Court File and Parties

Ontario Court of Justice

Date: 2017-07-06

Court File Nos.: Brampton 1364-16 & 1365-16

Between:

CIDALIA BOTELHO Applicant

— AND —

KEVIN JAMES De MEDEIROS Respondent

— AND —

MICHELLE AREVALO De MEDEIROS Respondent

— AND —

SOFIA PATRICIA De JESUS Respondent

Before: Justice L.S. Parent

Heard on: June 13, 2017

Reasons for Judgment released on: July 6, 2017

Counsel

• Cidalia Botelho............................................................................................ on her own behalf
• Kevin De Medeiros...................................................................................... on his own behalf
• Vic Sehdev......................... counsel for the respondent Michelle Arevalo De Medeiros
• Sofia Patricia De Jesus............................................................................. on her own behalf

PARENT J.:

BACKGROUND

[1] The matters before the court are two (2) Applications filed by the Applicant, Ms. Cidalia Botelho, on December 28th, 2016 seeking access to her grandchildren. Ms. Botelho is the mother of the Respondent, Mr. Kevin De Medeiros.

[2] The Respondent, Mr. Kevin De Medeiros, is the biological father of two children, namely Ava De Medeiros, born November 15, 2015 and Abigail Olivia Lola De Medeiros, born March 28, 2010.

[3] Ava's mother is the Respondent, Ms. Sofia Patricia De Jesus. Mr. De Medeiros and Ms. De Jesus currently live together in their home with Ava and Ms. De Jesus' two other children from a prior relationship.

[4] Abigail's mother is the Respondent, Ms. Michelle Arevalo De Medeiros. Pursuant to an order granted on consent on October 16th, 2014, Ms. De Medeiros and Mr. De Medeiros have shared custody of their daughter who lives primarily with her mother and has visits with her father.

[5] On March 20th, 2017, all parties attended at an initial case conference regarding both Applications before the court.

[6] Following the case conference, it was determined that both Applications would be dealt with jointly as the parties' evidence was equally applicable to both matters. All parties acknowledged that it was unlikely that this matter would resolve on consent, even after hearing a judicial opinion.

[7] Accordingly, an order was granted, on consent, scheduling both Applications to be heard by way of a focused hearing, pursuant to the Family Law Rules, on June 13th, 2017.

[8] Timelines were set for all parties to serve and file affidavits to be used as their evidence-in-chief during the hearing. It was further agreed that only the parties would testify and that only cross-examination would occur given the filing of affidavits.

[9] The parties respected the timelines for the serving and filing of their respective affidavits.

[10] The focused hearing proceeded, as scheduled, on June 13th, 2017.

POSITION OF THE PARTIES

The Applicant - Ms. Botelho

[11] Ms. Botelho seeks the identical relief in both of her Applications. Specifically, she seeks the following order:

(a) Access and/or visitation;

(b) Annual contact information of employment and residence of the birth parents; and

(c) Annual contact information of education, medical care, religious upbringing and extra-curricular activities of the children.

[12] In support of her position, Ms. Botelho relies on her affidavit filed on April 26th, 2017 at Tab 9 of Volume 1 of the Continuing Record in Court File Number (CFN) 1365/16.

The Respondents - Mr. De Medeiros, Ms. De Jesus and Ms. De Medeiros

[13] The Respondents oppose the requests of Ms. Botelho and seek the dismissal of her Applications with costs.

[14] In support of their common positions, the Respondents rely on their respective affidavits filed on May 30th and 31st, 2017 at Tabs 9, 10 and 11 of Volume 1 in the Continuing Record in CFN 1364/16.

THE LAW

[15] Section 21 of the Children's Law Reform Act, R.S.O. 1990, c. C. 12 ("CLRA") states that:

"a parent of a child or any other person, including a grandparent, may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child."

[16] Of contextual importance, it should be noted that between the time that Ms. Botelho filed her Applications and the focused hearing occurring, the "CLRA" has been amended to include a specific reference to grandparents within section 21.

[17] However, this amendment to section 21 does not give grandparents a presumptive legal right of access to their grandchildren. Whether or not access is to occur, when involving a request by a grandparent, remains to be determined on the basis of the best interest of the children in question.

[18] Section 24(1) and (2) of the "CLRA" state as follows:

24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

(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;

(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.

