Court File and Parties

Court File No.: 215/15 Date: April 3, 2017 Ontario Court of Justice

Between:

(a) A.A.A. (b) S.L.F. Applicants

(c) — AND —

(d) G.A. (e) S.S.A. (f) W.W. Respondents

Before: Barry M. Tobin J.

Counsel:

Brian A. D'Hondt, for the Applicants
Ashley Lavigne, for the Respondent W.W.

Heard on: October 17, 19 and 20, 2016, December 13 and 14, 2016, January 6 and 9, 2017, and March 17, 2017

Released: April 3, 2017

Reasons for Judgment

1: Issue

[1] The central issue in this case is whether a young child should remain in the care of a non-family member with whom she has lived for most of her life or be placed in the custody of her paternal grandparents.

[2] The child is M.A. born […], 2013 ("child" or "M.A.").

2: Parties

[3] The applicants are A.A.A., the child's paternal grandfather ("grandfather") and S.L.F., the child's paternal grandmother ("grandmother") and collectively called the "grandparents".

[4] The respondent G.A. is the child's father ("father"). He did not participate in this case except as a witness for the grandparents.

[5] The respondent S.S.A. is the child's mother ("mother"). She did not participate in this case.

[6] The respondent W.W. ("Ms. W.W.") is the person with whom the child has resided since she was three months old. She is not related to the child.

3: Position of the Parties

[7] The grandparents want the child placed in their custody. This will allow the child to be raised in comfort by extended family and with her two brothers. It will also allow the child to be raised within the grandparents' religious tradition and culture.

[8] Ms. W.W. asks that the child remain in her custody. This will provide the child with the continuity of care she has had for almost the entirety of her life.

[9] The grandparents want Ms. W.W. to continue having a relationship with the child fostered through access. Ms. W.W. wants the child to stay connected to her extended family through access to the grandparents.

4: Facts

4.1 Ms. W.W. Assumes Care of M.A.

[10] The mother and father are M.A.'s parents. She is now four years old.

[11] The mother and father are also the parents of two other children. H.G.A. born […], 2009, ("H.G.A.") and Z.G.A. born […], 2010, ("Z.G.A."). They are M.A.'s brothers.

[12] When M.A. was born the mother and father were not cohabiting. They had separated. A non-association order made within a criminal case arising from their domestic conflict was in place between them.

[13] Following M.A.'s birth, she resided in the mother's care.

[14] The child has never resided with or been in the care of the father.

[15] Very shortly after the child's birth, the mother placed an ad on Kijiji seeking childcare. Ms. W.W.'s daughter M.W. responded.[1]

[16] M.W. and Ms. W.W. then began providing care for M.A.. Beginning when M.A. was about two months old, the mother would leave her with M.W. or Ms. W.W. for long periods (18 hours) then for days at a time and finally for weeks. Eventually the mother never returned for the child. Ms. W.W. was never been paid for providing M.A. with childcare.

[17] M.A. has lived continuously with Ms. W.W. since April 2013. That month Ms. W.W. became the kin placement for the child through a voluntary agreement between the mother and the Windsor-Essex Children's Aid Society ("Society"). The Society continues contact with Ms. W.W. approximately once a month.

4.2 Access to M.A. by the Parents and Grandparents

[18] The mother has not seen the child since October 2013. From April 2013 until October 2013 her contact with the child was sporadic.

[19] The Society required that any contact between the child and the father be supervised. Ms. W.W., M.W. and Ms. W.W.'s other daughter, V.W. were approved by the Society to supervise the father's access. He first saw M.A. on December 26, 2013. Since then he saw the child briefly five times between April 28, 2014 and May 15, 2015.

[20] The grandparents saw M.A. occasionally[2] after she was placed in Ms. W.W.'s care. Prior to May 2015 the grandmother saw the child five times and the grandfather saw her once. They did not ask for more time with her. It was not until May 2015 when they started this case that Ms. W.W. understood that they wanted custody of the child.

