Court File and Parties

Ontario Court of Justice

Date: October 26, 2017

Court File No.: Toronto FO-16-14711

Between:

A.P. and L.P. Applicants

— AND —

R.J.B. Respondent

Before: Justice Alex Finlayson

Heard on: October 16, 2017

Reasons released on: October 26, 2017

Counsel:

• Katherine Robinson, counsel for the applicant(s)
• Poroshad Mahdi, counsel for the respondent

PART I: NATURE OF THIS MOTION

[1] This case concerns two children, A.P-B., born […], 2009 and R.B., born […], 2011. The Applicants are the children's maternal grandparents. The Respondent is the children's father. Tragically, the children's mother died on October 28, 2015. According to the grandparents, she had been diagnosed with depression and bi-polar disorder and passed away by suicide.

[2] On December 1, 2016, the grandparents launched an Application for access to the children. The father opposes their Application. At a case conference held April 3, 2017, Cohen J. made a temporary without prejudice order that the grandparents could have telephone access with the children in the father's discretion. On July 25, 2017, Nevins J. held a further case conference, but the parties were unable to resolve the issues between them so Nevins J. scheduled this motion before me, which I heard on October 16, 2017.

[3] The grandparents ask the Court to appoint the Office of the Children's Lawyer (the "OCL"). The father opposes the request to appoint the OCL. For the reasons that follow, I am granting the grandparents' motion and I request the assistance of the OCL in this matter. It is my hope that the OCL will accept the referral, and investigate and report pursuant to s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C. 43, as amended.

PART II: FACTS

[4] The parents were in a relationship from October 2008 to February 2014. They entered into a Separation Agreement dated August 1, 2014, a few short months after their separation. Following the separation until the mother's death, the parents operated within a shared parenting arrangement and the children resided with them equally.

[5] The grandfather says that prior to the mother's death, the grandparents had a close relationship with the children. They saw the children regularly during the mother's parenting time, on holidays and at family events. The children regularly slept over at the grandparents' house, who functioned as substitute caregivers for the mother. They continued to have contact with the children after the mother's death for a while. While the grandfather says that the father was initially supportive of this, at some point he started to scale back contact to the point that he no longer allows the grandparents to have in person or other contact with the children.

[6] According to the father, the grandparents have exaggerated their role in the children's lives. Moreover, the children are suffering following their mother's death. They do not want to see or speak to their grandparents. According to him, the children witnessed the grandparents yelling and belittling the mother before she died. The children are angry at their grandparents as a result of the treatment of their mother that they witnessed.

[7] The father has sought professional assistance to assist the children to cope with their mother's death, and to assist him in his parental role during this difficult time. The father filed an affidavit of L.T., a grief counsellor at Dr. Jay Children's Grief Centre, who has had some involvement with the children.

[8] L.T. has never met the grandparents. She has had a number of communications with the father and she has met the children on 6 occasions, always in their father's presence. She has not seen the children since May of 2017, however. Since then, the children have attended a group program instead.

[9] L.T. says that the children's relationship with the grandparents should not be forced. According to her, there should be "inclusive, non-pressured possibilities for future contacts with their grandparents" such as in a family setting or at a child-friendly location. In the interim, the grandparents should send cards, letters and get some education about the children's grief to better understand it. L.T. was willing to meet with the grandparents to provide this education, but she said that she would not mediate this dispute. In any case, no such meeting has happened.

[10] It is clear from L.T.'s affidavit that the children, ages 8 and 6, are aware of the fact the grandparents have commenced this proceeding. She says that the children are responding to this by being protective of their father. But it is unclear to me why the children were given what appears to be a significant amount of detail about the dispute between the father and the grandparents. It also appears that some misinformation has been communicated to the children. For example, L.T. deposes that the children have "considerable anxiety, aversion and apprehension" about their court mandated phone calls with the grandparents. However, there are no court mandated phone calls with the grandparents. In fact, Cohen J.'s Order of April 3, 2017 specifically provides for telephone contact in accordance with the father's discretion.

