Court File and Parties
Court File No.: Halton 329/15 Date: 2016-04-14 Ontario Court of Justice
Between:
Sakineh Torabi Mahin Razzaghi aka Marjan Razzaghi Maryam Khavar Mohammad Razzaghi aka Mehryar Razzaghi Bahar Sharifian Saghar Razzaghi Mahmoud Razzaghi
Applicants
— AND —
Kenneth Paul Patterson
Respondent
Before: Justice Marvin Kurz
Heard on: March 23, 2016
Endorsement on Motion released on: April 14, 2016
Counsel: Harold Niman/Meysa Maleki — counsel for the applicant(s) Kim Larsen/Jessica Wertman — counsel for the respondent
KURZ J.:
Overview
[1] Tragedy can be as corrosive as the sturdiest acid, eating away at the bonds that hold families together. For the parties to this motion, the illness and death of a young mother whom they all loved led only to further dissention, conflict, and ultimately this court proceeding.
[2] The applicants, moving parties to this motion, are the maternal family members of four year old Dylan Presley Patterson ("Dylan" or "the child"). The respondent, Kenneth Paul Patterson ("Kenneth" or "the father"), is Dylan's father. Dylan lost his mother, Minoo Razzaghi ("Minoo"), to cancer on July 28, 2014. At the same time, the father lost his wife and the applicants lost their daughter, sister, and aunt. In other words, everyone connected with Minoo suffered a profound loss with her death; one compounded by the conflict that it has spurred.
[3] The applicants move primarily for a temporary order granting them consistent, unsupervised access to Dylan. Other than Minoo's mother, Sakineh Torabi ("Sakineh"), they have had little to no contact with Dylan since Minoo died. They argue that it is in the child's best interests that he maintain his close contacts with his maternal family. Without such contacts, they say, Dylan will never truly know his mother's family and her culture. That would be contrary to Minoo's last wishes and Dylan's best interests.
[4] The applicants also seek to strike certain paragraphs of Kenneth's answer. In those passages, Kenneth makes a claim against the applicants for defamation. The applicants point out that this court does not have the jurisdiction to deal with a claim founded in defamation.
[5] Kenneth resists the motion for access. He states that, as Dylan's father, he is best able to determine his son's best interests. He has already allowed and supervised access by Sakineh, Dylan's maternal grandmother. He remains willing to continue to allow that supervised contact. However, like any parent, he wishes to choose whom his child sees, when he does so, and under which circumstances. He argues that the court should not interfere with his parental discretion.
[6] Kenneth also seeks an order transferring this proceeding to the Superior Court of Justice. He is candid in admitting that he makes this request because this court cannot entertain his defamation claim against the applicants. However, the Superior Court has the requisite jurisdiction. If this court grants his request, it need not dismiss his defamation claim.
Decision
[7] I have read all of the materials filed by the parties and considered all of their arguments. As I explain below, I grant the applicants' motion in part, subject to strict terms, and dismiss that of the father.
Background
[8] Minoo came from a large and close-knit extended family of Iranian heritage. Sakineh was her mother. She is almost 87 years old. Mahin Razzaghi ("Marjan") was Minoo's sister, and closest sibling. Maryam Khavar is another sister. Mahmoud Razzaghi ("Mahmoud") and Mohammed Razzaghi ("Mehryar") were Minoo's brothers. Bahar Sharifian is Marjan's daughter, while Saghar Razzaghi is Mehryar's daughter. Maryam and Mahmoud reside in California.
[9] Collectively, the applicants refer to themselves as "the Razzaghi family" and I will follow their lead in this designation. Before Minoo died, Dylan spent time with various members of the Razzaghi family. Two of Saghar's children were his age group peers and sometime playmates.
[10] Minoo was diagnosed with stage four colon and liver cancer in July, 2013. Dylan had just turned one. He would have only one further year before he lost his mother.
[11] Minoo and Kenneth were clearly a couple at the time of her diagnosis. But the awful news of Minoo's incurable illness unleashed a torrent of emotion, particularly against Kenneth. As Sakineh acknowledged on behalf of the Razzaghi family, with no small amount of understatement, "…things could have been handled better with Ken in and around the time of Minoo's tragic loss."
Conflict Between the Parties Leading up to and Immediately Following Minoo's Death
[12] One example of the animosity unleashed by Minoo's diagnosis is a letter from Mehdi Razzaghi ("Mehdi"), one of Minoo's brothers, to Kenneth. The letter is dated August 20, 2013, about a month after Minoo's diagnosis. At a time when one would have expected everyone close to Minoo to have banded together to protect her from conflict, this letter indicates the opposite intent. While calling for harmony, it evinces the converse. Mehdi assumes the right to lecture to Kenneth about his duties to his wife in an accusatory and insulting manner.
[13] Among the highlights of this letter are the following:
I feel the need to mention to you that any sign of insensitivity, disrespect and lack of compassion and cooperation from you towards Minoo or any other member of my family at these sensitive times will not be tolerated and can and will seriously and permanently damage your marriage and relationship with the rest of the people around her. And you won't find any good in that.
What is reasonably expected from you
As Minoo's husband, and first person in her life, you are expected to truly, lovingly, fully, selflessly and unconditionally support her …
And do not attempt to impose any restrictions, whatsoever, of time and space on her in regards to spending time with Dylan and her family members in location of her choosing. it is not wise and acceptable to do so.
