Douglas J. heard a contested motion and granted the relief sought by the grandparents. He increased E.’s visits to ten hours once per month (from seven hours once every other month). He also ordered the s.30 Assessment. Justice Douglas determined that there were clinical issues that warranted investigation. He relied on the parents’ evidence that L. continued to be fearful (despite the passage of years since the August 2016 visit), and that E. cried inconsolably after visits (despite apparently positive outings as per the photographs).

[64] As part of the court order, the grandparents were obliged to provide an itinerary in advance of every visit. There were also required to follow the parents’ directions in respect of food, restaurants and precautions to prevent any exposure to peanuts.

[65] The visits with E. deteriorated after the new order was implemented. The grandparents blamed the parents for alienating the child. However, at trial both parties and Dr. Butkowsky testified that the ten-hour timeframe was too long for E. Other challenges included the onset of Covid-19 restrictions and the grandparents’ more relaxed approach to compliance with the rules (as opposed to the parents and the child who were hypervigilant). The parents made further complaints that the grandparents failed to comply with the safety precautions and itinerary requirements set out in the order.

[66] The parents refused to consent to any additional calls or in-person contact, notwithstanding that the order contemplated same. The parents testified that E. wanted less (and certainly not more) contact than what was provided for in the Douglas J. order. This was confirmed by Dr. Butkowsky in 2021, when he interviewed E.

[67] Aside from a brief period in 2020, when the in-person visits moved to virtual calls due to Covid-19, no agreement was reached to reduce the duration of the visits until May 2023.

[68] The s.30 Assessment was protracted due to Covid-19. Meetings with parties commenced in September 2020 and a disclosure meeting was held in November 2021.

[69] The grandparents supported Dr. Butkowsky’s recommendations (although they disagreed with many of his factual findings). They wanted to implement the recommendations immediately. The parents delayed responding to the grandparents’ repeated requests until July 2022.

[70] They parents agreed with the factual findings but disagreed with Dr. Butkowsky’s recommendations. They took the position that the first step was therapeutic mediation, and that reconciliation between the adults was a precursor to contact with L. and improved contact with E.

[71] The grandparents disputed the parents’ approach stating that Dr. Butkowsky recommended a parallel plan. He intended that in-person and telephone contact take place with both children while therapeutic mediation was ongoing.

[72] The parties spent considerable time (from July 2022 to July 2023) arguing whether: (a) to implement any of Dr. Butkowsky’s other recommendations while engaging in therapeutic mediation; and (b) the children would actively participate in the mediation and/or engage in reconciliation therapy (grandparents) or be excluded from any therapeutic process (parents). They also disagreed about the stated goals for the therapeutic mediation.

[73] The parties did not understand Dr. Butkowsky’s recommendation respecting the children’s role in the mediation, yet never returned to him for clarification. By July 2023, the parties gave up on trying to find a mediator, as none of the professionals proposed by Dr. Butkowsky were available.

[74] The parents testified that they started to encourage L. to have telephone contact with the grandparents in May 2022. However, she declined to call Leslie for Mother’s Day or at any other time.

[75] The OCL was appointed in June 2022. In October 2022, Mr. van Hoogenhuize (“OCL counsel”) met with the children for the first time.

[76] At the grandparent’s request, Dr. Butkowsky’s drafted the s.30 Assessment report. It was produced in November 2022.

[77] In December 2022, the parents implemented the recommendation that E. engage in counselling, unbeknownst to the grandparents. The therapist was advised of the challenges faced by E. as identified in the s.30 Assessment. E. continues to see the counsellor monthly.

[78] In April 2023, the OCL appointed a clinician, Ms. Federin, to assist the lawyer.

[79] Following an interview with the OCL counsel and clinician in May 2023, L. requested that her parents arrange a FaceTime call with the grandparents. The parents arranged the call, which the parties agreed would be private. They later learned that Lauren was present and recorded the call on her phone (although only the grandparents appear in the video).

[80] The parents were upset to learn that the child was recorded without their/her consent. However, after reviewing the recording the parents acknowledged that the video includes some positive interactions. They recognized that L. was able to express her comfort level about various forms of possible contact with the grandparents.

[81] In May 2023, the parents also received the clinician’s trial affidavit which provided additional information about each child’s views and preferences.

[82] In consideration of all the above, the parents agreed to negotiate terms of a temporary order. On May 16, 2023, the parties entered into the MacPherson J. Order, whose terms include the following: (a) Contact between L. and the grandparents: i. Telephone contact with the grandparents every two weeks. ii. Monthly in-person visits commencing June 2023, and increasing in duration. The visits shall only occur if L. wishes them to occur and she may end a visit while ongoing. iii. The visits will occur during E.’s grandparents contact unless otherwise agreed. iv. The parents shall actively encourage L. to participate. (b) Contact between E. and grandparents: i. Telephone contact weekly, and E. is at liberty to make additional calls. ii. In-person contact one day per month from 10:00 to 3:00 p.m. (which is reduced from ten hours as provided for in the Douglas J. Order). (c) Additional terms include peanut precautions, transportation, a restriction against any recordings, the provision of pictures and updates by the parents, no make-up visits, non-denigration and the provision of itineraries. (d) The trial was adjourned to November 2023.

[83] Following the issuance of the MacPherson J. Order, L. refused the parents’ attempts to encourage her to attend any of the in-person visits. She declined to engage in any further FaceTime calls.

[84] The grandparents offered various options to facilitate visits (with or without the parents’ participation) including meeting on the parents’ front lawn, at a park or at their condo. The parents never responded to the suggestions.

[85] In early May 2024 (just before the trial), the grandparents were denied the chance to visit with L. on her birthday, or to give her a gift personally. They were advised once again that L. does not yet feel comfortable seeing them.

[86] L.’s present contact is limited to the bi-weekly telephone calls which are short and, by all accounts, not particularly successful.

[87] In contrast, E.’s recent visits with the grandparents have been positive. The parties attribute these changes to E. having greater control over the activities that take place (as she is now permitted to speak with the grandparents in advance to plan the visits). Also, she enjoys the activities (such as going out for lunch and shopping). E.’s request that the visits involve only the grandparents is being respected. The grandparents now return E. early (often after two or three hours), at her initiative.

[88] The most recent visit involved a tour of important landmarks in Marvin’s life including his high school, at E.’s request. He told E. about his youth, and she was interested in hearing stories that only he could share. This was a meaningful experience for the grandparents and for E.

[89] On May 24, 2024 (mid-trial), the parties executed Minutes of Settlement committing to therapeutic mediation with both couples. The terms are fundamentally aligned with Dr. Butkowsky’s recommendations, although the wording is different.

IV. THE SECTION 30 ASSESSMENT AND DR. BUTKOWSKY’S TRIAL EVIDENCE

[90] Dr. Butkowsky is an experienced parenting assessor with over 40 years of experience. Dr. Butkowsky has taken various workshops on the topic of grandparent – grandchild contact. Neither party nor the OCL counsel challenged Dr. Butkowsky’s expertise.

[91] Dr. Butkowsky opined that children benefit from relationships with extended family members such as grandparents, aunts, uncles and cousins. These individuals enrich the children’s lives when the relationships are positive and healthy. From a psychological and family systems perspective this statement is undoubtedly true.

[92] However, extended family member contact as addressed in the legislation and caselaw, and the best interests test in that context is different. In other words, the court may deny contact with extended family members even where there may be positive and healthy relationships.

[93] The s.30 Assessment included psychological testing and various interviews, as well as joint meetings with the parents and grandparents. It also involved observation visits with the children and parents, and the children and grandparents. Dr. Butkowsky produced his expert’s report in November 2022.

[94] Dr. Butkowsky’s summary and opinions are as follows.

E. (age 11 during the assessment)

(a) The child is very bright, highly articulate, confident, emotionally mature, outspoken, and assertive, with exceptional social skills. Her language development, abstract reasoning, insight, and empathy are all suggestive of precocious cognitive development. (b) When interacting with the grandparents, E. was quiet, reserved, somewhat terse and disgruntled. She consistently stated that she did not feel safe with the grandparents (regarding her peanut allergy) and felt trapped. E. was told that she was “paranoid like your mother”. E. did not want to see the grandparents and wanted to be able to make that decision. (c) Dr. Butkowsky noted positive interactions between E. and the grandparents in the two observation visits. (d) E.’s views reflected her true feelings and were not substantially impacted by external influences. However, it was possible that her views were influenced, in part, by the negative sentiments of the parents.