[19] When faced with the request by a grandparent for access, which is opposed by the child's parents, the court must also consider, within the context of the "best interest" criteria, whether or not it should reject the parents' decision to not support access and award access to the requesting grandparent.

[20] Counsel for the Respondent, Ms. De Medeiros, and Ms. Botelho submit that the Ontario Court of Appeal, in its decision of Chapman v. Chapman (2001), 15 R.F.L. (5th) 46, addressed the issue of parental decision making in light of an access request by a relative.

[21] I agree that Chapman (supra) is the leading authority regarding the issue of parental autonomy in the face of an access request by a grandparent.

[22] At para. 21 of her decision, Abella, J.A., as she then was, states as follows:

"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."

[23] In summary, Chapman (supra) provides that courts should generally defer to the parents' decision as to whether or not to permit access by a grandparent. The Court of Appeal confirmed that the decision must be looked at within the context of the best interest of the children. Furthermore, the onus is on the requesting grandparent to establish that it is in the children's best interest for an access order to be granted.

[24] Counsel for the Respondent, Ms. De Medeiros and Ms. Botelho have also referenced the decision in Giansante v. DiChiara, [2005] O.J. No 3184 (SCJ). Nelson, J., in this decision, sets out three questions the court must ask when faced with a request for access to a child by a relative which is opposed by the parents.

[25] Nelson, J. states that in order for an access order to be granted in the face of parental opposition, all three of the following questions must be answered in the affirmative. The questions are:

(i) Does a positive grandparent-grandchild relationship already exist?

(ii) Does the parent's decision imperil the positive grandparent-grandchild relationship?

(iii) Has the parent acted arbitrarily?

[26] Nelson, J. continues, in referencing Chapman, at para. 17 as follows:

"Yet despite the fact that the court favours parental autonomy, it also acknowledges that courts can step in when a parent has acted in a way that arbitrarily imperils a positive grandparent-grandchild relationship."

[27] In deciding question number 1, namely whether there is a pre-existing "positive grandparent-grandchild relationship", Kurz, J., at para. 74 of his decision in Torabi v. Patterson, 2016 ONCJ 210, sets out the following four elements to consider.

[28] Kurz, J. sets out these elements as follows:

1. 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.

2. 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.

3. The determination must include consideration of the age of the child and the time since the child last saw the relative.

4. 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.

[29] The determination of what is in Ava's and Abigail's best interests needs to be considered within this framework of "best interests".

[30] As stated by McLachlin, C.J., in para. 49 of her decision in Gordon v. Goertz, [1996] 2 S.C.R. 27, "… each case turns on its own unique circumstances and the only issue is the best interest of the child in the particular circumstances of the case."

Evidence of the Parties

The Applicant - Ms. Botelho

[31] After being sworn in, Ms. Botelho identified her affidavit and confirmed that the correct date of the document being sworn was April 25th, 2017 and not August 25th, 2017 as indicated.

[32] Ms. Botelho testified that she continues to rely on the evidence contained in her affidavit in support of her claims. She testified that the affidavit was correct as filed without any further amendments other than the correction to the date it was sworn.

[33] The evidence of Ms. Botelho, in support of her request for access to Abigail and Ava, can be summarized as follows:

A. Abigail

(a) She acknowledges not having any contact with Abigail until December 2013, namely almost four (4) years after her granddaughter's birth;

(b) This contact only occurred as a result of an invitation received by her from Mr. De Medeiros, through social media and not through her own initiative;

(c) She responded to Mr. De Medeiros' request for contact so that they could begin a "relationship building opportunity";

(d) Following her introduction to Abigail, she enjoyed "frequent access" with the consent of Mr. De Medeiros. She was also provided with school pictures throughout the period of contact;

(e) She has always sought out Mr. De Medeiros' permission, out of respect for his role as a parent, prior to seeing Abigail;

(f) She had had no contact with Ms. De Medeiros, Abigail's mother, from 2002 until September 7th, 2016. She initiated contact via e-mail on that date so as to request access to Abigail given that Mr. De Medeiros unilaterally terminated her contact with Abigail on December 27th, 2015; and

(g) She is "a mature, responsible, safety oriented and employed adult who is loving, nurturing, compassionate, empathetic, respectful person..." She states that she is not a danger to her granddaughter.