Again no attempt of imposing any restriction, no primitive territorial assertions, and no friction with anybody. And definitely not smallest sign of disrespect and abusive behavior.
The last option which I genuinely wish that you don't resort to is to choose to listen to your ego, fears and ignorance and try to create conflict, restrictions, limitations and disharmony … If you think you are inclined to go this way because of your specific medical and psychological conditions try to get medical help.
Try hard to grasp the gravity of the situation and respect the emotions and meet reasonable expectations of people around or naturally it is going to have undesirable consequences for you.
[14] Mehdi offers Kenneth two choices. One is to fully support his wife in a manner satisfactory to the Razzaghi family. The other is for Kenneth to "just withdraw from the situation" and allow the Razzaghi family to take care of Minoo in his home.
[15] The letter purports to be written solely on the writer's initiative, but it also clearly speaks for the Razzaghi family. Mehdi claims to want to work with Ken but also assumes that the Razzaghi family will have the final say regarding Minoo's care. His letter ends by offering Ken the opportunity to respond with his "views and concerns". It assures him that they will be "considered". The letter's salutation is the somewhat ironic word "cordially".
[16] Before her final hospital admission, Minoo had been living for a few months at the Razzaghi family home while receiving treatment. The family was able to effectively offer 24-hour care to Minoo. The Razzaghi family maintains that Minoo and Kenneth were separated at the time of her death. They also claim that he was abusive to Minoo during their time together.
[17] Kenneth strongly denies the Razzaghi family's allegations. In his narrative, Minoo was living outside the family home solely in order to obtain medical treatment and care. They remained a couple until the moment of Minoo's death. With equal zeal, he denies the implication that he was abusive in any way towards his wife. The notion is profoundly upsetting to him. He was devastated by both her death and its surrounding circumstances, including things that members of the Razzaghi family said about him to others. That largely explains his defamation claim.
[18] Kenneth has produced the affidavit of Dylan's nanny, Mercy Melad, who continues to work for him. Ms. Melad's affidavit supports Kenneth's version of the facts. Sakineh responds for the Razzaghi family that Ms. Melad has a financial interest in lying for Kenneth. She adds that Ms. Melad said different things to her family and that Ms. Melad is duplicitously playing both sides against the other.
[19] In this temporary motion I am not in a position to definitively determine whether the parties were separated at the time of Minoo's death. Similarly I cannot comment on Kenneth's conduct as a husband. The only objective evidence of their separation was Minoo's stay in the Razzaghi home for treatment in 2014, and her hospital stay in the days before she died. There is also her family members' recounting of some things she may have said while in their exclusive care, facing death, and under the influence of powerful medication.
[20] On the other hand, on July 11, 2014, just seventeen days before her death, Minoo signed a memorandum to her estate trustee. In that document, clearly drafted and also signed by a lawyer, Minoo refers to Kenneth three times as her husband. It mentions nothing of their alleged separation. The document was signed at a time that Minoo was in the care of her family. Minoo's will, dated June 2, 2014, also referred to Kenneth as her husband. With regard to the claim that Kenneth abused Minoo, the evidence of abuse is even slimmer than that of their separation. Kenneth claims that the Razzaghi family accused him of giving Minoo cancer.
[21] In other words, for the purposes of this motion, I have seen no compelling evidence that any of the Razzaghi family's allegations against Kenneth are true.
[22] What is clear is that there is no reason to have barred Kenneth from Minoo's hospital room in the days before her death. She was comatose and at no risk of harm from Kenneth. While the Razzaghi family took the position that Minoo and Kenneth had separated, he did not agree. He still wanted to say goodbye before she died.
[23] There is also no excuse for the Razzaghi family's decision to hold Minoo's funeral behind Kenneth's back. The decision to do so is a shocking one. Those decisions cannot be divorced from Kenneth's later decisions barring most of the Razzaghi family from contact with Dylan.
Events Since Minoo's Death
[24] Kenneth has been Dylan's sole caregiver and parent since Minoo's death. He has been assisted by Dylan's nanny, Ms. Melad, whom he retained while Minoo was still alive.
[25] Since Minoo's death, members of the Razzaghi family have attempted, with varying degrees of conciliation, to mend their fences with Kenneth. Their motivation is to maintain their relationship with Dylan. They did not get off to a good start. On August 2, 2014, Mahmoud texted to Kenneth, using Minoo's phone, as follows:
Hi Ken this Mahmoud Minoo's loss has been devastating to our family and specifically for our mom. I am sure that Dylan has also missed her and our family. Grandma is very anxious to see Dylan. Please let us know when is the earliest time for you to arrange visitation.
[26] One can imagine Kenneth's surprise to have received a text from his dead wife's phone. That was explained shortly into the text. But nowhere in this text is there any acknowledgment of the mutuality of their loss. Nor is there an acknowledgment that Kenneth had any say about whether this access would occur.
[27] At this point, Kenneth had reason to be concerned about the Razzaghi family's insistence on access. From his perspective, they had already taken Minoo from him; preventing him from seeing her in her final days or even her funeral. It had already indicated the view that it could dictate to him about his family. He had reason to be concerned about its intentions regarding Dylan.
[28] Further, Dylan's nanny, Ms. Melad, told Kenneth that she overheard the Razzaghi family speaking in a manner that implicitly or explicitly referred to seeking custody of Dylan. To be fair, the Razzaghi family claims that Ms. Melad's evidence is false. But they do not deny that Kenneth understood her reports to be true.
