Court File and Parties

Court File No.: Brampton 1310/17 Date: 2018-10-25 Ontario Court of Justice

Between:

Bissoondai Hameed and Anwar Mohamed Hameed Applicants

— AND —

Alicia Hameed Respondent

Before: Justice A.W.J. Sullivan

Heard on: September 12, 2018

Reasons for Judgment released on: October 25, 2018

Counsel

Harminder Dhillon — counsel for the applicant(s)

Adrian Baker — counsel for the respondent(s)

Endorsement

SULLIVAN J.:

Introduction

[1] This is a decision from a temporary motion for grandparents' access to their granddaughter Sydney Hameed born October 26, 2012. (Sydney)

[2] The applicants are Bissoondai and Anwar Hameed, the maternal grandparents.

[3] The respondent is Alicia Hameed, the mother of Sydney.

[4] A case conference was held in this matter on June 28, 2018, little progress was made and this motion was set for temporary relief.

Applicants' Position and Relief Sought

[5] The applicant grandparents are seeking every other weekend Saturday or Sunday day access with a review in 12 weeks for greater time. In the alternative they seek supervised access through a supervised access center with a review after four visits, with the parties sharing the cost equally.

[6] In this motion they also request an order that Sydney should attend access despite any minor illness and if the child does have an illness the respondent mother is to provide a doctor's note. In addition, they also seek some time following Sydney's birthday and no less than three days of four hour access during Sydney's Christmas holiday break and additional access around family events.

[7] The respondent mother Alicia Hameed opposes any access and requests that this motion be dismissed with costs.

Applicants' Evidence

[8] The grandparents filed each their own respective affidavits. In addition one of their other daughters, Yasoda Bhaichan, filed an affidavit in support of their motion.

[9] The grandparents argue that they had been actively involved in Sydney's life from birth until February 2017.

[10] In early 2013 shortly after Sydney's birth, the grandparents depose that Alicia expressed concern for her safety and that of Sydney from a roommate that she had been sharing space with, at which time the grandparents offered Alicia and Sydney to move to their home basement apartment.

[11] The grandparents depose that for three years the respondent mother lived in the basement of their home during which time they cared for Sydney on a regular basis. They purchased clothing for Sydney, cared for her, prepared meals, did grocery shopping, took Sydney to healthcare professionals and provided financial assistance to both.

[12] The grandparents state that in Feb. 2017 the respondent mother uprooted Sydney from this caring arrangement without reasonable cause and acted unreasonably in denying them access or any contact with Sydney since February 2017.

[13] The grandparents indicate that prior to commencing their application in November of 2017 that they sent a letter to their daughter proposing an access arrangement which was refused. It was only at this point that they brought this matter to court. They argue they have been trying diligently to reconnect with Sydney since she was moved by her mother without cause.

[14] The grandparents argue that they became concerned for Sydney's well-being as the respondent mother has a history of unstable behavior and Alicia has always had their active support in caring for Sydney.

[15] In their affidavits they review their daughter's adolescent history, her struggles emotionally and behaviorally which required involvement of the Peel Children's Aid Society and a brief period of hospitalization for Alicia.

[16] The applicant grandmother in particular in paragraph 26 of her affidavit outlines what she believes is the respondent mother's inability to independently provide for Sydney. She argues that Alicia has exhibited anger to individuals in the family and hostility toward Sydney, that Alicia uses inappropriate disciplinary methods emotionally and physically toward Sydney, that she treats Sydney as if she was an adult, that she lashes out at Sydney, that she has left Sydney for prolonged periods of time May of 2016 for four days, and has introduced Sydney to her different partners.

[17] Both grandparents clearly indicate "that in the respondent mother's care, Sydney is not receiving the care and attention that she needs".

[18] The grandparents depose that when their daughter Alicia was a teenager there were difficulties with her that involve The Children's Aid Society Region of Peel principally because of her emotional instability and anger. They do admit in February of 2017 calling the Peel Children's Aid Society after being directed to do so by the Catholic Family Services of Peel, as they were seeking advice as to how they as grandparents could connect with Sydney.

[19] They argue that they are free of any criminal charges other than an incident in May of 2016 at which time Mr. Hameed was arrested and charged with assault when he pushed Ms. Hameed. These charges were withdrawn on January 11, 2017.

[20] Their other daughter Ms. Bhaichan in her supporting affidavit indicates that her parents raised her and her siblings in a loving and caring home. She states that she always felt safe in their care and that she has no concerns about her parent's ability to care for her five-year-old daughter and/or Sydney.

[21] She indicates that her daughter Aria and Sydney have a close relationship which ended in December of 2017 when she had commented to the respondent mother that while Sydney was over visiting with her daughter that it appeared that Sydney was concerned that something bad would happen if she visited with her grandparents.