L. (age 7 during the assessment)

(a) The child is warm, delightful, endearing and spontaneously affectionate. She is a precocious youngster who is animated, enthusiastic, and happy. L. displayed highly developed expressive language skills and functioned at a high level of cognitive and social skills as compared to others her age. (b) During the two observation visits with the grandparents and E., the child appeared consistently happy, comfortable, enthusiastic, and spontaneous. Her behaviour was remarkable in as much as she had historically had very limited contact with the grandparents. (c) The grandparents are virtual strangers to L. (d) L. had largely negative expressed views of the grandparents. She described preferring to stay with the parents and being a little scared of the grandparents. (e) During the second observation visit, L. spontaneously hugged the grandfather after the grandparents gave her gifts.

The Parents

(a) Ryan and Jacquelyn have a strong marriage. Ryan is fiercely loyal to his wife, and they are exceptional parents. (b) Jacquelyn consistently presented as open, genuine, protective, sincere, honest, direct and child-focused. She appeared burdened by significant anxiety, which appeared well-managed. Historical trauma has likely heightened her level of vigilance and sensitivity to health-related concerns. (c) In accordance with the results of a psychological test, and in the expert’s considered view, the mother does not suffer from any significant mental health illness or any elements of “Munchausen-by-Proxy” as contended by the grandparents. (d) Ryan impressed the examiner as a highly intelligent and psychologically minded individual with numerous strengths, including insight, self-awareness and the ability to take responsibility for his actions. (e) The father appeared burdened by historical struggles with self-confidence, self-esteem and with assertiveness in his relationships with the grandparents. Psychological testing results support the above findings. (f) The parents are unlikely to actively foster, facilitate or even encourage relationships between the children and the grandparents. At best they will remain neutral and permit the children to make their own choices. (g) The results of the assessment do not suggest that either parent is actively engaged in any conscious, intentional, pathological efforts to alienate the children from the grandparents.

The Grandparents

(a) Marvin and Leslie have a strong marriage, and Ryan’s relationship is modelled on their example. (b) Leslie impressed the examiner as intelligent, sociable, outgoing, and with good social skills. She was occasionally emotional and dramatic. She was attentive, responsive, warm, and engaged with the children. (c) Leslie struggles with impulsivity that may appear as poor judgment. She was defensive, lacks self-insight and has some difficulty recognizing the impact of her actions on the parents and E. She depicts the mother as engaging in efforts to alienate the children and Ryan from the grandparents. Psychological testing results support the above findings. (d) Marvin impressed the examiner as intelligent, and with a high level of confidence and assertiveness. He has engaging social skills and is persuasive. (e) Of concern was an occasionally forceful and confrontational approach, an apparent sense of entitlement, some difficulty with boundaries and a strong sense of victimization. Marvin believes that the parents have alienated the children. He has underlying feelings of anger and disdain towards the mother. He has a tendency toward defensiveness, denial, or minimization in respect of his own behavior. Psychological testing results support the above findings. (f) The grandparents have a history of minimizing and/or abject denial of E.’s medically documented peanut allergy. This exacerbated concerns and mistrust by the parents in respect of their care of E. and undermined the child’s sense of security and safety. (g) The grandparents need to learn how to hold their tongue and appreciate how their need for control and boundary violations contributed to the mistrust and hostility expressed by the parents.

The Family Relationships

(a) The adults’ fractured relationships have compromised the children’s opportunity to benefit from meaningful relationships with the grandparents and their extended family, as would be in their best interests. (b) Until and unless the adults’ relationships can be functionally reconciled, no meaningful relationships between the children and the grandparents will be possible. (c) If the court needs to intervene and contact is limited to occasional (or more regular) visits, such contact is likely not sustainable and may prove disruptive to the children’s development and overall sense of security. (d) The children have strong and secure reciprocal attachments to the parents. They need continuity of care and stability in these relationships. Any external threat, real or imagined, to these relationships is likely to prove disruptive and may result in significant adjustment difficulties in the short and long term. A cessation of conflict between the adults is an additional critical need for the children. (e) Ryan’s struggles to achieve autonomy from his family of origin has been made difficult by a family dynamic that is clearly suggestive of enmeshment. This family systems term is founded on the ideas that (i) it is the family vs. the outside world; (ii) you are either in or out (rejected), and, (iii) it is hard to make an identity outside the family. (f) During the joint interviews the grandparents tried to engage in discussions with the parents, but they declined. These meetings were very tense with no interaction. (g) The grandparents must (and do not currently) accept significant responsibility for the fractured relationships and largely dysfunctional nature of the family dynamics. They have strong needs for control and a sense of entitlement and lack of respect. They appear to have exposed E. to negative statements about the mother, which only serves to alienate the child from the grandparents. (h) There are moderate to high levels of tension, mutual avoidance, mistrust, suspiciousness, a strong sense of victimization, and underlying resentment and hostility between the adults. (i) Reparation of the relationship between the grandparents and the mother will be critical. (j) The family (parents and children) have been under siege for years which is stressful and can have a deleterious impact. (k) The grandparents are caring and loving grandparents who can meet the children’s physical needs. (l) The grandparents have struggled to separate their own needs from the grandchildren. This led to unrealistic expectations as to what form normalized relationships with the children may take. (m) The children would ultimately benefit from meaningful relationships with the grandparents, whose role is unique and potentially enriching. In the tragic circumstances of this family, the children are being denied relationships with the grandparents and the extended family.

[95] Dr. Butkowsky recommended that the children have a minimum amount of contact (six hours once per month, telephone/virtual contact, a visit at Chanukah and attendance at children’s activities), while the adults engaged in therapeutic mediation. He hoped that after some measure of repair, more contact would evolve organically. Dr. Butkowsky also suggested that the parties share the driving responsibility as that would send the message that all adults are invested in the contact.

[96] Other recommendations contained in the expert’s report were either not disputed (decision-making, counselling for E.), or not pursued at trial (appointing a parenting plan arbitrator).

[97] Given the three-year delay from the time of his interviews/observations, the children’s current ages, and in consideration of various hypothetical questions, Dr. Butkowsky’s recommendation about in-person contact changed at the trial. He testified that the monthly visits should be much shorter, either two or three hours. That would provide sufficient time for lunch and an activity the children enjoy (such as shopping), with the option of longer visits.

[98] Dr. Butkowsky clarified that at this stage the visits should be limited to the grandparents and children. E. and L. should be provided the opportunity to initiate text and other forms of contact. He prefers that the grandparents return home from Florida during the winter (to avoid three or four months of missed visits).

[99] With respect to the therapeutic mediation, the assessor envisioned that the adults would engage in a closed process. The children may be brought in at a later stage to provide consistent messaging about what is agreed to by the parties and/or to obtain their views and preferences as decisions were being made. It was (and is) not his vision that the children actively participate in family counselling sessions (which was clearly misunderstood by both parties).

[100] With respect to grandparent and grandchildren contact, the assessor was (and is) concerned that if the time is not scheduled, there is a risk that no contact will take place. If E.’s contact is at her discretion, there may be no contact. If L.’s contact is at her discretion, it is unlikely that there will be contact as she is influenced by E.

[101] He noted that by the age 15 (or 14), the children will “decide with their feet” whether to follow a contact order. As children mature and attain greater independence they will act on their wishes if they are not heard, which can create turmoil and disruption. Many older children prefer to spend time with peers.

[102] Dr. Butkowsky opined that every effort should be made before severing a relationship between a child and a family member. Otherwise, the adults teach children that when problems arise, they can dispose of relationships. Consequently, children may have difficulties sustaining connections with others at a later stage of life. Moreover, children may become resentful of their parents in the future.

[103] The expert testified that E. should be compelled to attend visits until such time that the parents and grandparents have made reasonable efforts in the therapeutic mediation, even if she prefers not to go. There are many decisions that children do not like. It is the parents’ responsibility to do what is best (such as requiring them to attend school even if they are angry at a teacher). The relationship between E. (and L.) and the parents is strong and resilient.

