Ontario Court of Justice

Date: April 26, 2021 Court File No.: D41188

Between:

Mercelin Munroe Applicant

— AND —

Carlington Graham Alysia Izzard (deceased) Helen Killeen Respondents

Before: Justice Roselyn Zisman

Heard on: April 20, 2021 Reasons for Judgment released on: April 26, 2021

Counsel: Lauren Israel, for the applicant Carlington Graham, on his own behalf Ed Rice, counsel for Helen Killeen

Decision on temporary motion

Zisman, J.:

Introduction and background

[1] This is a motion regarding parenting arrangements regarding twin boys who are 2.5 years old.

[2] The Applicant is the paternal grandmother.

[3] The Respondent Helen Killeen is the maternal grandmother.

[4] The Respondent mother passed away on October 12, 2019.

[5] The Respondent father is currently incarcerated. He filed an affidavit sworn January 26, 2021 stating that he has sole custody of his sons and he consents to his mother being the children’s legal guardian until he is released from custody and able to care for them.

[6] The Respondent father commenced an Application for custody at the Ontario Court of Justice at 311 Jarvis. As the file from that court is not yet before this court it is not clear when he commenced his Application. A copy of the endorsement of the court dated August 11, 2020 is filed with this court and indicates that he filed an affidavit for an uncontested hearing on March 11, 2020 and was granted a final custody order on August 11, 2020.

[7] The maternal grandmother commenced this Application on February 9, 2021 seeking custody of her grandchildren and an order for police assistance to return the children to her care. She alleged the children were removed from her care without her consent by the Respondent maternal grandmother.

[8] The Applicant also filed a 14B motion for leave to bring an urgent motion for the return of her grandchildren. Leave was granted to proceed with the urgent motion.

[9] The affidavit of attempted service sworn February 22, 2021 states that the process server attempted to serve the paternal grandmother on February 18th but as the address is a condominium and the unit number was unknown, he could not affect service. He telephoned the number given and a female answered and advised he had the wrong number. He called again later and it went to voicemail stating that he had reached “Helen” and to leave a message. The process server requested that the maternal grandmother call him but she never returned the call.

[10] On February 22, 2021 the documents were sent by courier to the maternal grandmother.

[11] The motion for the return of the children and for an order for police assistance was heard on February 26, 2021. The maternal grandmother though served did not participate and the order was granted. The matter was then adjourned to March 25, 2021. A copy of the endorsement was sent to the maternal grandmother.

[12] Pursuant to the court order of February 26th, the children were removed from the care of the maternal grandmother.

[13] The court proceeding scheduled for March 25th was adjourned on consent to April 20th as the maternal grandmother had just retained counsel.

[14] A further 14B was granted for the release of the Children's Aid Society of Toronto (“the society”) records.

[15] At the hearing on April 20th, the only Notice of Motion before the court was the Notice of Motion originally filed for the return of the children and for police assistance. The Confirmation of Motion states that the paternal grandmother is seeking primary residence of the children.

[16] The relief for the temporary return of the children to the paternal grandmother has already been granted. The maternal grandmother did not file a cross-motion.

[17] Both counsel treated this motion as a motion for the children to be placed in the care of the maternal grandmother or paternal grandmother. Despite this procedural irregularity and in accordance with subrule 2 of the Family Law Rules, I am proceeding on the basis that this is a motion and cross-motion with respect to where these children should reside and what contact the children should have with their other grandmother. No submissions were made with respect to decision-making responsibility.

Service issue

[18] When this Application was commenced the paternal grandmother was incorrectly named as “Helen McLaren.” The address provided was correct although it is not clear if the unit number of the paternal grandmother’s residence was correct.

[19] The maternal grandmother agrees that she received a letter addressed to “Helen McClaren” from the applicant’s counsel Ms. Israel’s office on or about February 4th. However, she deposes that she did not open the letter. That letter was filed and requests that the children be immediately returned to the care of the paternal grandmother or an urgent motion would be commenced.

[20] Although the maternal grandmother was served with the court documents with her incorrect surname, she was aware that the paternal grandmother was seeking the return of the twins.

[21] On January 22, 2021, the paternal grandmother contacted the police due to maternal grandmother removing the children from her care.

[22] As of January 23rd, the maternal grandmother had been advised by the police and the society that the children should be returned to the paternal grandmother.

[23] I therefore find it is not credible that the maternal grandmother would not open a letter from a lawyer’s office when she was aware that the paternal grandmother was attempting to have the children returned to her care. If she did not open the letter, then she chose to ignore the letter to her detriment.

[24] I further find that the maternal grandmother was evading service of the court documents.

[25] I therefore find that irregular service of the Application and related documents and the Notice of Motion returnable February 26th on the Respondent Helen Killeen is validated as of February 22, 2021.