B. Ava

(a) She acknowledges that her contact with Ava occurred following her birth on November 15th, 2015 to September 7th, 2016;

(b) She acknowledges that, given Ava's age, she is not likely to have any memories of her grandmother;

(c) She has always sought out Mr. De Medeiros' permission, out of respect for his role as a parent, prior to seeing Ava;

(d) She has had a "respectful and cordial" relationship with Ms. De Jesus, Ava's mother, since mid-December, 2013 which also included contact with her two children from a prior relationship; and

(e) She is "a mature, responsible, safety oriented and employed adult who is loving, nurturing, compassionate, empathetic, respectful person…" She states that she is not a danger to her granddaughter.

[34] In cross-examination by the Respondents and counsel for Ms. De Medeiros, the following evidence was provided by Ms. Botelho:

(a) She agreed that she brought her own sons, namely Mr. De Medeiros and his brother, to the care of their father and did not inform him of this decision prior to leaving them in his care. She testified that this decision was made as "…she had reached a threshold and didn't know what to do given his [Mr. De Medeiros'] behaviour;";

(b) She testified that she respected Mr. De Medeiros' decision not to have contact with her following her decision to leave her sons in the care of their father and that the absence of contact lasted over ten (10) years. She testified, however, that she did have access to her youngest son;

(c) She testified that she "... will never walk away from her granddaughters";

(d) She testified that she saw Abigail for about twelve (12) visits between December 2013 and August 2015 and that these visits were two (2) to three (3) months apart in frequency;

(e) She agreed that she only saw Abigail alone on one (1) occasion, that Abigail never stayed in her care overnight and that Abigail never lived with her;

(f) She testified that Abigail appears to be happy with her father;

(g) She does not agree that she is "pushy or intrusive or controlling or unable to accept the word 'no'"; and

(h) She testified that she does "... not have the authority..." to disregard Mr. De Medeiros' wishes as a father.

[35] In summary, Ms. Botelho submits that her evidence supports that:

(a) She has a positive grandparent-grandchild relationship that is pre-existing with Abigail and with Ava. Ms. Botelho submitted as exhibits to her affidavit several photographs of Abigail enjoying her time with her and a summary of text communications with Ms. De Jesus indicating that Ava enjoyed her time with her as well;

(b) The Respondents decision to unilaterally terminate her access to Ava and Abigail has imperilled her positive grandparent-grandchild relationship as the access was abruptly and arbitrarily terminated without cause. This, Ms. Botelho submits, will impact her existing positive relationship with Abigail and prevent her from establishing a similar relationship with Ava; and

(c) All of the Respondents have acted arbitrarily in that the access was terminated without just cause and Ms. De Medeiros has refused her proposal to get to know her in order to remedy any concerns she may have regarding access with Abigail.

[36] Given this evidence, Ms. Botelho submits that her requests for access and other relief should be granted despite the parents' objection.

The Respondents - Mr. De Medeiros, Ms. De Medeiros and Ms. De Jesus

[37] All three respondents oppose all requests of Ms. Botelho.

Mr. De Medeiros

[38] After being sworn in, Mr. De Medeiros identified his affidavit sworn May 30th, 2017. He indicated that he continues to rely, without any amendments, on the evidence contained in the document in support of his position.

[39] The evidence of Mr. De Medeiros in support of his request to dismiss the Applications for access to Abigail and Ava by Ms. Botelho can be summarized as follows:

(a) He testified that his mother abandoned him, by first placing him in a boarding school for 2 years and thereafter by bringing him, at the age of fourteen (14) and his brother, at the age of twelve (12), to his father's doorstep, without prior notice, to live permanently;

(b) He testified that his mother is "very controlling, vindictive, outspoken, won't take no for an answer and a very hard person to get along with";

(c) He testified that he told Ms. Botelho that he did not want to have any contact with her after being left in the care of his father. He testified that despite these clear views, Ms. Botelho continued trying to have a relationship with him but ultimately stopped her efforts in that regard;

(d) He testified that he reached out to Ms. Botelho when he was turning thirty (30) years old and was separating from Ms. De Medeiros. His efforts in this regard were to see "if she had changed" as a person;

(e) He testified that he did allow Ms. Botelho to see Abigail and Ava but that this contact did not result in an independent relationship with them as he was usually always there with them; and

(f) He testified that Ms. Botelho has not changed as he had hoped and that ongoing contact with her caused difficulties in his relationship with Ms. De Jesus.

