Court File and Parties

Ontario Court of Justice

Date: September 20, 2018

Court File No.: Toronto D70164/14

Between:

V.L.M. Applicant (grandmother, responding party on motion)

— And —

M.M.R. Respondent (mother, moving party on motion)

Before: Justice Robert J. Spence

Heard: September 14, 2018

Order delivered orally: September 14, 2018, with reasons to follow

Reasons for Judgment released: September 20, 2018

Counsel:

• Joseph Kary, for the applicant grandmother
• Beth Purdon-McLellan, for the respondent mother

Reasons for Judgment

ROBERT J. SPENCE J.:

1: INTRODUCTION

[1] This is a motion brought by the respondent mother seeking, inter alia, the following:

(1) An order granting leave to bring a contempt motion on an urgent basis;

(2) An order finding the applicant grandmother in contempt of a consent final order dated May 30, 2018; and

(3) An order that the Toronto Police Services or police service in any jurisdiction where the child B. (age 7 years) is believed to be located are directed to locate, apprehend the child and to deliver her to the mother pursuant to subsection 36(2) of the Children's Law Reform Act.

[2] At the conclusion of the argument on the motion I endorsed the record, with reasons to follow:

(1) The grandmother shall forthwith return the child to the mother's care and, in any event, no later than 5:00 p.m. today;

(2) There will be a police enforcement clause pursuant to the request in the mother's notice of motion; and

(3) The mother's contempt motion is adjourned.[1]

[3] The following are my reasons for judgment.

2: BRIEF BACKGROUND

[4] This is a terribly sad case, where a grandmother and her adult daughter are pitted against one another over the welfare of the mother's 7-year-old child.

[5] The child, B., has been shuffled back and forth over the years between her mother and her grandmother.

[6] At various times between the child's birth and 2018, the child has lived either with the mother, or the grandmother, or the grandmother and the mother together.

[7] On December 15, 2014 the parties consented to a final custody order in favour of the grandmother, with mother to have reasonable access on reasonable notice.

[8] As at the date of that order the mother and the grandmother were living together.

[9] The mother subsequently moved out of the grandmother's home to live with her then-partner.

[10] In the mother's affidavit sworn March 29, 2018 filed in support of a motion to change the December 15, 2014 order, the mother states that she continued to have liberal access to B. following the order of December 15, 2014.

[11] She also deposed in that affidavit that in April 2017, B. came to live with the mother in an arrangement whereby the grandmother was to spend alternate weekends with B.

[12] For various reasons, the grandmother then sought to have B. returned to live with her, which mother agreed to in September 2017.

[13] The communication between the parties subsequently broke down so that mother had increasingly less contact with B. following B.'s return to the grandmother's home.

[14] By February 2018, it appears that mother's access to B. had been entirely stopped.

[15] As a result, on March 29, 2018, the mother brought a motion to change the December 15, 2014 final custody order in favour of the grandmother. She served the grandmother with her motion to change materials. The grandmother did not respond.

[16] However, when the parties appeared before me on May 30, 2018, they entered into a consent to a final order ("final order"). That order provided, inter alia, that sole custody was to revert to the mother, with specified access to the grandmother, including alternate weekends from Friday to Sunday.

[17] On Sunday September 2, 2018 the grandmother was to have returned B. to her mother at the end of her scheduled weekend access period. However, she refused to do so.

[18] As a result, B. did not attend school as she was supposed to do, beginning on September 4, 2018. In fact, as at the date of the hearing of this motion, B. had yet to begin school, and she was continuing to live with the grandmother who was still refusing to return B. to her mother.

3: THE POSITION OF THE PARTIES

3.1: THE MOTHER'S POSITION

[19] The mother's position is relatively straightforward. She points to the final court order specifying that she is the custodial parent, the child is to live with her and the grandmother is to have specified access.

[20] She says that by overholding B. and refusing to return B. to the mother, the grandmother is in contempt of the final order.

