Court File and Parties
Court File No.: FO-15-53 Date: April 26, 2017 Ontario Court of Justice
Between:
V.G.M.
- and -
R.A.W., A.P., Z.W.
Before: Justice Sarah Cleghorn
Heard on: February 27 and March 13, 2017
Reasons for Judgment Released Electronically
Counsel
Ms. Beth White ……………………………… for the Applicant, V.G.M.
Ms. Kylee Ronning ……………………………… for the Respondent, R.A.W.
Noted in default ……………………………… Respondent, A.P.
Mr. Terrence Douglas ……………………………… for the Respondent, Z.W.
CLEGHORN, J.:
Overview
[1] This is a matter that concerns two children, S.W.-P. born […], 2007 and U.P. born […], 2014, both of whom are deeply loved and cared for by their paternal, V.G.M., and maternal, Z.W., grandmothers. Ms. V.G.M., Ms. Z.W. and the mother of the children, R.A.W., have brought competing claims for custody of the children. In addition to the claims for custody, Ms. Z.W. is seeking a court order allowing her to relocate with the children to Cochrane, Ontario.
[2] The parents of the children, R.A.W. and A.P., have struggled with severe addiction issues throughout the span of their children's lives. Not surprisingly, the parents live a life reflective of addicts enmeshed in the criminal subculture. At the time the application was brought both parents were in custody. At trial, the father [1] was in the midst of serving a penitentiary sentence.
[3] The mother was 16 years old when she gave birth to S.W.-P. Given her age, she resided with her mother, Z.W., after S.W.-P. was born. The parents have had an on and off again relationship. After the birth of their second child, U.P., it would appear that they separated on a permanent basis. S.W.-P. and U.P. have lived in the home of the maternal grandmother their entire lives (with the exception of the timeframe from January 13, 2015 to July 8, 2015, which will be explained further below).
[4] S.W.-P. and U.P. are indigenous children. The protection agency, Anishinaabe Abinoojii Family Services, became involved when the mother found herself in custody in August of 2014. The children remained in the home of the maternal grandmother under a "care and supervision agreement" [2].
[5] The maternal grandmother is originally from C[…] First Nation, a community that is approximately 1200 kilometers south of Kenora. Ms. Z.W. has expressed a desire to relocate with the children to Cochrane, a community that is close to C[…] First Nation. The mother, R.A.W., is supportive of the proposed relocation.
[6] The paternal grandmother brought this application when she became aware of the proposed relocation plan. Ms. V.G.M. does not want the children to leave the only community that the children have ever known; City of Kenora.
[7] There are two principal issues that Ms. V.G.M. has raised in support of her application for custody of the children. First, she believes that she is best suited to raise the children long term given that she is 45 years of age, whereas Ms. Z.W. is currently 70 years of age. Secondly, she is fearful that if the children relocate with Ms. Z.W., any meaningful contact with the paternal side of the family will be severed.
[8] There is currently in place a consent temporary order, dated November 19, 2015. It provides for joint custody with primary residence as it relates to both R.A.W. and Z.W.. V.G.M. has specified access of alternate weekends from Saturdays starting at 9:00 a.m. and ending on Sundays at 6:00 p.m.
[9] Although the mother has claimed custody and primary residence for both children, at the conclusion of the trial counsel for the mother, Ms. Ronning, conceded that the mother was not pursuing custody. Rather she was in support of Ms. Z.W.'s claim for both custody and to relocate.
[10] Ms. V.G.M. and Ms. Z.W. are in agreement that neither of the parents can assume primary care for the children anytime within the foreseeable future.
Evidence at Trial
a) V.G.M.
[11] Ms. V.G.M. is the paternal grandmother. She has been married to R.M. for the past 9 years. He is fully supportive of her claim for custody of the children.
[12] Mr. A.P., the father, refuses to speak with Ms. V.G.M. since she brought this application. They are currently estranged from one another.
[13] Ms. V.G.M. does not dispute that the children have been raised with Ms. Z.W. since birth. Her involvement with the children has consisted of fairly regular visits.
