Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2022 11 18 COURT FILE No.: Sault Ste. Marie 35/21

BETWEEN:

Doreen McDonald Applicant

— AND —

Chelsea Frazier Ryann Raymond McDonald Respondents

Before: Justice Heather-Ann Mendes

Heard on: September 28, 2022 Reasons for Judgment released on: November 18, 2022

Counsel: Doreen McDonald................................................................. on her own behalf Murdoch J. Carter....................... counsel for the respondent Chelsea Frazier Ryann Raymond McDonald....................... noted in default February 25, 2022

Mendes J.:

Background

[1] The Applicant, Doreen McDonald is the paternal grandmother of the children James Elliot McDonald-Frazier born […], 2016, and Lilah-May Joanne McDonald-Frazier born […], 2017. The Respondent, Ryann McDonald is the son of the paternal grandmother and the father of the children. The Respondent, Chelsea Frazier is the mother of the children.

[2] A focused hearing regarding the claims advanced by the Applicant, Doreen McDonald in her application dated April 15, 2021, against the Respondent parents, Chelsea Frazier and Ryann McDonald, for contact with her grandchildren was heard on September 28, 2022.

[3] The parents had an on-again-off-again relationship from in or about June 2015 to December 2019. Upon the parents separating, no parenting-agreement or order was finalized between the parents regarding decision making responsibility for the children and parenting-time.

[4] As such, a cross claim was filed by the mother in her answer on June 4 2021 against the father regarding decision making responsibility for the children; parenting-time for the father and child support payable by the father to the mother for the benefit of the children.

[5] The father failed to file an answer to the application commenced by the paternal grandmother or a reply to the cross claims filed by the mother in her answer. The father was noted in default on February 25, 2022, and an uncontested hearing against the father was heard on April 27, 2022.

[6] The court made a final order on April 27, 2022 which provided the mother with primary residence of the children; primary decision-making responsibility for the children; that she must notify the father of any major decisions affecting the children; that both parties are entitled to third party information regarding the children; reasonable parenting-time for the father upon reasonable notice to the mother supervised in her discretion; imputation of income to the father and child support payable by the father to the mother.

[7] The issue of the paternal grandmother’s contact with the children as advanced in her application was thereafter scheduled for a focused hearing.

[8] The parties were directed at the focused hearing case management meeting to prepare their evidence for their examination in chief by way of affidavit. The paternal grandmother was to file her sworn affidavit by September 9, 2022, and the mother was to file her sworn affidavit by September 23, 2022.

[9] The paternal grandmother failed to serve and file her affidavit containing her evidence for her examination in chief by September 9, 2022. The mother filed her focused hearing affidavit containing her evidence for her examination in chief on August 15, 2022.

[10] Notwithstanding the fact that the paternal grandmother, who is the applicant in this matter, failed to file her affidavit evidence by the ordered date, given that the paternal grandmother wished to proceed with her application, and in the interest of justice as well as the best interests of the children, with the agreement of both the paternal grandmother and the mother, the court proceeded with the focused hearing on September 28, 2022.

Position of the Parties

[11] At the focused hearing the paternal grandmother sought an order for specified contact with the children which included regular weekend visits, as well as every other holiday, one week during the summer, time at Christmas and time on the children’s birthdays.

[12] The mother sought an order that the paternal grandmother have contact with the children at her discretion and that such contact be facilitated during the father’s parenting-time or at the mother’s discretion.

Law

[13] Section 21(3) and 21(4) of the Children’s Law Reform Act states:

Application for parenting order or contact order

Contact order (3) Any person other than the parent of a child, including a grandparent, may apply to a court for a contact order with respect to the child.

Affidavit (4) An application under subsection (1) or (2) for a parenting order or subsection (3) for a contact order shall be accompanied by an affidavit, in the form specified for the purpose by the rules of court, of the person applying for the order, containing,

(a) the person’s proposed plan for the child’s care and upbringing;

(b) information respecting the person’s current or previous involvement in any family proceedings, including proceedings under Part V of the Child, Youth and Family Services Act, 2017, or in any criminal proceedings; and

(c) any other information known to the person that is relevant to the factors to be considered by the court under section 24 in determining the best interests of the child.