[21] After the commencement of this case the parties agreed to a temporary arrangement on a without prejudice basis as follows:

(1) the child would be ordinarily resident with Ms. W.W.;

(2) the grandparents would have access on alternate weekends after a few shorter visits took place. Alternate weekend access could take place in Michigan. The grandparents were responsible for picking up the child from Ms. W.W. at the beginning of access. Ms. W.W. was responsible for picking up the child from the grandparents at the end of access; and

(3) any contact between the child and her mother and father was not to be unsupervised.

[22] The schedule of access has continued with the grandparents and Ms. W.W. arranging additional access for family events and religious holidays.

4.3 The Grandparents

[23] The grandfather is 66 years old and was born in Iraq. He earned a PhD in Arabic Studies from the University of Glasgow. He now works as a sessional lecturer in Arabic Studies at W[…] University and H[…] College.

[24] The grandmother is 62 years old.

[25] They were married in 1974 in Iraq. They are the parents of six children:

(a) The Respondent father who lives in Toronto;

(b) M. who lives in the United Kingdom;

(c) A.1 who resides with the grandparents along with his wife B. and their two children who are three and one-and-a-half;

(d) A.2, who until recently resided with the grandparents with his wife and two children. A.2 and his family have now moved to their own home in Dearborn;

(e) H.; and

(f) R.

[26] The grandparents have resided in Dearborn since 2008.

[27] As a result of problems between the mother and father the Society placed H.G.A. and Z.G.A. with the grandparents. The Society commenced child protection proceedings and on January 9, 2012 the grandparents were granted custody of H.G.A. and Z.G.A. by order of Phillips, J. made pursuant to s. 57.1 of the Child and Family Services Act.[3]

[28] Having secured custody of their grandchildren, the grandparents adopted them by orders of adoption issued in the Third Circuit Court Wayne County, State of Michigan on May 4, 2014. These children continue to reside with the grandparents.

[29] The grandparents reside with H.G.A. and Z.G.A., and A.1, his wife and their children in a five bedroom home. When M.A. visits she has her own bedroom.

[30] The grandparents did not know what plans the mother and father had with respect to M.A. after she was born.

[31] The grandparents learned from their son, the father, that Ms. W.W. started a court case in Ontario seeking custody of the child. He had been served with the application brought by Ms. W.W. in which she sought custody[4], issued November 12, 2014. An Answer to the W. application was filed by the father on February 20, 2015.

[32] The grandparents became aware of the W. Application while discussing the matter with the father. He told them he was not in a position to take custody of M.A.. As a consequence the grandparents started this court case by application which was issued May 12, 2015. The reason they brought their application was to unite M.A. with her brothers. The grandmother stated that it was their duty as grandparents to seek custody. It was also important for the grandparents that the child be raised according to her and their family's culture and religion and have contact with other members of her extended family.

[33] The grandparents' plan for M.A. is to raise her in their home together with her brothers and where she will have her own bedroom. She will learn her family's culture, Arabic language and religion. They have the financial means to provide for the child and support her educational endeavours. In their care M.A. will have ready contact with her extended family.

[34] Since access was instituted the child has been able to develop a relationship with the grandparents, her brothers and extended family. M.A. calls the grandfather "grandpa". She is affectionate with him. There is a routine to these visits. On the alternate Fridays, from her arrival to bedtime she generally plays with her brothers and cousins. On Saturdays the grandmother and one or more of her daughters-in-law take M.A., H.G.A. and Z.G.A. and some of the cousins out for activities. This allows the children to play with one another. When they return home there is a family meal which is their custom. On Sundays the grandmother takes M.A. to the mall with her brothers and cousins and again at the end of the day there is a sit-down meal with all members of the family. The grandmother shows M.A. pictures and teaches her words in Arabic. M.A. appears happy when with her grandparents, and she gets along well with her brothers.

4.4 Ms. W.W.

[35] Ms. W.W. is 45 years old. She has lived in the same residence in Windsor for the past 17 years.

[36] She is the mother of two children, V.W., born […], 1992 and M.W., born […], 1996. Both children reside with Ms. W.W.. V.W. is currently employed but intends to return to school. M.W. is also employed and plans to pursue a degree in the child and youth worker program in the future. She converted to Islam in the summer of 2015. Both children have a close relationship with their mother and wish to continue assisting her in raising M.A..