[104] In the assessor’s experience, children who have no contact with a family member tend to idealize or devalue that person (such as a biological parent in the context of an adoption). The children’s perceptions can go to extremes. If children are not provided the chance to foster a relationship, then, as they mature, their ability to make informed choices is compromised.

[105] Dr. Butkowsky testified that he failed to help this family, which he finds upsetting. They needed to avoid a trial at all costs but have not done so. At the time of the assessment (2021) he believed that the parties could repair the relationship in therapeutic mediation, but his prognosis was guarded. Given that the parties are now at trial, he opined that the prognosis is poor, yet reconciliation is not impossible.

[106] With the benefit of the extensive evidence provided by the parties, the s.30 Assessment and Dr. Butkowsky’s evidence, I agree with the expert’s findings and opinions as described in these reasons. Ultimately, it is in the children’s best interests that the parents and grandparents reconcile. This will require a sustained and concentrated effort and intervention over a long time. Both parties must be open to consider their errors in judgement and be motivated to change. Reconciliation is a challenging but not impossible task.

V. THE PARTIES’ POSITIONS AT TRIAL

Summary of the Grandparents’ Evidence, Arguments and the Requested Order

[107] The grandparents testified about various concerns in respect of the parents’ behaviour throughout their relationship, which include the following. (a) The grandparents are forced to walk on eggshells as they are subject to the parents’ high degree of control and criticism. (b) The letters and emails sent by the parents and their counsel mischaracterize the visits and include unfounded allegations against them. (c) The parents never express anything positive about the visits, and never thank them for the gifts they provide. (d) The parents alienated themselves from Ryan’s sisters, and grandmother. Lauren was at risk of losing her employment as a teacher due to false allegations made by the parents. (e) The parents unduly limit their contact with E. and have unreasonably restricted all contact with L. The children likely do not understand why they do not call/see the grandparents and paternal extended family for holidays and birthdays (unlike the maternal extended family). The children may feel abandoned by the grandparents and paternal extended family. (f) The mother is overly protective and may have a mental illness. (g) The parents are in breach of the Douglas J. Order as L. has not attended any of the in-person visits that were contemplated. (h) While the grandparents make efforts to be friendly and communicate, the parents are not responsive. (i) The parents’ refusal to comply with Dr. Butkowsky’s recommendations and their request for reconciliation therapy with the children, has caused greater delays and further impacted their relationship. (j) The parents’ responses to the emails and letters, if any, are often not responsive. (k) The parents imperilled their contact with L. arbitrarily. They should not be permitted to rely on their own restrictions as a bar to future contact.

[108] The grandparents believe that they have much to offer the children, and that the current state of contact is not in the children’s best interests. The children are missing out on relationships with the grandparents, aunts, an uncle, a cousin as well as other extended family members.

[109] The grandparents argue that they require reconciliation counselling to overcome the limits on contact to date, the children’s negative feelings and perceptions, and to build a healthy relationship.

[110] The grandparents seek an order at trial that includes: (a) monthly contact with both children for six hours (in accordance with Dr. Butkowsky’s original recommendation); (b) an order that the children will attend contact visits separately if requested by the grandparents, or the reunification therapist; (c) additional visits for each child’s birthday and Chanukah; (d) one weekly telephone or virtual call, plus additional calls for birthdays, holidays and as initiated by the children; (e) an order that the grandparents and other extended family members be permitted to attend the children’s extracurricular activities; (f) reunification counselling for the grandparents and the children; (g) individual counselling for E.; (h) non-denigration, transportation and sharing of information orders; (i) orders confirming that the parents have sole major decision-making (except as set out in the Order) and primary care of the children; and (j) a further attendance before the trial judge for directions if the implementation of the Order is not carried out or is not functioning.

[111] The grandparents maintain that they do not understand what they have done wrong, or why their contact with the children is so limited. They deny the allegations made by the parents about their controlling behavior and lack of respect of boundaries. The grandparents want the opportunity to develop a normalized relationship with the children, who they love and miss dearly.

Summary of the Parents’ Evidence, Arguments and Requested Order

[112] The parents testified about various concerns in respect of the grandparents’ behaviour throughout their relationship, which include the following: (a) The grandparents do not take proper care of E.; (b) There have been many challenges. At times, E. has not enjoyed the activities and has not wanted to go on the visits. (c) The parents are hypervigilant about E.’s peanut allergy and Covid-19, and the grandparents do not respect their rules. (d) The grandparents do not respect their boundaries or parental authority. (e) The grandparents use their wealth to influence the behaviour of family members, such as the purchase of an iPad for E. when she was 10 years old and saving for the iPad. The grandparents knew that the parents would not consent to that gift. (f) In November 2018, the grandparents threatened to provide the children with copies of all correspondence when they are young adults. Consequently, they must be careful in their responses. (g) The grandparents make the following accusations that were not substantiated by Dr. Butkowsky, including that the mother: i. suffers from Munchausen syndrome by proxy, putting herself and the children at risk of harm; ii. has mental health issues and is paranoid (as is E.); and iii. controls the father, and he is her puppet. She has alienated Ryan from his entire family and his old friends.

[113] Aside from two meetings at Dr. Butkowsky’s office, L. has had no in-person contact with the grandparents since she was age 19 months. She has no relationship with them.

[114] Several years ago, the parents started asking L. if she wanted to call or see the grandparents. They began to actively encourage the child to contact the grandparents in May 2022, after considering Dr. Butkowsky’s recommendations and hearing the recording of the FaceTime call. L. consistently responded that she did not want to call or attend visits with E.

[115] They believe that the children should not be forced to go places or do activities they do not like. The children should not be put in situations where they feel uncomfortable.

[116] The parents agreed to the Macpherson J. Order, believing that L.’s views and preferences were changing. However, they now believe that the mandatory bi-weekly calls impede L.’s desire to attend visits.

[117] They encourage L. by: (a) explaining the planned agenda and saying positive things about the activities; and (b) confirming that if she wants to attend, they support the plan and will make the arrangements.

[118] The parents’ encouragement does not include any statement that: (a) the parents want L. to attend the visits; or (b) the parents expect her to attend the visits (notwithstanding that the Macpherson J. Order contemplated in-person visits).

[119] L. continues to be uncomfortable with in-person visits with the grandparents.

[120] L. does well at school and is a friendly, social, and well-adjusted child. She had no issues meeting with Dr. Butkowsky, the OCL counsel or clinician, and can express her views and preferences. L. does not need individual counselling.

[121] If the mandatory telephone calls are terminated and there is no order requiring contact, the parents believe that L. will be more interested in starting a relationship with the grandparents. L. took a similar stance against swimming. Two years after the first offer of lessons, and after watching others swim, L. indicated an interest and learned how to swim.

[122] The parents seek an amended draft order for trial that includes: (a) monthly visits for the grandparents and E. for three hours and an added two-hour visit in December. The parents’ position changed during the trial. The above request provides for shorter visits but requires the child to attend (in contrast to the original draft trial order). L. cannot shorten the visits further (unless agreed to by the grandparents); (b) the option of longer and more frequent visits in accordance with E.’s wishes, but no make-up visits; (c) reasonable telephone and text contact with E.; (d) various terms related to the peanut allergy; (e) no order for contact with L.; and (f) non-denigration, transportation and sharing of information orders.

[123] The parents intend to facilitate contact between L. and the grandparents, if the child expresses that she wants such contact.

[124] The parents do not support an order for reconciliation or family therapy between the children and the grandparents.

Summary of the OCL’s Evidence, Arguments and Requested Order

[125] Prior to the appointment of the clinician, the OCL counsel met with the children three times. After Ms. Federin’s appointment the professionals jointly met each child individually on seven occasions from May 2, 2023, to April 9, 2024.

[126] E. consistently expressed that she did not wish to see the grandparents and wanted to have the ability to independently choose whether to see them. She articulated feelings of being uncomfortable with the grandparents’ approach to her peanut allergy and Covid restrictions, and their reactions to her concerns. E. expressed that the grandparents sometimes focus their attention on her cousin P., and that the visits should be shorter so they would not be distracted by others.