[29] In light of all of the above, Kenneth's hostile response comes as no surprise. He wrote:
Do not contact me, How dare you not tell me about Minoo passing and her funeral! Shame on all of you! She was my wife and the mother of my son!! You think that I didn't care! How hurtful! I could've walked away anytime! All your Family did was build a conspiracy idea that I was going to hurt my wife! It's all been about you, especially you, Marjan and Maryam, You made my family sick on how you treated us. How humiliating and insulting! Your sister Maryam and yourself are shameful in what you have done! Minoo would be sick of what you did to my Family! All further communication will be through my lawyer.
[30] Two minutes later Kenneth added:
And don't you dare use Minoo phone to communicate with me! This is just sick and insulting!! We are grieving here!!
[31] The following day Mahmoud sanctimoniously responded, adding insult to injury with the following text:
As per your own request for the Razzaghi family not to contact you at that time, we will not contact you. But, we made sure that the hospital contacted and informed you of Minoo's passing. However, you did not care enough to contact us to make any funeral arrangements, nor did you call to find out of any arrangements done by us so that you could at least show up to her funeral. So don't play victim here. All my family cares about is Dylan's well-being and welfare. We strongly suggest that you put your issues and animosity aside and cooperate for the benefit of Dylan.
[32] Despite Mahmoud's assertion, I have seen no evidence that Minoo's hospital was instructed to contact Kenneth about his wife's death and funeral arrangements. One would not see that as a hospital's job in circumstances such as this. In any event, Ken's uncontradicted evidence is that he did not hear from the hospital. If he did, he would undoubtedly have attended the funeral.
[33] Further, Mahmoud went out of his way to express the high-handed view that his family need not have directly contacted Kenneth about his wife's death and the funeral. Yet to Mahmoud, Kenneth was obliged to contact the Razzaghi family if he wished to participate.
[34] Mahmoud also seemed to be operating under the impression that insulting Kenneth at a time like this would do anything but pour gasoline on the fire. It was hypocritical of Mahmoud to ask Kenneth to put his animosity aside for the benefit of Dylan when he was unable to take the first step in that process.
[35] As Mahmoud's mother wrote in her own affidavit of November 1, 2015, it was important to put the family's differences aside,
… not only to insulate Dylan from any antagonism that existed between us and his father that existed at the date of Minoo's death and was exacerbated immediately following her tragic loss, but also because this is what Minoo would have wanted.
[36] Kenneth's predictable response was to threaten to call the police if Mahmoud ever thought of coming near his family again.
[37] On August 7, 2014 Kenneth received another text from a member of the Razzaghi family, stating (or more to the point, threatening):
Grandma is anxiously worried about Dylan. We hold you responsible for anything that happens to grandma under extreme grief. You have not cooperated with us for Dylan's visit with grandma and us. If you ignore our request we may consider reporting the situation to Child Aid services.
[38] The Razzaghi family made good on its threat. Kenneth received calls from a police officer regarding his alleged abuse of Minoo. He also heard from a CAS worker. She told him that he was alleged to have neglected and abused Dylan and to suffer from mental health problems. Neither authority took any further steps after speaking to Kenneth.
[39] Further the Razzaghi family removed all of Minoo's personal items from the home, leaving none to Kenneth or Dylan. It even took a car that could have been used by the nanny to transport Dylan, the sole beneficiary of Minoo's will.
Agreements on Supervised Access
[40] There was no further contact between the Razzaghi family and Dylan for about four months. At that point, the family's estates lawyer contacted Kenneth. He agreed to grandparent access by Sakineh, at his home and under his supervision. As Dylan's sole surviving parent, Kenneth decided the time, place and form of supervision of the visits. If Sakineh wanted to see her grandson, she had to comply. She did and supervised access began in Kenneth's home.
[41] However, things turned sour again after an incident in May, 2015. It arose out of a misunderstanding over whether a certain visit had been confirmed. Sakineh arrived at Kenneth's home for a visit. He understood that the visit had been cancelled because it had not been confirmed. After an angry text exchange, Kenneth again threatened to call the police. At this point the parties retained their present counsel, and grandparent access on Kenneth's terms resumed.
[42] At a case conference before O'Connell J. on October 9, 2015 the parties agreed to a without prejudice order that Sakineh's access would be moved to a more neutral location than Kenneth's home. It was to take place bi-weekly for two and a half hours, supervised by Kenneth.
[43] The next day, Sakineh saw Dylan at a Chuck E. Cheese's restaurant. Two weeks later, Marjan and Mehryar met with and photographed Dylan at the end of another visit by Sakineh at the Chuck E. Cheese's. They had attended to pick up Sakineh. There is some dispute about whether they first requested Kenneth's consent to participate in that part of the visit.
[44] Approaching Christmas, 2015, Kenneth planned to travel with Dylan to visit his family over the holidays. He invited Sakineh to stay with his family overnight in order to share an early holiday meal. Sakineh demurred. Kenneth also offered Sakineh weekend access at his home. She did not accept that offer either.
[45] Kenneth asked the Razzaghi family to agree to some access flexibility over the Christmas holidays, notwithstanding the terms of O'Connell J.'s order (calling for alternate weekend access). The evidence is not clear, but it appears that initially there was no agreement. In the end, the parties seem to have cooperated enough to allow the trip. On December 25, 2015 Dylan had FaceTime contact with Sakineh and four of his cousins.
