Court File and Parties

DATE: May 4, 2022 Court File No.: DFO-15343-000 Ontario Court of Justice 311 Jarvis Street, Toronto, Ontario

Applicant: Patricia Debassige Counsel: Rice, E.

Respondent: Ariel King Self Represented

In chambers, no one appearing 23C Endorsement Justice Maria N. Sirivar

Nature of Proceeding

[1] The matter is before the Court for an uncontested trial. The Applicant Grandmother seeks contact with the child, Mason Brandon Debassige born […]1, 2013. Mason is the son of the Applicant Grandmother’s late son, who passed away by suicide on December 29, 2019. The father’s twin also passed away by suicide, two months later.

[2] The Applicant Grandmother’s proposed schedule for contact is progressive and begins with twice weekly thirty-minute telephone calls, expanding to Mason being permitted to call her whenever he wishes.

[3] With respect to physical contact, the proposed schedule begins with weekly four-hour visits and expands, over four weeks, to alternating weekends from Friday after school to Monday morning at school. Additionally, the Applicant Grandmother seeks contact on Father’s Day, the anniversary of the father’s death, Christmas, New Year’s Day, Easter, Thanksgiving and Aboriginal Day.

[4] The Applicant Grandmother also requests an order granting her access to information pertaining to Mason from third parties service providers related to education, healthcare, and extracurricular activities, without the Respondent Mother’s consent.

Noting in Default

[5] The Respondent Mother was served with the Application on September 11, 2020. She has not served and filed an Answer. The Respondent Mother is, therefore, noted in default. The Applicant Grandmother may proceed by way of uncontested trial. The Affidavit for Uncontested Trial was served on the Respondent Mother.

Evidence

[6] Since the death of his father, Mason has been in the primary care of the Respondent Mother. The Applicant Grandmother has not seen Mason since his father passed away in December of 2019, over two years ago.

[7] The Respondent Mother has refused to permit contact between the Applicant Grandmother and Mason and has not consistently participated in these proceedings. She has only attended a few court appearances and has not filed any materials. She has, however, engaged in settlement discussions and facilitated the involvement of the Office of the Children’s Lawyer (“OCL”). A Voice of the Child Report (“VOC”), dated December 16, 2020, was filed.

[8] The Applicant Grandmother deposes that prior to the father’s death, she and Mason had a very close relationship. They spent time together including with members of the extended paternal family. He refers to her as Coco, an Ojibway term for grandmother.

[9] She further explains, “I have Aboriginal Heritage. Specifically, M’Chigeeng First Nation of West Bay, an Ojibway First Nation Band.” She is concerned that the lack of contact with the paternal family will have a negative impact on Mason. She argues that Mason has no resources to learn and celebrate his culture, to remember his father, and to maintain his relationship with his extended paternal family. She concludes that it is in Mason’s best interest to have contact with his grandmother.

Voice of the Child Report

[10] Pursuant to the order to Justice Katarynych, dated October 19, 2020, a VOC was prepared. Mason told the OCL clinician that he usually feels happy. His mother and his sister Emma make him feel happy. He describes his mother as “really, really nice and funny”. He likes to watch movies, read and play games with his mother. He says that his mother is a good cook, and he likes “pretty much everything” she prepares for him. Mason expressed that he would not change anything about his life or his family. He trusts his mother and his sister “the most”.

[11] Mason also spoke about his late father. He recounted that his father used to live with them. He stated that his father was “really nice”, and that he loves and misses him. He explained that sometimes he feels his father’s presence, or the feeling of his father watching over him, which makes him feel “good”.

[12] When asked about the Applicant Grandmother, Mason knew who she was and recalled that she was “nice”. He was unsure about when he last saw her. He guessed that it was about two years ago. He had not thought about her during that time. He explained that in the past, he saw her “random times” and they went on “walks and stuff” for about an hour. He recalls liking the walks. In response to whether he misses her or whether he wanted to see her Mason said, “I don’t know” and “I am not sure”. He added that if the judge asked him whether he would like to see his grandmother, he would say “no”, and added “I don’t know why” and shrugged his shoulders.

[13] The OCL clinician concluded:

Mason is child who has recently experienced the extremely painful loss of his father. He continues to struggle with the sadness of that loss, and it is clear that he and his father enjoyed a close bond. He describes feeling happy, safe and comfortable at home with his mother and sister and is having a good experience at school and with peers, in spite of the restrictions of Covid 19.

Mason did not seem to have any clear view and preferences with regard to access with his paternal grandmother. He did not describe a close relationship with her, currently or in the past, nor does he remember any frequent contact at any time, though he regards her positively .” [Emphasis added]

Law and Legal Principles

[14] The Applicant Grandmother’s claim is grounded in s. 21(3) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “CLRA”), which provides that any person, including a grandparent, may apply to a court for a contact order with respect to a child. “Contact” is defined as “the time a child spends in the care of a person other than the child’s parent, whether or not the child is physically with the person during that time”.