[127] E. recognized (with the help of her therapist) that the grandparents take steps to show their love for her, such as buying her gifts. Unfortunately, the grandparents turn these positive experiences into negative ones (by making negative statements about “breaking the budget”, or by giving inferior gifts to those being given to P.).

[128] E. has felt trapped on visits (a feeling that she expressed when the court-ordered visits were ten hours in duration). She prefers that the visits, if ordered, be less than two hours. The grandparents do not seem to know how to engage in activities that she likes.

[129] In addition to control over the visits, E. expressed that she wants the grandparents to make her feel like she matters and to prioritize her before anything. Most recently E. re-confirmed that if visits are court-ordered they should take place for less than two hours, and over lunch. E. previously expressed that she looks forward to going to Jack Astor’s restaurant with the grandparents.

[130] L. initially explained that she does not want to go on visits as the grandparents make E. feel trapped. L. was worried that she would not be permitted to go home early.

[131] After speaking with the grandparents by FaceTime in May 2023, L. articulated that she was happy to see how they were doing. During the call L. expressed that she does not want to be forced to hug them. She offered to do more FaceTime visits but was not ready for in-person visits.

[132] L. subsequently reported that she had no further FaceTime calls or in-person visits, nor did she wish to have any. She wants the grandparents to respect her feelings about contact.

[133] Most recently L. expressed that she calls the grandparents on alternate Sundays (as per the Macpherson J. Order). She stated that the grandparents make excuses to keep her on the call and they “trap me.” L. feels that the grandparents are being rude to her, ask her overly personal questions, and they talk about themselves.

[134] L. was offended when they laughed after she could not remember what she had done over March Break. L. requests that the grandparents respect her feelings and allow her to get off the calls when she chooses to do so.

[135] Both children express that the mother encourages contact. The mother specifically said to L., “it would be nice to call and to give them a chance.” L.’s response to the clinician was as follows: “Half of me does not want to give them a chance, but the other half does.”

[136] The OCL seeks an order that provides the following terms: (a) no order for contact between the children and the grandparents; (b) non-denigration/protection from conflict by the grandparents and the parents; and (c) an order that the nature and frequency of the grandparents’ contact be at the parents’ discretion, who will make that determination based on the children’s best interests.

[137] The OCL does not support an order for reconciliation therapy between the children and the grandparents.

VI. THE LAW AND ANALYSIS

The Legislation

[138] Section 21(3) of the Children’s Law Reform Act [11] (“CLRA”), provides that any person, including a grandparent, may apply to a court for a contact order. Contact is defined as “the time a child spends in the care of a person other than the child’s parent, whether or not the child is physically with the person during that time.”

[139] Section 24 directs the court, when considering or making a contact order, to consider only the best interests of the child. In doing so, the court is to consider all factors relating to the circumstances of the child, but give primary consideration to the child’s physical, emotional, and psychological safety, security, and well-being.

[140] Section 24(3) enumerates several other factors that courts should consider when assessing the best interests of a child. The significance and weight placed on any given factor varies from case to case, as each case turns on its own particular facts. The only issue is the best interests of the child in the context of those particular facts: Gordon v. Goetz, [1996] 2 S.C.R. 27. [12]

[141] Sections 28(1)(b) and (c) state that the court may order contact between a non-parent and a child. The court may also determine any aspects of the incidents of the right of contact and may make additional orders as may be necessary and proper.

The Jurisprudence and Application to the Facts

(A) Grandparent and Grandchildren Contact

[142] In F.S. v. N.J. and T.S. [13], Sherr J. summarized the current state of grandparent contact following a recent decision of the Ontario Court of Appeal.

[143] I agree (and adopt) Sherr J.’s interpretation of the law, as follows:

[68] Grandparents 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. The starting presumption is that deference should be given to a parent’s decision whether to award a grandparent access to a child. See: Chapman v. Chapman.

[69] 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 they are acting in the child’s bests interests. See: McLaughlin v. Huehn, 2004 ONCJ 426; Bennett v. MacFarlane, 2021 ONSC 3700; Arbuzova v. Scriver et al, 2024 ONSC 832.

[70] In Giansante v. DiChiara, [2005] O.J. No. 3184 (SCJ), the court reviewed the Ontario Court of Appeal’s 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: One: Does a positive grandparent-grandchild relationship already exist? Two: Does the parent’s decision imperil this relationship? Three: Has the parent acted arbitrarily?

[71] The Ontario Court of Appeal in 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.

[72] The 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: the nature and strength of the child’s relationship with the grandparent and the history of the child’s care; the child’s needs, her special needs; the grandparent’s willingness and ability to meet the child’s needs; their willingness and ability to co-operate with the child’s parent and other caregivers; the child's cultural, linguistic, and religious upbringing; and any criminal proceeding, order, condition or measure relevant to the safety of the child.

[73] In Capone v. Pirri, 2018 ONSC 6541, the court considered that to be a positive relationship, there must exist something more than an occasional pleasant experience with the child. The grandparent and grandchild relationship must consist of a close bond with strong emotional ties, deserving of preservation in order to displace the principle of parental autonomy. The court held that the legal threshold of a positive relationship for the court to consider superseding its deference to a parent is “necessarily a high one”.

[74] In Torabi v. Patterson, 2016 ONCJ 210, Justice Marvin Kurz set out the following factors in determining whether the court should defer to the parent’s decision:

1. There must generally be a substantial pre-existing relationship between the relative and child. Strong loving and nurturing ties must exist between them based on time spent together that enhances the emotional well-being of the child.
2. That relationship must be a constructive one for the child in the sense that it is worth preserving. If relations between the parties are too poisoned, a previously positive relationship may not be capable of preservation.
3. The determination must include consideration of the age of the child and the time since the child last saw the relative.
4. A fourth factor may apply in the exceptional circumstance of a young child who has lost a parent. In that event, the existence of a strong pre-existing relationship may not be necessary when the relative(s) of the lost parent applies for access.

[75] Acting arbitrarily, under the test set out in Giansante, means to make decisions about contact that are based on considerations other than the best interests of the child. As stated in that case, “this is consistent with section 24(1) of the Act which provides that decisions about access must be based on the best interests of the child.” See: Giansante, paragraph 27.

[76] The determination of whether the parent is acting reasonably in denying contact must be approached from the standpoint of the child’s best interests. See: Arbuzova, supra, par. 26.

[77] In Simmons v. Simmons, 2016 CarswellNS 1017 (NSCA), the court wrote at paragraph 41: In addition, judicial deference to parental authority can be tempered by the court's willingness to recognize benefits that extended family bring to a child whose life has been marked by the loss of a parent, such as love, support, and stability. These cases sometimes present best interest factors not apparent in cases with two living parents, including the fact that a child can know his or her deceased parent, including his or her personality, heritage, and culture, through his or her grandparents. See, for example, White v. Matthews, [1997] NS.J. No. 604 (N.S. Fam. Ct.) and Brooks v. Joudrey, 2011 NSFC 5.

[78] In Ninkovic v. Utjesinovic, 2019 ONSC 558, Justice Lene Madsen drew a parallel with the unavailability of a parent who was in jail to a child having lost a parent, in assessing whether the court should defer to a parent’s decision not to permit contact.

[79] Justice Madsen also set out the following factors to consider in engaging with the best interests analysis in the second part of the test at paragraphs 72 to 74 of her decision in Ninkovic: In 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.

See also MacDonald v. MacDonald 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.

A 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.

[144] On the facts of this case, the questions that I must answer differ from those answered recently by the Ontario Court of Appeal and the other caselaw. They reflect the parents’ position that it is not, necessarily, their intention to deny contact.

[145] The parents do not object to either child having a relationship with the grandparents. They accept that there are positive aspects to these relationships.

[146] At the commencement of the trial, the parents sought an order that E.’s contact should be at her discretion. However, by the end of the trial the parents sought an order for one three-hour visit per month for E. (and an additional visit in December) plus additional time (in terms of frequency and duration) as arranged between the child and the grandparents.