[40] In cross-examination, the following evidence was provided by Mr. De Medeiros:

(a) Ms. Botelho was "displeased" whenever she was told no;

(b) The reason why he re-connected with Ms. Botelho is that he "wanted to know how she was and have peace of mind knowing that she was alive";

(c) Ms. De Jesus was supportive of his initiative to contact Ms. Botelho as she wanted him to address issues from his childhood;

(d) That Ms. Botelho was "abrasive and intrusive in his home". He testified that Ms. Botelho would appear unannounced at his home at least five (5) to eight (8) times, that they always had confrontations and that she was hostile towards him;

(e) That he was afraid of telling Ms. Botelho that she was no longer welcomed in his home as he feared she would be difficult. He testified that his fear of telling Ms. Botelho resulted in him receiving "backlash" from his family;

(f) He testified that Ms. Botelho is a risk to his children as she is intrusive in his role as a father and a husband;

(g) He testified that Ms. Botelho displayed a preference for Abigail over Ava and his step-children with Ms. De Jesus;

(h) He believes that Ms. Botelho is a safety risk to his children. Examples given were placing Abigail in a re-conditioned car seat in such a manner as the seatbelt hurt her and by placing pool noodles around her in the car seat during a trip to Wasaga Beach.

[41] In summary, Mr. De Medeiros submitted that his decision not to allow any further access is not made out of vindictiveness but because "I do not want my children to be subjected to the same childhood she gave me."

Ms. De Medeiros

[42] After being sworn in, Ms. De Medeiros identified her affidavit sworn May 26th, 2017. She testified that she continues to rely on the evidence contained in the document without any amendments.

[43] The evidence of Ms. De Medeiros in-chief and following cross-examination, in support of her position that the Application regarding access to Abigail should be dismissed, can be summarized as follows:

(a) She was unaware that Mr. De Medeiros had introduced Abigail to Ms. Botelho in December 2013;

(b) The decisions regarding Abigail are being jointly made by herself and Mr. De Medeiros. These decisions are appropriate and in her daughter's best interest;

(c) During her marriage to Mr. De Medeiros, the couple resided with Ms. Botelho for less than one year. During this period, she did witness conflict between Mr. De Medeiros and Ms. Botelho;

(d) Given that her last contact with Ms. Botelho was in 2002, she has no knowledge as to ability and capacity to care for Abigail appropriately. Effectively, Ms. Botelho is "a stranger";

(e) She is and has always been Abigail's primary parent. As such, she is the appropriate person to know what is in her daughter's best interest;

(f) Based on her knowledge of Mr. De Medeiros' childhood, as described to her by him, she is fearful that a relationship with Abigail would cause her "unnecessary emotional stress"; and

(g) Abigail has not mentioned Ms. Botelho to her or requested to see her since access was stopped in December, 2015.

[44] In summary, counsel for Ms. De Medeiros submits that there does not exist a positive grandmother-granddaughter relationship between Abigail and Ms. Botelho. Furthermore, counsel submits that there is an absence of evidence supporting the position that deference should not be given to the joint decision made by Mr. De Medeiros and Ms. De Medeiros terminating contact between Abigail and Ms. Botelho.

Ms. De Jesus

[45] After being sworn in, Ms. De Jesus identified her affidavit sworn May 30th, 2017. She testified that she continues to rely on the evidence contained in the document without any amendments.

[46] The evidence of Ms. De Jesus in-chief and following cross-examination, in support of her position that the Applications, seeking access to Abigail and Ava should be dismissed, can be summarized as follows:

(a) Based on her knowledge of Mr. De Medeiros' children, as described to her by him, she believes that Ms. Botelho would abandon Ava and continue to manipulate Mr. De Medeiros;

(b) She testified that her relationship with Ms. Botelho is filled with conflict and stress thereby creating an unhealthy environment for Ava and her relationship with Mr. De Medeiros;

(c) She testified that Ms. Botelho has, on multiple occasions, criticized her and Mr. De Medeiros' parenting approaches towards both Abigail and Ava;

(d) She testified that she is the one who encouraged Mr. De Medeiros to reach out to Ms. Botelho. She described her encouragement as "persistence" given that in her view, Mr. De Medeiros "… needed closure with her (Ms. Botelho) as he held resentment towards her and had many unanswered questions that left him confused and insecure.";