[14] The children were placed in her care by Anishinaabe Abinoojii Family Services from January 13, 2015 to July 8, 2015 at the request of Ms. Z.W.. Two of Ms. Z.W.'s family members were experiencing significant medical issues at that time. This was stressful to Ms. Z.W. as she felt a pull to return to C[…] First Nation to assist her brother and sister but was not in a position to do so as a result of her parenting responsibilities. An agreement was made between Ms. Z.W., Ms. V.G.M. and the agency to terminate the care and supervision order and enter into a new contract between the agency and Ms. V.G.M..
[15] It was only upon taking on the responsibility of caring for the children on a full time basis that Ms. V.G.M. turned her mind to making it a more permanent arrangement. Prior to this timeframe she testified that she had never considered caring for the children.
[16] Ms. V.G.M. alleges that the children were not returned to Ms. Z.W. as the agency, in the interim, had found Ms. Z.W.'s home to be "unfit". The children eventually were placed back in Ms. Z.W.'s care on July 8, 2015. Ms. V.G.M. suspects that the return of the children coincided with Ms. Z.W.'s granddaughter, C.T., gaining employment with the agency approximately one week prior. In short, she believes that through her employment with the agency Ms. C.T. was able to influence the decision of where the children were to be placed.
[17] There are a number of significant points that Ms. V.G.M. concedes. For example, she agrees that the children are deeply bonded to Ms. Z.W.. She acknowledged that Ms. Z.W. has been able to shield the children from the alcohol and drug abuse of the parents. Further, she has no concerns with any of the major decisions that Ms. Z.W. has made to date.
[18] There are day-to-day decisions that Ms. V.G.M. does take issue with but has never felt the need to discuss these concerns directly with Ms. Z.W.. Some of the concerns include the number of missed school days, diaper rash, expired health cards and the frequency with which the children are ill, and S.W.-P. once having a black eye.
[19] Ms. V.G.M. agrees that Ms. Z.W. is able and capable of parenting the children "for now". Her concern is directed toward Ms. Z.W.'s age (currently 70 years of age) and her allegation that her health is declining. She feels that given her relatively young age of 45 that she can better parent both children on a long-term basis.
[20] Her second principal concern is that Ms. Z.W. will not facilitate access should she be allowed to relocate with the children. She has grave concerns that Ms. Z.W. will not allow the children to return to Kenora for access nor will she allow regular contact by way of Skype and telephone calls.
[21] Access was described as progressing well under the current temporary order of November 19th, 2015. In fact, Ms. V.G.M. has exercised access over and above the times set out in the order. Ms. Z.W. has readily agreed to additional overnights and has also sought assistance when she needed to be away from her home for personal reasons.
[22] In support of the concern around access, Ms. V.G.M. alleges that Ms. Z.W. can be hostile towards her. She described one incident where she felt Ms. Z.W. was yelling at her while she was on the telephone making arrangements with the mother around a visit to the Winnipeg zoo with the children.
[23] In cross-examination she acknowledged that this is her overriding concern; that she will no longer have a relationship with the children should they be allowed to move.
b) R.A.W.
[24] R.A.W. is the mother of both children. To her credit she was able to testify in an honest manner concerning her severe addiction issues and the toll they have taken on her ability to be a parent to the children.
[25] Although she has attempted treatment on two occasions she has not achieved lasting sobriety. At the time of trial she was actively using illegal drugs. She is no longer living at her mother's home, as she will not be in the presence of the children when she is in the throes of her addiction.
[26] R.A.W. does not dispute that her mother has always been the children's primary caregiver. Her mother has been responsible for making all of the major decisions for the children including educational decisions and health decisions, etc. It is her mother who is listed as primary contact for S.W.-P. with the school.
[27] R.A.W. continues to a have a goal of attending treatment and living a life free of drugs and alcohol. She believes an important step in the process will be for her to leave Kenora and the negative peer group that she has fallen in with over the years. She is hopeful that if she moves with her mother and the children to Cochrane that perhaps this will be a positive step towards her rehabilitation.
[28] Depending where she may be in the recovery process at the time of an anticipated move, she may postpone her move to Cochrane until a future date. Regardless of whether she is able to move within the foreseeable future, she supports her mother's claim for both custody and the claim as it relates to mobility.
c) Z.W.
[29] Ms. Z.W. is originally from C[…] First Nation. She moved to Kenora 12 years ago in order to help another daughter who was living in W[…] Bay. She brought R.A.W. with her.
