Court File and Parties
Ontario Court of Justice
Date: 2019-10-11
Court File No.: Brantford F-134/18E
Between:
Elizabeth Young and Michael Aaron Leone Applicants
— AND —
Samara Christina Young and Mike Komer Respondents
Before: Justice A.D. Hilliard
Heard on: October 8, 2019
Reasons for Judgment released on: October 11, 2019
Counsel
Martin Vamos — counsel for the applicants
Lloyd St. Amand — counsel for the respondents
Judgment
Hilliard J.:
Overview
[1] This is the Applicants' motion for interim access to the child, Madalynne Jennifer Bartels, born […], 2008, as well as supplementary information to be provided by the privately retained counsel for the child.
[2] The relief being sought by the Applicants is opposed by the Respondents.
[3] For the reasons set out in this judgment, I have determined that it is not in Madalynne's best interests for the Applicants' request for access to be granted. I am also not satisfied that there is a sufficient evidentiary basis for me to make the order for supplementary information to be provided as requested.
Evidence
[4] The Applicants were having regular access with Madalynne throughout her young life up to and until April 2018 when all contact with the Applicants was ceased by the Respondent mother.
[5] It is conceded that the Applicants did from time to time pick up Madalynne from school and assist with transportation to Madalynne's appointments.
[6] The contention of the Applicants that they were for a time Madalynne's primary caregivers is adamantly denied by the Respondent mother.
[7] The Applicants depose that the termination of their relationship with Madalynne by the Respondent mother was unilateral, unexpected, and arbitrary.
[8] The Respondent mother deposes that the termination of access in April 2018 was as a result of continuous and unceasing actions by the Applicant grandmother in particular that were undermining the Respondent mother's parenting.
[9] The Respondent mother cites numerous examples in the multiple affidavits she has sworn filed in this proceeding of the Applicants persisting in behaviour that mother believes was detrimental to Madalynne.
[10] All of the example of inappropriate behaviour cited by the Respondent mother are denied by the Applicants.
[11] Both the Applicant grandmother and the Respondent mother agree that they engaged in counselling. They do not agree as to why the counselling was unsuccessful, each citing the other as the reason for failure.
[12] A children's lawyer was privately retained to represent Madalynne and a voice of the child report was requisitioned.
[13] An affidavit was sworn by Michelle Hayes, MSW, setting out Madalynne's views and preferences as expressed by the child, but without interpretation or analysis.
[14] Madalynne indicated that she wished her grandparents would just leave her alone, but also indicated that if she were in charge, she would spend time with her grandfather as she indicates that her time with him was fun.
[15] Madalynne's statements about grandmother are entirely negative and expressing worries that appear to be mirroring the exact same worries set out in the Respondent mother's affidavit evidence.
[16] It is clear from the evidence, and appears to be conceded by all parties, that Madalynne has been negatively impacted emotionally by the ongoing conflict between mother and grandmother.
[17] The Applicants' primary position on the motion is that access at Dalhousie Place Supervised Access Centre should be granted.
[18] In the alternative, it is submitted on behalf of the Applicants that the grandfather should be granted access with Madalynne as she expressed a desire to spend time with him through the affidavit of Michelle Hayes.
[19] The Respondents vehemently oppose any access order in favour of the Applicants.
[20] The Respondents' counsel submits that any type of supervised access will not truly demonstrate how the Applicant grandmother will interact with the child once the supervision is lifted and therefore would be of no assistance to the Court's inquiry into whether access to the grandparents is in Madalynne's best interests.
[21] The Respondents submit that the Applicant grandmother will continue her campaign to undermine the Respondents' parenting of Madalynne should she ever be granted unsupervised access.
Analysis
[22] The leading case on grandparent access is the decision of the Ontario Court of Appeal in Chapman v. Chapman and Chapman.
[23] The inquiry as set out in Chapman is as follows:
- Does a positive grandparent-and-grandchild relationship already exist?
- Has the parent's decision imperilled the positive grandparent-and-grandchild relationship?
- Has the parent acted arbitrarily?