[46] By all accounts, the alternate weekend supervised access by Sakineh has gone well. Sakineh has also enjoyed telephone access to Dylan. Kenneth has allowed some members of the extended Razzaghi family members to participate in some contact with Dylan. But each side remains unhappy about the present arrangements.
The Parties' Positions Regarding Ongoing Access
[47] The Razzaghi family asserts that it is in Dylan's best interests to have predictable, stable and consistent access to the child. Only then will he be nurtured by the relationship with his maternal family, its culture and history that his mother had profoundly desired for him. In order to accomplish that goal, the Razzaghi family seeks bi-weekly unsupervised access for escalating periods of time. It suggests two 2 ½ hour visits, increasing thereafter to eight hours at a time. The Razzaghi family wants any assemblage of its seven applicants to be entitled to that access. If only one can make it, so be it.
[48] For his part, Kenneth argues that the present bi-weekly access arrangements are too restrictive. His own parents and family are only able to see Dylan with his consent, and on his terms. That arrangement likely applies to the vast majority of grandparents and extended families in Canada. In light of the conflict over Christmas, 2015, Kenneth believes that he requires the flexibility to determine the full extent of the access. He will continue to allow access, particularly to Sakineh, whom he does not blame for the Razzaghi family's conflict with him. But access should be as he, Dylan's sole parent, finds to be in his child's best interest.
Law Regarding Access by Relatives
[49] The jurisdiction for this court to deal with the issue of access by relatives is found in the Children's Law Reform Act ("CLRA"). Section 21(1) of the CLRA allows "[a] parent of a child or any other person" to "apply to a court for an order respecting custody of or access to the child …"
[50] Pursuant to CLRA s. 24 (1), the merits of an application for custody or access will be determined by the best interests of the child. CLRA s. 24 (2) sets out that a court shall consider all of the child's needs and circumstances in order to determine his or her best interests. They include:
(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 child's care and upbringing;
(b) the child's views and preferences, if they 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) the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.
[51] Determining what is in the best interests of a particular child is specific to the circumstances of that child and family. As McLachlin C.J. noted in Gordon v. Goertz,
[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.
The focus is on the best interests of the child, not the interests and rights of the parents.
[52] The parties agree that the leading case on the issue of extended family access is the decision of the Ontario Court of Appeal in Chapman v. Chapman. That case dealt with the attempt of an estranged grandmother to obtain access to her grandchildren in the face of the opposition of both of the children's "highly dedicated and loving parents".
[53] Abella J.A., as she then was, explained that "… the purpose of access is to preserve a child's positive relationships in as constructive a manner as possible." However while access with extended family may in theory be best for children in general, that is not the test. Instead the court must look to "…what is in the best interests of the particular children before the court."
[54] In deciding to refuse to require the parents to allow access to the grandmother, Abella J.A. looked to the following factors:
• Whether a positive relationship existed between the grandmother and the child.
• Whether that relationship was arbitrarily imperiled by the conduct of the parents, as for example in the family reorganization that follows parental separation. In that event, "… the court may intervene to protect the continuation of the benefit of the relationship."
[55] In Giansante v. Dichiara, Nelson J. summarized these principles in the following three-part test:
Does a positive grandparent-grandchild relationship already exist?
Has the parent's decision imperilled the positive grandparent-grandchild relationship?
Has the parent acted arbitrarily?
[56] In Chapman, Abella J.A. found that the grandmother's access proceeding was motivated by her interests rather than those of her grandchildren. In refusing to grant the access, Abella offered a statement that strongly supported judicial deference to the rights of parents to make decisions about what is best for their children, free from the interference of meddling relatives. She wrote:
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.
[57] In Giansante, Nelson J. offered a caveat to Abella J.A.'s general rule of deference to the decision of parents. That deference may not be as strong when one of the parents has died, and the deceased parent's relatives seek access against the wishes of the surviving parent. In such a case, the court may be less deferential to the surviving parent in order to preserve the child's relationship with the otherwise lost family.
[58] The facts of Giansante are quite similar to those of this case. As the headnote summarizes:
The child's mother died in a car accident. The mother's death resulted in a rift between the father and her extended family that reduced the child's contact with the mother's family. The child had daily contact with the mother's extended family prior to her death. The applicants submitted that it was in the child's best interests that they have continued contact. The father submitted that there was no evidence that he was unable to act in the child's best interests. He did not oppose access, but wanted the right to govern its terms.
[59] In analysing the three-part test that he derives from Chapman, Nelson J.:
Finds the existence of a pre-existing relationship between the parents of the deceased mother and the child. He made that finding even though the child was only ten months old at the time of his mother's death. As stated above, the mother's family had seen the child daily. In obiter, Nelson J. added that there may even be circumstances where such a pre-existing relationship is not necessary; say where there was no opportunity for the relationship;
Distinguishes the decision of Rogers J. in Blium v. Blium, refusing to order terms of access when the parents were agreed to grandparent access but simply wanted control over its details. Nelson J. finds that the father in Giansante would not allow such access if left to his own devices. Nelson J. then goes further, distinguishing both Chapman and Blium because neither involved the death of a parent. In saying that, Nelson J. clearly signalled his view that a court will be less likely to defer to a parent blocking access when his spouse is no longer alive to foster the relationship with her extended family;
Determines the meaning of the term "arbitrarily" in the context of a child's best interests. If a parent's decision is based on criteria other than a child's best interests, he can be seen to be acting arbitrarily. This approach aligns with s. 24(1) of the CLRA, which mandates the application of the test of best interests to all decisions about access. Nelson J. found that the father's reasons for refusing access were arbitrary because they were focused on his need to recover from his wife's loss without the stress of dealing with her family. That is a not a proper consideration for access;
Concedes though that "[t]here will, of course, be circumstances in which a conflict between grandparents and parents is such that it will inevitably have an adverse impact on the children." However he finds that the conflict between the parties before him had subsided and that the grandparents were no longer speaking inappropriately in front of the child. Further they were willing to allow the father and his sister to attend at all access visits.
