Court File and Parties

DATE: March 22, 2021 Court File Number: 40-2020 Ontario Court of Justice Orangeville

BETWEEN:

Sloane Michele Phillips Applicant

and

Talar Carla Drover and Christopher Jefferies Respondents

Justice B.E. Pugsley

Heard: March 17th, 2021 Released: March 22nd, 2021

Appearances (proceedings held remotely):

Applicant and counsel Kaitlyn Perrotta Respondent (Ms. Drover) and counsel Brahm Siegel and Kelly Watson Respondent (Mr. Jefferies) appearing on behalf of himself

Endorsement

[1] The Respondents are the parents of two children: A.K.G.D. (F)(DOB: […], 2012) and A.M.D. (M)(DOB: […], 2014) (collectively “the children”).

[2] The Respondents don’t now live together. The Respondent (mother), Ms. Drover, has custody of the children.

[3] The Applicant is the mother of Ms. Drover: the maternal grandmother of the children.

[4] Last summer the Applicant commenced an Application seeking (1) access to the children on a defined basis; (2) mandatory disclosure by the Respondent (mother) of all of the children’s medical and educational information; and (3) the appointment of the Office of the Children’s Lawyer to investigate and report on the views and preferences of the children.

[5] The Respondent (mother) filed an Answer opposing any access by the Applicant other than in her discretion and claimed a restraining order against the Applicant.

[6] The Respondent (father) (self-representing) filed an Answer asking for the same relief as the Respondent (mother).

[7] A case conference was held before me on December 2nd, 2020. The issue was defined narrowly: is access by the Applicant to the children in their best interests?

[8] The parties agreed to argue a temporary motion for interim relief on March 17th, 2021. The Applicant then sought a postponement of the motion and leave to cross examine the Respondents. I declined to grant such leave. The motion was heard as scheduled on March 17th, 2021. I reserved my decision. This endorsement is that decision.

[9] Between the commencement of the Application and the submissions of counsel the Children’s Law Reform Act (RSO 1990)(c.C-12) (the “Act”) was significantly amended with regard to parenting time, decision making and contact. The best interests of the children were more specifically defined. That new law applies to this motion.

[10] The Applicant submits that before her contact with the children was arbitrarily ended by the Respondent (mother) they enjoyed a very fruitful and intensive relationship with her. It is best for the children that the Respondents be required by court order to permit the children to have defined contact with her.

[11] Both Respondents oppose any contact between the Applicant and the children. They characterize the children’s past relationship with the Applicant as toxic. It is best for the children that they have no contact with their grandmother at this time.

[12] The Applicant has filed an initial affidavit, a supportive affidavit from a friend, and a brief affidavit in reply.

[13] The Respondent (mother) filed her own affidavit and affidavits supporting her position from: the Applicant’s father (the great grandfather of the children); the Applicant’s mother (the great grandmother to the children); the Applicant’s sister (great aunt of the children); the Applicant’s other daughter; the Applicant’s niece; and, the Respondent (mother)’s former boyfriend. She also filed an affidavit from Ms. Breadner, a social worker who is counseling the children.

[14] The Respondent (father) filed his own affidavit.

[15] The Applicant noted in submission the severe time constraints in her providing an effective response by way of reply to the extensive material filed by the Respondents.

[16] Both counsel provided me with useful caselaw to assist me here. Notably the cases largely engage decisions of other courts of initial jurisdiction wrestling with grandparent access (“contact” now) on other facts. The only binding authority that I was referred to was Chapman v. Chapman (2001)(Ontario Court of Appeal). In Chapman on the facts of that case, the Court of Appeal emphasized the prerogative of the parents – not separated – to decide who ought to see their children and under what conditions.