[37] M.A. has her own room in Ms. W.W.'s home.

[38] Ms. W.W. provides for the child's needs including clothing and toys. She takes care of the child's day to day needs. There is a daily routine in the W.'s home for the child. When discipline is required Ms. W.W. uses time-outs and "chooses her battles". Ms. W.W. does not use physical discipline. V.W. has observed that this works well for the child.

[39] The child has friends in her neighbourhood.

[40] Both M.W. and V.W. provide help and care for M.A. and they have a close relationship with her.

[41] On August 8, 2015 the Society apprehended M.A. from the care of Ms. W.W.. The basis of the Society's intervention was the condition of her home. It was viewed by the Society to be messy, cluttered and dirty. Ms. W.W. explained in evidence that the state of her home at that time was messy because she was in the process of de-cluttering in advance of a possible move.

[42] The child was returned to Ms. W.W.'s care within two days[5]. A child protection application was not issued.

[43] Ms. W.W. and the Society entered into a voluntary services agreement dated August 12, 2015. The agreement expired February 2016 without the Society seeking a renewal of it. A Society worker continues to go to Ms. W.W.'s home on a regular basis. No further complaints by the Society worker have been made to Ms. W.W. about the state of her home. They intend to continue attending until this case is resolved.

[44] No subsequent complaints by the Society worker have been made about the state of the W. home such that further intervention was warranted.

[45] Ms. W.W.'s plan for M.A. is to continue caring for her until she reaches adulthood. She will continue to provide her with a stable and loving home. Ms. W.W. is financially able to provide for the child as well she is physically able to meet the child's needs.

[46] Ms. W.W. supports ongoing access with the grandparents and the child's extended family just as she has since the child came into her care.

[47] She will facilitate in Windsor the child's involvement in the Muslim community by enrolling her in a religious school and being supportive of her religious beliefs. Her daughter M.W. will be of assistance in this regard.

[48] M.A. calls Ms. W.W. "Mom" or "Mommy".

5: Legal Considerations

[49] The issues of custody and access raised in this case will be determined on the basis of the best interests of the child: CLRA s. 24(1).

[50] Subsections 24 (2) to (5) of the CLRA provides the statutory basis for this determination of best interests. These subsections are formulated as follows:

Best Interests of Child

(2) The court shall consider all the child's needs and circumstances, 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 child's care and upbringing;

(b) the child's views and preferences, if they can reasonably be ascertained;

(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;

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

(i) any familial relationship between the child and each person who is a party to the application.

Past Conduct

(3) A person's past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person's ability to act as a parent.

Violence and Abuse

(4) In assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(d) any child.

Same

(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse.

[51] The list of factors set out in subsection 24(2) does not purport to be exhaustive nor will every factor be relevant. This case, like every case, is to be decided on the basis of the evidence presented: Weatherby v. Muise, 2015 NSCA 42, at para 21. No single factor in the statutory determination is given statutory pre-eminence.

[52] In MacGyver v. Richards (1995), 11 RFL (4th) 432, Abella J.A., as she then was, made the following observations about the role of the court in determining a custody and access case that remain apposite:

"27 Clearly, there is an inherent indeterminacy and elasticity to the "best interests" test which makes it more useful as legal aspiration than as legal analysis. It can be no more than an informed opinion made at a moment in the life of a child about what seems likely to prove to be in that child's best interests. Deciding what is in a child's best interests means deciding what, objectively, appears most likely in the circumstances to be conducive to the kind of environment in which a particular child has the best opportunity for receiving the needed care and attention. Because there are stages to childhood, what is in a child's best interests may vary from child to child, from year to year, and possibly from month to month. This unavoidable fluidity makes it important to attempt to minimize the prospects for stress and instability.

29 Deciding what is best for a child is uniquely delicate. The judge in a custody case is called upon to prognosticate about a child's future, and to speculate about which parenting proposal will turn out to be best for a child. Judges are left to do their best with the evidence, on the understanding that deciding what is best for a child is a judgment the accuracy of which may be unknowable until later events prove — or disprove — its wisdom."