[21] As a result, she seeks an order for the immediate return of the child to her care.

[22] She also seeks a finding that the grandmother is in contempt of the final order.

3.2: THE GRANDMOTHER'S POSITION

[23] The grandmother begins by asserting that her consent to the final order was a

Mistake that has been harmful to B., subjecting her to emotional abuse and a level of physical discipline that she had not been previously exposed to. Rather than becoming used to the change [in custody and residence], B.'s complaints about living in her mother's home have become stronger and more emotional. She became increasingly more opposed to returning to her mother after access visits with me, until it reached the point where returning her was causing her obvious emotional harm.

[24] Much of the rest of the grandmother's affidavit sets out what she says are examples of B. not wanting to return to her mother, and examples of the emotional abuse that grandmother says B. was exposed to in mother's care.

[25] The first several pages of the grandmother's affidavit recites historical concerns, which she says existed prior to the consent final order.

[26] The grandmother then proceeds to depose to statements from the child herself which she says the child made and which suggest that the mother's home was an unacceptable place for B. to live.

[27] The mother subsequently involved the police who, in turn, called in the Catholic Children's Aid Society of Toronto ("CCAS").

[28] The grandmother then deposes as to what she says the CCAS worker told her, more specifically (according to grandmother):

After speaking with B., she [CCAS worker] told me that she had real concerns about what B. had told her, and that she had to speak to mother . . .

[29] Both parties attach to their respective affidavits a letter dated September 10, 2018 from the CCAS worker. ["CCAS letter"]. That letter states in part [my emphasis]:

When interviewed[2], B. indicated that she did not want to return to her mother's home at this time. The society does not take a position in terms of custody arrangements for the child, however the primary concerns are the risk of emotional harm because of the ongoing conflict, the lack of stability for B. as well as the fact that she is currently not attending school.

[30] Grandmother's position is that if B. were returned to her mother's home she would be subject to "more emotional abuse". She argues for an investigation by the Office of the Children's Lawyer and, pending completion of that investigation, an order that B. remain living with the grandmother.

4: ANALYSIS

4.1: THE NEAR-SACROSANCT NATURE OF COURT ORDERS

[31] Respect for court orders is almost sacrosanct. In Peers v. Poupore, 2012 ONCJ 306, Justice Carole Curtis was dealing with a mother who Justice Curtis found had breached a final custody order. Beginning at paragraph 23 of her judgment, Justice Curtis stated [my emphasis]:

The need for the sanction of contempt proceedings is of significant importance in family law. There is an undertone of bitterness and sense of betrayal which often threatens to drown the process and the parties themselves in a sea of anger and "self-rightness." In this environment it is all too easy for a parent to believe that she "knows what is right," even after a matter has been determined by the court, and to decide to ignore, disobey or defy that determination. Those who choose to take this tack must know that it will not be tolerated. It is important for the public and family law litigants, in particular, to appreciate that the orders of their courts must be obeyed: Surgeoner v. Surgeoner, [1992] O.J. No. 2616 (Ont. Ct. Gen. Div.).

The point of a contempt order is to bring home to a person shown to be in disobedience of a court order the importance of obeying it: Ricafort v. Ricafort, 2006 ONCJ 520, para. 18.

[32] I begin with these general statements about court orders because it is difficult to overstate just how important it is for court orders to be followed. Every day courts make orders which affect peoples' lives, the lives of litigants, the lives of children and the lives of extended family members. Courts make those orders either following a contested proceeding brought by the litigants or following a consent which the litigants decide in their own good judgment to enter into.

[33] Those litigants who are the beneficiaries of a court order have a right to expect that the order will be followed by the other party or parties.

[34] And quite apart from those individual expectations, it is essential for society at large that respect for courts be the rule rather than the exception. One can only imagine the potential chaos which would ensue if individuals who didn't like a particular order were to simply say, in effect, I don't care what the court has ordered, I know better. The result would be a form of vigilante justice.