[60] Having refused to defer to Mr. Giansante's decision, Nelson J. then embarked on his own consideration of the child's best interests.
[61] Following Giansante, the analysis of grandparent or extended family access can be summarized as having two parts:
First, the determination of whether the court should defer to the decision of the parent(s). That decision involves the consideration of the three-part test articulated by Nelson J. in Giansante, following Chapman. Less deference may be owed when one of the parents had died, meaning that the child may lose a relationship with the other side of his family.
Second, and only if the court refuses to defer to the parent(s), whether in the view of the court, access is in the best interests of the child. In that case, reference must be made to the criteria found in CLRA s. 24 (2).
Should the Court Defer to Kenneth?
[62] At this stage I look to the Chapman test as articulated in Giansante. The first issue is the existence and extent of a "positive relationship" between Dylan and the Razzaghi family.
Positive Relationship
[63] The issue of what constitutes a positive relationship is especially apposite here. The request for access is not simply made by an individual grandparent or set of grandparents, as is the case in most relevant precedents. Rather, seven members of the Razzaghi family, with somewhat differing levels of historical intimacy with the child, apply for the right to access to him. Should they each, individually, be entitled to access? That is what they seek, although they seek to exercise it together in whatever constellation they choose.
[64] The Canadian Oxford Dictionary offers numerous definitions of the term "positive". The most apropos definition is this one:
Having a helpful and constructive attitude towards something (positive criticism)
[65] In Chapman, Abella J.A. does not define the term "positive relationship". But she does speak of the importance of "[l]oving and nurturing relationships with members of the extended family", ones that "enhance the emotional well-being of the child", in the context of positive relationships.
[66] Abella J.A. found that the grandmother in Chapman did not have a positive relationship with her grandchildren. While she did not explicitly state why that was the case, her decision sets out some obvious considerations. The evidence at trial showed that the children had highly negative feelings about their grandmother, likely due to parental influence. Before her conflict with the parents began, the grandmother's visits with the children had become increasingly rare. They were almost always in the presence of the parents. The grandmother conceded that she was unable to care for her grandchildren on her own. Further aggravating the situation, the children were forced to travel from Toronto to Coburg for the visits, which Abella J.A. found to be disruptive to them.
[67] Thus, it appears that the nature of the relationship (which was to the benefit of the grandmother and not the children) and the (in)frequency of the visits before the proceeding began were determining factors for Abella J.A. in deciding that the grandmother did not have a positive relationship with her grandchildren.
[68] In Giansante, Nelson J. did not find it necessary to define the term "positive relationship". The existence of a positive relationship between the maternal grandparents and the child before his mother's death was conceded. In describing that relationship, Nelson J. wrote:
Even though Jayden was only ten months old at the time of the accident [that killed his mother, Rita], it is clear from both the applicants and the respondent's evidence that Marcus and Rita tried to ensure that Jayden form a close and loving relationship with Rita's extended family. It is worth repeating, Rita, Jayden, and Marcus were frequently in the company of Rita's family.
[69] In Parsons v. Parsons, Campbell J. granted grandparent access when he found that the applicants had a "close and positive relationship" with the child. The grandparents were often caregivers of the child when her parents were together. That role continued, even after they separated. Campbell J. stated that the relationship "... has always been a very positive one, one that [the child] has learned to enjoy and anticipate."
[70] The relationship between the grandparents and mother only soured a few months before the motion was heard. Campbell J. added:
I find that Makayla has had, for all but the last five months of her life, a close and positive relationship with both of her grandparents (and her uncle Adam and cousin Shane too, I would assume). It is important to note that it is in Makayla's best interests to be able to continue a relationship with all of her extended family that was established long before Ms. Danielle Parsons' most recent conflict with her own mother.
[71] It is worth noting that Campbell J. extended his finding of a "close and positive relationship" beyond the applicant grandparents to other extended family who had not sought an access order.
[72] In Sproule v. Sproule, Klein J. considered a number of authorities to find that a positive relationship requires both time and depth. As he writes:
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, 2002 CarswellSask 331, 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, 2004 CarswellSask 175.
[73] Klein J. also considered the age of the children and the delay between the time that the grandparent last saw the child and the time of the application.
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.
[74] In sum, the case law generally requires the following elements to constitute a "positive" relationship between a relative and a child; one that may supersede the right of the parent(s) to decide whom the child sees:
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.
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.
The determination must include consideration of the age of the child and the time since the child last saw the relative.
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] In applying the factors cited above, I note that that I have seven relatives before me who claim to have a positive relationship with Dylan. From the materials before me it is clear that the Razzaghi family takes the Clintonian notion of it taking a village to raise a child, to heart. It appears that the larger extended Razzaghi family is very involved in the raising of the family's children. However, the relationships of the various applicants to the child are not equal.
[76] Further, other than Sakineh, none of the Razzaghi family has had more than fleeting contact with Dylan, for about half of his young life. The exception is the FaceTime video call of December 25, 2015.
