ONTARIO COURT OF JUSTICE

CITATION: M.I. v. S.M., 2021 ONCJ 81

DATE: 2021 02 10

COURT FILE No.: Toronto DFO-19-15420

BETWEEN:

M.I.

Applicant Grandmother

— AND —

S.M.

Respondent Mother

— AND —

S.O.

Respondent Father

Before Justice Alex Finlayson

Motion Heard on January 26, 2021

Reasons for Decision released on February 10, 2021

Lenard Kotylo....................................................... counsel for the applicant grandmother

Peter Carlisi................................................................. counsel for the respondent mother

S.O. ................................................................................................................ on his own behalf

ALEX FINLAYSON J.:

PART I: NATURE OF THIS DECISION

[1] This case concerns an 11 year-old girl named M.O. The Respondents, who are separated, are M.O.’s parents.

[2] The Applicant, M.I., is a grandmother. She is not M.O.’s biological grandmother; but she is the biological grandmother of M.O.’s two older half-siblings, J. and C.

[3] For almost 9 years, between M.O.’s birth in 2009 and the late winter or spring of 2018, M.O. regularly visited with the Applicant on alternating weekends. Usually M.O. would accompany her half siblings, but sometimes M.O. went to see the Applicant alone.

[4] The Applicant treated M.O. as her granddaughter in all respects. By both the Applicant’s and M.O.’s accounts, this was a positive relationship. Despite that, at some point between March and June, 2018, the mother severed the relationship. Her reason for so doing was arbitrary.

[5] The Applicant brings this motion for access to M.O. This is my decision respecting that motion. In this decision, I intend to refer to the Applicant as the “grandmother”, for ease of reference. I do so also because in reality, she acted as M.O.’s grandmother. Whether she is a biological grandmother, or not, does not impact the analysis. For the reasons that follow, I intend to make an access order, although not the one sought by the grandmother. I will be guided by the Voice of the Child Report at this stage of the case.

PART II: BACKGROUND

[6] It is necessary for me to set out additional background, to provide the necessary reasons for this decision. I being by explaining the family constellation.

A. The Family Constellation

[7] M.O. is one of three children in this family. As I have already explained, M.O. has two older half siblings, J. and C.

[8] The Respondent, S.M., is the mother of all three children. The mother used to be married to E.B. E.B. is the grandmother’s son. The mother and E.B. are J.’s and C.’s parents.

[9] The mother told me very little of her former relationship with E.B. The grandmother says their marriage lasted 7 years. The grandmother advises the Court that the mother has custody of J. and C.

[10] At some point after the mother’s relationship with E.B. ended, she re-partnered with S.O. S.O. moved in with the mother for a period of time (I do not know how long). They no longer live together. The mother and S.O. are M.O.’s parents.

[11] As far as I am aware, there is no formal custody or access order in place between the parents concerning M.O. Although he supports the mother’s position, the father has not filed an affidavit for this motion. There is no evidence before me explaining how as between them, M.O.’s parents make decisions about her, or how often M.O. sees her father.

B. Prior Legal Proceedings

[12] There are two applications before the Court. The grandmother is the Applicant in both applications. This motion is brought within the application that pertains to M.O. only.

[13] The other proceeding pertains to C.[^1] The grandmother makes claims concerning C. in that separate application, because C. has a different father than does M.O. Thus, there are overlapping, but also different parties in the two cases.

[14] I believe that the grandmother started both cases at the same time. Until I heard this motion, I have been presiding over combined case conferences for both proceedings, together.

[15] In each proceeding, the Court ordered a Voice of the Child Report for each child. The Court now has before it a Voice of the Child Report for C. in the other proceeding, and a Voice of the Child Report for M.O. in this proceeding. M.O.’s views and preferences as expressed in the Voice of the Child Report will factor into my decision making.

[16] For reasons which I need not explain here, the grandmother has not brought a separate motion concerning C. At this point, the grandmother is still trying to re-establish her relationship with C., in a different way. There is now a Settlement Conference scheduled in that related case for May 14, 2021.

C. History of the Grandmother’s Relationship with M.O.

(1) The Grandmother’s Perspective

[17] Much of the grandmother’s evidence about her relationship with M.O. is admitted by the mother. Again, the father chose not to file an affidavit, so there is no evidence to the contrary from him about the grandmother.