[35] The entire administration of justice would break down if individuals were to thumb their noses at court orders they might find distasteful. In our free and democratic society, we expect members of society to respect what the courts have ordered. This is, in essence, a social contract, upon which the very foundation of the rule of law depends.

[36] In family law in Ontario there are very specific options for those persons who might not agree with a court order. The first and obvious option is for that person to appeal the order.

[37] However, in situations which do not give rise to an appeal[3] the Family Law Rules ("Rules") permit those persons to bring a motion to change the order. Obviously, the person who brings such a motion would have to satisfy certain legal tests, based on evidence which is placed before the court.

[38] All of this is to say that orders are of critical importance; and processes are in place through statute or rules or regulations, which permit litigants to go about addressing their dissatisfaction with any particular order.[4]

4.2: RELIANCE ON HEARSAY

[39] Notwithstanding this, it was the grandmother's position that the final order ought not to be enforced by this court because, in her opinion, it would be harmful to B. if the court were to do so.

[40] In support of her position, she filed a 9-page affidavit and two exhibits. As I noted earlier, the first several pages of that affidavit describes what grandmother says is the history of conflict between herself and her daughter and the circumstances which led to B. moving back and forth between the parties.

[41] All of this pre-dated the final order to which the grandmother then consented, namely, a final custody order in favour of the mother.

[42] In the second part of her affidavit the grandmother alleges certain statements that she says B. made which suggest that B. did not want to return to her mother for various reasons, including alleged emotional harm to B., stemming from the mother's home environment.

[43] She then sets out the subsequent involvement of the police and the CCAS. It appears, according to the grandmother, that the police became involved at the behest of the mother, and that CCAS became involved at the request of the police.[5]

[44] The grandmother alleges extreme anger on the part of the mother and even deposes that the mother has threatened to kill the grandmother.

[45] The two exhibits attached to the grandmother's affidavit consist of a text message from the mother to the grandmother which clearly reveals the mother's anger toward the grandmother and the mother's determination to have B. back in her home where she says B. belongs. The second exhibit is the CCAS letter.

[46] The mother's affidavit denies the allegations made by the grandmother. And the mother states that B. made it clear to the mother on September 10th that she missed her mother and that she wanted to come home.

[47] In her own affidavit, mother deposed that any nervousness which B. may have been experiencing would have been due to her anxiety about the prospect of starting a new school and meeting new friends. She states that the grandmother is exploiting this anxiety in an attempt to unilaterally change the custody and access arrangements.

[48] The foregoing captures the essence of the evidence upon which each party relied in this motion.

[49] Each party relies on statements which each says the child made to that party. All of these statements are hearsay, in some cases double hearsay.

[50] Hearsay evidence has long been considered by the courts to be dangerous.[6] The reasons are essentially four-fold:

(1) The possibility of faulty perception of the declarant;

(2) The possibility of faulty memory of the declarant;

(3) The possibility of faulty narration by the declarant; and

(4) The possibility of dishonesty by the declarant.

[51] Because of these dangers, and despite the fact that all relevant evidence is generally admissible, hearsay evidence is presumptively inadmissible.

[52] That said, the courts have developed what has come to be known as the principled exception for the admissibility of hearsay evidence. Briefly put, the party tendering the hearsay evidence can do so if that evidence meets the twin criteria of necessity and reliability. R. v. Khelawon, 2006 SCC 57

[53] Necessity has to do with whether the proposed evidence is necessary in the sense that it cannot be provided to the court other than through hearsay means. So, for example, the words spoken by a 7-year-old child to another person will be hearsay if that person purports to state what the child said. The necessity prong of the test may be satisfied if the court concludes that the words cannot be adduced – or ought not to be adduced – directly by the child herself in a courtroom.

[54] Necessity is generally the less contentious of the twin prongs for admissibility. Certainly, that is so in this case.

