Court File and Parties
Ontario Court of Justice
Date: 2019-09-09
Court File No.: Sault Ste. Marie No. 29/19
Between:
Lee-Ann Turner Applicant
— And —
Jocelyn Sheila Ansel Respondent
Before: Justice John Kukurin
Heard on: September 5 and 6, 2019
Reasons for Judgment released on: September 9, 2019
Counsel
Lee-Ann Turner (Applicant) — on her own behalf
Ryan Lindenbach — counsel for the respondent
KUKURIN J.:
[1] Nature of the Motion
[1] This is a decision on a motion (at Tab 14) brought by the Applicant maternal grandmother for an order for interim access to her grandsons, Eli (age 2 years) and Evan (age 10 months). The Respondent in this case is the daughter of the Applicant who is the mother of the two boys. She opposes the motion claims, and has brought her own motion (at Tab 17) which asks for a dismissal of the Applicant's motion. The father of the children (Mark) is deceased as of January 2019.
[2] Background and Estrangement
[2] These motions come in an application filed February 19, 2019, less than one month following the death of the father of the children apparently by his own hand. It is clear from the pleadings and the evidence that the mother and grandmother are estranged. The mother wants the grandmother to have no part in her life or in the lives of her two children. The maternal grandmother seeks only to have access to the children and to foster their relationship with her and her spouse, Alan.
[3] Terminology
[3] For ease of reference, I will refer to the parties and others by their forenames, not intending any undue informality, but because I believe ordinary people understand who a person is more easily if referred to by a given name than by legal description (applicant and respondent) or even by relationship description (mother, daughter or maternal grandmother).
[4] Proposed Access Schedule
[4] Lee-Ann's claim for access in her application has no details of what kind of access she wants the court to order. However, her motion for interim access is very detailed. Firstly, she wants access awarded to herself and her spouse, Allan William Reeve. She wants progressively increasing access in periods of two months, then four months, and thereafter from month seven onwards. Within these access periods, she wants access to Eli that is different than the access she wants with Evan. For example, in the first two month period she wants day access to Eli on the last weekend of each month Friday, Saturday and Sunday 8:00 am to 6:00 pm each day, but with Evan only on the Sunday 8:00 am to 6:00 pm. In the next block of four months, she wants the last weekend of the month, but wants access to Eli to be overnights from Friday to Sunday (or Monday if a holiday). She would like Evan only on the Sunday. The third block, which has no termination date, she asks for even more expansive access including the last weekend of the month for both children with overnights, and two weeks outside of city of residence (but within Ontario) each year. In all of these time periods she wants access by telephone or by video conferencing at least twice weekly throughout, and also wishes to be able to give them gifts.
[5] While this is a progressively increasing schedule, it moves more to the area of 'generous' access as time goes on. It will be interesting at trial to see what final order for access Lee-Ann will ask for. Although a settlement conference was held, it does not appear that any notation was made of what exactly she is ultimately seeking. Motions within an application permit parties to ask, on temporary basis, what they seek on a final basis.[1]
[5] Nature of Motion Evidence
[6] Always to be kept in mind is what this motion is all about. It is for interim or temporary relief, not final relief. Motions are argued on the evidence put forward by the parties in affidavit form. Rarely are parties to a motion permitted to have viva voce evidence presented, and if they do, it is only with leave of the court. No such leave was sought here, nor was any granted here.[2] Although such affidavit evidence can be tested by cross examination held before a hearing, no such cross examination was held of which I am aware. At least, no one produced any transcript of such cross examination.[3]
[7] As a result, the court has to try to make a decision on issues on untested affidavit evidence of parties, which is often defective, and does not always comply with the Rules that pertain to affidavit evidence. It has to apply, in the case of an access issue, the best interests of the child(ren) considerations when the factual evidence presented may be very thin about such best interests. In the case of this motion, there is another problem that is quite common to motion evidence. It is contradictory. What Lee-Ann often says about something is not what Jocelyn says about that same thing.