[18] The grandmother deposes that she had a warm and close relationship with C. and M.O. until the mother terminated the relationship. Although the mother denies that characterization, it is not disputed that the grandmother was able to develop a relationship with M.O. over the years, through the many, many visits that occurred.

[19] It is not disputed that the grandmother had a lot of access with M.O. The grandmother says that she and M.O. spent some 208 weekends together over close to a 9-year period. For the purposes of this motion, I need not quantify the access with that precision. I do accept that they normally spent alternating weekends together, from either Friday or Saturday overnight to Sunday night. This began from the time M.O. was a baby. The mother admits that the grandmother had contact with M.O. from the time of her birth.

[20] The grandmother used to organize activities and outings for the children when they would visit her. She would take them to the Science Centre, the Aquarium, to Niagara Falls, to the CNE, to Canada’s Wonderland, or to just do more basic things like swimming and skating.

[21] The grandmother says she bought M.O. skates, and taught her how to skate. The mother agrees that the grandmother bought the skates, although she says that S.O. taught M.O. how to skate.

[22] Sometimes, the grandmother says, she and the child would just stay at home, and play games or rent movies. This evidence is not disputed, either.

[23] In addition to seeing the children on weekends regularly, the grandmother says she also provided childcare for M.O. too, for extended periods of time when the mother was unable to care for the children. For example, the grandmother cared for M.O. at one point when the mother was hospitalized with an infection. On another occasion, she and her husband (now deceased) kept M.O. during a winter storm, when the mother had lost power. At another point, the grandmother cared for the children when the mother was “unwell”. This is all admitted by the mother.

[24] When they visited her, the grandmother used to provide C. and M.O. allowances, every two weeks. The mother is now critical of that. Although this is nowhere in the evidence, in argument the mother’s counsel claimed that the children would come home, misbehave and demand money for good behaviour. This is one of the mother’s stated objections to the grandmother’s past gifting to the children.

[25] The grandmother also says that she gave the mother money for groceries for the family, and she purchased clothes for M.O. The grandmother set up a bank account for M.O. too, and she now wishes to set up an RESP for M.O.

[26] That the grandmother made these other purchases and gifts of financial assistance is also not disputed, although the mother is critical of that too. The mother will not allow the grandmother to set up the RESP for M.O.

[27] In summary, the grandmother says she treated M.O. in exactly the same way as she treated her biological grandchildren. The grandmother and her late husband referred to M.O. as their granddaughter; whereas M.O. referred to them as “Nana” and “Nonno”.

[28] The grandmother says she treated M.O. this way, with the full agreement of M.O.’s parents.

(2) The Mother’s Perspective

[29] Why exactly the mother terminated this relationship between M.O. and her grandmother, is difficult to comprehend based on the record before me.

[30] Some of the mother’s allegations are not those which would justify her action. For example, although these children had access with the grandmother every other weekend for years and years, the mother now alleges that the children were somehow unsafe in the grandmother’s care, perhaps arising out of the way that the grandmother drove with them. Apparently, according to the mother, the children asked her if they were “allowed to ride in the front seat” of the car. The mother also alleges that the grandmother would let them “draw on the walls”.

[31] Some of the allegations, while perhaps issues that the mother and the grandmother need to resolve, were not actually what led to the termination of the grandmother’s relationship with M.O.. Nor would they, in my view, justify the mother terminating the relationship.

[32] For example, the mother alleges that the grandmother was controlling. She says the grandmother undermined her role as the children’s mother. She says that the grandmother would give the children toys. Sometimes the grandmother gave the children toys, after the mother had grounded them in her home, for bad behaviour.

[33] On this topic, there is some evidence that the mother and the grandmother disagreed about discipline. For example, the grandmother explains that when the mother and E.B. were still together, her son was harsh in his treatment of J. She did not agree with how E.B. disciplined J. in their home.

[34] But even though the mother now says that the grandmother undermined her regarding discipline, the access visits continued to happen for many years.