[147] In respect of L., the parents request that no order for contact be made, given the nominal/non-existent relationship. Any contact should be at their discretion, and in consideration of L.’s views and preferences.

[148] The first issue that must be addressed is as follows. Is it in the children’s best interests to defer to the parents’ request that: (a) the court order respecting E. provide for a minimum of three hours per month of contact, or something greater; and (b) there be no order for contact between L. and the grandparents; if, (c) the effect of the parents’ request may be to severely limit the grandparents’ contact with one or both children?

[149] Notwithstanding the nuances of this case (where both parents limit contact based on the children’s stated wishes), as compared to other grandparent contact matters, the tests set out in the caselaw are relevant, and are as follows. (a) Does a positive relationship already exist between the grandparents and the children? (b) Do the parents’ decisions to date (and their requested orders) imperil this relationship? (c) Have and/or are the parents acting arbitrarily?

[150] A unique factor in this case arises from the differential treatment of E. and L. on the issue of grandparent contact. While E. has had ongoing regular contact since the estrangement, L. has not. Therefore, I will also answer the following question as it applies to L.: (d) Should contact for L. be considered even in the absence of a pre-existing positive relationship?

[151] As explained by Justice Sherr in F.S. v. N.J. and T.S. [14], if a court opts not to defer to the parents’ request, a second set of questions must be answered: (a) Is an order mandating contact in the children’s best interests? (b) If yes, what contact order (in terms of frequency, duration, and form of contact) is appropriate?

Grandparent Contact with E.

The Test for Contact: Part 1

(a) Does a positive relationship already exist?

[152] As stated by the parents’ counsel, it is common ground that there is a positive relationship between the grandparents and E.. Both parties recognize that there have been challenges along the way, particularly after the Douglas J. Order in January 2020, when the visits were increased to ten hours.

[153] However, the grandparents’ recent decision to bring E. home early from visits (after two or three hours), and the parents’ decision to provide E. with the opportunity to speak with the grandparents to plan activities, have improved the quality of the visits.

[154] The mother’s testimony and the parents’ amended draft order supports a finding that they recognize the benefits of the relationship.

(b) Have the parents imperilled the relationship?

[155] The parents acknowledge that they are hypervigilant about E.’s peanut allergy and that they had concerns about the grandparents’ lack of proper care respecting same. They also worried about E.’s treatment (for example, as compared to her cousin P.) as reported by their daughter.

[156] They admit to declining requests for additional or different contact (by telephone, FaceTime, for birthdays…). They maintain that they were acting in the child’s best interests. She did not want any additional contact.

[157] E.’s views and preferences as articulated in the OCL clinician’s affidavits confirm that she has had concerns about some visits. She does not want any order for ongoing contact.

[158] I find that the child’s relationship to the grandparents was imperilled. However, given the history of this matter, the parties’ differing parenting styles (including approaches, level of caution and communication) as well as the child’s personality (intelligent, precocious, and sensitive) and experiences (as a child with a peanut allergy), I find that both parties are to blame for the current state of the relationship.

(c) Have the parents acted arbitrarily?

[159] The parents are ultimately liable for the child’s emotional and physical health, and welfare. The directions they impose (such as prohibiting E. from attending P.’s Loblaws cooking party) are their decisions to make. The grandparents breached some of the parents’ expectations in respect of E.’s peanut allergy, and the Covid-19 requirements.

[160] The parents did not act arbitrarily in limiting contact with E. On the contrary, they used their best judgement to protect the child as they deem fit. They have also considered her views and preferences.

[161] The parents’ amended trial position is that E. will visit the grandparents at least once per month for a minimum of three hours. The decision is not arbitrary, and it accounts for E.’s stated wishes (that she wants the visits reduced in time if she is required to attend). The parents are balancing the child’s request against the benefits of regular contact and the grandparents’ request for court-ordered contact. Additional contact can take place in various forms, as agreed to by the grandparents and E.

(d) Conclusion

[162] The parents’ amended draft order is not materially less contact than the grandparents’ trial position (being one six-hour visit or two shorter visits per month). The parties now agree to a minimum of one monthly visit and the option of added contact.

[163] In contrast, both parties’ current positions contemplate significantly less contact than the alternate weekend, holiday and telephone contact that was requested in the grandparents’ Application. It is also far less than the grandparents’ position as articulated in the lawyer’s letter dated May 2020, when they suggested that weekly access or even more needs to be explored (due to the parents’ allegedly alienating behaviour).

[164] The grandparents’ earlier positions highlight their fundamental misunderstanding of grandparent contact, particularly where children are being raised in an intact family.

[165] When children are being raised by both parents and the test for contact is met, one visit per month may be reasonable or even less. In some instances, grandparent contact may mimic the type of contact that often follows an adoption – perhaps only two, four or six times a year.

[166] The goal is to maintain the positive connection between grandparents (or other family members) through to young adulthood. Care must be taken to maintain these bonds in a way that does not interfere with the parents’ ability to raise their children free from interference, and as they see fit.

[167] There is no basis to interfere with the parents’ deference in respect of contact between the grandparents and E, and I decline to do so. Subject to some minor changes, order to go as per the parents’ amended draft order.

Grandparent Contact with L.

The Test for Contact: Part 1

(a) Does a positive relationship already exist?

[168] Both parties agree that the assessment of the positive relationship takes place at the time of estrangement, being January 2017. [15] I agree.

[169] By that date, L. (then age 2.5 years) had visited with the grandparents only two or three times in the year preceding the estrangement. There was no contact after age nineteen months. L. was never cared for by the grandparents, and all visits were in the presence of the parents.

[170] Dr. Butkowsky testified that it is unlikely that L. has memories of the grandparents which pre-date the interviews at his office.

[171] At best, the visits that pre-date the estrangement were occasional pleasant experiences. There was no close bond with strong emotional ties.

[172] In their reply submissions, the grandparents argued that I should assess the quality of the relationship at the time that the parents started to decrease contact. I disagree.

[173] It is impracticable (and impossible) to identify a particular date other than January 2017, to assess the relationship. The parents detached from the grandparents and the extended family over a period of months.

[174] Even I was able to identify such a date, L. was only 12 to 19 months during the period of detachment. Whether she initially saw the grandparents once every week or two (grandparents) or every two or three weeks (parents), the required positive bond did not develop.

[175] I find that there was no positive relationship between the grandparents and the child at the time of the estrangement, or at some unknown earlier date.

(b) Have the parents imperilled the relationship?

[176] As set out in detail above, the following facts are not disputed and support a finding that the parents have imperilled the relationship. (a) From the time of the estrangement onwards the parents permitted no contact with L. until the s.30 Assessment. (b) Aside from the two joint observation visits between the grandparents and the children and one Facetime call, the grandparents have not visited with L. (c) All requests made by the grandparents to visit and/or to arrange for L. to attend holidays or birthdays, with or without the parents present, were: (i) rejected; or (ii) ignored. While the grandparents are permitted to drop presents for L. at the front door, the gifts are largely accepted with no acknowledgement or thank you.

[177] Aside from the bi-weekly telephone calls that form part of the Macpherson J. Order, which L. wishes to terminate, there is no relationship between the grandparents and the child.

[178] The grandparents also imperilled their relationship with L., which is an important consideration as articulated in F.S. v. N.J. and T.S. [16] Their conduct caused much of the strain between the parties and has impacted Ryan and Jacquelyn’s ability to parent the children without undue interference. This includes threats to call the Children’s Aid Society, accusing the parents of child abuse, labelling the mother as mentally ill, alleging that the father is a victim of psychological abuse, accusing the parents of failing to feed the children, making disparaging comments to E. about the mother, and threatening to provide copies of all correspondence to the children when they mature.

[179] I find that the parties’ respective actions from the date of estrangement onwards have jointly and severally imperilled the relationship between L. and her grandparents.

(c) Have the parents acted arbitrarily?

[180] Relative to the two issues explored above, the answer to this question is somewhat more complicated.

[181] It is well-settled in law that, “a parent acts arbitrarily when the evidence shows that his or her decisions about access are based on considerations other than the best interest of the child.” [17]

[182] As submitted by the parents, the Chapman v. Chapman decision, [18] which has been considered over 140 times since being delivered by the Ontario Court of Appeal, supports a high level of deference to parents, particularly those in an intact family.