[11] The father says the children are emotionally fragile and he does not wish to expose them to the OCL's process, which he argues would be intrusive. His proposal is that the grandparents 'back off', that the children be allowed to heal, and the parties can revisit grandparent access in about two years. Meanwhile, the father is facilitating a relationship between the children and some of their maternal cousins. I asked, and was told, that those cousins have a relationship with the grandparents, whereas A.P-B. and R.B. do not. There is also some suggestion that the father has returned a gift that the grandparents had sent to the children. While the father wants to follow L.T.'s advice, the act of returning the gift interferes with what L.T. recommended in the first place. The father advanced no realistic plan regarding how the relationship between the children and their maternal grandparents would heal over the next two years.

[12] The grandparents have asked me to find that the father is behaving inappropriately. They ask me to find that he started withholding the children following a dispute about money. In his affidavit sworn September 18, 2017, the grandfather deposes that the father paid some money to the mother as part of their property settlement. Apparently, the mother owed her parents some money and she used part of the settlement funds she received from the father to repay them. The grandfather says that the father asked for the money back after the mother's death. The grandparents refused to repay the money, but said they would use the money for the children's benefit. According to the grandfather, it was after this financial dispute with the father that contact with the children terminated.

[13] Neither the father, nor the grandparents filed a copy of the Separation Agreement with the Court. I asked for and received a copy of the Separation Agreement during argument because I wondered whether any terms in the Agreement might shed some light on this factual dispute. The Separation Agreement does provide for the payment of money from the father to the mother on account of property, but it does not reference the loan to the grandparents. The Separation Agreement did not assist me in resolving the contest in the untested evidence about whether the father is acting out of malice towards the grandparents following a financial dispute.

[14] However, the Separation Agreement is helpful in another respect. Paragraph 4.12 of the Separation Agreement reads: "It is in the children's best interests to continue a relationship with their maternal and paternal grandparents. The grandparents will have reasonable telephone access to the children." None of the parties referred to this paragraph in argument, but this section of the Agreement reveals to me that, at least at one point in the recent past, both parents thought that extended family involvement was in the children's best interests.

PART III: ANALYSIS

A. Considerations Applied to Appoint OCL

[15] Sections 89(3.1) and 112 of the Courts of Justice Act govern the appointment of the Children's Lawyer in proceedings under the Children's Law Reform Act, R.S.O. 1990, c. C. 12, as amended. Section 89(3.1) of the Courts of Justice Act reads:

89(3.1) At the request of a court, the Children's Lawyer may act as the legal representative of a minor or other person who is not a party to a proceeding.

And s. 112(1) reads:

112(1) In a proceeding under the Divorce Act (Canada) or the Children's Law Reform Act in which a question concerning custody of or access to a child is before the court, the Children's Lawyer may cause an investigation to be made and may report and make recommendations to the court on all matters concerning custody of or access to the child and the child's support and education.

[16] While the OCL has the discretion to accept or decline a court's referral, and to decide whether to act under ss. 89(3.1) or 112 if it accepts the referral, it was clear that the grandparents focused their submissions on the need for a s. 112 report in this case.

[17] One of the leading cases concerning the appointment of the OCL is Parniak v. Carter, [2002] O.J. No. 2787 (C.J.). In Parniak, Kukurin J. appointed the OCL and in so doing, he applied a helpfulness test. At ¶29, he said, "…Office of the Children's Lawyer social work assessment reports are almost invariably helpful to me and more often than not are a major contribution in resolving the litigation short of trial. I might also add that most of those that I have reviewed have been quite professionally done".

[18] In Parniak, the father had launched a Motion to Change a final consent Order governing custody and access. On a motion, the father asked the Court to order either a custody and access assessment pursuant to s. 30 of the Children's Law Reform Act or a report pursuant to s. 112 of the Courts of Justice Act. Much of the discussion in Parniak focused on the differences between the two types of reports. But the mother had also raised a preliminary objection that the father's Motion to Change failed to disclose a material change in circumstances. As such there was no merit to his underlying claim according to her, and therefore the request to appoint the Children's Lawyer was a mere "fishing expedition" to uncover evidence to hopefully buttress his case.