(e) She believes that Ms. Botelho is a "bad role model" as she is unable and/or unwilling to accept her actions towards Mr. De Medeiros, she is aggressive and does not take no for an answer;

(f) She questions Ms. Botelho's motivations in seeking an order for access to Ava. She believes that Ms. Botelho is seeking this order as revenge against Mr. De Medeiros;

(g) She testified that she feels that Ms. Botelho's home is an "unsafe environment" for Ava given that it is crammed with many objects and obstacles litter the floor;

(h) She testified that she does not want Ava "... to grow up in an unhealthy environment filled with trauma and impossible to answer questions.";

(i) She testified that Ms. Botelho's past actions do matter. Therefore, she fears that Ms. Botelho will abandon her grandchildren as she abandoned her own children; and

(j) She testified that Ms. Botelho's contact with Ava was very limited.

[47] In summary, Ms. De Jesus submits that there does not exist a positive grandmother-granddaughter relationship between Ava and Ms. Botelho. She agrees with Mr. De Medeiros and Ms. De Medeiros' view that the evidence supports that their decisions, as parents, not to allow contact with Abigail and Ava should be respected.

ANALYSIS

Question #1 - Does a positive grandparent-grandchild relationship already exist?

[48] There is no dispute between the parties that Ms. Botelho's contact with Abigail and Ava occurred only as a result of Mr. De Medeiros' initiative.

[49] The facts are clear that Ms. Botelho first met Abigail in early December 2013 and last saw her during the first week of August, 2015. Furthermore, the evidence is undisputed that Ms. Botelho requested to see Abigail and Ava following the visit in August, 2015, however, this contact never occurred.

[50] The evidence also supports that Mr. De Medeiros only advised Ms. Botelho, in clear terms, on December 27th, 2015, that no further contact between Ms. Botelho and the children would be permitted.

[51] During the period of contact between Abigail and Ms. Botelho, namely for approximately twenty (20) months, the evidence presented establishes that Ms. Botelho:

(a) saw Abigail between eight (8) and twelve (12) times;

(b) that these visits were at intervals of between two (2) to three (3) months apart;

(c) that the visits only occurred during the time Abigail had access with her father, Mr. De Medeiros;

(d) only during one (1) occasion was Ms. Botelho alone with Abigail; and

(e) the visits were never for an overnight or extended period of time.

[52] The facts are clear that Ms. Botelho first met Ava following her birth on November 15th, 2015.

[53] The evidence supports that Ms. De Jesus requested that Ms. Botelho babysit Ava in April 2016. Ms. De Jesus testified that this occurred only on one occasion and was arranged as she wished to give Ms. Botelho "a chance" to demonstrate that she was able to appropriately care for Ava.

[54] The evidence is also clear that Ms. De Jesus and Mr. De Medeiros only allowed Ms. Botelho this one occasion to care for or see Ava alone.

[55] The evidence is clear that Ms. Botelho's contact with Ava was even more infrequent than her contact with Abigail.

[56] Ms. Botelho, in her own evidence, concedes that given her age, Ava has not developed memories of time spent with her grandmother.

[57] Given these undisputed facts, the question to determine is has Ms. Botelho met her burden of proof of establishing that she has an established positive relationship with Abigail and/or Ava?

[58] In applying the factors listed by Kurz, J. in Torabi v. Patterson (supra) the answer to this question must be no.

[59] The evidence of all parties does not support the determination that a pre-existing relationship existed between Ms. Botelho, Abigail and Ava. The evidence is clear that Ms. Botelho was invited to spend time with Abigail and Ava in the company of their father and Ms. De Jesus.

[60] The evidence does not support that Ms. Botelho developed an independent relationship with her granddaughters. Rather, her contact with Ava and Abigail was part of Mr. De Medeiros' attempt to explore the possibility of re-establishing a relationship with his own mother.

[61] The evidence is clear that this initiative was largely motivated by his own needs to have questions answered regarding his childhood, a curiosity regarding his mother with whom he had not had contact with for over fourteen (14) years, and life changing events including his separation from Abigail's mother, Ms. De Medeiros, his new relationship with his current partner, Ms. De Jesus and the birth of his second daughter, Ava.

[62] The evidence does not support that there are "strong loving and nurturing ties" between Ms. Botelho and Ava or Abigail.

