Court File and Parties

North Bay Registry No.: FO 12/242 Date: 2012-11-02 Ontario Court of Justice

Between: Beth Marie Sproule, Applicant

— And —

Kara Sproule and Steven Sproule, Respondents

Before: Justice Lawrence J. Klein

Oral Reasons for Judgment delivered on: 2 November 2012

Statutes and Regulations Cited

Children's Law Reform Act, R.S.O. 1990, c. C-11 [as amended], section 19, section 21 and section 24.

Cases Cited

Bellamy and Bellamy v. Wendzina, 2004 SKQB 78, 246 Sask. R. 287, 49 R.F.L. (5th) 239, [2004] S.J. No. 163 (Sask. Q.B.).

Chapman v. Chapman and Chapman, 141 O.A.C. 389, 201 D.L.R. (4th) 443, 15 R.F.L. (5th) 46, [2001] O.J. No. 705 (Ont. C.A.).

Tucker v. Lester and Lester, 2002 SKQB 225, 220 Sask. R. 309, [2002] 9 W.W.R. 585, 29 R.F.L. (5th) 238, [2002] S.J. No. 322 (Sask. Q.B.).

Counsel

Paul E. Trenker — counsel for the applicant (paternal grandmother)

Geoffrey M. Laplante — counsel for the respondents (natural parents)

Reasons for Judgment

Background

[1] JUSTICE L.J. KLEIN (orally):— Thanks for coming this morning everyone. As promised, I have a decision on the Sproule v. Sproule matter.

[2] By way of background, the applicant, Beth Marie Sproule, is the paternal grandmother to the children, Parker Sproule, born on 22 September, 2005, and Payton Sproule, who was born on 15 February 2002. The respondents, Kara Sproule and Steven Sproule, are the biological parents of those children.

[3] The applicant has provided child care for the children while the respondents worked shifts as an O.P.P. dispatcher and a sworn police officer respectively.

[4] By February of 2011, a dispute arose between the parents and the applicant. The applicant told the respondents that she was no longer prepared to provide regular child care and that she wished to just be the children's nana. From that date forward, the applicant has not been permitted to see the children in any capacity as a care giver or a grandparent.

[5] Up until the breakdown of the relationship between the parties, the applicant was involved somewhat in the care of the children, as needed, while both respondents were meeting their various work commitments.

[6] The applicant attempted to contact the children in February 2012 around Valentine's Day at their school, outside the school I might add and, later that week, she again waited on the sidewalk outside the school to give Payton a birthday card. The scene that was created on that day led to a police complaint by the respondent, Kara, against the applicant. The respondents did not wish the applicant to continue to attempt to have contact with the children any further.

[7] Previously the applicant had attended unannounced at the respondents' home to provide gifts to the children. The greeting was frosty at best and undoubtedly placed the children in an awkward position.

[8] The applicant contacted her lawyer who wrote to the respondents requesting that the applicant be allowed access to the children. The respondents' counsel responded that the parents did not feel it was in the best interests of the children to have contact with the applicant, their grandmother.

[9] The relationship between the parties from late 2010 to present has been described by the parties as acrimonious, as between Kara and Beth, and strained as between Steven and Beth.

[10] On 13 July 2012, the applicant brought an application to the court together with a motion returnable on 9 August of this year, seeking access to the children at her home, at their school and during extra-curricular activities.

[11] This matter was set over to 13 August for a hearing of the motion for a temporary order granting the applicant access to the children.

[12] I also made an order requesting the Office of the Children's Lawyer to intervene on behalf of the children, which request was unfortunately ultimately denied. I had hoped, in vain obviously, that the Office of the Children's Lawyer might be able to provide some assistance on the issue of the children's best interests and reserved my decision in the again ultimately vain hope of receiving that assistance.

Legal Framework for Temporary Orders

[13] By their very nature, temporary orders should attempt to preserve the status quo that existed prior to the motion being brought. Again by their very nature they are always — almost always — brought on scant evidence without any opportunity to have evidence of either side tested through cross-examination or through the ultimate trial process.

[14] I am very cognizant of the effect of granting or refusing the relief sought. It may go a long way towards determining the ultimate issue before the court. It is under those parameters, and with that caution, that I will wade into this matter in an attempt to shed some light. The parties do not agree on the key issue as to the frequency and depth of the children's relationship with their grandmother.

Factual Findings Regarding the Relationship

[15] Prior to the parents' unilateral decision to terminate the contact between the applicant and her grandchildren in February 2011, Beth alleges that she had frequent contact with the children of up to two and a half days per week of child care with the children spending a couple of overnights with her per month. The parents deny this figure and contend that regular child care was provided by other paid providers and, at most, one time each eight days, up to 10 September when Steven's schedule changed. The additional assistance provided by the applicant was of a logistical nature to accommodate dropping off and picking up the children from school and for some extra-curricular activities. It is clear that the children never lived with the applicant nor was she ever their primary care giver.