[53] A consideration of best interests must be ascertained from the child's perspective, rather than those of the persons seeking custody or access: Gordon v. Goertz, [1996] 2 S.C.R. 27.

6: Analysis

[54] Counsel framed their respective submissions by analysing the evidence in relation to the subsection 24(2) considerations.

(a) Love, Affection and Emotional Ties

[55] The child knows her grandparents and those other family members living with them through access visits.

[56] Until the May 2015 agreement, when the child was 28 months old, the grandparents had little contact with the child. They did not seek more time with her prior to that agreement being made.

[57] Once the grandparents started this case, their access with the child has been regular and consistent.

[58] The child enjoys the time she spends with the grandparents, her brothers and extended family. This is evident from the evidence of the witnesses called on their behalf.

[59] The ties between the child and Ms. W.W. and her two children are strong and deep. Ms. W.W. has been M.A.'s caregiver since the child was three months old. She calls Ms. W.W. "Mom" or "Mommy". The child is part of Ms. W.W.'s family.

[60] Lisa Pillon, the Society worker involved with the child from May 2014 until June 2015, observed the child's interaction with Ms. W.W.. She described the child as attached to Ms. W.W.. The child looked to her for comfort and attention. She appeared happy. The worker's observation was consistent throughout the 14 or 15 times she saw the child with Ms. W.W..

[61] Rebekah Walker took carriage of the matter from Ms. Pillon in June 2015. She has observed the bond and attachment between Ms. W.W. and M.A.. The child asks for her assistance.

[62] The child is also very close with V.W. and M.W.. They are her big sisters.

(c) The Length of Time the Child Has Lived in a Stable Home Environment

[63] M.A. has lived in Ms. W.W. home since April 2013, a period of almost four years. Within that home environment, Ms. W.W. has been the child's parent, her primary caregiver. There is routine that meets the child's needs. The child is doing well in Ms. W.W.'s care. She is meeting her developmental milestones.

[64] Ms. W.W. has provided the child with a permanent home, something her mother and father were not able to do. It was Ms. Pillon who suggested to Ms. W.W. that she seek custody of the child because her parents were not doing so. Ms. W.W.'s custody application was issued on November 12, 2014. That application was brought to bring permanency to the child's placement with Ms. W.W. when no one appeared to be willing to do so.

[65] The importance of this circumstance – length of time in care – centers on how the child is doing in that placement.

[66] On the evidence of Ms. W.W. and her daughters, which are confirmed by the Society workers, Pillon and Walker, the child has and is doing very well there.

[67] The grandparents have not demonstrated in their evidence that this will not continue.

[68] The status quo has worked well in meeting the child's need for stability and certainty.

[69] In August 2015 the Society's position as expressed by the worker, Sherry Ladouceur was to place the child with the grandparents. The basis of that position was that it was better having the child raised with her siblings and benefiting from the cultural relationship with the grandparents. She expressed the view that at the Society they try to keep families together. This witness was not aware that another worker had recommended to Ms. W.W. that she seek custody. When asked by me about the child's continuity of care, the witness said Ms. W.W. was like a foster parent.

[70] The grandparents did not explain how they would address the undoubted stress to the child of removing her from Ms. W.W.'s care, other than to suggest a once per month and holiday access regime.

(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

(g) The Ability of Each Person Applying for Custody of or Access to the Child to Act as a Parent

[71] Both Ms. W.W. and the grandparents are willing to provide for the child.

[72] The grandparents argue that:

(a) Ms. W.W. does not have the ability to do so, because

(i) her age 45 years and she has physical limitations;

(ii) her daughters V.W., age 24 and M.W., age 21 work many hours and they are not available to provide significant help for Ms. W.W. and they may move from this home on their own;

(iii) she is supported by social assistance;

(iv) the Children's Aid Society has had to intervene with her because of the condition of her home; and

(v) she lives in rental accommodations.