Applicable statutory provisions and legal principles with respect to a temporary motion regarding parenting

[26] Any proceeding with respect to children is determined with respect to the best interests of the particular child before the court in accordance with the factors set out in section 24 (2) to (4), as amended, of the Children's Law Reform Act.

[27] A temporary motion is meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will be later fully canvassed at subsequent conferences and if not, the issues will be resolved at a trial. See Coe v. Tope, 2014 ONSC 4002 at para. 25; Costello and McLean, 2014 ONSC 7332 at para. 11.

[28] The status quo should be maintained until trial unless there is material evidence that the child’s best interests requires an immediate change.

[29] I have considered the case law and the factors set out in section 24, as amended, of the Children's Law Reform Act. Despite the change in the legislation, the test for a parenting order or contact order as outlined in previous case law with respect to custody and access remains relevant.

[30] The challenge on a temporary motion is to make such an important decision based on affidavit materials that have not been tested by cross-examination and on an incomplete record. A temporary order can have and frequently does have long term implications.

[31] In accordance with an order for disclosure the records of the society were produced and attached as an exhibit to the paternal grandmother’s reply affidavit. Counsel for the maternal grandmother raised issues with respect to the court relying on these records as hearsay.

[32] I find that the records of the society are business records, even though no formal Notice to Rely on Business Records is filed at this stage due to the records having just been produced. The observations of the society workers and statements made to them by the parties are admissible. The records contain information and statements made by the police, I find these statements are also admissible at this stage. A copy of the police records have been requested.

[33] I have not considered and do not find admissible opinions expressed about where the children should reside to be admissible as this is the decision that the court is required to make.

Position of the parties

[34] It is the position of the paternal grandmother that the children remain in her primary care. She has concerns about the children having contact with the maternal grandmother in view of the allegations she has made against her and her actions in removing the children. However, she will abide by any decision of the court.

[35] It is the position of the maternal grandmother that the children spend equal time with both grandmothers in a week about schedule.

[36] Counsel for the maternal grandmother also requested that the OCL be appointed. As this request is not on consent and as there is no motion for this relief before the court, I am not prepared to grant such an order. This is without prejudice for such a motion being brought in the future or for this relief to be further canvassed at a case conference.

Undisputed facts

[37] The parents were involved with the Peel Children’s Aid Society when the twins were born due to substance abuse by the mother who tested positive for cocaine and marijuana. The twins were born premature and tested positive for cocaine at birth. The parents entered into a voluntary agreement with the society in October 2018.

[38] After the mother’s death, the father requested that the Peel Children's Aid Society file be closed as he did not feel the children needed protection services. No protection concerns were reported. The children were making gains with their development and the father was keeping up with routines for the children. The file was closed.

[39] The children were in the care of the father after the mother died in October 2019. Both the maternal grandmother and paternal grandmother were involved although the extent of their respective involvement is disputed.

[40] As of about October 12, 2020 the paternal grandmother did not have contact with the children. The father had raised concerns about the children spending time with her.

[41] As of October 28, 2020, when the father was arrested the children were in the care of the paternal grandmother. The father is currently incarcerated on serious charges of human trafficking and drug trafficking. The father wishes the children with his mother until he is released from jail.

[42] On January 21, 2021 the maternal grandmother attended uninvited at the home of the paternal grandmother and removed the children.

[43] The society has attended at the homes of both grandmothers and has no protection concerns about either grandmother. The society viewed this is a custody dispute and indicated it would not intervene.

Findings with respect to disputed facts

[44] Based on the records of the Children's Aid Society of Toronto, I find that the children resided in the primary care of the father after the death of the mother in October 2019 and that both grandmothers assisted him. However, the paternal grandmother cared for the children when the father was working and therefore, she spent more time with the children since their mother’s death.

[45] I do not accept the allegation of the maternal grandmother that the children resided equally with her and the father. The Peel Children’s Aid Society was still involved for a short time after the death of the mother and there is no mention of such an arrangement. Further, the text messages that the maternal grandmother relies upon as evidence of this shared arrangement do not support that allegation.

[46] I find that the maternal grandmother improperly removed the children from the home of the paternal grandmother. I accept the evidence of the paternal grandmother that she left the children with the paternal great grandfather for a short time while she went grocery shopping.

[47] I do not accept the allegation of the maternal grandmother that she was invited into the home by the great grandfather and given permission to go into the maternal grandmother’s bedroom.

[48] I do not find credible the allegation of the maternal grandmother that she removed the children as she was “horrified” as to their condition. She deposes that the children were strapped into a car seat sitting too close to the television and had soiled diapers and food matted in their hair. She deposes that she searched the house but could not find diapers or baby supplies at all. She deposed that the children had been left with the 93 year old great grandfather who was not capable of caring for them.

