DATE: 20010302

DOCKET: C34792

COURT OF APPEAL FOR ONTARIO

FINLAYSON, ABELLA and FELDMAN JJ.A.

BETWEEN:

ESTHER CHAPMAN Applicant (Respondent in Appeal)

• and -

LARRY SHELDON CHAPMAN and MONICA CHAPMAN Respondents (Appellants)

Counsel: Wilfred Day for the appellants Judith Holzman for the respondent

Heard: January 18, 2001

On appeal from the order of Justice Alan Ingram dated March 28, 2000.

ABELLA J.A.:

[1] The issue in this case is whether access by a grandparent to grandchildren who live with their parents should be imposed over the wishes of those parents and children. This case raises questions about the relationship between children and members of their extended family and, in particular, who decides its parameters. No one disputes that the purpose of access is to preserve a child's positive relationships in as constructive a manner as possible (Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3). The issue in this case arises because the relationship between the grandparent and the grandchildren is, regrettably, not a positive one.

BACKGROUND

[2] The application for access in this case was made by Esther Chapman, the paternal grandmother of 10 year old Eric Chapman and his 8 year old sister Leanna. They are her only grandchildren. The children's father, Larry, is a doctor and their mother Monica is a musician. They have been married since 1987. The family lives in Cobourg, Ontario, and the paternal grandmother lives in Toronto. The grandchildren have a good relationship with their maternal grandmother and see her four or five times yearly.

[3] Monica Chapman has complained of "constant interference" from her mother-in-law since the wedding in 1987. The relationship deteriorated further in 1994 with the death of Esther Chapman's husband who, according to Larry Chapman, had been a moderating influence on her behaviour.

[4] The frequency of the grandmother's visits with her son's family decreased over time from approximately six to three times annually, usually on religious holidays. Visits with the children were almost always in the presence of their parents. After 1998, the grandmother did not see the children without their parents, particularly as a result of the parents' concerns over Esther Chapman's diminished capacity to care for two active grandchildren on her own.

[5] In 1998, the grandmother applied for monthly access and weekly telephone access to her two grandchildren. An interim order was made in March 1999 following the first report of a social worker, David Tonge, ordering a four hour visit in each of March, April and May, 1999. The visits were to be in the presence of Larry Chapman's brother Gary, or Gary's wife Debra Chapman. The parents were to deliver the children to their grandmother but, based on the recommendation of Mr. Tonge, were not to be present during the visits unless the grandmother consented to their presence.

[6] In June 1999, a further order for interim access was made, scheduling four and a half hour visits for specified dates in June, July and August, 1999.

[7] In March, 2000, a one day trial took place dealing with the frequency and duration of access. Larry and Monica Chapman did not oppose access, suggesting four visits per year, but took the position that, as the children's parents, they, not the grandmother, should determine when and how access should take place in the children's best interests.

[8] Esther Chapman asserted that it was in the best interests of children generally to have access to members of their extended family. It was therefore in the best interests of her grandchildren to have frequent access to her and to other members of their extended family, such as their uncle and aunt, Gary and Debra Chapman. She requested ten visits per year, four and a half hours in duration, for a total of 44 hours. She also acknowledged that she was unable to care for the children without assistance and requested that her son Gary or an alternate access supervision service be present during visits.

[9] At trial, the Director of the Kawartha Family Court Assessment Service, David Tonge, gave evidence about the family based on three assessment and mediation reports he had prepared for the court. His conclusion about the parents and their children was the following:

. . . These sessions confirmed that this is a well-functioning, child-centered family. The two children were verbal and comfortable throughout the assessment process. . . . Monica and Larry provide their children with a good level of structure, nurturing, supervision and involvement. Eric and Leanna presented as having a very strong attachment to both parents. The children present further as developing well, having many friends, enjoying many activities, doing well academically, and are able to express themselves with their parents.

[10] He also noted that the children have "highly negative" feelings about their grandmother, which he attributed largely to parental influence. Despite the negative feelings of the children, it was his opinion that the children "could benefit from meaningful contact with their grandmother". He therefore recommended:

. . . that Esther Chapman have regular and consistent access to her grandchildren, Eric and Leanna. However, it would be in the children's best interest if all parties were able to cooperate in arriving at the best arrangement for these children.

[11] The trial judge ordered access for at least 44 hours per year, not including travel time to and from Toronto, to be made up of at least six visits. The uncle, Gary Chapman, was ordered to be present during each visit and the parents were to be responsible for the children's transportation from Cobourg to their grandmother's home in Toronto. Mr. Tonge was appointed to arbitrate access disputes.

[12] This is an appeal by the parents, Larry and Monica Chapman, from this order.