[77] There is no question that, however the term is defined, Sakineh has a "positive relationship" with Dylan. Whatever disagreements exist between the parties, Kenneth has always conceded that relationship and agreed to nourish it, albeit on his terms. However, for him, that concession ends with Sakineh.
[78] The remaining applicants are two of Dylan's uncles, two of his aunts and two first cousins. Each has sworn an affidavit setting out what they characterize as a close relationship with Minoo and Dylan before Minoo's death.
[79] Of all of those parties, the one whose relationship with Dylan stands out is Marjan. She was Minoo's closest sibling. She spent a great deal of time with Minoo and Dylan. She stayed with Minoo for ten days after Dylan's birth. Minoo and Dylan stayed with Marjan when Kenneth had to travel for business.
[80] In a memorandum to her estate trustees and Kenneth (whom she referred to as "my husband"), written just 11 days before her passing, and in contemplation of that death, Minoo states:
Dylan has always been eager and happy to see my family especially my sister Marjan Razzaghi ("Marjan") who has been like a second mother to him especially during my serious illness. I truly believe that in my absence, continuing and close relations with Marjan and the rest of my family is in the best interest of Dylan.
[81] Minoo goes on to state that in the event of the death of both her and Kenneth, Marjan would be her first choice to have custody and legal guardianship of Dylan. She then offers her nieces, Saghar, and then Bahar, as her second and third choices. While that is far from binding if Kenneth dies before Dylan attains adulthood, the memorandum does offer some evidence of Minoo's perspective in the days before her death.
[82] Clearly at the time of Minoo's death, Marjan had a substantial and constructive relationship with Dylan. It was the one that Dylan's mother felt most important to preserve. Even though Dylan is young and has not seen her for more than a few moments since Minoo's death, it appears that he still knows who she is. And his mother is gone. For all of those reasons, I find that Marjan has a positive relationship with Dylan.
[83] Bahar is Marjan's daughter. She is a university student. She was present when Minoo and Dylan came to stay at her family home. She took on some babysitting chores, particularly in the two weeks that she stayed home to care for Dylan after Minoo was diagnosed with cancer. She purchased some gifts for him and has many photos of him. She is Minoo's third alternate caregiver. She clearly had a relationship with Dylan, but one secondary to that of her mother. However, it does not meet the legal "positive" threshold.
[84] Maryam was Minoo's sister. She lives in California. She travelled from her home to Ontario to care for Minoo and, by extension, care for Dylan for relatively short periods of time. She too does not meet the threshold of substantiality. It is also not clear that Dylan would know her at this time.
[85] Mehryar speaks of his close sibling relationship to Minoo and some childcare his family provided to Dylan. He also spoke of his grandchildren playing with Dylan. There is no doubt that he had a familial relationship with Dylan, but again not one sufficient to meet the threshold.
[86] Mehryar's daughter, Saghar, speaks of her close relationship to Minoo as being akin to that of an older sister. She speaks of her children and Dylan, being of similar ages, playing together. But from her telling, her main relationship was with Minoo and it was her children who spent time with Dylan. Minoo named Saghar as her second alternate caregiver for Dylan. But Minoo offers no explanation for the choice of either alternate. While she clearly loves the child, based on the evidence before me, Saghar's relationship with him does not meet the threshold.
[87] Mahmoud was Minoo's brother. He lives in California. He first met Dylan when the child was seven months old. Minoo brought the child on a visit to California. Mahmoud saw Dylan again on a visit between April and May, 2012. Then, when Minoo was diagnosed with cancer, he spent four months in Ontario, where he often saw Dylan. He speaks of Dylan being happy to see him, sitting on his lap and enjoying Persian music with him. Mahmoud clearly loves his nephew, but again does not meet the threshold.
[88] In sum, each member of the Razzaghi family before the court had a relationship with Dylan that he or she finds meaningful. Undoubtedly at some time, Dylan enjoyed spending time with each. But the legal threshold of a "positive" relationship with the child as defined above, one that would allow the court to consider superseding its normal deference to a parent or parents, is necessarily a high one. Sakineh and Marjan meet that threshold. Based on the evidence before me, the other members of the Razzaghi family, despite their evident love for the child, differing levels of contact with him and wishes to participate in his future life, do not.
[89] I note that Nelson J.'s obiter in Giansante holds that a strong pre-existing relationship may not be necessary when a young child loses a parent and that parent's close family member(s) seeks access. That caveat was necessary to ensure that the child would be able to form a relationship to the dead parent's family. Without it, the possibility of such a relationship would be lost.
[90] That caveat may have applied to other members of the Razzaghi family, had Sakineh and Marjan not met the threshold. But the caveat is not necessary or applicable here. Those members of the Razzaghi family can develop or maintain a relationship with Dylan through Sakineh and Marjan.
Has Kenneth's Decision Imperilled a Positive Relative-Child Relationship?
[91] The answer to this and the next question is more complex than it is in many of the cases cited to me. With regard to Sakineh, the answer is no. Kenneth has attempted to maintain her relationship with the child. Kenneth offered her fairly regular access, even without a court order. He agreed to relinquish some discretion over supervised access in the consent order of O'Connell J. of October 9, 2015. Now he asks to restore his complete discretion about Sakineh's access to the child. He assures the court that access will continue.