[55] The reliability prong of the test is the more complex issue in the present case.

[56] In a voir dire[7] to determine the admissibility of child statements, the court must determine whether the circumstances surrounding the statements achieve threshold reliability. There is a distinction between threshold reliability and ultimate reliability. The court on the voir dire is not deciding ultimate reliability, but only threshold reliability.[8]

[57] In Khelawon, supra, the court held that in determining threshold reliability the court must consider the dangers that are normally presented by hearsay evidence and then decide whether the proffered statements were made in such a way as to overcome those dangers and hence, are sufficiently reliable to be admitted into evidence.[9]

[58] In the more recent case of R. v. Bradshaw, 2017 SCC 35, the Supreme Court of Canada somewhat reorganized the law pertaining to the admissibility of hearsay statements.

[59] In Children's Aid Society of Toronto v. G.S., 2018 ONCJ 124, Justice Stanley Sherr provided a neat synthesis of the Bradshaw reorganization of hearsay statements. At paragraph 16 of G.S., Justice Sherr stated:

The following statements made in Bradshaw are pertinent to the hearsay analysis:

a) The presumptive inadmissibility of hearsay may be overcome where its proponent establishes on a balance of probabilities that what is proposed for admission falls within a categorical exception, or satisfies the twin criteria of necessity and threshold reliability under the principled approach. – Bradshaw at pars. 22-23.

b) In determining threshold reliability, the trier of fact must identify the specific hearsay dangers inherent in the out-of-court declaration. The trier of fact must then identify the means by which these dangers can be overcome. These dangers arise notably due to the absence of contemporaneous cross-examination of the hearsay declarant before the trier of fact (Khelawon, at paras. 35 and 48). The dangers relate to the difficulties of assessing the declarant's perception, memory, narration, or sincerity, and should be defined with precision to permit a realistic evaluation of whether they have been overcome. – Bradshaw at para. 26.

c) The hearsay dangers can be overcome and threshold reliability can be established by showing that (1) there are adequate substitutes for testing truth and accuracy (procedural reliability) or (2) there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability) (Khelawon, at paras. 61-63; Youvarajah, at para. 30) – Bradshaw at para. 27.

d) Procedural reliability is established when "there are adequate substitutes for testing the evidence", given that the declarant has not "state[d] the evidence in court, under oath, and under the scrutiny of contemporaneous cross-examination" (Khelawon, at para. 63). These substitutes must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement (Khelawon, at para. 76; Hawkins, at para. 75; Youvarajah, at para. 36).

e) A hearsay statement is also admissible if substantive reliability is established, that is, if the statement is inherently trustworthy (Youvarajah, at para. 30; R. v. Smith, at p. 929). To determine whether the statement is inherently trustworthy, the trial judge can consider the circumstances in which it was made and evidence (if any) that corroborates or conflicts with the statement (Khelawon, at paras. 4, 62 and 94-100; R. v. Blackman, 2008 SCC 37, at para. 55). – Bradshaw at para. 30.

f) The two approaches to establishing threshold reliability may work in tandem. Procedural reliability and substantive reliability are not mutually exclusive (Khelawon, at para. 65) and "factors relevant to one can complement the other". – Bradshaw at para. 32.

g) The distinction between threshold and ultimate reliability, while "a source of confusion", is crucial (Khelawon, at para. 50). Threshold reliability concerns admissibility, whereas ultimate reliability concerns reliance (Khelawon, at para. 3). – Bradshaw at para. 39.

h) In short, in the hearsay context, the difference between threshold and ultimate reliability is qualitative, and not a matter of degree, because the trial judge's inquiry serves a distinct purpose. In assessing substantive reliability, the trial judge does not usurp the trier of fact's role. Only the trier of fact assesses whether the hearsay statement should ultimately be relied on and its probative value. – Bradshaw at para. 41.