[6] Pre-Judging and Interim Relief
[8] I am reminded of the comments of Justice G. Campbell in [Parkins v. Burnke][4] at paragraph [21]:
The temporary relief sought in this motion is identical to that sought at trial after the full examination and cross-examination under oath of all relevant parties and corroborating witnesses. In my view, it is entirely inappropriate that I, on these facts, on (apparently) untested affidavit evidence, would presume to wholly intervene, pre-judge, and impose my order upon the mother at this "early" stage (despite the application now having "aged" to over 18 months).
[9] The most notable word in the foregoing quote is "pre-judge".[5] I cannot see what Lee-Ann would want further from this court if she obtains with this motion the access she seeks in the motion. It does not matter that what she is seeking initially is more modest than what she seeks seven months hence. What she wants now is an order for progressively increasing and expansive access to span the immediate future and potentially the long term future. I suspect that if she is successful on the present motion, that will be the end of the case, as it is unlikely that she, as a grandparent, can get more on a final basis. In a sense, granting Lee-Ann the relief she wants now is analogous to granting a party, on an interim basis, leave to move with his or her children to the other end of the country (or beyond) leaving the other parent in Ontario. In the [Plumley decision][6], a decision quite often cited with approval dealing with interim mobility, the first factor the court considered on an interim motion (admittedly on mobility) was [at paragraph 7]:
"A court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial."
[7] Genuine Issue for Trial
[10] The case before me is one where the fact that there is a genuine issue for trial is blatantly obvious. The parties are not only not speaking to each other, but there is an obvious estrangement that is not a recent development. I find it unlikely that this case will be resolved by their consents. In fact, the settlement conference was totally unsuccessful, and the judge presiding at it referred to the highly polarized positions of the parties.
[11] Aside from personalities, however, is that the evidence supports this conclusion. Despite the protestations of Lee-Ann to the contrary, her evidence is clearly an aggressive attack on her daughter, Jocelyn, on a number of fronts. Jocelyn is no better, and her evidence is aggressively defensive, with no reluctance in stating openly and clearly that she wants nothing to do with Lee-Ann.
[8] Status Quo
[12] Apart from the fact of a genuine trial issue is the status quo. The parties cannot even agree on what the status quo is. Lee-Ann would argue that she had, and has, an established bond with Eli, fostered during a time when she had liberal access to him, and that this is the status quo. Jocelyn has cut off all access to Lee-Ann effectively in May 2018. For over fifteen months, Lee-Ann has had no contact with Eli. With Evan, she has never had any contact as he was born when access was non-existent. Jocelyn clearly disputes what Lee-Ann contends is the status quo.
[9] Lack of Evidence on Best Interests of Children
[13] While the evidence on this motion is very interesting (and quite comprehensive) as to the mother's mental health history, her teen and post teen years, the dysfunction that seems to have plagued this family, and the allegations of emotional abuse at the hands of Lee-Ann, there is precious little that relates to the best interests of the children, especially on an interim basis.
[10] Onus and Probability of Success
[14] Lee-Ann, as the motion applicant, has the onus of satisfying the court that there are compelling circumstances that dictate the granting of interim access to her pending the trial. Moreover, before the court grants her temporary access, she should satisfy the court that the probability is high that she will be successful, after trial, in being awarded access.
[15] In terms of "compelling circumstances", these are less to do with Lee-Ann and Jocelyn than they are to do with the children Eli and Evan. The Children's Law Reform Act (the CLRA) is a child centred statute, and the court is mandated to see things from the perspective of the child, not the parent. What Lee-Ann has provided by way of compelling circumstances that relate to the children is close to nil. I say this from a temporary access point of view. What she says may have more relevance when considered in the context of a final order of grandparental access.
[16] Moreover, the status quo is not what existed over fifteen months ago for these children. At their age, their status quo is much more the recent past. And that recent past, regardless of why, didn't involve any contact with their grandmother.
[11] Legal Approaches to Grandparental Access
[17] The parties also disagree on what the law says is the appropriate approach to take on this motion. Lee-Ann argues that the "pro contact" approach is the proper one for the court to adopt. That is one that promotes contact between the child and the non-parent access applicant (ie the grandmother) on the basis that a child's best interests are presumed to be better served by such contact with extended family. Jocelyn argues that the "parental autonomy" approach is the proper one to adopt, and that the court ought not override decisions of a parent for his or her child(ren) unless the parent is clearly not making these decisions in the child(ren)'s best interests. While it is fair game to have divergent positions, it is also incumbent on the parties to provide to the court, the evidence from which it can apply one or the other of these two approaches.