[35] The mother now also alleges that the grandmother’ “damag[ed]” her own son and their older child, J. She says, “[w]hen her son and grandson got old enough to realize that [the grandmother] attempted to control them with money and other things they opted not to be controlled. The pain of being cut out of her life because she disagreed with them caused immeasurable pain and emotional damage”. The grandmother has responded to this, and does describe some mental health difficulties that she encountered with her son in the past.

[36] I do not propose to wade into this history at this point, and I am not certain that ultimately it will be relevant. Regardless of that history, I note once more that the mother still facilitated a relationship between the grandmother and the children for many years.

[37] And in spite of these criticisms, the mother still admits that the grandmother saw M.O. regularly, that the grandmother cared for the children when the mother was unable to do so, and that the grandmother provided her family with financial assistance. However, she now says, “… I did not realize [the grandmother] was keeping track of every reason she saw M.O. to use it against me later”, that the grandmother is mentioning the financial assistance she gave in the past as “leverage for continued access to the children”, and that “the cost of her generosity is not something [she wants M.O.] in debt for.”

D. The Mother’s Termination of the Grandmother’s Relationship with M.O.

[38] What actually triggered the termination of the relationship is the following.

[39] The grandmother says that in the spring of 2018[^2], the mother told her that she wanted M.O. to attend a Catholic School, as the older two children had attended. However, the older children were able to attend Catholic School because their father, E.B. had been baptized, whereas neither the mother, nor M.O.’s father were catholic. Thus, the mother advised the grandmother that she would herself be enrolling in catechism classes to become Catholic, and that both she and M.O. were to be baptized thereafter. This, she said, would enable M.O. to change schools.

[40] When it came time to selecting M.O.’s godmother, rather than asking the grandmother, the mother asked her catechism instructor. The grandmother felt hurt by this, and said that she would have liked to be M.O.’s godmother. The grandmother feels that although she is not M.O.’s “real” grandmother, she could have been her “real” godmother.

[41] The grandmother says that although she was upset by this, she did not allow it to affect her relationship with the mother. However, she says the mother’s attitude towards her seemed to become increasingly hostile.

[42] By contrast, the mother claims that the grandmother threatened her over the selection of M.O.’s godmother. She alleges that the grandmother said that if she was not allowed to be the godmother, she would make the mother “regret it”. The mother also claims that the grandmother “harassed her” via the phone after this.

[43] It was soon after this dispute, that the mother stopped letting the grandmother see M.O. The grandmother says that as the children started to miss visits (which rarely happened before), she confronted the mother as to the reason why. Inconsistently, the mother then told her she could no longer have M.O. come over, although she could continue to see C. The grandmother believed that the mother’s decision would have been devastating to M.O., especially since she had gone to great lengths always to treat the children equally.

[44] The grandmother says that after June of 2018, she was not allowed to give birthday presents to M.O., or to have contact with her at Christmas. She says that since that final conversation with the mother, she only saw the children two times. But in her affidavit material, the grandmother only describes one of those times.

[45] In about November of 2018, the grandmother went to the children’s school to drop something off for C. According to the grandmother (and according to M.O. as seen in the Voice of the Child Report), the grandmother and M.O. did see each other at the school that day and were happy to see each other. The grandmother says M.O. said “I miss you so much, Nana”, and started crying. The mother says it was inappropriate for the grandmother to attend at the school like this.

E. The Voice of the Child Report

[46] The Voice of the Child Report is dated February 28, 2020. Unfortunately, it was released just before the onset of the Covid-19 pandemic, and just before some cases in this Court were adjourned for periods of time. To prepare the Report, the clinician interviewed M.O. twice. In conclusion, the clinician described the child’s views, across both interviews, as “consistent, genuine and thoughtful”.

[47] M.O. was 10 years old and in grade 5 at the time of her interviews. M.O.’s statements to the clinician about her relationship with the grandmother were consistent with the grandmother’s, and not the mother’s, description of the importance of this relationship.

[48] M.O. reported that she had seen the grandmother since the time she was a baby. She referred to her grandmother as “nana”. M.O. explained to the clinician that the visits stopped when she was in grade 4. M.O. reported that she enjoyed visiting the grandmother. She described their activities and outings along the lines as how the grandmother described them. She also reported that she even went to visit the grandmother alone, on weekends when J. and C. did not go.