[60] Bradshaw, supra, makes it clear that in determining whether a statement is inherently trustworthy, the trial judge need not conclude that reliability be established with absolute certainty. However, the threshold reliability must be sufficiently high to overcome the dangers ordinarily presented by hearsay evidence.[10]

[61] The essence of Khelawon, supra, and Bradshaw, supra, and the principled approach to admitting otherwise inadmissible hearsay evidence is that hearsay evidence will be admitted if it has been made in circumstances which substantially negate the possibility that the declarant was untruthful or mistaken. The circumstances must be sufficiently trustworthy such that even a sceptical caution would look at the statement as being trustworthy; and so trustworthy that it is unlikely that evidence would change even under cross-examination.

[62] Simply put, the dangers attributable to hearsay evidence, which I outlined above, must be substantially overcome before the principled exception will apply and thus permit that evidence to be admitted for consideration by the court.

4.3: APPLICATION OF HEARSAY RULES TO EVIDENCE IN THIS CASE

[63] The most potentially relevant hearsay statements come from the child herself. Looking first at the grandmother's affidavit, every statement which allegedly comes from the child is, of course, hearsay, as it comes not from the child directly but rather from the grandmother.

[64] Whether the statements are in quotation marks – as they are in several instances in the grandmother's affidavit – or whether the hearsay evidence was just about something grandmother says B. said, or something she says B. was feeling, none of the procedural safeguards are present, which might otherwise permit the hearsay dangers to be alleviated.

[65] The perception, the memory, the narration and the honesty of the grandmother are all in question, thereby affecting the trustworthiness of the evidence.

[66] There is no evidence about the circumstances in which the statements were made such that the court can have confidence that no cross-examination is required in order to test the truthfulness of those statements.

[67] Most significantly, because the child's statements come from the grandmother[11] the court should be extra cautious about statements which tend to support the very position taken by the grandmother in this litigation. Simply put, because the grandmother is a party, she has an agenda. She is not a disinterested affiant.

[68] The balance of the evidence supporting the grandmother's position comes from observations which she says she made regarding the child, her behaviour, and the grandmother's interactions with others, including the mother and the police, as well as the CCAS.

[69] The mother's affidavit contains fewer child's statements. However, the same observations I make about hearsay statements in the grandmother's affidavit, and the dangers arising from those hearsay statements, apply equally to the mother's affidavit.

[70] To the extent there is any independent evidence that might come even remotely close to making the child's statements admissible, one must look at the CCAS letter.[12]

[71] The operative part of that one-page letter is referred to earlier in these reasons. The worker(s) says that the child says that she did not want to return home at this time. Interestingly, this reference to what the child said is not in quotation marks. So the statement – if it was a statement – is not given verbatim.

[72] Apart from that, the threshold reliability for admissibility is not satisfied because:

(1) The worker(s) does not describe the circumstances under which the child's statement was made;

(2) There is nothing in the CCAS letter which addresses the dangers of a possible faulty perception of the worker(s);

(3) There is nothing in the CCAS letter which addresses the possible faulty narration by the child to the worker(s), leading the worker(s) to conclude that the child did not wish to return home;

(4) There is nothing in the CCAS letter which tells the court there was substantive reliability, more specifically, that there were sufficient circumstantial or evidentiary guarantees that the statement was inherently trustworthy at the time the child purportedly made her statement (or conveyed her feelings) to the worker(s); and

(5) The court is unable to ascertain from the letter which of the two workers (or one worker alone?) interviewed B. and is expressing the opinions at the end of the letter.

[73] As I noted earlier in these reasons, the court recognizes the difference between hearsay evidence adduced at a trial and hearsay evidence adduced on a motion. In the former case, the trial court can conduct a voir dire to determine admissibility.

[74] Evidence in motions are governed by Subrules 14(18), 14(19) and 14(20), which provide:

AFFIDAVIT BASED ON PERSONAL KNOWLEDGE

(18) An affidavit for use on a motion shall, as much as possible, contain only information within the personal knowledge of the person signing the affidavit. O. Reg. 114/99, r. 14 (18).