[183] From the parents’ perspective (and as confirmed by Dr. Butkowsky), this nuclear family was under siege for many years. The parents were (and are) embroiled in litigation at significant emotional and financial costs. Ryan believes that his marriage and family were at risk because of the grandparents’ behaviour and the dynamic of his biological family.

[184] While E. has had regular contact with the grandparents since the estrangement, that contact is founded on a pre-existing positive relationship. Notwithstanding same, E. reported various challenges with the visits, which were not remedied by the grandparents. There were also serious concerns about the grandparents’ deficient care and attitude towards E.’s peanut allergy, and her anxiety.

[185] The decision to withhold L. from contact with the grandparents was, in certain ways, protective of the family unit, particularly when she was a very young child. To that extent the parents’ actions were not arbitrary.

[186] However, the above finding ignores the obvious. The parents facilitated (at first voluntarily and later by court order) visits between the grandparents and E. from the time that she was six years old. They treated L. differently by failing to facilitate any contact even as she matured.

[187] While the parents prefer that E. has discretion over visits they have complied with the order. Consequently, E. has had regular contact with the grandparents since the estrangement seven years ago.

[188] In consenting to the Macpherson J. Order in May 2023, which contemplated a step-up contact plan, the parents recognized the value of developing a relationship between L. and the grandparents.

[189] The parents agreed to permit this contact after reviewing Dr. Butkowsky’s report and hearing the FaceTime call. Both the observation visits and the call included positive interactions, with L. asking questions and expressing interest in the grandparents. There was no evidence that L. was fearful of the grandparents (a prior concern), and she was able to express what made her uncomfortable.

[190] However, the parents’ conduct after agreeing to the Macpherson J. Order was problematic.

[191] First, while the order provides a clear schedule for visits, all in-person visits were subject to L.’s discretion. Given that L. declined all prior offers to join E. for visits even after the parents started to encourage her (May 2022), they knew or ought to have known that significant support would be needed to facilitate visits.

[192] Instead, the parents complied with the requirement that they “actively encourage” L. by making statements such as, “if you would like to go, we will arrange it” or “you might enjoy ___ activity.” Stronger statements such as “we expect you to try some visits”, “we want you go to with E.” and/or “we believe it is best for you to attend visits” were needed.

[193] The parents were overly focused on L.’s position (at age nine) that she does not feel comfortable with in-person visits. They have been minimally committed to ensuring that visits take place. To date, there are no responses to various suggestions made by the grandparents to start visits, such as meeting (with or without the parents) on their front lawn, at a park or at the grandparents’ condo. Their suggestion that the grandparents send pictures of the condo was ineffective. The parents failed to take meaningful steps to support the child to attend visits.

[194] Given the strong relationship between L., the parents and E., I decline to find that requiring L. to attend visits would detrimentally affect their relationships. Monthly visits already take place between grandparents and E., with no evidence of a negative impact on the parent-child connection.

[195] Adding L. to E.’s visits would not have materially changed the impact of the visits, nor the level of stress on the nuclear family. Dr. Butkowsky opined that this family unit is strong and resilient. [19] I agree.

[196] No in-person visits have taken place since the Macpherson J. Order. The required alternate week telephone contact is not going particularly well. This is not surprising as it is well-recognized that telephone calls are a poor substitute for in-person contact. The parents refuse to permit FaceTime calls as L. does not want that form of contact.

[197] The parents’ conduct since negotiating the Macpherson J. Order was at best naïve, if they genuinely believed L. would change her mind after two years. At worst it was strategic. The agreement effectively delayed the May 2023 trial and resulted in no in-person contact for another year. As stated by Dr. Butkowsky, the parents are, at best, neutral about the contact. [20]

[198] After consenting to a plan for contact, the parents’ failure to facilitate visits was not reasonable. Adhering to a nine-year-old child’s stated wish without taking steps to address the concerns or facilitate contact (by attending the visits themselves), was not in L.’s best interests. As such, it is arbitrary. Consequently, their right to make decisions and judgements on this issue need not be respected. [21]

(d) Should contact be considered even in the absence of a pre-existing positive relationship?

[199] The three-part test set out in Giansante v. DiChiara [22], was recently endorsed by the Ontario Court of Appeal. [23] However, I do not believe that it was intended to be determinative of all cases. On the contrary, while courts generally defer to the parents and it is usually not up to a court to create a positive relationship, there may be exceptions to the “rule”, as articulated by Nelson J. He states: I do not take this to mean that there will never be situations where a court might intervene despite the absence of a pre-existing positive grandparent-grandchild relationship. For example, these reasons do not presume to address what might happen when a grandparent never had an opportunity to establish a relationship with a grandchild. In such a case the absence of a pre-existing positive relationship might not be a bar to an access order.

[200] The facts of this case are unique, and not yet considered in the caselaw. Two children in the same family are being treated differently vis-à-vis their relationships with their grandparents.

[201] While E.’s relationship was supported, first voluntarily, later as imposed by the court, and most recently in accordance with the parents’ amended draft order, L.’s relationship was not.

[202] L. was denied the opportunity to develop a meaningful relationship with the grandparents. Initially this was due to her age at the time of the estrangement and the parents’ belief that she was fearful of the grandparents. More recently it is based on L.’s statements that she does not feel comfortable yet, an issue that the parents have failed to address.

[203] I am not concerned about the impact of a contact order on the nuclear family, as such an order has been agreed to for E.

[204] I also find that the parents are well-equipped to address any challenges that may arise from the commencement of contact with L. If counselling is appropriate, I have little doubt that they will arrange same. The parents have engaged in counselling themselves, arranged for E. to engage in counselling, and recently consented to therapeutic mediation.

[205] Committing to contact for the older child yet permitting the young child to have complete discretion is concerning. Treating the siblings differently is problematic.

[206] Decisions made by the parents to date and those that result from this trial have life-long implications for both children.

[207] The grandparents will not be available for contact indefinitely. Without some form of intervention, the opportunity may be lost for L. to connect with the grandparents. I am not prepared to ignore that fact.

[208] As per the parents’ amended draft order, the parents and grandparents will continue to meet (at their respective homes) to facilitate E.’s regular visits. E.’s connection to the grandparents will be fostered until she is a more mature teenager. At that time, she will be in a better position to decide what relationship she wishes to pursue.

[209] I am compelled to consider the relevant factors set out in the CLRA, on the facts of this case. To refuse to explore L.’s best interests simply because the grandparents failed to meet the three-part test, when a contact order is being made for her sister E. on consent, is not child-focused.

[210] I decline to defer to the parents’ position in respect of contact between the grandparents and L.

The Test for Contact: Part 2

(a) Is an Order for Contact in L.’s Best Interests?

[211] Having considered the relevant factors set out in section 24(2) to (5) of the Act, I find that a contact order is in L.’s best interests. The child’s physical, emotional, and psychological safety, security and well-being are paramount.

[212] The grandparents’ request for monthly visits and telephone/virtual contact, provide a measure of stability and a reasonable opportunity to develop a better relationship with L.

[213] The grandparents are willing and able to care for L., who is a child without any special needs or allergies. The love expressed by the grandparents is consistent and strong. From the time of estrangement onwards the grandparents continued to seek contact, buy gifts and provide invitations to family events in the face of repeated rejection. This litigation (and the related emotional and financial costs) is evidence of their commitment to L.

[214] While it is true that the current relationship between the grandparents and L. is weak, the sibling relationship is strong. Dr. Butkowsky testified that if the children do not go on visits together, eventually they will each think about what they are missing when E. is with the grandparents. Moreover, what message does it send if one child (who is older) is obliged to follow a schedule, and the other (who is younger) is permitted to choose?

[215] Dr. Butkowsky opined that when children are denied the chance to foster relationships with family members, as they get older their ability to make informed choices is compromised. The children tend to idealize or devalue the family members, and often go to extremes. I agree. At present L. is an outsider looking in on the evolving (and improving) relationship between E. and the grandparents.

[216] In the s.30 Assessment, report Dr. Butkowsky noted that L. was comfortable, happy, and engaging in imaginative play with Marvin during the two observation visits. The interactions were almost entirely positive. She was not impaired by undue anxiety or fear.