[19] I am persuaded that the "fishing expedition" argument can be a concern in some cases and find that the merits of underlying claims can be a relevant consideration in deciding whether to appoint the OCL. Although I am not dealing with a Motion to Change involving a threshold material change issue, the mother's preliminary objection in Parniak is nevertheless analogous to the argument raised by the father before me.

[20] In support of the grandparents' request to appoint the OCL, grandparents' counsel relied on a grandparents' access case and a costs decision, in which the OCL had been previously appointed. Neither case referred to the reasons for appointing the OCL in the first place. See Cowieson v. Stewart, 2016 ONSC 2762 (S.C.J.); see also Greenan v. Johns, 2015 ONSC 1413 (S.C.J.). Grandparents' counsel was unable to locate any cases that contained such analysis within an Application for grandparents' access.

[21] I felt it necessary to consider the preliminary merits of the grandparents' access claim because if that underlying claim lacks merit, then why would the Court appoint the OCL? That would be unnecessarily intrusive to the children for no child-focused reason. And ultimately in deciding to appoint the OCL, I have considered the children's best interests and the helpfulness test set out in Parniak v. Carter.

B. The Test for Grandparents' Access

[22] There is no right of grandparents' access to grandchildren. The approach to grandparent access in Ontario generally follows the so-called "parental autonomy approach" and requires deference to parental decision making. But that approach is not without limits.

[23] The leading case concerning whether a Court will make an order for grandparents' access is Chapman v. Chapman, [2001] CarswellOnt 537 (C.A.).

[24] In Giansante v. Di Chiara, 2005 CarswellOnt 3290 (S.C.J.), Nelson J. helpfully summarized the principles from Chapman in a three part-test. He held that a Court should defer to parental autonomy unless all three questions are answered in the affirmative:

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

(b) Has the parent's decision imperiled the positive relationship?

(c) Has the parent acted arbitrarily?

[25] The parental autonomy approach does not obviate the need to embark upon a full best-interests analysis under s. 24(2) of the Children's Law Reform Act. At ¶27 of McLaughlin and McLaughlin v. Huehn and Forget, 2004 ONCJ 426 (C.J.), McSorley J. said:

The case of Chapman v. Chapman and Chapman does not stand for the proposition that the wishes of a parent on the issue of access by a member of the extended family should take precedence over the factors in section 24 of the Act. It is but one factor that must be considered. It is always important to defer to the decisions of parents regarding their children. But deference is only accorded when those decisions are reasonable…..

[26] In Tourabi v. Patterson, 2016 ONCJ 210 (C.J.), Kurz J. reviewed the case law and elaborated upon what constitutes a positive relationship within the meaning of this three part test. He said:

(a) There must generally be substantial pre-existing relationship between relative and child. Strong loving and nurturing ties must exist based on time spent together that enhances the emotional well-being of the child;

(b) That relationship must be constructive one for child in sense that it is worth preserving. If relations between parties are too poisoned, previously positive relationship may not be capable of preservation;

(c) The determination must include consideration of child's age and time since child last saw relative; and

(d) A fourth factor may apply in the exceptional circumstance of a young child who has lost parent. In that event, the existence of a strong pre-existing relationship may not be necessary when relative(s) of the lost parent applies for access.

C. The Merits of the Grandparents' Access Claim and the Children's Best Interests

[27] In my view, at this stage, there is sufficient merit to the grandparents' claim for access to warrant the appointment of the OCL to investigate this matter further. I also find that it is in the children's best interests to do so for the following reasons.

[28] Albeit untested, I have evidence before me that there were positive grandparent-grandchildren relationships. The parents themselves acknowledged this in their Separation Agreement, but I also accept the grandparents' evidence about their involvement in the children's lives historically. I am not persuaded by the father's statement at this early stage of the litigation that the grandparents have exaggerated their past role in the children's lives.

[29] While relations between the grandparents and the father have soured, the nature of that dispute is not so toxic that the relationships cannot be maintained.

[30] The children had contact with their grandparents up until the spring of 2016. This is relatively recent. This is not a case where there have been years of grandparents' absence, or little by way of a pre-existing relationship. Moreover, the children continue to have contact with other members of the mother's extended family.