AFFIDAVIT BASED ON OTHER INFORMATION

(19) The affidavit may also contain information that the person learned from someone else, but only if,

(a) the source of the information is identified by name and the affidavit states that the person signing it believes the information is true; and

(b) in addition, if the motion is a contempt motion under rule 31, the information is not likely to be disputed. O. Reg. 114/99, r. 14 (19).

RESTRICTIONS ON EVIDENCE

(20) The following restrictions apply to evidence for use on a motion, unless the court orders otherwise:

1. The party making the motion shall serve all the evidence in support of the motion with the notice of motion.

2. The party responding to the motion shall then serve all the evidence in response.

3. The party making the motion may then serve evidence replying to any new matters raised by the evidence served by the party responding to the motion.

4. No other evidence may be used. O. Reg. 114/99, r. 14 (20).

[75] Dealing first with Subrule 14(20), cases such as Nyari v. Velasco, 2008 ONCJ 272, and V.A.W. v. R.C.L., have taken a more expansive view of when evidence may be placed before the court for possible use on a motion. Those cases discuss the best interests of children, stating that the rationale for a more liberal procedural approach is that the court ought to have all relevant evidence available to it in making those important decisions.

[76] To be clear, however, what those cases do not stand for, is whether the evidence which is placed before the court should be admissible.

[77] Subrules 14(18) and (19) suggest that the evidence itself may not necessarily have the same admissibility restrictions imposed on it as evidence adduced at a trial.

[78] However, the more liberal approach to allowing evidence to be placed before the court does not, in the court's view, supplant the need to ensure that the evidence is not only relevant, but also reliable before that evidence is ruled admissible. So that where, for example, an affiant purports to place hearsay evidence before the court, the court's responsibility is to ensure that it will rely on that evidence only where it is not dangerous to do so.

[79] Judges often hear counsel making statements to the effect that the court should accept just about any evidence whatsoever, because the "best interests of children" require that everything be placed before the court. In other words, in effect, let's just forget about evidentiary rules because anything goes when it comes to the best interests of children.

[80] In the court's view, this reasoning is fallacious, precisely because the best interests of children is of such critical importance. The best interests of children demand that the court consider only reliable evidence in making decisions about what is in the best interests of children. The notion that anything goes, let it all in, and let the judge decide how much weight to give it is, in my respectful opinion, a dangerous and misguided approach to deciding cases about the best interests of children.

[81] Earlier in these reasons, I outlined the dangers of accepting hearsay evidence without sufficient safeguards. Those dangers are precisely why hearsay evidence is presumptively not admissible. The arguably more liberal approach to evidence on motions does not alleviate the dangers which the court has spoken of in these reasons.

[82] In making decisions about best interests, the court's responsibility is to engage in a truth-seeking exercise. And in order to protect the integrity of that exercise, the court ought not to admit the hearsay statements into evidence and make decisions on the basis of those statements, in the absence of the Khelawon and Bradshaw safeguards which are the necessary pre-conditions for the principled exception to the hearsay rule.

4.4: WHAT IS LEFT AFTER ELIMINATING INADMISSIBLE HEARSAY?

[83] Once all of the inadmissible evidence is extracted from the grandmother's affidavit, the court is left with the picture of a long-standing and highly contentious conflict which has existed between the parties for many years.

[84] The court is also left with the picture of a parent and a grandparent who have struggled not only with each other but also with the manner in which to best raise this young child, who has suffered far more instability during the course of her young life, than any child should have to experience.

[85] The court does agree with the concluding statement in the CCAS letter, namely [my emphasis]:

the primary concerns are the risk of emotional harm because of the ongoing conflict, the lack of stability for B. as well as the fact that she is currently not attending school[13]

[86] The court is simply unable to determine on the evidence which of either the grandmother or the mother is responsible for the chaos in B.'s life. Perhaps it is one of the adults more than the other; or perhaps it is the two adults together who have created a toxic dynamic which has, in turn, impacted B.