[17] As Madam Justice Abella (as she then was) noted in Chapman (citing the leading Supreme Court of Canada case Gordon v. Goetz (1996)(SCC)) at paragraph 14, “’when determining the best interest of the child each case turns on its own unique circumstances and the only issue is the best interests of the child in the particular circumstances of the case’”. This of course recognizes that families and children represent an endless spectrum of possible circumstances depending on the family and its makeup. For example, many of the cases engaging the issue of grandparent contact (see for example Giansante v. Dichiara (SCJ)(2005) – cited by the Applicant in submissions) take place in families where the parents or one of them have sadly died. Contact then may represent having contact with fully one-half of that child’s extended family. Decisions made about contact after a sudden death may be those made during times of great stress and grief. Such is not the case here and the utility of such precedents is limited. Each case is driven by the facts of that case.

[18] As is always the case in issues engaging where children will live and who else they will have contact with the court must decide based upon what is in the best interests of the children in the context of the children’s age, experience, family and social background and all of the factors (not meant to be exhaustive but somewhat more detailed than in the past) identified by the Legislature in section 24 of the Act as recently amended.

[19] The amended Act has been in force for less than a month. Guidance from other courts of initial jurisdiction, let alone on the appellate level, is largely absent. It is apparent on the face of the newly amended Act that the Legislature has decided to direct the courts to apply a definition of “best interests of the child” that is significantly more detailed than was the case in the past.

[20] That Legislative direction draws a line between past determinations of what is “in the best interests of a child” (guided by statements of intent and of general principle) and the new intention to add to those principles specific areas of concern to assist the courts with an enhanced level of firmly directive guidance.

[21] Such direction is encompassed in the wording of the new section 24 (broadly paraphrased): ss 24 (1) (including with regard to contact) the court shall only consider the best interests of the child in accordance with this section; ss 24 (2) all circumstances of the child are to be considered giving primary consideration to the child’s physical, emotional and psychological safety, security and well-being; and factors related to the circumstances of a child include: (verbatim) ss 24 (3):

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

[22] The amended Act at ss 24 (4), requires that the court take into account a broad spectrum of actions which come within the ambit of family violence, broadly defined. Family violence has been given a bold new emphasis in the amended Act to underline the importance attached to that factor by the province.

[23] The new Act makes the usefulness of older caselaw somewhat less helpful. Now not only are former cases fact driven, but they apply the former principles of the former “best interests of the child” definition instead of the new definition referenced already.

[24] This best interests test as applied to the evidence before me at this untested stage, leads me to the conclusion that it is not currently in the best interests of the children to force contact with the Applicant. In a real way the security and stability of the children is currently threatened by the suggested order.

[25] This is not to suggest that (a) such contact in a form amenable to the parties on consent should never occur nor even take place now on protective terms that acknowledge the prerogatives of the custodial parent and the usefulness of contact with the extended family of the children – it is dangerous to use the word “never” in the context of children and families since both are entities that mature, change and grow as time passes; and (b) that on a more complete and tested record a court may come to a different conclusion in the future.

[26] I reach this conclusion for the following reasons, in no particular order.

[27] First, this is a request for a temporary order made at the earliest stages of what has the makings of a very contentious (and costly) civil proceeding. The atmosphere here between the parties at this early crisis stage of the proceeding works against the type of atmosphere required to allow the children to be comfortable in renewing a past relationship with their grandmother, whatever relationship that may have been. Clear from the affidavit of their counsellor Ms. Breadner is the fact that the children know about this dispute and are affected by it. In the words of ss 24 (2), their emotional and psychological security is clearly impacted by the very battle that the parties have engaged in, despite all the parties purporting to be acting only in what is best for the children.

[28] Second, this is the earliest stage of the proceeding and both sides are loaded for bear. It sometimes appeared to me that the parties were more engaged in their own battle than how the children’s interests can be served. It is against those interests to declare a winner or loser this early. The focus of the Rules and the new Act is deliberately intended to short circuit such black and white win/lose propositions. It remains to be seen as this matter proceeds through the courts whether the parties will be able to put aside their past conflicts and disappointments and consider the true best interests of the children.