[63] The contact between Ms. Botelho and Abigail and Ava was limited in frequency and in time. The evidence before me is such that Ms. Botelho only saw Abigail and Ava in the presence of their father and/or Ms. De Jesus. It cannot be concluded that Ms. Botelho had active independent involvement in either of her granddaughters' lives.

[64] I agree with Kurz, J.'s reliance in Torabi v. Patterson (supra) on the comments of Klein, J. in the decision of Sproule v. Sproule, 2012 ONCJ 839.

[65] Klein, J states as follows:

"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."

[66] Klein, J. noted that for a positive relationship to develop between a child and a grandparent, time and depth is required. I agree with this statement.

[67] Ms. Botelho has submitted, as exhibits to her affidavit, a series of pictures with her and her granddaughters. She has identified these pictures as having been taken throughout the time she was having contact with Abigail and Ava.

[68] There is no doubt that these pictures demonstrate the children appearing to be enjoying their time in the activities which involve Ms. Botelho. Of course, only pictures showing the children smiling and happy have been included as exhibits.

[69] However, enjoying an activity does not give rise to an independent relationship whereby Abigail and Ava rely and turn to Ms. Botelho for support and guidance and thereby create a bond with her, independent of their parents', as their paternal grandmother.

[70] The evidence is also that Ms. Botelho has not had contact with either Abigail or Ava for almost two (2) years.

[71] The evidence is clear that once access was stopped by Mr. De Medeiros in August 2015, Ms. Botelho continued to request visits via text messages. She did not however initiate her Applications until December 2016 thereby creating a significant period of no contact. As stated by Ms. De Medeiros in her evidence, Abigail does not inquire about Ms. Botelho. Furthermore, Ms. Botelho states that Ava does not have any independent memories of her.

[72] The evidence is also clear that the conflict between the parties, following the ending of the contact, escalated. This was also seen during the approach, although civil, taken by the parties in their cross-examination of one another during this hearing.

[73] There is no doubt that Mr. De Medeiros, as supported by his former spouse and his current partner, has a very specific perspective regarding his childhood. This perspective includes being misunderstood by his mother and ultimately abandoned by her when she placed him in a boarding school, away from his younger brother and her, and then with his father.

[74] There is equally no doubt that Ms. Botelho believes that she did the best that she could with her children given the behaviours they were exhibiting following her separation from her spouse.

[75] Ms. Botelho firmly believes that the actions she took regarding Mr. De Medeiros were for his and his brother's best interest and according to what they were demanding, namely to go and live with their father.

[76] These perspectives resulted in a mother/son relationship being severed for over fourteen (14) years. It is not surprising that the impact of decisions made during Mr. De Medeiros' childhood have carried forward today to influence his relationships with partners and his children.

[77] I accept that both Mr. De Medeiros and Ms. Botelho sincerely wished to attempt to repair their relationship. However, it is equally clear that their relationship was one beyond the possibility of preservation. In fact, the attempt at reconciliation coupled with this litigation has resulted in creating heightened conflict between them that now includes the other Respondents.

[78] All of these factors give rise to my determination that there is no pre-existing positive grandparent-grandchild relationship between Ms. Botelho and either of her granddaughters. Accordingly, the answer to the first question under the guiding principles established by the court in the Giansante v. DiChiara decision (supra) is answered by a negative.

[79] There is no requirement to continue with an analysis of the two other principles given my determination above. However, given the importance of this issue to the parties involved in this matter, I wish my decision to be clear based on all of the evidence relied upon by each of them.

Question #2 - Has the parents' decision imperilled the positive grandparent-grandchild relationship?

[80] The evidence before me does not lead me to conclude that the decision of the Respondent parents has imperilled the positive grandparent-grandchild relationship.

[81] The evidence is that Ms. Botelho has not had any contact with Abigail and Ava since August 2015. She concedes in her testimony that given Ava's age, she would not have any independent memories of having spent time with her. Ms. De Medeiros' evidence is that Abigail, since no longer seeing Ms. Botelho, does not ask about her, ask to see her or ask any questions regarding her.

[82] The decision of the parents has resulted in the delay or possible inability for Ms. Botelho, Ava and Abigail to develop and foster a positive grandmother-granddaughter relationship. It has not however jeopardized a pre-existing close and nurturing relationship.

Question #3 - Have the parents' acted arbitrarily in their decision?