[16] The affidavit material, which I have carefully perused together with the arguments presented by the parties, leads me to conclude on a balance of probabilities that the children had regular contact with the applicant in her role as a logistical facilitator for relatively brief periods during the six months or so prior to the ending of her contact with the children and that the children spent on average one to two over nights with her per month.

[17] The parents allege that the applicant failed to properly care for the children resulting in a near tragic drowning at a pool party; that she consistently refused to follow their instructions regarding food issues, for example, McDonald's meals; sleep routines, that the bedtimes were not followed leading to them receiving back tired children; and that she left the city one time to go to Bala without their consent. Significantly, these complaints came after the breakdown in the relationship between the parties, the parents and the applicant. Those complaints, coming out at as late a stage as they did, are inconsistent with the access that the applicant was enjoying and which was permitted by the parents prior to February of 2011.

[18] There is no reason to believe that the applicant's parenting skills were inadequate or that her contact with the children was necessarily detrimental to them. I do not find on the evidence that the applicant was overly neglectful of the children nor did she pose a risk to them. The access by the applicant to the children began to be noticeably limited by the parents in the fall of 2010, as was social interaction within the family context, i.e., Thanksgiving and Christmas dinners.

Analysis of Parental Conduct

[19] The parents' attitude and conduct towards the applicant was strained and limited to ensuring that the logistical needs of the children and their family were met. The level of acrimony that was reached in the early part of 2011 led to an almost inevitable blow up between Kara and Beth.

[20] The applicant's withdrawal of her assistance in light of her belief that the respondents did not value her help and were indeed, disrespectful of her, essentially sealed her fate. It was not coincidental that this nastiness between Beth and Kara almost immediately preceded the termination of contact between Beth and the children which exists to this day. The only conclusion that I can draw from the evidence before me is that this decision to terminate Beth's access to the children — her only two grandchildren, I might add — was motivated by anger and a degree of spitefulness and not by genuine concerns for the children's best interests or safety.

[21] Present court proceedings have not helped matters in any way, nor have the allegations and counter-allegations lowered the temperature in this matter. The parties have clearly drawn their lines in the sand and none of them has done anything to repair their ruptured relationship. This atmosphere of acrimony has prevented even the smallest movement towards rapprochement.

[22] In the 20 months or so since the break, the parents have steadfastly refused to permit the applicant to spend any time even in their presence, even supervised by a third party, or the Supervised Access Center. This attitude towards the children's grandmother cannot be lost upon them. They must know that any feelings of affection towards their grandmother or any indication that they might like to have contact with her would put them, the children, on the wrong side of the battle lines. What an onerous burden that must be for them to bear.

Analysis of Applicant's Conduct

[23] I would not want this record to fail to note that the applicant's actions since February of 2011 have been somewhat self-indulgent and certainly not calculated to be conciliatory in any fashion. Her showing up uninvited at the respondents' home or at the children's school might have been the act of a desperate woman, or it might be seen to be a show of defiance, a power play if you will. All that was done when it should have been painfully obvious to the applicant that her presence in her grandchildren's lives was no longer welcomed by those children's parents, the respondents.

[24] The applicant's approach to this application, her attacks upon the respondents, the past relationship problems, their separation far outweighed any positive assertions that she made with regards to the nature and quality of her relationship with her grandchildren and all the good things that could flow from that relationship for the children. In effect, by taking a "scorched earth" approach to these proceedings, which encouraged a similar response by the respondents, she may have made it virtually impossible to begin healing their relationship and leave matters at this impasse.

Legal Principles

[25] The law is fairly well-trodden ground here unfortunately. Counsel has provided me with case books setting out the state of the law as it exists in the province of Ontario and elsewhere in the Dominion. This is, as I indicated a moment ago, all-too-familiar territory for me as it relates to non-parental access.

[26] Statutory underpinnings for cases such as this rest squarely in the Children's Law Reform Act, R.S.O. 1990, c. C-11, as amended, and most particularly Part III of that Act, sections 19, 21 and 24. Chapman v. Chapman and Chapman, 141 O.A.C. 389, 201 D.L.R. (4th) 443, 15 R.F.L. (5th) 46, [2001] O.J. No. 705, a 2001 decision of the Ontario Court of Appeal, remains the leading case in Ontario concerning grandparental access. It established clearly the importance of deferring to parental decision making, unless a yes answer can be made to three questions posed by the Court of Appeal. First question is: Does a positive grandparent-and-grandchild relationship already exist? Second question: Has the parents' decision imperilled the positive grandparent-and-grandchild relationship? The third question is: Have the parents acted arbitrarily?