[31] It is worth exploring whether the children's relationships with the grandparents can be salvaged, on what terms and under what circumstances.

[32] While I do not doubt that the father believes he is making decisions on what he perceives to be best in the children's grieving process, he has abruptly cut off the relationship with the grandparents. On its face, this decision has imperiled the relationship. I have some evidence, albeit contested, of a financial dispute between the father and the grandparents, which if true, is not a valid reason for ending the relationship.

[33] Even if this is not the motivating factor, I have insufficient evidence to decide whether the decision to terminate contact between the children and the grandparents is in their best interests in this case.

[34] While the children's hearsay evidence is that they do not wish to have contact with the grandparents at this stage, the grandparents have raised a question about the independence of these wishes. Apart from that, the children are young and there is an issue about the weight to attach to those wishes, even if independently held.

[35] The children are grieving. On one hand, there is untested evidence before me that the children feel forced, and that the prospect of contact with the grandparents is causing the children anxiety and upset. On the other hand, the children have already experienced loss, and it is important to consider the longer term impact on the children from the loss of further family relationships, should that occur. There may be a better way to deal with the children's grieving process harmoniously with the request for grandparent access short of cutting off all contact with the grandparents.

[36] In fact, during argument, I asked whether there was an alternative to appointing the OCL. Both parties seemed to suggest that some form of therapeutic intervention might be appropriate, but neither party had a plan. The father's plan to wait 2 years was unhelpful. I am unclear about what is supposed to change in two years. On the other hand, the grandparents were invited to speak to L.T. to learn about the children's grieving process, but they did not pursue that. Neither party gave me any evidence about what kind of alternate process might be appropriate in this case. I also had no evidence that the current group therapy program is addressing the children's needs.

[37] I agree with the grandparents' counsel that the OCL may offer assistance by way of its recommendations about appropriate therapeutic intervention.

[38] Again, there is conflicting evidence about the motives that underlie actions that have been taken by the parties in this case. I agree with the comments in Parniak v. Carter that the involvement of the OCL will help the Court resolve the factual disputes and perhaps help the parties settle.

[39] I am mindful of the concern, raised by the father, that appointing the OCL is intrusive. But I am also concerned about the children's exposure to information about this proceeding as explained above. The father should not be engaging the children in discussions about the conflict between the adults. The children need not be made aware of the details of the litigation or this OCL referral.

[40] If the OCL accepts the referral pursuant to s. 112 of the Courts of Justice Act, which I hope it will, the clinical investigator will be a social worker who will be skilled in interacting with the children and will give further direction about how to explain her involvement.

[41] This is not intended to be a ruling on the underlying grandparents' access claims. I make no further findings respecting the grandparents' access claims except to say that there is sufficient merit to them for me to appoint the OCL. Like in Parniak v. Carter, the father in this case is of course free to dispute any of factual findings or recommendations in any OCL report generated should the OCL accept the referral.

PART IV: ORDER

[42] I make the following Orders:

(a) I request the Office of the Children's Lawyer to provide assistance in this matter pursuant to either s. 89(3.1) or s. 112 of the Courts of Justice Act. I specifically ask that the Office of the Children's Lawyer consider accepting the referral pursuant to s. 112 of the Courts of Justice Act for the reasons set out above;

(b) The Court shall issue the Order appointing the Children's Lawyer in the standard form;

(c) The Order appointing the Children's Lawyer and a copy of these reasons shall be sent to the Office of the Children's Lawyer;

(d) The parties shall complete their intake forms within 10 days and submit them to the Children's Lawyer;

(e) The return date of this matter has already been set for January 22, 2018. If the OCL has accepted the referral but the investigation is not complete by then, I may be contacted regarding next steps and an adjournment if necessary; and

(f) If the grandparents seek costs, they may file submissions in writing, limited to 3 pages plus an attached Bill of Costs and any case law, by November 10, 2017. The father shall respond by November 24, 2017 and is subject to the same page limits with attachments.

Released: October 26, 2017

Signed: Justice Alex Finlayson