[29] Third, this record demonstrates that the motivation of the Applicant in bringing on this interim motion has intermingled her belief that it is best for the children to see her, with her surprise, disappointment and shock caused by events external to the interests of the children: the breakdown of her relationship with a boyfriend and the Respondent (mother)’s commencement of a relationship with the same man.

[30] The Applicant admits to communicating with her daughter after that event using ill-considered language. That language I find opens a window to allow the court to see a motivation to challenge the roots of the Respondent (mother)’s decision making processes as related to the children as a form of retaliation by the Applicant. Notable too is her claim in her Application (admittedly a claim she is entitled by law to make if she chose to) for an order forcing the Respondent (mother) (the parental decision maker) to continually disclose to her the children’s ongoing medical and educational state of care. I find that this is not to encourage the children’s ongoing relationship with her but rather to provide an avenue to interfere with her daughter’s medical and educational decision making in the future. Remarks attributed to her in the material provide support for that conclusion although they are denied.

[31] Forth, while it is common for competing parties in family affidavit material to latch onto friendly witnesses in support of their thesis, the Respondent (mother)’s supporting material here is shockingly unified in condemning any temporary order forcing contact between the children and the Applicant at this time. The affiants are individuals who by their relationship to the parties have been in a position to see the Applicant’s interaction with the children and with others in the family. They are also individuals who one would normally expect to be allied to the Applicant: her parents, her sister, her niece. Instead they all state that the Applicant is a toxic person in general and specifically with regard to the children and provide examples of acts they say support that proposition. This material alone undermines the request for forced contact at this time.

[32] Fifth, the new Act places enhanced weight on the issue of family violence. The Applicant admits that she has used corporal punishment towards the children, explaining that this was because the Respondent (mother) encouraged this herself. The untested allegations of the responding material also go beyond spanking here.

[33] Sixth, the views and preferences of the children, even at this early stage, are apparent in Ms. Breadner’s affidavit. One child wishes no contact with the Applicant and the other seems ambivalent. Both know about the struggle for contact here. As noted previously this does not enhance their security and stability.

[34] Seventh, while the amended Act focuses on intra-parent communication more than that required here, such communication at this time would be extremely problematic given the high degree of tension and animosity.

[35] Eighth, there is a vast chasm between the evidence of the parties on how close the children’s relationship with the Applicant was in the past. Bridging that gap on a temporary motion is difficult.

[36] Clearly the Applicant has enjoyed grandparent type activities with the children on occasion in the past. She has also been a good resource to the Respondent (mother) when that party was in need of childcare assistance and the children were younger. That assistance included the children being left with her for days or weeks at a time on occasion. There is a scarcity of current evidence as to whether that contact (a) went much beyond the helpful grandparent dynamic or (b) was very recent.

[37] There is polarized evidence as to whether the Applicant’s care of the children was effective and entirely focused on their safety and interests. The Applicant’s choice of friends is questioned as is her past accommodations and her state of mind.

[38] There is a live issue as to the Applicant’s physical acts towards the children and her psychological effect on them.

[39] On this record I cannot find that the Applicant had a consistently close and child focused relationship with the children. Certainly, there is evidence that between the children she demonstrated a preference for her granddaughter that was obvious to others and to the children. Time caring for children does not necessarily equate to a close, secure, stable and safe relationship with the children.

[40] On the civil standard I cannot conclude that the Applicant has demonstrated on this record that type of relationship, the characteristics of which were recently elaborated upon by the amended Act.

[41] Ninth, the evidence here does not support the Applicant’s contention that the Respondent (mother) arbitrarily and without reason cut the Applicant off from the children. Rather, the Respondent’s material discloses that while the Applicant had been a helpful resource in the past that resource had not been without flaws which were concerning to the parents and to their extended family (which is the Applicant’s extended family as well). When the Applicant learned of the relationship between the Respondent (mother) and her boyfriend the Applicant’s reaction was such that the Respondent (mother) withdrew her consent to the child/grandparent relationship continuing at that time. In other words, she felt that at that time it was not in the best interests of the children to see their grandmother. This decision is not arbitrary in the sense that the decision was made without reason nor without considering the effect on the children.