[27] To be a positive grandparent-and-grandchild relationship, there must exist something more than an occasional pleasant experience with the children. The grandparent-and-grandchild relationship must consist of a close bond with strong emotional ties deserving of preservation in order to displace this principle of parental autonomy. As in the Saskatchewan case of Tucker v. Lester and Lester, 2002 SKQB 225, 220 Sask. R. 309, [2002] 9 W.W.R. 585, 29 R.F.L. (5th) 238, [2002] S.J. No. 322, a 2002 decision of the Court of Queen's Bench in Saskatchewan, which was referred to by the applicant, for the court to impose an access order in favour of a grandparent against an unwilling and unmoving parent, the child had either lived with or spent considerable time with the grandparent over a significant period leading up to the matter's coming before the courts. This again was supported in the Court of Queen's Bench of Saskatchewan in the case of Bellamy and Bellamy v. Wendzina, 2004 SKQB 78, 246 Sask. R. 287, 49 R.F.L. (5th) 239, [2004] S.J. No. 163.

Application of Legal Test

[28] At an earlier point in time, there was a substantial connection between the children and their grandmother, the applicant. That relationship has not existed for about two years. As indicated at the hearing of this motion, I have a great concern over the delay that has occurred in the applicant's bringing this matter before the courts. Absence does not make the heart grow fonder when dealing with children of any age. The younger the child, the less likely the relationship bonds can remain intact.

[29] I am unable to conclude that the bonds that may have existed at the time of the breakdown of the grandparent-parental relationship still exist at the level necessary to amount to a strong emotional attachment for the children with the applicant.

[30] That will require this court to supersede the respondents' parental rights to make decisions regarding their children's relationship with others including the applicant.

[31] Given the present state of the law in this province and despite my conviction that the parents acted somewhat arbitrarily in severing the tie that the children had with the applicant, the fact remains that the parents are within their rights to end the relationship of the children with the applicant.

[32] In the end result, that relationship cannot be said to be of such significance to the children's ongoing existence that it would require this court to intervene. In the event that I have misapprehended the evidence as to the nature and quality of the children's relationship with the applicant in the period leading up to this matter's coming before this court or in case I have over-emphasized the effect of a delay in re-establishing access contact between the children and the applicant, I cannot consider making an access order because of the ongoing negativity of the relationship that exists between the applicant and the respondents.

Risk-Benefit Analysis

[33] I am not convinced these parties can put aside their intense dislike for each other to facilitate an access regime that would not be poisoned by their distrust and ill-feeling towards each other. Even if the children could be somehow insulated from the overt hostility of the adult relationships, they would sense the strain and be adversely affected by the toxic atmosphere that has pervaded these proceedings.

[34] As much as it pains me to conclude this, there does not appear to be anything lacking in these children's lives that has not been more than adequately provided to them by their parents. In other words, there is nothing that the applicant can add to the children's enjoyment of life. The parents appear from all that was put before me to be doing a great job of allowing their children to enjoy a happy childhood. The risk of those children's childhood being negatively impacted by the almost certain conflict between their parents and the grandmother is far too great a gamble to take when balanced against the comparatively little gain that might be obtained through an ongoing relationship with the applicant.

[35] Of course, the mere fact that animosity exists between the adults and the children's lives does not prevent this court from allowing access but, as I indicated above, in a risk-reward analysis, the risk outweighs the rewards and cannot be in the best interests of the children at this time.

Disposition

[36] The sad and inescapable conclusion that I draw from the law and facts as set out above is that it is not in the best interests of Parker and Payton to be required to have access to their paternal grandmother. The relationship, however strong, that may have existed in late 2010 and early 2011 has been dissipated in the months that have passed since and there is no need for that relationship to be continued at this time when balanced against the parents' responsibility to decide with whom their children should be in contact. That decision might have been made in anger and in spite but it is one that they were entitled to make. To attempt to restart the relationship with the children now after all this time would undoubtedly stress the children to the point that it would far outweigh any benefit to them. On that basis, the applicant's motion for temporary access is dismissed.

Scheduling and Costs

[37] THE COURT: Do you want me to put this to Thursday?

[38] Mr. TRENKER: I was going to ask that it go to a date in early December. Mr. Wallace is . . .

[39] THE COURT: Okay.

[40] Mr. TRENKER: . . . is away until . . .

[41] THE COURT: December 6th or the 13th, Mr. Laplante?

[42] Mr. LAPLANTE: Well, it would have to be after that Your Honour, the 20th would be better because I am in a two-week trial in Haileybury at that time.

[43] THE COURT: Okay, December 20th it is.

[44] Mr. LAPLANTE: There's also the issue, Your Honour, of costs.

[45] THE COURT: Right.

[46] Mr. LAPLANTE: Shall we reserve that argument for later or shall we proceed with it now? I can give you my preliminary submissions.

[47] THE COURT: You can bring your argument for costs when Mr. Wallace is here on December 20th, if you wish.

[48] Mr. LAPLANTE: That's fair enough, okay, thank you.

[49] Mr. TRENKER: Thank you.