[49] The manner in which the parents told M.O. that she would no longer be seeing the grandmother was hurtful. According to M.O., the parents told her that she would no longer be seeing the grandmother anymore, because the grandmother had been “mean” to J. and C. They also told M.O. that the grandmother had been “rude” to her own son, E.B. To the clinician, M.O. could not recall if the parents gave her examples of this behaviour, but M.O. did know that the grandmother had not been mean to her. The parents caused M.O. to experience sadness and confusion, by telling her these things.

[50] M.O. recalled the time that the grandmother came to see her at the school, after the visits had stopped. She explained to the clinician that she was initially happy to see the grandmother, but then became sad when she realized that may be the last time she would see the grandmother. The fact that M.O. even had those worries, is directly a function of the mother’s overreaction to the argument about the choice of godmother and her subsequent termination of the relationship.

[51] M.O. reported to the clinician that she was upset about not being allowed to see her grandmother any longer. While she said that she now feels “fine” not to spend time with her, she also said, “the only nana [I] knew was a nice person”. In fact, M.O. described the grandmother as a kind, helpful and understanding person, and she said that the grandmother made her feel happy.

[52] Hearing that the grandmother was “mean” to E.B., J. and C. has caused M.O. to be confused, according to the clinician. M.O. says that sometimes she wishes she could see the grandmother again, and other times she is “unsure”. Yet M.O. wishes that things would go back to the way they used to be. She wishes the grandmother “was not mean to [E.B.], or to C. and J.”, so that she could continue to visit with the grandmother.

[53] In the result, M.O. told the clinician that if her parents allowed it, and if the grandmother “refrained from being mean to her family members”, then she would want to have phone contact with her, and a visit once per month. M.O. said she did not want overnights with the grandmother, although the reason for that was not elaborated upon in the Report. M.O. said she would be open to spending time talking to the grandmother, going for dinner, to stores, and she would be open to weekly phone calls. She said that if she was not permitted to see the grandmother again, she would be “upset”, but she would also understand “given her parents’ concerns”. Finally, she said she was concerned about her parents reaction to reading her wishes.

PART III: ISSUES AND ANALYSIS

[54] The grandmother wishes to restore phone contact with M.O., she wishes to be able to see M.O. two days each month, and she wishes to be able to give gifts and an allowance to M.O., as she had done in the past. The grandmother would also like to set up an RESP for M.O., for her future education.

A. Applicable Legal Principles

[55] Section 21 of the Children’s Law Reform Act provides that a parent or any other person including a grandparent, may apply to a court for an order respecting custody or access. The Court’s decision is of course based on the best interests’ factors in section 24(2). Because this is an application of a non-parent, there are additional principles that I am to consider.

[56] Recently in Ninkovic. v. Utjesinovic, 2019 ONSC 558, Madsen J. summarized the leading cases on grandparent access in Ontario. In her decision, she refers to Chapman v. Chapman, 2001 CanLII 24015 (ON CA), 2001 CarswellOnt 537, and the oft-quoted case of Giansante v. DiChiara, 2005 CanLII 26446 (ON SC), 2005 CarswellOnt 3290 (S.C.J.). In the latter, Nelson J. held that deference should generally be given to a custodial parent’s decision regarding access, unless the following three questions are answered in the affirmative:

(a) Does the grandparent-grandchild relationship already exist?;

(b) Has the parent’s decision imperilled the positive grandparent-grandchild relationship?; and

(c) Has the parent acted arbitrarily?

[57] In Ninkovic. v. Utjesinovic, Madsen J. cites other cases to explain what will constitute a positive relationship on the facts, although in this case before me, the answer seems obvious.

B. Analysis Respecting the Test for Grandparent Access

[58] In regards to the first question, there is no issue that a relationship already existed. It is a relationship that existed every other weekend, plus other times, for about 9 years. There is also no issue question that the mother imperilled the relationship when she cut it off. The real question that I must decide is whether the relationship was positive, and whether the mother acted arbitrarily.

[59] I also have no hesitation in finding that the relationship was positive. I say so, not only based on the evidence from the grandmother’s perspective, but also based on the child’s perspective. And I have no hesitation saying this when I look closely at what the mother has said about this.