[12] Evidence of Other Family Members
[18] There is also the evidence of the Chris, the brother of Jocelyn and the son of Lee-Ann. While much of it is hearsay, enough of it is not, and it clearly points to a rift between Lee-Ann and her children that is long term and has resulted in mental trauma and other issues, at least for Chris. Chris supports Jocelyn in her stance on access to Lee-Ann. This is yet another reason why the court should not upset the status quo until Chris' evidence can be more fully explored at trial.
[13] Legal Presumptions and Grandparental Access
[19] There is one final consideration adverted to in the [Plumley decision][6] and mentioned above in paragraph [14]. The law gives creates a presumption that the best interests of a child are optimally served by the child's contact with both of them. Obviously, this cannot happen when the parents separate. Hence access to the non-custodial parent is the mechanism by which this parent-child contact can continue. However, there is no such presumption in law with respect to a grandparent's access to a grandchild. The access that a grandparent may have is what the parents decide, or what the court grants to the grandparent. There is a plethora of cases involving grandparental access claims. They are not always successful. The leading authority is the case of [Chapman][7], a decision of the Ontario Court of Appeal which is binding on this court. I point out that this appellate decision favoured the "parental autonomy" approach to decisions relating to grandparental access claims.
[20] Accordingly, in terms of probability of success after trial, Lee-Ann has failed to persuade the court on the basis of the current law of Ontario. This also militates against granting her interim access, especially that claimed in her motion.
[14] Decision on Applicant's Motion
[21] Therefore, for the reasons outlined above, I dismiss the motion claims of Lee-Ann at Tab 14, Volume 1 for an order for temporary access to her two grandsons. This does not foreclose her from seeking access by way of a final order. However, I suggest she re-read the [Chapman (OCA) decision][7] more carefully and consider seeking advice of legal counsel if she does proceed.
[15] Decision on Respondent's Motion and Costs
[22] The motion of the mother, Jocelyn, at Tab 17, Volume 2 is granted. I point out that the only claim in this motion was for dismissal of Lee-Ann's motion. Jocelyn did not even claim costs. However she did include a catch all claim for such further and other order that the court deems just.
[23] The mother is the successful party. She is presumptively entitled to costs of the two motions. If the parties are unable to resolve the costs issue, I will accept written submissions of not more than three pages within 30 days hereof, together with any offers to settle, dockets, and bills as they relate to this motion only.
Released: September 9, 2019
Signed: "Justice" John Kukurin
Footnotes
[1] Rule 14. (1) A person who wants any of the following may make a motion:
- A temporary order for a claim made in an application.
[2] Rule 14 (17) Evidence on a motion may be given by any one or more of the following methods:
- An affidavit or other admissible evidence in writing.
- A transcript of the questions and answers on a questioning under rule 20.
- With the court's permission, oral evidence. O. Reg. 114/99, r. 14 (17).
[3] Rule 20 (5) The court may, on motion, order that a person (whether a party or not) be questioned by a party or disclose information by affidavit or by another method about any issue in the case, if the following conditions are met:
- It would be unfair to the party who wants the questioning or disclosure to carry on with the case without it.
- The information is not easily available by any other method.
- The questioning or disclosure will not cause unacceptable delay or undue expense. O. Reg. 114/99, r. 20 (5).
Rule 20 (2) The right to question a person includes the right to cross-examine. O. Reg. 114/99, r. 20 (2).
[5] This problem with interim relief motions is more than common. In Terris v. Terris, Justice Maria T. Linhares de Sousa, quite aptly pointed out:
"… this decision is being made on a temporary basis until the court can deal with the matter at trial with the benefit of examination and cross-examination of witnesses. This is particularly relevant where evidence is conflicting and there is a triable issue …I accept the wisdom of the jurisprudence that establishes that on a temporary basis, there must be a pressing reason for an immediate move and there is case law cited in support of that and that is also provided in counsel's material"
[6] Plumley v. Plumley, Justice Mary E. Marshman