[15] Section 24 of the CLRA directs the Court, when considering or making a contact order, to consider only the best interests of the child. In doing so, the Court is to consider all factors relating to the circumstances of the child, but to give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

[16] Section 24(3) enumerates several other factors that Courts should consider when assessing the best interests of a child. The significance and weight placed on any given factor varies from case to case, as each case turns on its own particular facts. The only issue is the best interests of the child in the context of those particular facts. Gordon v. Goetz, [1996] 2 S.C.R. 27

[17] In Chapman v. Chapman, [2001] O.J. No. 705 at para 21, the Court of Appeal for Ontario recognized parental autonomy to make decisions in the best interests of their children in the following terms:

In the absence of any evidence that the parents are behaving in a way which demonstrates an inability to act in accordance with the best interests of their children, their right to make decisions and judgments on their children's behalf should be respected, including decisions about whom they see, how often, and under what circumstances they see them. [Emphasis added]

[18] The Court of Appeal also recognized that loving and nurturing relationships with extended family members are generally important to children because they serve to enhance the emotional well-being of children. As such, where those relationships are interfered with arbitrarily, Courts may intervene to ensure the continuity of the relationships.

[19] In Torabi v. Patterson, 2016 ONCJ 210 at para 74, Justice Marvin Kurz summarized the factors to be considered by the Court when assessing whether the relationship between a child and a relative seeking contact is a positive one as follows:

1. There must generally be a substantial pre-existing relationship between the relative and child. Strong loving and nurturing ties must exist between them based on time spent together that enhances the emotional well-being of the child.
2. That relationship must be a constructive one for the child in the sense that it is worth preserving. If relations between the parties are too poisoned, a previously positive relationship may not be capable of preservation.
3. The determination must include consideration of the age of the child and the time since the child last saw the relative.
4. A fourth factor may apply in the exceptional circumstance of a young child who has lost a parent. In that event, the existence of a strong pre-existing relationship may not be necessary when the relative(s) of the lost parent applies for access.

Analysis and Conclusion

[20] To succeed on this Application, the Applicant Grandmother must rebut the presumption that the Respondent Mother’s decision to not allow her to have contact with Mason should be respected. Specifically, she must lead evidence to establish that the Respondent Mother is acting arbitrarily and interfering with a meaningful pre-existing relationship that ought to be preserved, in accordance with Mason’s best interests. Proceeding by way of uncontested trial does not lower the evidentiary burden.

[21] One can easily understand, from the Applicant Grandmother’s perspective, why she would want to have a relationship with Mason. In addition to Mason being her grandson, she experienced tremendous loss, losing two children months apart. The assessment the Court undertakes, however, must be from Mason’s perspective.

[22] There is very little evidence from the Applicant Grandmother about her relationship with Mason. She makes a general statement indicating that it was very close without details. The VOC makes it clear, however, that from Mason’s perspective, the relationship was not particularly close and that they did not have frequent contact. It has been over two years since Mason last saw the Applicant Grandmother, one quarter of his young life.

[23] While the lack of a strong pre-existing relationship is not determinative in this case, there is no evidence about her relationship with the Respondent Mother, or the family when the father was alive. It is important for the Court to understand whether there is conflict now or if there was conflict in the past. If there is presently conflict, what is the cause? If they got along in the past, what changed? The Applicant Grandmother has not even explained her understanding of the reason the Respondent Mother is refusing to allow contact with Mason or the nature of their interactions/communications on the issue.

[24] The Court must be able to identify the nature of the relationship that a contact order seeks to preserve and any consequences that may flow therefrom. It is unclear whether the order would be destabilizing due to conflict or the schedule itself. The proposed contact scheduled and access to information is one a parent would normally seek, not a grandparent (generally speaking). Moreover, there is no evidence filed to enable to the Court to assess whether the proposed schedule is in Mason’s best interest.

[25] Mason’s needs, given his age and stage of development, including his need for stability, and safeguarding his emotional and psychological safety are central. He has been in the primary care of his mother and is doing well. Despite all he has been through with the loss of his father, he feels happy and safe in his mother’s care.

[26] I find that the Applicant Grandmother has failed to establish that the Respondent Mother is acting arbitrarily by not allowing contact with Mason. The goal of preserving Mason’s connection to his paternal family and heritage is laudable but it is insufficient, on the record before me, to rebut the presumption that the Respondent Mother’s autonomy to make decisions about who Mason sees, how often and under what circumstances, should be respected.

Orders

1. The Respondent Mother is noted in default; and
2. The Application is dismissed.

Madam Justice Maria N. Sirivar