[30] Ms. Z.W. has had both children in her home since each of their respective births. She has assumed a primary caregiving role for both of them throughout their lives. In addition to S.W.-P. and U.P. she is raising two other grandchildren, currently 17 years of age and a soon to be 12 year old.
[31] She is fully aware of the severe addiction issues that her daughter is inflicted with. Ms. Z.W. has strict rules in her home with a zero tolerance policy for alcohol and drugs. She does not allow the mother or anybody else to be in the presence of the children unless they are in a sober state. At the time of the trial, Ms. Z.W. was facilitating contact with the mother and the children of up to 4 visits per week.
[32] Ms. Z.W. describes the children as happy and healthy. She denies that she suffers from any medical ailments that impact her ability to parent. She acknowledges that she is aging and currently has a pacemaker. She regularly attends for medical appointments in order to ensure her medical needs are appropriately monitored.
[33] Despite parenting 4 children on her own who range in age from 3 to 17, she manages to be active in the community through volunteer work.
[34] In response to the concerns raised by Ms. V.G.M., Ms. Z.W. testified as follows:
She has never denied access to Ms. V.G.M.. To the contrary, she contacts Ms. V.G.M. when she requires childcare;
She is aware that U.P. is prone to diaper rashes. He has eczema and is allergic to the brand of diapers, Pampers. She treats the diaper rashes as they appear;
U.P. attends daycare. He is frequently ill with a cold and other ailments that daycare children seem to be exposed too;
The health cards did expire. She renewed them as soon as it came to her attention;
She categorically denies that she has been hostile to Ms. V.G.M.. She treats Ms. V.G.M. with the "utmost respect" as she is the children's grandmother. In response to her yelling while Ms. V.G.M. was on the telephone with her daughter, she was in fact upset and speaking to her daughter. None of the communication was directed at Ms. V.G.M.;
S.W.-P. was absent for 18 days as stated on the report card of February 13, 2017. [3] The absent days are a result of a combination of sick days, snow days and Ms. Z.W. allowing S.W.-P. to remain at home with what can best be described as mental health days (there are days when S.W.-P. breaks down over the lifestyle choices of her parents).
S.W.-P. did return home from school with a black eye. A number of school children were throwing rocks at one another. S.W.-P. was struck in the face. Ms. Z.W. contacted the child's parent; the child's mother brought her child over in order to offer an apology to S.W.-P. Ms. Z.W. felt she dealt with the situation appropriately.
[35] In January of 2015 Ms. Z.W.'s sister had a limb amputated and her brother was struggling with cancer. She felt a pull to be near her siblings to help support and care for them. Given her parenting responsibilities she knew it was not possible to return to C[…] First Nation to spend time with her siblings. Ms. Z.W. expressed her desire to the family service worker for the agency. A plan was implemented that allowed for Ms. Z.W. to see her siblings and allow the children to be cared for by Ms. V.G.M..
[36] A discussion with Ms. V.G.M., an agency worker and Ms. Z.W. took place. From Ms. Z.W.'s perspective, what was to unfold was clear to all the parties involved. This was to be a time limited, temporary arrangement. Upon her return from C[…] First Nation she fully expected the children to return to her care. However, Ms. V.G.M. refused to return the children to her based on a belief that her home had been found "unfit" by the agency. She missed the children so much that on her first night home she slept over at Ms. V.G.M.'s home to be near them.
[37] While Ms. Z.W. was in C[…] First Nation, one of her son's and his spouse occupied her home. This was not a permanent arrangement. The agency brought to her attention that there are Ministry standards that require every adult in the household to have completed and provide to the agency a criminal reference check. Until such time as this occurred, Ms. V.G.M.'s home would be placed "on hold" (the agency continued to maintain the position that they required the forms despite the fact that the son and his spouse were no longer residing in the home upon the return of Ms. Z.W. to her home).
[38] The children were returned to Ms. Z.W. once the appropriate forms were submitted and have continued to remain in her care.
[39] Ms. Z.W. is requesting that the children be allowed to move with her for a number of reasons. First, she is truly hopeful that this will assist her daughter in reaching and maintaining sobriety. Ms. Z.W., as a parent, wants to see her daughter healthy and happy. She believes that if there is a remote possibility that this will assist her daughter in reaching sobriety that the relocation will be worth the move for that reason alone.