[42] Should the court override that decision?

[43] As the moving party, the Applicant bears the onus of showing on the civil standard that the court here should on an interim basis override the right of the Respondents to decide who their children should or shouldn’t have contact with. That desired result can only be reached if it is required considering the best interests of the child. Chapman v. Chapman is still the binding law on the issue that the decisions of the parent are entitled to deference unless the court finds that the best interests of the child require a different order.

[44] Parenthetically, in an era where through necessity and design children are often brought into contact with multiple temporary caregivers, friends, relatives, teachers, instructors and confidants, it is necessary to have a stable decision maker who decides on the nature and extent of such contact (the person having decision making authority – here the Respondent (mother)). Someone must take on that role to provide the stability and security mandated by section 24 of the Act if only to avoid child raising anarchy. Courts cannot be a constant source of resort for every parenting decision.

[45] The Applicant has not convinced me that this is an interim case where I ought to override the parents’ decision that contact between her and the children is not to their benefit. Rather, the children need a break from the conflict while the parties retreat and reconsider on what basis, if any, the children’s past relationship with their grandmother can be rehabilitated.

[46] It might benefit the parties to consider that children who are blocked from contact with one member of the family or another sometimes, later, seek to find a way of filling in missing pieces of their life puzzle. In a past time before the parties had to craft bold and hard affidavits for a court proceeding there was a relationship between these extended family members. While I do not force contact here it does not follow that on reflection some form of continuing line of communication between the children and their grandmother might be agreed to. Unfortunately continuing to try to force contact by court order may entrench resistance to such contact in a way that will burn bridges that may yet be saved. Persons in the healing profession may be of some assistance.

[47] The Applicant raises the question in her motion (although not addressed in submission) as to whether I should seek the assistance of the Office of the Children’s Lawyer here, perhaps through a Voice of the Child Report. I do not believe that this would be helpful at this time. In my view the request is made at this stage to try and find some supportive evidence for contact. I do not at this time believe that the children’s interests are served by being forced to relive their past contact with the Applicant for a dubious current purpose.

[48] Ms. Breadner’s report provided insight into the current views of the children. She is a well-respected local social worker who is known to this court and who has a reputation as a fierce advocate for her child clients. Unlike the Applicant’s submission I do find her role here as their counsellor to be both independent and child focused. The children already know that the parties are doing battle with each other and if pushed they may irrevocably choose sides. They need to know that the adults in their lives will solve these problems and have the broad shoulders to bear any current disappointment. I see no basis for a request that the OCL spend scarce resources on this family at this time.

[49] Counsel referenced offers to settle. We did not address the issue of costs. If counsel are unable to resolve this issue then they may make brief written submissions as to costs on the following schedule: the Respondent (mother) within ten days after the release of this endorsement; the Applicant within ten days thereafter; the Respondent (mother) may reply if desired within five days after that. Submissions will be no longer than two A2 double spaced pages exclusive of any Bill of Costs. I will stop reading after the second page. Counsel are reminded that there is no reference in Rule 24 with regard to civil scales of costs such as full indemnity, partial indemnity nor costs thrown away. Submissions shall be filed electronically via the Family Court portal at Orangeville OCJ.

[50] In the circumstances the Respondent (father) who is self-represented shall neither pay nor receive any costs here.

[51] I therefore make the following temporary order, not on consent:

1. The Applicant’s motion dated March 8th, 2021 (found at Tab 16 of the Continuing Record) is dismissed.
2. Costs between the represented parties are reserved.
3. The Respondent (father) shall neither pay nor receive costs.
4. Adjourned to April 21st, 2021 at 10 am (by Zoom) TBST re next step, as already endorsed.

Justice B.E. Pugsley Ontario Court of Justice at Orangeville