[217] On May 7, 2023, L. described the opportunity to engage in a Facetime call with her grandparents as “very exciting”. She giggles with them. There are many positive interactions. The call ended at L.’s request and further FaceTime communications were planned (but never took place).

[218] During that call L. expressed being uncomfortable having been forced to hug Marvin during the second observation visit in 2021. This recollection is distorted. The s.30 Assessment report clearly states that L. voluntarily and spontaneously hugged Marvin (and Dr. Butkowsky and his assistant).

[219] Dr. Butkowsky testified that if L. was fearful of the grandparents in the past (as the parents allege), and/or uncomfortable, and if she is denied the opportunity to have a corrective experience, these fears can continue and grow. Seeing the grandparents is one way to address these feelings. I agree.

[220] During an interview with the OCL counsel and clinician that took place after the FaceTime call, L. expressed that she was happy to see how the grandparents were doing. However, in May 2024, L. reported that she had trouble ending the calls. She complained that the grandparents ask her overly personal questions (such as her clothing size, which is arguably not that personal). L. expressed feeling conflicted about what information she wants to share with them.

[221] When encouraged by the mother to give the grandparents a chance, L. reported to the OCL counsel and clinician that, “half of me does not want to give them a chance, but the other half does.”

[222] L. continues to have negative feelings about in-person contact. However, having had no visits with the grandparents L. cannot (and does not) know what she is missing.

[223] The parents believe that the children should not be forced to do things that they do not want to do. They prefer to allow the children (from age 11, or earlier) to decide when, if ever, they see or speak with the grandparents. Dr. Butkowsky raised concerns about empowering the children too early. This may be problematic if issues arise in other areas, such as school attendance. I agree.

[224] My disinclination to adhere to the child’s stated wishes does not arise from the grandparents’ allegation that L. is an alienated child (which is unfounded in any event). I am not ignoring her lived experience, [24] or her right to be heard without discrimination as per the United Nations Convention on the Rights of the Child. [25] However, I find that it is not in L.’s best interests, at age 10, to use her voice to close the door on contact as she has been permitted to do until now (aside from some short calls).

[225] The grandparents are committed to the therapeutic mediation as are the parents. With the assistance of a facilitator, the parties will have the opportunity to improve their communication and (hopefully) their relationship.

[226] Recently, the grandparents returned E. early, at her request, even though they prefer longer visits. As per the May 2023 FaceTime recording, the grandparents are willing to return L. when she wants to go home.

[227] The grandparents are the connection to aunts, an uncle and other relatives including P., who is the only first cousin on either side of the family.

[228] Religious holiday celebrations are important to the grandparents. Over time the children (preferably with the parents) may be open to attending these events and learning about the family’s rituals.

[229] L. is a happy, well-adjusted and intelligent child who is very capable of expressing herself. If challenges arise with the contact, I am confident that the parents, grandparents and/or a counsellor, can support the child to address same.

[230] But for the court-ordered monthly visits, E. may have missed the chance to learn about Marvin’s childhood and see important sites from his youth. Both parties agree that this recent experience was positive. But for court-ordered contact, L. may never have that opportunity if she continues to decline visits.

[231] A contact order is the best way to ensure that, when L. reflects on her childhood at some date in the future (and considers E.’s relationship with the grandparents,) she does not feel regret. Dr. Butkowsky testified that children can become resentful if they are denied the relationships with family members. I agree.

(b) What contact order (in respect of frequency, duration, and form of contact) is appropriate?

[232] I am mindful that the ten-hour visits, and even the five-hour visits, were too long for E. To a large extent E.’s feelings of being bored and trapped stem from the length of the visits.

[233] The parents’ amended draft trial order provides for a minimum of monthly visits with E. with a duration of three hours (or longer at her discretion) and a plan for telephone calls. I am deferring to their authority with respect to the duration and frequency. I agree that shorter visits, at least once per month, are best. This minimum amount of contact may organically increase if the adults’ relationships improve.

[234] Dr. Butkowsky testified that it is unusual to treat siblings differently when arranging contact. Siblings offer support and protection to one another, and it may be easier for L. to attend with E. present. The siblings sustain stability and provide a “playmate” for one another during the visits. I agree.

[235] While the grandparents noted “gatekeeping” by E. during car rides to/from Dr. Butkowsky’s office in 2021, he did not observe any undue influence by E. during the joint sessions. As evident in the FaceTime call, L. is a socially confident child who can express her needs and desires.

[236] The benefits of the joint visits outweigh the risks. The goal is to treat the children similarly and to provide similar life experiences. If challenges arise the parties can always agree to arrange for separate visits.

[237] I find that it is in the child’s best interests that the contact terms included in the parents’ amended draft order apply to L.’s time with the grandparents, subject to some minor amendments.

(B) Grandparent – Grandchild Counselling

[238] The grandparents seek an order for reconciliation counselling with the children. However, there is little to reconcile with E., and virtually nothing to reconcile with L. As opined by Dr. Butkowsky, this is a unique situation where the goals include building relationships from scratch rather than merely reconciling previously existing ones. I agree.

[239] The grandparents submit that counselling is necessary given the children’s disinclination to attend visits. The children may suffer from “betrayal trauma”, as they may not understand why the grandparents (as compared to the maternal grandparents) did not contact them on their birthdays or other special days, and why they have spent so little time together. The children may incorrectly perceive that the paternal family members abandoned them. The grandparents are concerned that L. recalls being forced to hug Marvin while Dr. Butkowsky observed that she voluntarily and spontaneously did so.

[240] Ryan does not meaningfully interact with the grandparents at exchanges. At least once (and possibly three or four times), the children saw the mother walk away from paternal extended family members when they ran into each other. The grandparents are worried that the children may have distorted views about them. Finally, the grandparents are not professionals and require assistance to address the children’s concerns.

[241] The parents object. They submit that E. is already engaged in individual counselling. There is no reason for L. to participate in counselling as she is a happy and well-adjusted child. They believe that the reconciliation work must be completed by the adults as recommended by Dr. Butkowsky.

[242] The OCL counsel also objects to the requested order. Counsel submits that it is unclear if the court has the jurisdiction to order counselling, and queries whether the Health Care Consent Act [26] (“HCCA”) may impede such services unless the children agree.

[243] With respect the jurisdiction issue, I am satisfied that the court has the ability to order family counselling, as confirmed by the Ontario Court of Appeal in A.M. v. C.H. Section 28 of the CLRA permits the court to determine any aspect of parenting time or contact. Section 17(8) (b) of the Family Law Rules empowers the court to order counselling. A court should not be powerless to implement recommendations made in a s.30 Assessment [27].

[244] The court’s jurisdiction does not change where contact, rather than parenting time, is sought. Section 28 of the CLRA uses identical wording in reference to the types of order that can been made in the context of a parenting time or contact case.

[245] The Ontario Court of Appeal clarified in A.M. v. C.H., that the HCCA does not limit the court’s jurisdiction to make therapeutic orders in the children’s best interests. However, the making of an order does not prevent children from refusing to participate or a practitioner from declining provide treatment in the absence of the children’s consent.

[246] The potential failure of the intervention does not negate the potential value where the counselling can help to reduce parental conflict, move the family forward and help children transition through the emotional turmoil of their parents’ litigation in a healthier way.

[247] However, having the jurisdiction to do something does not necessarily mean that the court should do anything. There is no dispute that the parents are jointly and severally responsible for all major and day-to-day decisions. The grandparents do not seek major decision-making, nor would such an order be appropriate or in the children’s best interests.

[248] In other words, the grandparents ask the court to override both parents’ authority and make an order imposing counselling on their children. This scenario is distinct from cases where two parents disagree whether counselling is warranted. [28]

[249] The parents are in the best position to assess the utility of the requested counselling, and to weigh the pros and cons. In contrast to the benefits articulated in A.M. v. C.H., these children are not being raised in a family marred by parental conflict. The parents’ marriage is not breaking down, and the children do not move between two homes.

[250] The parents have assessed the children’s best interests and current needs in forming their position against family counselling.