Respondent Mother's Evidence

[22] The respondent mother seeks to have this motion dismissed with costs.

[23] On January 26 2015 she obtained a final custody order of Sydney. This was an order of Justice Parent.

[24] She is currently in a relationship living with Mr. Dawe for the past year and a half and is currently expecting their first child as a couple. Sydney is excited about having this sibling.

[25] She deposes that as a child she was raised in a dysfunctional home and that her parents, the applicants, have a lengthy history of a high conflict relationship which they hide.

[26] She deposes that her most prevalent memories from her youth are her parents constantly screaming at each other or at her. She deposes that both parents believe in physical discipline using their hands or objects and that she was physically disciplined throughout her youth until she was approximately 14 years old.

[27] The last incident of physical discipline involved her father hitting her at which time Peel CAS became involved.

[28] She also recalls struggling emotionally because of the difficulties that she had experienced in her youth in the care and control of her parents. This was due to their constant arguments and her father drinking.

[29] At 19 while finishing high school, she left her parents care as they were unhappy that she was pregnant. She recalls that they were not supportive of her and were angry with her. She recalls that they encouraged her to abort the pregnancy which the grandparents in their Reply evidence deny.

[30] When Sydney was approximately four months old Alicia recalls moving back into her parent's basement apartment. However within 30 days of her move she received an eviction notice from her parents. She attached a copy of this eviction notice to her affidavit.

[31] She has a different version of events than that of the grandparents as to why they asked her to the leave the basement. The grandparents suggest this was because Alicia was bringing strangers into the apartment to live with her. She believes that this had nothing to do with the eviction notice but rather her mother was upset with her because she did not side with her mother in arguments that were regular occurring between the grandparents.

[32] In July of 2013 she moved back again into her mother's home. The parents at this time promised she could live in the basement apartment as a separate unit from the upstairs. She moved back on this occasion in part as she was pursuing postsecondary education and had no funds. She recalls maintaining her own living space in the apartment as a separate entity. She recalls wanting to live on her own. She paid her rent and expected to enjoy her privacy in her own space.

[33] She remained living with her parents for approximately three years. During this time she struggled with their interfering with her parenting of Sydney and increasingly they did not respect the boundaries which she sought to impose for her own privacy. Over time they increasingly violated her parental authority and disrespected her as a parent which she resented to the point that she took the steps to write a letter in September 2015 outlining her concerns that she had regarding how they were interfering with her parenting and decision-making. A copy of this letter was attached to her Affidavit for this motion.

[34] She does recall her parents buying supplies and other items for her daughter but usually this was in excess of what was needed. She remembers that she would be told that she was ungrateful or unappreciative if she raised her concerns. She felt that her parent's generosity came with a price and that she would be manipulated by their assistance.

[35] She does accept that there were positive moments that Sydney had experienced with her grandparents and that she as a single mother did on occasion rely on her parents for help. In particular she notes their help for two weeks when she recovered from shingles.

[36] This regrettably was outweighed with the arguments and hostility that the grandparents showed towards each other fueled by her father's drinking which occurred most nights to the point of intoxication and most weekends. Alicia recalls that her father never hesitated to drive intoxicated as long as she can recall.

[37] Towards the end of her stay at her parents' home she resorted to spending more time with Sydney at Godparent's and friends' homes during which times she recalls her mother regularly texting her telling her to return Sydney back to their house, failing which they would be calling the police on her.

[38] On May 8, 2016 Alicia recalls having to call the police on her father as her mother sought her assistance and had a large bump on her head after being pushed and falling to the floor where she remained unconscious for a while, according to what her mother had told her. That night her father was arrested and charged with assault against his wife.

[39] Alicia again had to telephone the police approximately a week after her father's arrest as he breached his bail condition and returned home.

[40] Although these charges were later withdrawn her parents and the family blamed her for involving the police on both occasions and she was criticized by her siblings and her mother for doing so.

[41] Given these accumulated circumstances Alicia provided 30 days' notice in February 2017 that she was moving with Sydney from the grandparent's basement apartment.

[42] Immediately following this notice she received a call from Peel Children's Aid Society indicating that the Agency had received a complaint that she was abusing and neglecting her daughter. Alicia fully cooperated with the Peel CAS which involved interviews with Sydney's school and her daughter's doctor and concluded with no protection concerns being verified.

[43] This complaint came from her mother the applicant. The Applicants defended this call and a second call to Peel CAS as effectively they did not believe she could independently care for her daughter prior to moving out in February of 2017.

[44] Alicia recalls that after she gave her parent's her moving notice that her mother attempted to persuade her not to do so. When this was not successful, a complaint to the child welfare agency was made and once again investigation concluded with no verification of any concerns.