[60] The mother’s argument that the relationship was not positive is interrelated with her argument that she did not act arbitrarily. In short, because she says the relationship was not positive, she was justified in ending it. But the mother’s reasons for no longer allowing the relationship are really not very persuasive. She says the following:

(a) The mother says she is able to provide M.O. with clothing, toys and an allowance, and so M.O. does not need the grandmother for this purpose;

(b) The mother says she would not be able to monitor the grandmother’s behaviour towards M.O., if there was access;

(c) The mother says in retrospect, it was “not good for M.O. to have [the grandmother] in her life; and

(d) Although the mother admits that the grandmother did focus on M.O. when they were with her, she says “that does not mean [access] was beneficial”.

[61] Upon reviewing the evidence and hearing the submissions, the Court was really at a loss to understand what actually happened between the mother and the grandmother, such that the mother took this drastic step of ending such an important relationship for M.O. At the heart of it, it really appears to the Court that the mother terminated the relationship between the grandmother and M.O. based on a single argument, over the choice of the godmother. At paragraph 36 of the mother’s own affidavit sworn November 17, 2020, the mother herself says, “[the grandmother] did not continue to see M.O. after the argument because I was issued the ultimatum that ‘if she is not M.O.’s godmother, [the grandmother] would make [the mother] regret it.” Unless and until something more is fleshed out at a trial, the other examples of conflict described in the affidavit material, are not of the kind that two reasonable adults could not easily sort out. They are not of the kind that would have warranted the mother to cut off the relationship.

C. M.O.’s Best Interests

[62] M.O. has very clearly said that she wants to see the grandmother. There is no evidence before me of any harm that the grandmother has ever caused her. To the contrary, the grandmother did have a warm and loving relationship with M.O.

[63] Moreover, what is clear from the Voice of the Child Report is that the mother (and the father) have caused M.O. to feel confused and they have put her in a loyalty bind. It was inappropriate for them to tell M.O. that the grandmother is “mean”, something that M.O. never experienced.

[64] The parents had an opportunity to review and digest M.O.’s views, via the Voice of the Child Report, and to change their approach to M.O.’s relationship with the grandmother. But they clearly have not done so. The mother filed her affidavit, and a separate piece of paper, explaining to the Court why she takes issue with the Voice of the Child Report. Basically, the mother says that M.O. does not really understand the reality of the situation. I find the mother lacks insight into her daughter’s needs in this regard.

[65] The Voice of the Child Report reveals that M.O. has quite a bit of insight into the situation. By contrast, the mother has said the following, which causes me the concern that the mother is not putting her own child’s needs ahead of her own historic dispute with the grandmother:

(a) The mother alleges that M.O. is not feeling any loss or abandonment. For example, she says that M.O. has apparently not mentioned her grandmother in months;

(b) The mother says that M.O. has “moved on”, and she is now just acting like a “tween” on social media;

(c) The mother says that it was “rougher” for M.O. in the beginning, but she is “doing OK now”; and

(d) The mother even admits that M.O. wants to see her grandmother. But then she says, “[y]es, she wants to see [the grandmother] but she is a child, and it is for gifts and money. M.O. would not understand that she is being controlled”

[66] I do not find the mother’s claim that the child has “moved on” to be persuasive. According to the mother, she terminated the child’s relationship with the grandmother in March of 2018, and yet about two years later, in early 2020 when she was interviewed for the Voice of the Child Report, M.O. still had strong, positive memories of her grandmother and a strong wish to resume the relationship.

[67] Even if it is true that M.O. has not mentioned the grandmother in the past year (to her mother), that could very well be a coping mechanism. For example, the Voice of the Child Report reveals that the child felt conflicted when the grandmother attended at the school in November of 2018. M.O. was both happy, but then sad when she realized that she might never see the grandmother again.

[68] It is also relatively clear that the child is aware of her parents’ feelings about the grandmother.

D. Conclusion

[69] I intend to make a temporary access Order. Because of the interruption to the relationship, I will graduate the reintroduction of the grandmother and the child, but given the strength of the Voice of the Child Report, I will do so quickly. I will do so by making the first two visit shorter in duration but closer together. The visits will then move to monthly, per the child’s wishes.