[49] In the maternal grandmother’s statements to the society and the police she stated that she video recorded the entire 45 minutes that she was in the home. But it was determined that the maternal grandmother was only in the home for 10 minutes.

[50] The society worker who viewed the tape, did not see any food matted in the children’s hair. The children were in their car seats, smiling and seemingly happy and not in distress. She further did not see any bleach bottles, as alleged by the maternal grandmother, in the paternal grandmother’s bedroom. The maternal grandmother alleged that the great grandfather gave her permission to go into that room.

[51] I find there is no credible evidence that the paternal grandmother is not the father’s mother as alleged by the maternal grandmother.

[52] I find there is no credible evidence, based on a statement allegedly made by the mother, that the paternal grandmother and the father are working together in “organized crime.”

[53] The maternal grandmother led the police to believe that she had a custody order and had been told by the society that the children should remain with her which was not true.

[54] The maternal grandmother also alleged that the police threatened to charge her with abducting the children, an allegation that is denied by the police.

[55] I find that, according to the society records, the maternal grandmother was advised that she should return the children to the care of the paternal grandmother and obtain legal counsel. She stated that she was not prepared to return the children unless forced to do so.

Discussion

[56] The status quo arrangement as of January 21, 2021 was that the children were in the sole care of the paternal grandmother as of October 2020 as requested by the father. The paternal grandmother had not seen the children since October 2020.

[57] The maternal grandmother removed the children from the care of the paternal grandmother without any justification. If she was concerned about the care of the children then she should have notified the society or called the police. She should not have simply removed the children and then refused to return them unless forced to do so by court order.

[58] I find that the maternal grandmother has made many allegations that have been proven, at this stage of the proceedings, not to be truthful. She has made these statements to discredit the father and the paternal grandmother.

[59] Based on the factors set out in section 24 of the Children’s Law Reform Act, as amended, I find that it is in the children’s best interests to remain in the care of their paternal grandmother.

[60] The father who obtained a custody order has consented to his mother caring for the children while he is incarcerated. Regardless of the serious criminal charges he is facing, he has the legal authority to make that parenting decision.

[61] The society has determined that the paternal grandmother is able to meet the needs of the children and that the concerns raised by the maternal grandmother were not verified.

[62] The paternal grandmother can provide the children with the stability they enjoyed prior to their unlawful removal by the maternal grandmother. She can also provide them with a connection to their cultural heritage.

[63] The more difficult decision is what, if any, contact the maternal grandmother should have with the children. She has made unfounded allegations against the paternal grandmother and threatened to make more accusations against the father.

[64] It is understandable that the paternal grandmother would be concerned that the maternal grandmother will continue to make accusations about her and her care of the children.

[65] It is understandable that she is fearful that the maternal grandmother will not return the children if granted contact with them.

[66] However, the children did have some contact with the maternal grandmother, her son and their maternal aunt and her son. Although the extent of that contact is disputed nevertheless, it is important for the children to maintain a relationship with the maternal side of their family.

[67] As a result of the police involvement, it is hoped that the maternal grandmother now understands the consequences of her unlawful removal of the children from the care of the paternal grandmother. I expect that she understands that if she does not abide by the terms of a court order that her ongoing contact with her grandchildren will be severely restricted, if not terminated.

[68] I find that it is in the best interests of the children to have contact with the maternal grandmother and her family as it is their only connection to their mother. However, if there is a breach of the order made, the maternal grandmother’s contact will be suspended until further order of the court.

Order

[69] There will be a temporary order as follows:

1. Irregular service of the Application and related documents and the Notice of Motion returnable February 26th on the Respondent Helen Killeen is validated as of February 22, 2021.
2. The children Carlington Eziekel Graham III and Carlington Zacari Graham III born [...], 2018 shall remain in the primary care of the Applicant Mercelin Munroe.
3. The Respondent Helen Killeen shall have contact with the children on alternate Sundays from 10:00 a.m. to 6:00 p.m. commencing on Sunday May 9, 2021. The children shall be picked up and returned by the Respondent from the home of the Applicant.
4. In the event of a breach of this order the Respondent’s contact with the children shall be suspended until further court order.
5. The Toronto Police Services, the Ontario Provincial Police, the Royal Canadian Mounted Police and any police service or police officers having jurisdiction in the place where the children may be are directed to enforce the terms of this Order.
6. If the Applicant, as the successful party, is seeking costs, oral submissions may be made on the return date of May 31, 2021 at 9:00 a.m. A copy of a Bill of Costs, attached to a confirmation, should be submitted prior to that date. If counsel prefers written submissions can be served and filed with the court no later than May 17th and any response by May 28th.
7. Adjourned to a case conference on May 31, 2021 at 9:00 a.m. to proceed by zoom.

Released April 26, 2021 Signed: Justice Roselyn Zisman