(b) the grandparents do have the ability to provide for the child because:

(i) the grandfather is an educated man who is a University Professor;

(ii) the grandmother is a stay-at-home homemaker;

(iii) the grandparents reside in a spacious home with M.A.'s brothers. She would have her own bedroom there; and

(iv) they have made inquiries about schooling for the child. She would attend the same school as her brothers.

[73] I agree with the grandparents that it is of concern that the Society had to apprehend the child from Ms. W.W. on August 8, 2015 because of concerns about the state of her home. The home was in a state where the child could be at risk. Photographs produced in evidence show clutter and uncleanliness. However, a number of factors mitigate the concern raised:

(a) the child's room was free of any hazards;

(b) I accept Ms. W.W.'s evidence that when the Society attended and removed the child, she was preparing to move and the house was in the state it was, in preparation for this event. It was not the usual state for the condition of her home;

(d) Ms. W.W. entered into a voluntary contract with the Society to "ensure the child has a home environment that is reasonably hygienic, safe and free of hazards at all times."; and

(e) While Ms. W.W.'s home is not always the model of neatness, it has not returned to the state it was on October 8, 2015, nor has the Society felt it had cause to intervene again.

[74] With respect to the other factors raised by the grandparents:

(a) there is no evidence that Ms. W.W.'s physical limitations have affected her ability to care for the child; and

(b) I have no doubt that at this time the grandparents can provide a more materially comfortable home for the child. I also accept that the grandparents would be committed to encouraging and allowing M.A. to pursue her education to the full extent of her interests and abilities. These factors relate to financial resources. This is one factor that a court should consider. In King v. Low, [1985] 1 SCR 87, McIntyre J. writing for the court stated at para 29, put this consideration into perspective as follows:

"… I would therefore hold that in the case at bar the dominant consideration to which all other considerations must remain subordinate must be the welfare of the child. This is not to say that the question of custody will be determined by weighing the economic circumstances of the contending parties. The matter will not be determined solely on the basis of the physical comfort and material advantages that may be available in the home of one contender or the other. The welfare of the child must be decided on a consideration of these and all other relevant factors, including the general psychological, spiritual and emotional welfare of the child. It must be the aim of the court, when resolving disputes between rival claimants for the custody of a child, to choose the course which will best provide for the healthy growth, development and education of the child so that he will be equipped to face the problems of life as a mature adult…" (emphasis added)

(e) The Plan Proposed by Each Person Applying for Custody of or Access to the Child for the Child's Care and Upbringing

[75] The courts have recognized that harm can arise if a child's emotional ties to a caregiver who a child regards as a psychological parent are severed.

[76] A serious concern with the grandparents plan is that it does not address the inevitable dislocation and effect on the child of being removed from the continuity of care she has experienced for almost the entirety of her life. That there would be a disruptive effect on the child if removed from Ms. W.W.'s care was not seriously challenged by counsel for the grandparents. Ms. Ladouceur's position on behalf of the Society is now two years old. The child has continued to develop her relationship with Ms. W.W. in a positive fashion. Almost four years of continuous care puts Ms. W.W. and the child's relationship with her into something much more substantial than that of a foster parent, who takes care of a child while the parent is taking steps to address and overcome the issues that gave rise to removal from care. Ms. W.W. has long since passed being a place holder for this child.

[77] But for the inevitable dislocation and effect on the child of being removed from her primary caregiver under the grandparent's plan, they and Ms. W.W. both propose plans that would provide the child with a stable and loving home environment, contact with family, support for the child's educational endeavours.

(f) The Permanence and Stability of the Family Unit with Which It Is Proposed That the Child Will Live

[78] The grandparents' plan is a multi-generational one, that will see the child care primarily undertaken by the grandmother with the help of her daughters-in-law. The child will also reside with her brothers and have close contact with her cousins who are close in age to her. On the evidence their plan would be a permanent and stable one.

[79] Ms. W.W.'s plan also is a permanent and stable one. The evidence does not disclose that there will be significant disruptions. The daughters, Victor and M.W., have no immediate plans of moving from their mother's home. As well, I am satisfied on the evidence that they will maintain their relationship and involvement with the child in the future. They see M.A. as their sister.