[70] I would not order overnights, based on the child’s wishes, at least until such time as some access gets underway, and the child’s statement as to why she does not want overnights can be further explored, in some additional context of having now seen the grandmother again.

[71] I wish to provide some comments to both the mother and the grandmother, although these will not form part of the order. The mother has alleged that the grandmother is controlling with money. The difficulty is that there was very little evidence setting out exactly how much the grandmother spent on this child. Other than a statement that she bought the child skates and took her on day outings to places like Niagara Falls and Canada’s Wonderland, etc., there is not much evidence, at least in terms of an actual quantum of money spent.

[72] On the one hand, I appreciate that the grandmother, like most grandparents, wants to give M.O. gifts. Specifically, she wants to give her an allowance, and even to save for her future education too. That is a lovely thought. And it causes the Court to seriously question why the mother is resisting this. But until these issues can be sorted out (or until there is a trial, which the Court hopes can be avoided), I would think that the grandmother might want to be more cautious with her gift giving. Her objective should be to repair the damage in her relationship with the mother too.

[73] Similarly, regarding the grandmother’s request to set up an RESP for M.O., the mother is opposed to this because “it is completely inappropriate to establish an education savings plan for her non-biological grandchild while her eldest biological grandson J. struggles to work and pay tuition” and that J. “worked very hard to succeed on his own and never received anything” from the grandmother. This reaction is not rational. I am really not clear on why the mother is opposing someone else, setting up a savings plan for M.O.’s future education. This would only benefit M.O. But there is something underneath the surface here that has not yet fully emerged in the evidence.

[74] I need not rule on this. This too should be dealt with in due course.

[75] Really, the mother and the grandmother need to come to terms with each other here and re-establish some civility between them, in M.O.’s best interests. It will inevitably impact M.O., if they are unable to get along.

[76] I would strongly recommend that the mother and the grandmother meet with a counsellor to discuss their feelings about these topics. The mother feels that the grandmother is interfering. The grandmother enjoys giving gifts to her grandchildren. They could benefit from some counselling to learn how to communicate again, to repair the rift over the godmother incident, and to work out a healthy way to behave with each other, that will not be perceived by one of them to be undermining, or by the other to be hurtful. Ultimately if they can do this, that will benefit M.O.’s emotional well being.

[77] If this matter is heading to a trial, it may be that there should be an updated Voice of the Child Report, after the grandmother has several visits with M.O. once again.

PART IV:

[78] I make the following temporary Orders:

(a) On Saturday, February 13, 2021 and again on Saturday, February 27, 2021, the grandmother shall have access with M.O. from 12 noon until 3 pm;

(b) Commencing Saturday, March 13, 2021 and then on the second Saturday of each month thereafter, the grandmother shall have access with M.O. from 10:00 am until 5:00 pm;

(c) The grandmother may have telephone access with M.O. on the other Saturdays each month that she does not have access with her, or at such other times if the grandmother and the mother can agree;

(d) The parents are not to make disparaging comments about the grandmother to M.O., such as making any statements like that she was “mean” to other family members. The parents are to encourage M.O. to have a good time with her grandmother during these visits;

(e) I would encourage the parties to settle the issue of costs. If they cannot agree, then the grandmother may file costs submissions in writing, limited to no more than 3 pages, 1.5 spacing, plus a Bill of Costs, copies of any Offers to Settle, and case law by Wednesday, February 17, 2021;

(f) The mother (and the father if costs are sought against him) may respond by Wednesday, February 24, 2021 with written submissions and attachments that are subject to the same limits; and

(g) The next date in the related case is May 14, 2021 at 10:00 am by zoom. This matter shall also return at that time, for a Settlement Conference.

Released: February 10, 2021

Signed: Justice Alex Finlayson

[^1] The eldest “child” J., is now an adult. He is not the subject of any court proceedings.

[^2] The mother and the grandmother disagree about when exactly the grandmother’s contact with M.O. was terminated. The grandmother says she was allowed to see the children until June of 2018, at which point the mother “cut off contact”. The mother admits she stopped contact, but says she did so in March 2018. For the purposes of this motion, that factual dispute does not matter.