[24] Subsequent cases have expanded and clarified the meaning of a "positive grandparent-and-grandchild relationship" to mean "something more than an occasional pleasant experience for the child."
[25] I accept on the evidence before me that the Applicants had a significant and meaningful relationship with the child that went far beyond occasional visits on holidays or special occasions.
[26] It is largely undisputed that the grandparents enjoyed significant periods of access with Madalynne over the course of years, which included weekends and overnight access during the week up to and including when Madalynne was enrolled in school.
[27] I find that for a number of formative years in Madalynne's life, her grandparents played a large and significant role in her caregiving.
[28] What is at issue between the parties on the first branch of the test is not whether the relationship existed at the time of termination by the Respondent parents but whether that relationship was positive.
[29] The Respondent mother's description of the Applicant grandmother's interactions with the child can be characterized as a campaign to undermine mother's parenting. This is adamantly denied by the Applicants.
[30] There are allegations of alienation being made by both mother and grandmother in these proceedings. There is insufficient evidence before me on this motion to make a determination as to whether grandmother or mother is the more culpable in the perpetration of the alienation of Madalynne from her grandparents.
[31] I am able to find that, whatever or whomever the cause, Madalynne has in fact been alienated from her grandparents.
[32] I further find that the conflict between mother and grandmother has had an emotional impact on Madalynne.
[33] For reasons that remain unclear even after a thorough review of the evidence, there was a clear and seemingly irreconcilable breakdown in the relationship between mother and grandmother.
[34] The result of the breakdown in the relationship between mother and grandmother is that Madalynne became caught in the middle of the conflict between these two women.
[35] Although I accept the evidence of the Applicant grandmother that there was a time when her relationship with Madalynne was positive, I find that the breakdown in the relationship between the Applicant grandmother and the Respondent mother resulted in a change from positive to negative.
[36] The decision of the Respondents to terminate Madalynne's relationship with the Applicants clearly imperiled the grandparent-and-grandchild relationship. However, I find that by April 2018 when the termination occurred, that relationship was no longer a positive one when viewed from the perspective of Madalynne.
[37] Both mother and grandmother had become so deeply entrenched in their own views that they were unable to consider how their conflict with one another was affecting Madalynne.
[38] The affidavit evidence in the continuing record is a further demonstration that both grandmother and mother are more concerned with accusations and denials than on overall best interests of Madalynne.
[39] This Court's decision must be child-focussed and based upon what is in the best interests of the child.
[40] On the evidence before me it is clear that whatever the decision of this court on this motion, mother and grandmother will not be dissuaded from pursuing their quest to prove the faults of the other.
[41] Mother's evidence leaves me with no confidence that she will encourage Madalynne's relationship with her grandparents.
[42] Grandparents' evidence leaves me equally unconvinced that they are even cognizant of their own culpability in the demise of their relationship with their granddaughter.
[43] I am therefore left with the inescapable conclusion that any relationship that Madalynne has with her grandparents that is court-ordered and thereby against the will of mother will not be positive.
[44] It is settled law that Courts must respect parental autonomy in making decisions for and about their children, including determining whether familial relationships are positive or negative.
[45] I therefore cannot find that it would be in Madalynne's best interests to have access with the Applicant grandparents. Such access would inevitably cause stress and emotional upset to Madalynne as a result of the Respondent parents' disapproval of and disagreement that any such contact or interaction take place.
[46] I am unable to find on the evidence before me that the grandchild-and-grandparent relationship prior to termination was so positive and beneficial for the child that this Court should interfere with the Respondent mother's decision to terminate that relationship.
[47] On the issue of the request for further particulars from the children's lawyer, I find that further inquiries by the Applicants regarding the information provided by Ms. Hayes through the Voice of the Child will not serve any meaningful fact-finding purpose.
[48] There is no specificity with respect to the supplementary information being requested or how such information would be of assistance to the Court.
Conclusion
[49] The Applicants' motion for access is dismissed and the request for supplementary information to be provided is also dismissed.
[50] Counsel may address the issue of costs in writing within 30 days.
Released: October 11, 2019
Signed: Justice A.D. Hilliard