Law on Grandparent's Access

[45] Chapman v. Chapman, 15 RFL (5th) 46 (Ont. C.A.). Grandparents do not have a legal right of access to grandchildren. The test is always best interests, and the courts will give considerable weight to the wishes of the custodial parent. The onus is on the grandparents to show it is in the children's best interests. It is not in the best interests of the children to be caught up in a real conflict, however the court must be vigilant to prevent custodial parents from alleging hypothetical conflicts as a basis for denying contact. Where there is real conflict, a child's best interests will rarely be served by a custody order. Branconnier, 2006 Carswell BC (SC) – the wishes of the parent must not be interfered with absent some evidence of willful disregard for those interest. Great weight must be given to parental autonomy to determine what is best for their children. Morecroft v. Morecroft, (1991), 122 NBR (2d) 271 (NBQB).

[46] Justice Nelson set out a three part test in Giansante v. DiChiara, [2005] O.J. No. 3184 (SCJ).

One: Does a positive grandparent-grandchild relationship already exist?

Two: Does the parent's decision imperil this relationship?

Three: Has the parent acted arbitrarily?

Court sets out that deference to parents may not be as strong when one of the parents has died and that parent's family seeks access.

In determining whether there was "positive relationship" at all, court summarized the following four elements from case law in Torabi v. Patterson, 2016 ONCJ 210:

(a) There must generally be substantial pre-existing relationship between relative and child. Strong loving ties must exist based on time spent with each other.

(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) This determination must include consideration of child's age and time since child last saw relative.

(d) If young child has lost parent, existence of strong pre-existing relationship may not be necessary when it is relative of lost parent who applies for access.

[47] The grandparents Ms. and Mr. Hameed in this matter in arguing the importance of preserving their relationship with Sydney, presented a number of decisions set out below that emphasized that deference to a parent should only be shown if that parent's decisions are reasonable. They suggest that Alicia's actions and decisions in blocking contact with Sydney should be seen as unreasonable.

[48] The grandparents argue that while courts frequently cite Chapman as their legal starting point in a grandparent access case, they often distinguish it and order access, or interpret it as suggested in McLaughlin v. Huehn, 2004 ONCJ 426 (Ont. C.J.) (Quicklaw or). In that case, McSorley, J. interpreted Chapman to mean that courts are to show deference to parental decisions where such decisions are reasonable. The judge wrote:

27 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. When the decision to end all contact between a child who has a positive relationship with grandparents, aunts, uncles, cousins and great aunts and grandmothers is made entirely because of hurt feelings from 3 to 5 years ago, then the decision is not reasonable and is no longer entitled to deference.

The Nova Scotia Court of Appeal in Simmons v. Simmons, 2016 CarswellNS 1017 (N. S. C.A.) noted that Chapman "has not had the effect of making the parental autonomy model the singular way to proceed in grandparent access cases." The Court of Appeal noted:

In addition, judicial deference to parental authority can be tempered by the court's willingness to recognize benefits that extended family bring to a child whose life has been marked by the loss of a parent, such as love, support, and stability. These cases sometimes present best interest factors not apparent in cases with two living parents, including the fact that a child can know his or her deceased parent, including his or her personality, heritage, and culture, through his or her grandparents. See, for example, White v. Matthews, [1997] NS.J. No. 604 (N.S. Fam. Ct.) and Brooks v. Joudrey, 2011 NSFC 5.

Discussion and Decision

Temporary Motion

[49] Considering the above noted law and the evidence presented I find that Alicia's decision for Sydney not to be in contact with her grandparents, to be reasonable.

[50] The evidence does show and Alicia recognizes that there were positive features of the grandparent's assistance to her on behalf of Sydney. This assistance and contact with Sydney was far outweighed by the negative atmosphere in the grandparents' home and their dealings with Alicia.

[51] This I also find is manifest in the grandparents' litigation of this matter before me such that I find based on my review of the evidence that the current attempts of the grandparents to have access with Sydney is not based on love, affection and Sydney's best interests, but rather is based on pursuing their goal of control and in their fixation in their belief that Alicia is unable to care for Sydney and that they are better suited to do so.

[52] I find no evidence to support the grandparents' assertion that Alicia has traditionally and currently neglected and/or that Sydney is not thriving in her care.

[53] The central issue in this matter is that although there might have been a relationship in some regard it was not fully a nurturing one but one that came with the quid pro quo or costs to Alicia and Sydney. The grandparents' relationship with Alicia was poisoned and continues to be so and therefore their relationship with their granddaughter is not in Sydney's best interest to preserve.