ANALYSIS

[13] The application was brought by the grandmother pursuant to the Children's Law Reform Act, R.S.O. 1990, c. C.12. Section 21 of that Act states that "a parent of a child or any other person may apply to a court for an order respecting custody of or access to the child". Under s. 24(1), custody or access is to be decided based on the "best interests" of a child, the determination of which depends on the facts of the particular case and includes consideration of the following factors set out in s. 24(2):

(2) In determining the best interests of a child for the purposes of an application under this Part in respect of custody of or access to a child, a court shall consider all the needs and circumstances of the child including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child's family who reside with the child, and

(iii) persons involved in the care and upbringing of the child;

(b) the views and preferences of the child, where such views and preferences can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) any plans proposed for the care and upbringing of the child;

(f) the permanence and stability of the family unit with which it is proposed that the child will live; and

(g) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

[14] In Gordon v. Goetz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at 60, McLachlin J. confirmed that in determining the best interests of a child, "[e]ach case turns on its own unique circumstances and the only issue is the best interests of the child in the particular circumstances of the case."

[15] Esther Chapman was described by the trial judge as a "strong-willed woman who is used to having her own way". He noted that Larry and Monica Chapman were known to be "highly dedicated and loving parents", but, like Mr. Tonge, he blamed the parents for frustrating the possibility of enjoyable access.

[16] The first factor to be considered under s. 24(2) is the "love, affection and emotional ties" between the child and the person claiming custody or access. Although it may appear to be insensitive to the grandmother's needs for the parents to resist her efforts to decide how access is to be exercised, this case is not about the needs − or even the wishes − of Esther Chapman. It is about the needs and best interests of the children. The issue must be looked at from their, not the grandmother's perspective.

[17] The essence of the grandmother's submission is that, in general, it is in the best interests of children to maintain contact with members of their extended family. The test, however, is not what, in theory, is best for children in general, but what is in the best interests of the particular children before the court.

[18] In the particular circumstances of this case, the children are being forced to travel some distance on a regular basis to visit a grandparent with whom they do not, at the moment, have a positive relationship. It is difficult to see how this disruptive situation could be said to be in the best interests of the children.

[19] A relationship with a grandparent can – and ideally should – enhance the emotional well-being of a child. Loving and nurturing relationships with members of the extended family can be important for children. When those positive relationships are imperiled arbitrarily, as can happen, for example, in the reorganization of a family following the separation of the parents, the court may intervene to protect the continuation of the benefit of the relationship (Shendroff v. Bruhand, a judgment of the Ontario Superior Court of Justice, released September 8, 1999 (unreported); Chabot v. Halladay, [1992] O.J. No. 2636 (Ont. Gen. Div.); Padbury v. Lee, [1994] O.J. No. 1075 (Ont. Gen. Div.); Peck v. Peck, [1996] O.J. No. 755 (Ont. Prov. Div.); McLellan v. Glidden (1996), 1996 CanLII 18917 (NB QB), 23 R.F.L. (4th) 106 (N.B.Q.B.); Young v. Young, supra).

[20] In this case, however, the issue is not about preserving a positive relationship, but about whether the disruption and stress generated by the grandmother's insistent attempts to get access on her own terms are in the children's best interests.

[21] The trial judge acknowledged that the right of Larry and Monica Chapman "to independently raise their children should not be lightly interfered with", yet he defers that right to the speculative hope that continued imposed access to the grandmother will one day produce a positive relationship for these children. This speculation, it seems to me, is an insufficient basis for overriding the parents' right to protect the children's interests and determine how their needs are best met. These are loving, devoted parents committed to their children's welfare. In the absence of any evidence that the parents are behaving in a way which demonstrates an inability to act in accordance with the best interests of their children, their right to make decisions and judgments on their children's behalf should be respected, including decisions about whom they see, how often, and under what circumstances they see them.

[22] Larry and Monica Chapman, not Esther Chapman, are responsible for the welfare of the children. They alone have this legal duty. Esther Chapman, as a grandparent, loves her grandchildren and, understandably, wants to maintain contact with them. Nonetheless, the right to decide the extent and nature of the contact is not hers, and neither she nor a court should be permitted to impose their perception of the children's best interests in circumstances such as these where the parents are so demonstrably attentive to the needs of their children. The parents have, for the moment, decided that those needs do not include lengthy, frequent visits with their grandmother. Although the parents' conflict with Esther Chapman is unfortunate, there is no evidence that this parental decision is currently detrimental to the children. It should therefore be respected by the court and the children's best interests left in the exclusive care of their parents.

[23] The trial judge's articulated purpose was to create a close relationship between two children and a grandmother who loves them. There can be no criticism of this goal. But any duty to create such a relationship lies with the children's parents. The failure to do so does not warrant judicial intervention, especially in circumstances such as these where the immediate family is functioning well and the children's best interests are being assiduously nurtured by dedicated parents.

[24] The appeal is allowed, the order of Ingram J. is set aside, and the application for access is dismissed. This does not mean that the grandmother will be unable to have access; it means that the nature and frequency of the access will be at the discretion of the parents who, it is assumed, will make that determination based on the best interests of the children. There will be no order for costs.

Signed: "R.S. Abella J.A."

"I agree G.D. Finlayson J.A."

"I agree K. Feldman J.A."

RELEASED: MARCH 2, 2001