[14] Section 24(1), 24(2) and 24(3) of the Children’s Law Reform Act provides that the court shall take in to account the best interests of the child when making contact orders and provides the factors for the court to consider as follows:

Best interests of the child

24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section.

Primary consideration (2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

Factors (3) Factors related to the circumstances of a child include,

(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.

[15] Section 28(1) of the Children’s Law Reform Act provides that the court order any aspect of the incidents of contact as follows:

Parenting orders and contact orders

28 (1) The court to which an application is made under section 21,

(a) may by order grant,

(iii) contact with respect to a child to one or more persons other than a parent of the child, in the case of an application under subsection 21 (3);

(b) may by order determine any aspect of the incidents of the right to decision-making responsibility, parenting time or contact, as the case may be, with respect to a child; and

(c) may make any additional order the court considers necessary and proper in the circumstances, including an order,

(i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child,

(ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child,

Evidence

[16] The paternal grandmother has had a relationship with the children since birth. The parents were in an on-again-off-again relationship from June 2015 until December 2019 and this application was commenced by the paternal grandmother approximately 4 months after the parties separated.

[17] The application was commenced by the paternal grandmother when a falling-out occurred between the mother and the paternal grandmother after an individual whom the mother did not want in the presence of the children was at the grandmother’s home while the children were present. This individual was a member of the paternal family, and was known to the mother as having substance misuse issues.

[18] The evidence before the court regarding how long the paternal grandmother did not have contact with the children after the breakdown is not clear. The mother states that it was maybe three months from February 2021 to April 2021 and thereafter the grandmother’s contact with the children was supervised by the father.

[19] The paternal grandmother states that she did not have contact with the children for a longer period of time, perhaps close to a year. However, she did not state in evidence a specific timeframe, or provide details as to why she claims the length of time without contact was closer to a year.

[20] Notwithstanding the period of time that the contact between the paternal grandmother and the children was suspended, the contact in fact resumed with the agreement of the mother and has been in place for well over a year.

[21] In fact, the paternal grandmother’s contact with the children resumed prior to the parents finalizing the terms of the father’s parenting-time with the children which occurred on April 27, 2022.

[22] The paternal grandmother’s contact with the children is occurring when the father has the children in his care, which is currently on alternate weekends from Friday to Sunday.

[23] The father’s lifestyle is not stable as he struggles with his mental health, substance misuse, transiency and maintaining a stable residence to have the children in his care. Given the father’s transiency, the father exercises his parenting-time with the children at the paternal grandmother’s home.

[24] If the father decides not to exercise his parenting-time with the children on the alternate weekends, the mother offers the father’s weekend with the children to the paternal grandmother. As such, by default the paternal grandmother has contact with the children on alternate weekends.

[25] However, the evidence before the court is that the paternal grandmother and father are not always aligned, nor do they always get along. In cross examination the paternal grandmother was confronted with the proposition that the father does not support her application for contact with the children, to which she stated “he (the father) does, but he is not happy about it”.

[26] Despite this liberal and extensive contact with the children, the paternal grandmother is seeking that she be granted specified contact so that there is an order in place in the event of another breakdown in her relationship with the mother.

[27] The mother, conversely, is seeking that the paternal grandmother have contact with the children during the father’s parenting-time, and subject to the discretion of the mother, if the father is not exercising his parenting-time, as is the case currently.

Analysis

[28] It is clear to the court, that despite the hiatus of contact for the paternal grandmother with the children after the falling out, the mother has demonstrated that she is prepared to facilitate contact for the paternal grandmother with the children, such that the paternal grandmother has had consistent and regular contact.