[92] Sakineh may not agree with the quality of access that he offers to her, in that she wants it unsupervised and with other family members. But no evidence before me shows that Kenneth has imperilled Dylan's relationship with Sakineh.
[93] With regard to Marjan, the answer is somewhat different. Kenneth has refused to allow her access to Dylan, other than some fleeting contact. Rightly or wrongly, he sees her as being a central part of a family dynamic that has attacked and harmed him. He also sees a threat to both his role and autonomy as a parent from all members of the Razzaghi family but Sakineh. So the answer to this question, as it relates to Marjan, is yes.
[94] But even with that answer, it must be acknowledged, for the reasons set out above, that the Razzaghi family played an important role in the diminution of that relationship. Kenneth alone is not to blame.
Has Kenneth Acted Arbitrarily?
[95] In Giansante, Nelson J. determined that "arbitrarily" means based on criteria other than a child's best interests. In that case, the father refused access to his late wife's family because of his needs, not that of the child.
[96] But not every case is straightforward. Life is often messy and people act based on more than one motivation. Here the criteria for Kenneth's access decisions are complex, involving both arbitrary and non-arbitrary criteria.
[97] Kenneth had and continues to have good reason to fear the Razzaghi family's good faith with regard to his role as Dylan's parent. Members of the Razzaghi family appear to have made unwarranted accusations against him to the police and a children's aid society after Minoo's death. They did so in following up on a threat to alert child welfare authorities against him if he did not allow access to Dylan. From the time of Minoo's diagnosis onward, they acted in an overbearing and judgmental manner towards him. He has reason to suspect what they would say to Dylan about him during unsupervised access visits.
[98] Having said that, some of Kenneth's motivations regarding access remain arbitrary as well. He was deeply hurt by the behaviour of the Razzaghi family, both before and after Minoo's death. The pain and difficulties that the Razzaghi family caused him, rather than a calm consideration of whether Dylan's best interests required contact with Minoo's family, is one of the factors that motivate him to limit access.
[99] But if Kenneth's decisions regarding Dylan were based in part on arbitrary criteria, so too were those of the Razzaghi family.
[100] At the end of the day, when the court is considering whether Kenneth's decisions were so arbitrary as to merit judicial interference with his parental discretion is a close one. But the answer in this case, on a temporary basis, is yes.
[101] That is because this is a not a case of two parents who are estranged from a grandparent. Rather, this is a case of a child whose main contact with the family of a dead mother and her culture is through an almost 87-year-old grandparent. Kenneth has not spoken about what will happen if Sakineh's health prevents her from exercising access. Presumably in his thinking, contact with the rest of the Razzaghi family would end. That would not be in Dylan's best interests. It is certainly not what his late mother felt to be in his best interests.
[102] Giansante shows that the offer of continuing discretionary access, without specific detail, is not sufficient if the court is not convinced that the parent will offer it without further court order. The risk of Dylan's loss of his entire maternal family and its culture, is high if he is only allowed discretionary supervised access to his aged grandmother. That can end if her health takes a turn or if there is further conflict between the parties.
[103] While this finding leads the court to an independent consideration of Dylan's best interests, it does not mean that the court ignores the facts set out above in that consideration.
What Access Order is in Dylan's Best Interests?
[104] In considering the criteria for best interests articulated in CLRA s. 24(2), the Razzaghi family asks me to principally consider:
(a) the love, affection and emotional ties between the child and,
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.
[105] The arguments in regard to each are similar: there are historical bonds between Dylan and the Razzaghi family (particularly, in light of my findings above, Sakineh and Marjan). The Razzaghi family are Dylan's blood relatives. Without access he will lose that tie. Minoo wanted Dylan to remain part of his maternal family after her death. Clearly in the case of Sakineh he has done so. In the case of Marjan, those ties are probably not lost. Both can connect him to his larger extended family.
[106] On the other hand I also have to consider the conflict that has raged between the Razzaghi family and Kenneth. Will access mean that Dylan gets caught in the crossfire of that dispute? Right now there is no indication that he has been affected by it. But he has been sheltered by supervised access. Because of the animosity between the two families, that result is still possible.
[107] In Sproule, Klein J. found that the grandparents behaved so badly towards the parents, even in the face of the parents' own somewhat arbitrary behaviour, that access would not be in the children's best interests. He wrote:
In effect, by taking a "scorched earth" approach to these proceedings, which encouraged a similar response by the respondents, [the grandmother] may have made it virtually impossible to begin healing their relationship and leave matters at this impasse.
[108] Kenneth's counsel urges this precedent upon me. On the other hand, in Giansante, Nelson J. generously commented:
To hold people responsible forever for their actions at a time when they were emotionally raw and vulnerable might not be appropriate. Although these events appear to have damaged the respondent's relationship with the applicants, that is no reason to sever Jayden's relationship with his mother's family.
He added that courts frequently make access orders in high conflict cases.
[109] In his argument, Mr. Niman proposes a solution adopted in Giansante to deal with the risk that his clients will involve Dylan in the parties' conflict: order the members of the Razzaghi family involved in access not to speak ill of Kenneth.
[110] Further, there are glimmers of hope in the conflict between the parties. In fact, there are two reasons to believe that each of the Razzaghi family and Kenneth love Dylan more than they dislike each other. First, they have been able to cooperate to allow some contact, both before and after they appeared before O'Connell J.