[87] Those questions are not answerable at the present time; nor are they at all answerable in the context of this motion. More importantly, for the purpose of determining this motion, those questions do not have to be answered.

[88] What is clear, however, is that both parties have made certain choices. They agreed to a final order. And despite the existence of that order, the grandmother made a choice to ignore the order and keep B. in her possession, denying B.'s court-ordered entitlement to live with her mother.

5: THE GRANDMOTHER'S ILL-CONCEIVED ACTIONS

[89] I do not doubt the grandmother's love for B. However, she did almost everything wrong from the moment she decided to overhold B. from the mother's home on September 2, 2018, including the manner in which she later chose to respond to the mother's motion.

[90] I return to my earlier discussion regarding the near-sacrosanct nature of court orders. I do so to emphasize the poor choices which the grandmother made.

[91] The case of Thom v. Thom, 2014 ONSC 2738, involved two children, ages 10 and 12. It appeared that the children were expressing the wish not to be with the father for the times specified in a previously-made court order.

[92] Beginning at paragraph 53 of the court's decision, Justice Timothy Minnema stated [my emphasis]:

[53] Ms. Thom in her affidavit in defense of the contempt charge says that she was following the professionals' decisions, being Dr. Munt and the CAS, regarding Mathieu [age 10 years]. However, there is no clear evidence from either of them purporting to suspend access per the order. Regardless, even if the CAS was of the view that such access should be suspended, it would have been incumbent on Ms. Thom to move the court to attempt to change the order. While the ordered access was indeed subject to the recommendation by Dr. Munt, again there is no evidence that he has made a recommendation that it not occur as ordered.

[54] Ms. Thom's deliberately disobeying the order regarding Mathieu's access is made out on her own evidence. She is critical in her email to Dr. Munt of Mr. Thom's, "requesting that the children spend more time with him" when he was only seeking to have Justice Kane's order followed.

[55] I find that Ms. Thom looked for any excuse to not facilitate access between Mr. Thom and either of the children. She purported to rely on unproven statements by the CAS and Dr. Munt. She incorrectly suggested that the order was not directive. She incorrectly took the view that she did not have to follow the order if it was contrary to her view of the children's wishes. She went so far as to suggest that because the order would not be enforced by the police, it did not need to be followed. Unlike with the transportation issue and Camile [age 12 years], I see no similar circumstances on the evidence for her not facilitating Mathieu's contact with his father per the order.

[93] The circumstances of that case, and the reasons of the court, resonate in the present case. Regardless of the grandmother's belief in what she says were B.'s wishes, regardless of what the police or the CCAS decided to do, or not to do, there was a court order which the grandmother was required to obey.

[94] During the course of argument, I asked grandmother's counsel on what basis should the court ignore the final order, thereby permitting B. to remain with the grandmother. The response I received was that it was in the best interests of the child to do so.

[95] For reasons I discussed earlier, best interests can only be determined on the basis of admissible evidence. Suggesting that a court should rely on otherwise inadmissible evidence to make decisions in the best interests of a child, is fraught with obvious danger.

[96] Grandmother argues that it would be harmful to B. were she to be returned to the mother. However, the CCAS conducted its own investigation and specifically stated in its September 10th letter that it takes "no position in terms of custody arrangements for the child".

[97] Implicit in this statement[14] is that the CCAS does not conclude B. would be at risk of harm were she to be returned to her mother's care.

[98] And yet despite this conclusion, and despite the CCAS having conducted its own investigation, the grandmother suggests to the court that the court somehow has a deeper ability to make such a determination on the basis of an affidavit filed by each party, despite each party having a clear agenda in the proceeding.