[54] Evidence clearly in the form of the letter that historically situates the struggles that Alicia has had with her parents, the grandparents requesting that they not interfere with her parenting and stop being overbearing is a central piece of evidence that historically situates the struggle that continues through to today.

[55] I find that the grandparents have never accepted Alicia's request then and now. This I find in the evidence such that the grandparents have been willing to, on two separate occasions, involve the Peel Children's Aid Society to investigate Alicia's parenting. On both occasions PCAS found no evidence of any child protection concerns.

[56] This court is not convinced that the grandparents understand the gravity of involving a state agency, such as the Children's Aid Society, in the life of a parent and the potential impact of this on their granddaughter who could be asked to be interviewed by social workers albeit in a sympathetic fashion.

[57] I find that when the grandparents were unable to influence Alicia to their position they had no qualms about using other resources to further their objective.

[58] I also find that the grandparents do not seem to recognize how their reliving and reviving the difficulties that Alicia had as a child with them in this particular proceeding is unhealthy and poisonous.

[59] Their review of Alicia's history with them at the time was when she was a child, has little to do with Sydney and their relationship with her which they claim is loving and caring.

[60] Alicia recognizes her difficulties as an adolescent. Some of these were caused by her immaturity at the time and some were directly connected to the grandparents parenting of her at the time and their own difficulties, which they do not recognize in their pleadings.

[61] In their reply pleadings they indicate that they have never used the threat to call the police as a means to control Alicia. They present text messages dated April 26 2016 in which they actually state that they will call the police if Alicia does not respond as she had removed herself from the home and was not in contact with them. It must be remembered that this also is a time when Alicia and Sydney are supposed to be living in the home independent as they claim and not under their control. Why would they need to call the police?

[62] I find that they have never accepted Alicia's ability to care for Sydney and do not do so today.

[63] This I find is quite clear from their reply affidavit where they state that:

… Alicia remains unemployed and is expecting another baby and that… We do not know how she plans to care for both Sydney, the new baby and herself. They go on to indicate that … her new partner and her only dating and they suspect that this partner has been providing for Alicia and Sydney for about a year and a half.

[64] I find that the applicants have not in the evidence discharged their burden of showing that their historical connection and relationship with Sydney is one that has been nourishing and a healthy connection that is worth preserving.

[65] Much of the evidence presented for their request to be re-involved in Sydney's life is based on their view of how Alicia was as an adolescent and a young mother who required their assistance in the past and according to their belief today continues to require their intervention to care for Sydney as she is incapable of doing so. This is not the basis that creates a nourishing and healthy relationship that is worth preserving.

[66] Sydney has not seen her grandparents since February 2017. The grandparents argue that they have been diligently trying to do so. The court accepts that they have been making attempts to do so. However, the key feature of this is whether or not Sydney has been affected by the separation and in this motion there has been no evidence presented directly or by third-party sources that Sydney has been needing their involvement in her life or that she has sought this out or asked for it while in the community and at school. In other words I find that there is no evidence that she has been impacted negatively in this regard.

[67] Finally, I wish that Mr. and Mrs. Hameed, the applicants, and the respondent, Alicia Hameed, to know that I have reviewed the evidence presented to date through the lens of the law as noted above as well as the law dealing with requests of this nature in a temporary motion. I believe if this matter persisted through to a full trial even with cross examination that by and large the evidence will not fundamentally be altered such that access would be ordered. I of course will not be the trial judge in this matter. As such I would ask both the applicant's and the respondent's to consider with their counsel a restorative counseling process that might assist this family in the long run.

[68] I firmly believe that ongoing litigation is not the answer. Each of you have competent and experienced counsel and I ask that each of the parties step back from this litigation and review the above suggestion with your respective lawyers.

Order

[1] The applicants' motion in its entirety dated July 29, 2018, tab 10 of volume 1 of the continuing record is dismissed.

[2] On the issue of costs the applicants and the respondent should negotiate a reasonable settlement in this regard failing which the parties may file cost submissions as follows.

[3] The respondent through counsel shall serve and file a 14B motion within 30 days of this order, attaching no greater than 2 pages submissions regarding costs and law, with a bill of costs and any signed offer to settle dated prior to the date that this motion was heard.

[4] The applicants may reply to the above cost submissions, within 15 days of receiving the same, by filing a 14B with submissions no greater than 2 pages, and any signed offer to settle dated prior to the date this motion was heard.

[5] If the parties cannot reach a final settlement regarding this application through negotiations, the next event in this matter shall be a Settlement Conference with signed offers to settle to be exchanged and filed.

[6] This will be held on November 20, 2018 at 10:00 a.m. in court room 210.

Released: October 25, 2018

Signed: Justice A.W.J. Sullivan