[40] Secondly, Ms. Z.W. is not in the dark about the realities of her life circumstances. She is aging, as are her siblings. She would very much like to return to her home community to spend time with her ailing family members.
[41] Despite the pull to move, Ms. Z.W. is not prepared to do so if it would mean she could not raise S.W.-P. and U.P.
d) Beatrice Angeconeb
[42] Ms. Angeconeb is employed with Anishinaabe Abinoojii Family Services as a Family Service Worker. She has held this employment for the past 5 years.
[43] Ms. Angeconeb confirmed that Ms. Z.W. contacted her in January of 2015 concerning the stressful events as testified to by Ms. Z.W.. Case file notes were filed as exhibits that confirmed the process that was undertaken; the children would be placed temporarily with Ms. V.G.M. in order to facilitate Ms. Z.W.'s request to visit her siblings.
[44] The home of Ms. Z.W. was not deemed unfit. The home was placed "on hold" until the criminal reference checks were submitted to the agency.
[45] Lastly, Ms. Angeconeb acknowledged that Ms. Z.W.'s granddaughter is employed with the agency but that Ms. C.T. would have no input whatsoever into the decisions respecting the placement of the children.
[46] The file is currently closed.
Law and Analysis
[47] Section 24 of the Children's Law Reform Act [4] provides the analytical framework that must be followed when determining an application for custody and access. I am very much aware of the governing criteria as set out in section 24(2). The guiding principle is always a child's best interests.
[48] It is without question that Ms. V.G.M. and Ms. Z.W. love and care for the children. The children's best interests are truly at the forefront. In fact, it is evident that the driving force behind the litigation is the fear of the children being removed from either of the grandmother's lives.
[49] Based on the evidence at trial, Ms. V.G.M. and Ms. Z.W. are equally positioned to provide the needed guidance, education and necessaries of life. Neither is alleging that the other is unfit to meet the needs of the children. To be sure Ms. V.G.M. has raised a concern with respect to the age of Ms. Z.W. on a go forward basis, but acknowledged that to date her health has not interfered with her ability to parent.
[50] The concerns that have been raised by Ms. V.G.M. concerning day-to–day decisions had reasonable explanations. They were each decisions by Ms. Z.W. that were both child focused and age appropriate.
[51] S.W.-P. and U.P. are described as generally happy and well adjusted. Despite S.W.-P. having 18 absences from her school, her most recent report card described her as hard working with a positive attitude. She is kind and respectful. She has a B+ average. Clearly, S.W.-P. is thriving under the care of Ms. Z.W..
[52] Both children, despite Ms. Z.W. and Ms. V.G.M.'s best efforts, will grow up with the knowledge of how their parents are in the world. This is no small burden placed upon these children. Stability, structure, permanency, unconditional love and support will equip them with the best tools to achieve success. Ms. Z.W. has provided this home environment to the children since the day they were born. The love, affection and emotional ties that have formed as a result of what has unfolded to date must be preserved for these children.
[53] This is not to any way minimize the importance of the love and affection of Ms. V.G.M.. Her unconditional love and support is key to the children's happiness and wellbeing as well. S.W.-P. and U.P. are well loved and adored by Ms. V.G.M.; this is a true gift that she provides to them.
[54] Having considered all of the evidence carefully, I am of the view that the best interests of the children require that the stability in their young lives continue with the only primary caregiver they have ever known; Ms. Z.W. is to have custody of the children.
[55] I will now address the mobility claim. The analytical framework to be followed is set out in the Supreme Court of Canada's decision in Gordon v. Goertz. [5]
[56] The overriding principle is clearly "what is in the best interests of the child". Factors to be taken into consideration and applied to this case include the relationship between the children, Ms. Z.W. and Ms. V.G.M.; maximizing contact with Ms. V.G.M.; the reason for the requested move, and disruption to each of the children if the move is granted.
[57] It should be noted that the views of the children were not ascertained for the application. The Office of the Children's Lawyer declined involvement in the matter.
[58] It was apparent that the overriding concern for Ms. V.G.M. is the fear that if the children move, she will no longer have any meaningful contact with them. Her greatest concern is that the relationship will be severed.