[29] Unfortunately, the father has struggled with his mental stability, substance misuse, and this is understandably something that the mother wishes to shelter the children from. As such, it is reasonable for the mother to be concerned about who is in the presence of the children.

[30] The children have a right to a relationship with the father and the paternal family. What is important for the children, and in their best interests, is that there be consistency, reliability and predictability in their routine with seeing the father and the paternal family and that these visits occur in a safe and stable manner.

[31] Currently the paternal grandmother’s contact is occurring during the father’s parenting-time with the children. Further, if the father chooses not to exercise his parenting-time, the mother offers what would be the father’s time with the children to the paternal grandmother.

[32] The paternal grandmother’s request for contact with the children on regular weekends is not something that is typical for grandparents. What the paternal grandmother is seeking in terms of contact is more in line with what a parent would have with a child in terms of parenting-time.

[33] While there continues to be much uncertainty regarding the stability of the father’s relationship with the paternal grandmother as well as the father’s lifestyle and the lifestyle of other members of the paternal family, the children have a right to maintain their relationship with the father and paternal grandmother on a consistent and regular basis.

[34] That being said, the contact for the paternal grandmother with the children should be facilitated through the father during his time with the children as is presently occurring and has occurred for the past year. As such, the court is not inclined to make an order for weekend contact for the paternal grandmother with the children apart from the existing order for the father’s parenting-time.

[35] However, if the father fails to exercise his parenting-time with the children given his challenges with his mental health, substance misuse and transient lifestyle, the children should maintain consistent and regular contact with the paternal grandmother, and this can be satisfied through an order for reasonable contact with children for the paternal grandmother at the discretion of the mother.

[36] The court has confidence that the mother will exercise her discretion regarding the children’s contact with the paternal grandmother appropriately, as the mother has demonstrated over the past year, and that she will act reasonably and makes decisions regarding contact for the paternal grandmother in the best interests of the children.

[37] This confidence by the court is further instilled by the fact that the mother has demonstrated her willingness to facilitate contact for the paternal grandmother with the children during the weekends that the father is to have the children in his care but fails to exercise his parenting-time.

[38] For the record, discretion does not mean that each and every request for contact by the paternal grandmother to the children must be acquiesced to by the mother. But rather, that the contact be facilitated where reasonable and does not interfere with other plans for the children made by the mother or activities for the children and that the contact is in the children’s best interests, factoring in all of the circumstances.

Decision

[39] Based on the above and for the aforementioned reasons, a final order shall issue as follows:

1. The Applicant, Doreen Margaret McDonald shall have contact with the children James Elliot McDonald-Frazier born […], 2016 and Lilah-May Joanne McDonald Frazier born […], 2017, at the discretion of the Respondent, Chelsea Amber Frazier, and such contact shall be facilitated during the Respondent, Ryann Raymond McDonald’s parenting-time, or otherwise, in the discretion of the Respondent, Chelsea Amber Frazier.

2. The Applicant, Doreen Margaret McDonald shall ensure that during her contact with the children, they shall not be in the presence of anyone consuming illicit substances or non-prescription drugs.

3. In the event that the Respondent, Ryann Raymond McDonald fails to exercise parenting-time with the children for a period of longer than 1 month and the Applicant, Doreen McDonald does not have contact with the children for a period longer than 1 month, the Applicant, Doreen McDonald and the Respondent, Chelsea Frazier shall attend mediation to address the issue of the paternal grandmother’s contact with the children prior to commencing a court proceeding.

4. With respect to the issue of costs, written submissions shall be accepted by the court for consideration, to be filed by no later than January 27, 2023, and limited to 5 pages exclusive of exhibits.

5. All other claims made in the application dated April 15, 2021, and answer filed June 4, 2021, are dismissed.

6. The court date of December 7, 2022, at 2:00 p.m. is vacated and the matter is struck from the list in light of this final decision being released.

Released: November 18, 2022 Signed: Justice Heather-Ann Mendes Ontario Court of Justice