[251] A weak relationship with one’s grandparents is less significant than an estrangement from a parent.

[252] There is no caselaw to support the order requested by the grandparents. Consequently, I consider below the test in Testani v. Haughton [29], to determine whether to order reconciliation (or family) counselling over the objection of a parent.

[253] I agree (and adopt) Jarvis J.’s interpretation of the law, as follows:

[18] In summary then,

1. The court may order reunification therapy. That jurisdiction arises from the provisions of sections 24 (2) and 28 (1) (b) and (c) (viii) of the Children's Law Reform Act.
2. Such orders are to be made sparingly.
3. There must be compelling evidence that the therapy will be beneficial.
4. The request must be adequately supported by a detailed proposal identifying the proposed counselor and what is expected.
5. Resistance to therapy is an important but it is not the determining factor whether such an order should be made.
6. Where a clinical investigation or an assessment is underway, no order should be made pending their conclusion.
7. Wherever practical, appropriate direction should be given to the counselor/therapist and a report made to the court.

[254] As articulated by Justice Jarvis, an order for counselling between children and an estranged parent should be made sparingly. The bar is even higher where both parents dispute the requested counselling. In my view, such an order should almost never be made.

[255] Whether to engage children in a therapeutic process is one of the most significant decisions that parents may be asked to make. As stated by Dr. Butkowsky, a clinical psychologist for over 40 years, children belong in the playground not in therapists’ offices.

[256] Dr. Butkowsky opined that there is no basis to recommend counselling for L.

[257] As of December 2022, E. is engaged in closed individual counselling, as was recommended by the assessor. There is no evidence that the counsellor or E. have requested that the grandparents participate in any of the sessions.

[258] Dr. Butkowsky does not recommend that the children engage in family counselling with the grandparents. He testified that the parents are the most potent therapists for the children. Consequently, a professional should work with Ryan and Jaquelyn to assist E. and L. with any challenges they experience. Dr. Butkowsky contemplates that this work will be included in the therapeutic mediation. I agree.

[259] In respect of the other elements of the test, I have no evidence as to whether one or both children would resist the requested counselling, nor is there a proposed counsellor (although the grandparents identified a process to choose one). The assessment is complete. I recognize that I have the option of providing directions to a counsellor and request a report.

[260] Given the importance of deferring to parental autonomy, the lack of compelling evidence that the counselling would be beneficial (and the expert’s recommendation against such an intervention), I decline to order the requested counselling. This is not one of the exceedingly rare cases where it is appropriate to order counselling over the parents’ objections.

[261] Notwithstanding my decision about family counselling, I encourage the grandparents to engage their own counsellor who can provide guidance and coaching. A parenting professional can also assist the grandparents to develop tools which may support a deeper and more meaningful relationship with both children.

VII. COSTS

[262] Given the significant legal and assessment costs incurred to date, a costs order could be significant. To the parties’ credit they recognize that it will be more difficult to reconcile if one owes costs to the other.

[263] On the final day of the trial the parties agreed to resolve this issue with each party bearing their own costs. This is an important step in the right direction.

VIII. CONCLUDING THOUGHTS

[264] Dr. Butkowsky provided many insightful opinions in the s.30 Assessment report, and at trial. He testified that while I can make an order for contact, the court does not have power to order a relationship that is something more than contact. The order can only make a difference if the parties hear the court’s words about is best for the children. What matters is what the parties do after the order is made. I agree.

[265] Either the parties will follow through with the required self-reflection and do the necessary work to move towards reconciliation, or they will not.

[266] The best chance of success in achieving a positive relationship between the parties (and the children) lies in the adults themselves. The future of the Kirshenblatt family is in their hands.

VIII. DISPOSITION

[267] Order to go in accordance with Respondents’ draft order, as amended below:

1. Paragraph 1 is deleted.
2. Paragraph 2(a) is replaced with the following. There shall be contact between the Applicants and the children for a minimum of three hours once per calendar month (for lunch on a Saturday or Sunday) and on the last Thursday of the school year in December (prior to the winter break).
3. As per paragraphs 2(b) to (f), which shall apply to both children. If L. does not have a device that enables texting, phone or video contact, the parents shall facilitate contact as requested by L. They shall also invite her to contact the Applicants at least once per week and facilitate this contact.
4. Paragraph 2(g) is deleted. The food provided shall be as agreed to by E. and the grandparents. Given E.’s age and ability to advocate for herself, it is no longer necessary for the grandparents to advise the parents, in writing and in advance, of what the food is being provided.
5. As per paragraphs 3,4, 6 and 7.
6. Paragraph 5 shall be amended to include a provision that provides for one monthly Facetime call (10 to 15 minutes) for both children on a Saturday or Sunday in lieu of a missed visit due to the Applicants’ travel schedule or health, or a sick child.
7. Paragraph 5 is amended to provide that the Respondents shall drive the children to the visits, and the Applicants shall return the children to their home, unless otherwise agreed to in writing.
8. All other claims made in the Application and the Answer are hereby dismissed.
9. No costs shall be payable by either party.

The Honourable Justice A. Himel Date: June 24, 2024

[1] Pursuant to section 30 of the Children’s Law Reform Act (the “CLRA”) , RSO 1990, cC.112. [2] s.30 Assessment, p. 102. [3] 2022 ONSC 7207 , [2022] O.J. No. 5702. [4] The parties were invited to bring such a motion, which they declined to do. [5] The parties had hundreds of proposed exhibits with the vast majority being irrelevant (and, therefore, not tendered as evidence at the trial). [6] The Newmarket Family Court typically requires that direct evidence include affidavits (usually up to 20 pages for each party and 8 pages for other witnesses (not including proposed exhibits)) and oral supplementary evidence (typically up to 2 hours for each party and fifteen minutes for other witnesses, not including experts). [7] See my comments respecting the lack of proportionality in Numair v. Numair , 2022 ONSC 3449 , [2022] O.J. No. 2724, aff’d 2023 ONCA 530 , leave to appeal refused, [2023] S.C.C.A. No. 422. [8] The grandfather adopted the grandmother’s evidence (and provided additional evidence), and the mother adopted the father’s evidence (and provided additional evidence). [9] As stated to the clinician assisting the lawyer appointed by the Office of the Children’s Lawyer. [10] As stated to the clinician assisting the lawyer appointed by the Office of the Children’s Lawyer. [11] R.S.O. 1990, c. C.12 [12] Debassige v. King , 2022 ONCJ 210 , at paras. 14-16 . [13] 2024 ONCJ 199 , [2024] O.J. No. 1792. [14] 2024 ONCJ 199 , [2024] O.J. No. 1792. [15] F.S. v. N.J. and T.S. , 2024 ONCJ 199 , [2024] O.J. No. 1792, at paras. 80 – 95 . [16] 2024 ONCJ 199 , [2024] O.J. No. 1792, at para. 89 . [17] Carpone v. Pirri , 2018 ONSC 6541 , [2018] O.J. No. 5922, at para. 19 . [18] , [2001] O.J. No. 705 (Ont. C.A.) [19] This case is distinguishable from Macdonald v. Macdonald , [2009] O.J. No. 1381 (Ont. S.C.), at para. 86 where Pazaratz J. was concerned that the grandparent – child relationship would jeopardize the child’s relationship with the parents. [20] This finding is well supported by the evidence, and included in Dr. Butkowsky’s report. [21] Chapman v. Chapman , [2001] O.J. No. 705 (Ont. C.A.), at para. 23 . [22] Giansante v. DiChiara , [2005] O.J. No. 3184 (Ont. S.C.) at para. 20 . [23] B.F. v. A.N ., 2024 ONCA 94 , [2024] O.J. No. 656 [24] S.K. v. D.G ., 2022 ABQB 425 , at paras. 178-179 and 257 , [25] B.J.G. v. D.L.G ., 2010 YKSC 44 , at para 3 . [26] S.O. 1996, c.2, Sched. A . [27] 2019 ONCA, at paras. 49-54, citing the CLRA and the Family Law Rules , O.Reg. 114/99. [28] See for example, A.M. v. C.H., 2019 ONCA, at para. 51. [29] 2016 ONSC 5827 , [2016] O.J. No. 4820.