[111] Second, the parties had an extraordinary encounter when they were in court with their counsel to argue this motion. Having heard the arguments from two very able counsel, I gave the parties the opportunity to address each other directly, without the filter of their lawyers. Kenneth spoke of both his hurt and his desire to move forward. He cited his need for an apology from the Razzaghi family in order to move forward.
[112] For their parts, each member of the Razzaghi family present at court (five were present) came forward in open court to speak directly to Kenneth. Each offered an apology and an expression of a desire to open a new chapter of reconciliation. I suggested that they meet and see whether they could resolve issues on their own. While the fact that I am issuing this decision is proof that they may presently be unable to do so, the encounter offers a sliver of hope that they can eventually work together for Dylan's benefit.
Access Order
[113] This is a motion for a temporary order. At a trial, the judge can consider the issues raised by the parties, their behaviour and any other relevant factors in greater detail than I have been able to do. While at this stage I am prepared to override Kenneth's discretion, I will not completely ignore it either. Some access is in Dylan's best interests. I will set out a minimal level of unsupervised access. But Kenneth must also have the right to some control as well. Accordingly:
1. Sakineh and/or Marjan is entitled to unsupervised access to Dylan as follows:
a. On the date scheduled for the next access visit scheduled under the order of O'Connell J. of October 9, 2015, the visit shall take place from 1:00 – 3:30 p.m. at the Chuck E. Cheese's restaurant at 2945 Argentia Road, Mississauga, Ontario, with Kenneth present. He will deliver Dylan and take him home following the visit;
b. Two weeks later, from 12:30 p.m. to 3:30 p.m. with pick up from Kenneth's home and drop off at his home or at Dylan's activity as applicable. Kenneth will not be present other than at pick up and drop off;
c. Thereafter, one weekend day per month for a period of six hours at a time. I will allow the parties to work out the details. If they are unable to do so, I will hear their submissions and make a determination;
2. Sakineh and/or Marjan may invite to the access visit whatever members of the extended Razzaghi family they choose. However, they are the access holders. If neither is available, there will be no access;
3. It is open to Kenneth to arrange for any further access with members of the Razzaghi family as he sees fit;
4. During the access, no member of the Razzaghi family, including any member of their extended family present at the access visit, shall speak ill of Kenneth. Nor will they discuss any element of the conflict between themselves and Kenneth. Any reference to Kenneth in Dylan's presence shall be a positive one. A breach of this term may lead to a change of the access order.
5. Other than the visit at the Chuck E. Cheese's restaurant, Sakineh and/or Marjan will be responsible for all travel to and from access. Unless otherwise agreed, pick up and return will be at Kenneth's home.
6. Kenneth and any member of the Razzaghi family present at the access visit will treat each other with courtesy at all access changeovers.
7. The parties will schedule a settlement conference with the court's judicial secretary, to take place approximately three months from now. At that time, I can review the access to determine whether it should be expanded, contracted or otherwise changed.
[114] While I cannot force them to do so, I strongly recommend that the parties enter into mediation to assist in working out their differences so that Dylan is not caught up in their dispute.
[115] I ask the parties to recall Minoo's final entreaty to all of them, written seventeen days before her death, and with prescience of the conflict to come:
I appeal to Ken and my family members to work together, to put aside any differences they may have and always act with each other in a manner that is in Dylan's best interest. Only then will my soul and spirit truly rest in peace.
Motions for Dismissal of Defamation Claim and for Transfer to Superior Court of Justice
[116] As stated above, this court clearly has no jurisdiction to deal with a claim in defamation. I need not go through the test of Rule 16 or the authorities following the Supreme Court of Canada's decision in Hryniak v. Mauldin to come to that conclusion. Mr. Larsen concedes the point on behalf of Kenneth.
[117] However, he asks that this case be transferred to the Superior Court to allow the defamation action to continue as part of this proceeding. He argues that the facts in support of each issue, access and defamation, are so interwoven that they should be heard together.
[118] With great respect, I disagree. I told the parties at the time this matter was argued that I would refuse the request. I offer further explanation for that decision below.
[119] This court has already dealt with the access issues in the long motion that has led to this decision. Before I became involved with this case, O'Connell J. case managed it. I intend to take over that case management until trial. This type of high conflict case is appropriate to case management. It would not be in Dylan's best interests, nor would it be fair to the parties, to transfer this proceeding to another court to start over after the expense already incurred in this court.
[120] In addition, considering the history of conflict in this case, it would not be in Dylan's best interests to pair a proceeding that centres on those best interests with one that has little to do with him. The defamation action, as constituted, represents a series of allegations made by Kenneth against the Razzaghi family, arising out of allegations they purportedly made about him. That has little to do with Dylan. Keeping the two causes of action, as it were, together, will only increase the conflict between the parties. It will obscure the centrality of Dylan's best interests to this case.
[121] It must be born in mind that Kenneth is represented by very experienced counsel. Kenneth and Mr. Larsen must have known that this court has no jurisdiction to entertain a defamation action when he issued his application.
[122] Further there is no reason to prevent Kenneth from launching a separate defamation action in the Superior Court if he so pleases. I would urge him not to do so.
[123] For the reasons set out above, I strike paragraphs 45 - 48 of the Application.
Costs
[124] I note that in Giansante, Nelson J. refused to order costs, finding that to do so would not be in the child's best interests. However, if a party wishes to seek costs, and the parties are unable to work out the issue, that party may contact this court's judicial secretary within 14 days to arrange a date to speak to the issue.
Released: April 14, 2016
Signed: "Justice Marvin Kurz"