[99] And again, harkening back to the Thom case, supra, even if the court were satisfied that there may have been some admissible evidence as to B.'s wishes, as a barely 7-year-old child, B. does not get to decide where she will live in the face of a court order stating otherwise, a court order which was validly made and which has not been varied.

[100] Moreover, the grandmother cannot take it upon herself to make decisions about what is in B.'s best interests and, in doing so, ignore a court order. If she decides to do so, she acts at her own peril.

[101] I asked counsel for grandmother why the grandmother did not commence a motion to change the final order if the grandmother sincerely believed that B. would be at risk of harm were she to be returned to her mother.

[102] Counsel stated that grandmother was prohibited from bringing such a motion as six months had not yet elapsed since the making of the final order.

[103] In fact there is no such restriction, either in the Rules or in the Children's Law Reform Act.[15]

[104] Per Justice Minnena's admonition in Thom, supra, what the grandmother ought to have done was to immediately return B. to her mother and then brought a motion to change the final order. In that way she would not have been in breach of the final order[16] and she would then have had the opportunity to possibly marshal her evidence in support of her request to change that final order.

6: CONCLUSION

[105] As I noted at the outset of these reasons, this case is very unfortunate, with a mother and her own mother pitted against one another in a tug of war over a little child. And I suspect that the current motion, as well as the outstanding motion for contempt may only exacerbate what is already a toxic dynamic between the mother and the grandmother.

[106] It is almost inevitable that unless this conflict is significantly reduced, B. will continue to suffer from the fallout.

[107] Whether or not the parties are capable of such a turnaround is something only they can determine.

[108] While the mother is certainly entitled to proceed with her contempt motion, I encourage her to consider adjourning that motion even beyond the current return date, if the grandmother otherwise complies with the final order and begins to work in a more cooperative fashion with the mother. The mother can ask the court to preserve her right to bring back the contempt motion if the circumstances otherwise suggest that it would be appropriate for her to do so.

[109] In the meantime, and unless a court orders otherwise, the grandmother shall fully obey the final order.

Released: September 20, 2018

Signed: Justice Robert J. Spence

Footnotes

[1] The parties subsequently agreed to an adjournment date of December 18, 2018.

[2] The letter is actually signed by two CCAS workers. The letter does not state which worker conducted the interview, or whether it was both workers together, or possibly a different worker entirely.

[3] For example, due to the passage of time beyond which an appeal may be launched, or where circumstances have changed.

[4] Subject to certain exceptions, such as where a litigant may be legally barred from seeking to change an order. In any event, none of the few exceptions apply to the circumstances of this case.

[5] Although the sequence of these events is not entirely clear from the evidence. Nevertheless, that sequence has no bearing on the reasons for judgment.

[6] Subject to certain well-established exceptions.

[7] In the present case, because it was a motion there was no voir dire. Motion evidence is treated somewhat differently than trial evidence. I will discuss this later in these reasons.

[8] Khelawon, supra, paragraph 50.

[9] Khelawon, supra, at paragraphs 50 ff.

[10] Bradshaw, supra, at paragraph 32.

[11] Subject to what I will have to say about the CCAS letter of September 10th.

[12] I am mindful in this discussion that the statements made by the CCAS worker(s) were in a letter rather than in a sworn affidavit. I am also mindful that the opinions expressed in that letter were simply that – opinions. Finally, I am mindful that the letter does not identify which of the two workers whose names appear at the end of the letter is responsible for the comments and opinions expressed in that letter.

[13] Notwithstanding the earlier-expressed frailties inherent in the CCAS letter, these particular views are patently obvious on an entire reading of the evidence, and likely not something that either the mother or the grandmother would disagree with.

[14] Subject to the frailties of that letter, discussed earlier.

[15] Counsel may have confused this with subsection 37(3) of the Family Law Act, which prohibits a motion to vary a support order within six months of the making of the final order sought to be varied, without leave of the court.

[16] For which she potentially remains exposed to a finding of contempt.