[59] In Gordon v. Goertz, the Supreme Court stated the following, at paragraph 50 of its judgment:
In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new.
[60] Given the age of U.P. the disruption to his young life of relocating will be minimal. What is most important for a child of 3 years of age is stability with the primary parent. S.W.-P. will have an adjustment to a change in school, activities, and making new friends.
[61] Ms. Z.W.'s request to be allowed to move can best be summed up as putting the needs of the people she loves at the forefront. The driving force appears to be twofold; she remains ever hopeful that her daughter can be given a fresh start and overcome her addictions. And, secondly, she is aware of the limited time she has left with her ailing siblings. She would like to spend as much time as possible with them. These concerns for both her daughter and siblings cause her grief and mental anguish. This is evident from what transpired in January of 2015. Despite her desire to make a move for these reasons, Ms. Z.W. was very clear that she would not move without the children. Her main priority and dedication remains with S.W.-P. and U.P. She will potentially impact her own mental health in a negative way to ensure she can raise the children.
[62] The love and devotion that Ms. Z.W. has for the children will also ensure that a meaningful and on-going relationship with the paternal side of the family will continue regardless of whether the children are raised in Kenora or elsewhere. It is apparent that Ms. Z.W. respects Ms. V.G.M. and looks to her as the first person to assist with the children when needed. It is doubtful that Ms. Z.W. would sever a relationship between the children and Ms. V.G.M.. To do so would harm the children emotionally, and she impressed me as someone who would simply not behave in such a capricious manner.
[63] I must obviously take into consideration the mental wellbeing of a primary caregiver. Ms. Z.W. has noble reasons for wanting to make the proposed move. The worry over her daughter and ailing siblings is a source of stress. While a move may not prove to assist her daughter (as ultimately R.A.W. must start the journey towards rehabilitation by her own choosing) Ms. Z.W. can no doubt take some comfort that she did all that a mother could under the circumstances. Her siblings are ill. Time for her to spend with them may be limited. A move will allow her to spend time with her siblings and not have any regrets at a future date. By easing the mental stressors on Ms. Z.W. by permitting the move, this will help ensure that the children have the best possible home environment with the person they have relied on for their entire lives.
[64] For all of these reasons, I find that it is in the best interests of the children to allow Ms. Z.W.'s mobility claim.
Decision
[65] Based on the above the following order shall issue:
a) Z.W. shall have custody of the children S.W.-P. born […], 2007 and U.P. born […], 2014.
b) The requirement to have the parents, A.P. and R.A.W. sign passport applications and travel authorization forms for the children shall be dispensed with.
c) Z.W. is permitted to change the ordinary residence of the children to Cochrane, Ontario (or surrounding area).
d) V.G.M. shall have reasonable access on reasonable notice to the children while the children are residing in Kenora as follows:
- Alternate weekends from Fridays at 6:00 p.m. until Sundays at 6:00 p.m.;
- Such further and other times as may be agreed upon.
In the event that Ms. Z.W. relocates with the children, the following access regime shall become effective. Ms. V.G.M. will have access:
- One week of the school Christmas holidays. In even numbered years the week shall include Christmas Eve, Christmas Day and Boxing Day. In odd numbered years Ms. Z.W. shall be entitled to have the children in her care for Christmas Eve, Christmas Day and Boxing Day;
- Each March break while the children remain in school from the Saturday after the last day of school until the following Saturday before school recommences;
- The first 6 weeks of the school summer holidays;
- There shall be a minimum of 2 telephone/Skype calls per week;
- Such further and other times as may be agreed upon.
e) Ms. V.G.M. and Ms. Z.W. shall be responsible for arranging transportation at a midway point to facilitate the exchanges.
[66] In the event that costs are at issue, V.G.M. shall file written submissions within thirty days of the release of the decision. Z.W. and R.A.W. shall file written submissions within forty-five days from the release of the decision. Written submissions shall be limited to 5 pages.
Released: April 26, 2017
Justice Sarah Cleghorn
Footnotes
[1] The father was noted in default November 6, 2015
[2] The care and supervision agreement was not filed as an exhibit at trial.
[3] Filed as Exhibit 1
[4] RSO 1990 c C.12
[5], [1996] 2 S.C.R. 27