(h) Any Familial Relationship Between the Child and Each Person Who Is a Party to the Application

[80] M.A.'s family includes her grandparents, her brothers, and extended family. It is also clear on the evidence that M.A. is part of Ms. W.W.'s family.

7: Other Considerations

[81] The grandparents propose to raise M.A. in the Muslim faith and teach her about her heritage. This is the culture and religion of the child's mother and father as well as her brothers. It is an important, if not, central aspect of the grandparents relationship with their family members.

[82] Ms. W.W. cannot provide this exposure to the child's parent's religion and culture in her home. Even though M.W. has recently converted to Islam, is learning Arabic and will teach M.A., she does not have the depth of the grandparent's insight and appreciation for their traditions.

8: Conclusion

[83] When considering all of these factors, a child-centered approach must be maintained, one that hopefully preserves for the child that which is already working at addressing her needs.[6]

[84] Ms. W.W. has been the child's parent since she was three months old. This is now a period of almost four years. During this time, the child has become attached to Ms. W.W., a routine or pattern for her life has been created and the stability of her home has been established.

[85] The evidence does not lead to the conclusion that a change in the child's attachment, routine, or her life is necessary or in her best interests. The dislocation and negative effect of removal from Ms. W.W.'s care in the context of all the circumstances of this case would not be in her best interests.

[86] M.A. is not being separated from her brothers in the sense that she once had a relationship with them and now she will not.

[87] All of the enrichment and benefits the grandparents can and wish to provide for M.A. may be achieved through a generous regime of access while at the same time preserving the attachment, routine and life she has with Ms. W.W..

[88] During submissions, counsel for the grandparents was asked what access order his clients would propose should custody of M.A. be granted to Ms. W.W.. He said he had no instructions in this regard and made no submissions on this important aspect of the case.

[89] I find that it would be in the child's best interests to have periodic weekend access with the grandparents from Friday evening until Sunday evening. There should be flexibility to allow M.A. to participate in extracurricular activities. She should also spend important religious holidays and special family events with her grandparents. In evidence, the grandparents spoke of only two important holidays. I also find that it would be in M.A.'s best interests that she have extended periods of access during her school vacations. The intent is to maintain the status quo and allow the child to benefit from what both Ms. W.W. and the grandparents can offer.

[90] Access to the child by the father and by the mother, should take place through the grandparents. It should remain supervised by them. The mother's and father's ability to provide care for the child has not been established nor has their commitment to her.

[91] The status quo with all it provides to M.A. is in her best interests.

9: Order

[92] For these reasons an order shall issue as follows:

(a) custody of the child to Ms. W.W.;

(b) reasonable access on reasonable notice to the grandparents based upon the following expectations:

(i) alternate weekend access;

(ii) important Muslim holidays and special family events; and

(iii) extended periods during the child's school holidays

[93] It is hoped that with this case now resolved, the grandparents and Ms. W.W. can work together in the best interests of the child to ensure she receives the best that they can provide.

[94] This does not seem an appropriate case for costs, however if they are sought, written submissions of no more than four pages with any offers to settle and a Bill of Costs from Ms. W.W. are to be provided within ten days of the release of these reasons and ten days thereafter by the grandparents.

Released: April 3, 2017

Original signed and released

Justice Barry M. Tobin

Footnotes

[1] M.W. provided childcare in or about 2011, when she was 15 years of age, for H.G.A. and Z.G.A.. She did so until those children were apprehended from the mother by the Windsor-Essex Children's Aid Society.

[2] The grandmother and her daughter-in-law would go to Windsor to visit with the child in the community.

[3] Section 57.1 of the Child and Family Services Act provides that a court can make an order granting custody of a child to a person with the consent of that person if it is in the child's best interests. This is a disposition order that can be made within a child protection case.

[4] The case brought by Ms. W.W. remains outstanding as against the mother and father. The outcome of this case will affect the steps next to be taken in the W. case.

[5] The child was removed on a Saturday and returned on Monday.

[6] Smith v. Cross, 2012 NSSC 423 at 113.

A.A.A. and S.L.F. v. G.A., S.S.A., and W.W, 2017 ONCJ 223

Case Summary