[83] In the Giansante v. DiChiara decision (supra), the court held that "acting arbitrarily" must be interpreted as making a decision based on criteria other than what is in a child's best interests.

[84] I am satisfied after hearing the evidence of Mr. De Medeiros, Ms. De Jesus and Ms. De Medeiros that the decision to cease all contact between Ms. Botelho, Abigail and Ava was arrived at after careful consideration of the needs of their children.

[85] The evidence is undisputed that the contact between Ms. Botelho, Abigail and Ava occurred as a result of initiatives by Mr. De Medeiros in an attempt to reconnect or perhaps even reconcile with his mother, Ms. Botelho. Ms. Botelho's contact with Abigail and then Ava was introduced within the context of this objective and not as a way to facilitate an independent grandmother/grandchild relationship.

[86] This conclusion is arrived at due to the evidence supporting that all contact between Ms. Botelho and her grandchildren was limited in its location, duration and frequency and always, except on one occasion, in the presence of Mr. De Medeiros and/or Ms. De Jesus.

[87] The evidence is clear that these visits occurred over a period of twenty (20) months for Abigail and a shorter period for Ava, as determined by Mr. De Medeiros and/or Ms. De Jesus. There is no doubt that Mr. De Medeiros and Ms. De Jesus determined when and where contact would occur. Ms. Botelho's evidence is that she accepted this process.

[88] I am satisfied that the evidence establishes that a reconciliation between Ms. Botelho and Mr. De Medeiros is not achievable. Although this is not the issue for determination before the court, it is an important factor to consider in determining whether or not the Respondents' decision to no longer permit access should be interfered with.

[89] This is a case where a son was estranged from his mother which involved no communication for a period of over fourteen (14) years. Contact between Ms. Botelho and her granddaughters can perhaps be interpreted as an easier way used by Mr. De Medeiros to open the communication with Ms. Botelho.

[90] The evidence of all parties clearly demonstrate that their communication between the period of December 2013 to August 2015 centered on Abigail and Ava.

[91] Mr. De Medeiros testified that "my mother has not changed." Mr. De Medeiros and Ms. De Jesus both testified that, over time, the involvement of Ms. Botelho in their family life began to cause conflict between them. They both testified that this conflict was not good for Abigail and Ava.

[92] Ms. Botelho has submitted a series of articles which appear to have been taken by her from a grandparents' rights blog. She relies on these articles in support of her position that grandparents make a difference in their grandchildren's lives. She submits that Ava and Abigail should get to "know her and other family members."

[93] Little weight can be given to these articles other than to accept Ms. Botelho's position that she is seeking access to her grandchildren as she does love them and wishes to be involved in their lives.

[94] As previously stated however, this issue cannot be determined based on what is best for Ms. Botelho. It must be determined as to what is best for Abigail and Ava.

[95] Given all of the evidence before me, I cannot conclude that Mr. De Medeiros, Ms. De Jesus and Ms. De Medeiros have acted in such an arbitrary manner in arriving at and in implementing their decision to end all access between Abigail and Ava so as to require judicial interference. I am satisfied that their decision, although difficult, was in the best interests of Abigail and Ava.

DISPOSITION

[96] For the reasons stated above, the Applications filed by Ms. Botelho in CFN 1364/16 and 1365/16 seeking an order for access to her grandchildren, Ava De Medeiros, born November 15th, 2015 and Abigail Olivia Lola De Medeiros, born March 28th, 2010 and other relief are dismissed.

[97] Given the nature of the proceedings before the court, I encourage the parties to attempt to come to an agreement regarding any costs sought by the Respondents as they are the successful parties in this litigation.

[98] If the parties are unable to come to an agreement on this issue, written submission, limited to two (2) pages in length, excluding offers to settle and a Bill of Cost, can be served and submitted by Mr. De Medeiros, Ms. De Jesus and counsel for Ms. De Medeiros by July 27th, 2017.

[99] Ms. Botelho shall be permitted to serve and file her response to any request for costs, limited to four (4) pages in length, excluding offers to settle and a Bill of Cost, by August 17th, 2017.

[100] Any reply to the response by the Respondents shall be limited to one (1) page in length and can be served and filed by August 25th, 2017.

[101] All costs submissions can be e-mailed to my assistant, Ms. Ana Boras at ana.boras@ontario.ca or faxed to her attention at (905) 456-4829.

Released: July 6, 2017

Signed: Justice Lise S. Parent