DATE: April 22, 2024 COURT FILE NO. D43904/23 ONTARIO COURT OF JUSTICE

B E T W E E N:

F.S.

APPLICANT

- and –

N.J. and T.S.

RESPONDENTS

COUNSEL: Tara J. Engel, for the Applicant Glenda Perry, for the Respondent, N.J. The Respondent, T.S. in default

HEARD: April 16-18, 2024

JUSTICE S.B. SHERR

REASONS FOR DECISION

Part One – Introduction

[1] The applicant (the paternal grandmother) seeks contact with her 6-year-old grand-daughter (the child).

[2] The respondent N.J. (the mother) is the child’s mother. She opposes the paternal grandmother having contact with the child. She also seeks a restraining order against the paternal grandmother.

[3] The respondent T.S. (the father) is the child’s father and the son of the paternal grandmother. He is in jail serving a life sentence, without eligibility for parole, for first degree murder. He was found in default in this application and did not participate at the trial.

[4] The court heard evidence from the paternal grandmother, her daughter (Ta. S.), and her friend. It also heard evidence from the mother and her father (the maternal grandfather). The parties agreed to a summary of the paternal grandmother’s involvement with the Children’s Aid Society of Toronto (the society), prepared by the society, being filed as evidence. The mother filed additional court and business records on consent.

[5] The issues for the court to determine are:

a) Is it in the child’s best interests to defer to the mother’s decision to deny contact between the paternal grandmother and the child? In particular:

1. Does a positive grandparent-grandchild relationship already exist? And, what date should the court use to make this determination? Should it be the date of trial? The date when contact was terminated? Or some other date?
2. Does the mother’s decision to deny contact imperil this relationship?
3. Has the mother acted arbitrarily and in a manner that is not in the child’s best interests?

b) If the court decides not to defer to the mother’s decision to deny contact, what contact order, if any, is in the child’s best interests?

c) Should the court make a restraining order against the paternal grandmother?

Part Two – Background facts

[6] The paternal grandmother is 63 years old. She has 10 children by two different fathers. She is separated from both fathers. She resides in Toronto with an adult son (Y.). She is retired and is in receipt of Ontario Disability Support payments (ODSP) due to issues with sciatica and fibromyalgia.

[7] The mother is 25 years old. She has the one child and lives with her in Toronto.

[8] The mother and the father started their relationship in 2016. The mother was 17 years old at the time.

[9] In April 2017, the mother moved into the paternal grandmother’s home.

[10] The father was arrested on June 29, 2017 and charged with first degree murder in relation to a shooting that took place on April 15, 2027. He was also charged with three counts of attempted murder in relation to a shooting that took place on April 13, 2017. The father has remained in jail since he was arrested.

[11] On October 31, 2021, the father was convicted of first degree murder in relation to the incident that took place on April 15, 2017. He was sentenced to life in prison, with no eligibility for parole. He is presently in jail at Collins Bay in Kingston, Ontario.

[12] The father has appealed his conviction.

[13] The mother continued to live in the paternal grandmother’s home after the father’s arrest.

[14] The child was born in March 2018.

[15] The mother visited the father in jail after his arrest. She continues to update him on how the child is doing. The child talks to the father on the phone.

[16] The mother and the child moved into their own residence in February 2019.

[17] The mother and the child stayed at the paternal grandmother’s home for one month in June 2019 because there was a mould issue in the mother’s apartment. The mother moved out of the paternal grandmother’s home with the child on July 6, 2019 after she and the child were caught in the middle of gunfire outside of the paternal grandmother’s home that day.

[18] The paternal grandmother had contact with the child approximately 9 times after the mother left her home – some of this contact was at paternal family gatherings. The last time she had contact with the child was on July 9, 2022.

[19] The paternal grandmother attempted to have contact with the child after July 9, 2022. The mother would not agree to any contact between them.

[20] The paternal grandmother issued her application on May 9, 2023.

[21] On June 14, 2023, in a separate case between the mother and the father, and on an uncontested basis, Justice Carole Curtis granted primary residence, decision-making responsibility for the child and incidents of parenting to the mother. The paternal grandmother was not a party in that case.

[22] The mother’s Answer/Claim in this case is dated August 30, 2023.

[23] On October 10, 2023, Justice Curtis found the father in default in this case.

[24] On January 18, 2024, Justice Curtis dismissed an oral motion in this case brought by the father to set aside the finding of default and to permit him to file an Answer/Claim for parenting time.

Part Three – Summary of the paternal grandmother’s position and evidence regarding contact

[25] The paternal grandmother seeks a contact order with the child twice each month in person. On the first Saturday of the month, she asks that the visit start at 10 a.m. and end at 4 p.m. On the third Saturday of the month the visit shall be from Saturday at 10 a.m. until Sunday at 2 p.m. She also seeks virtual contact with the child every Monday at 5 p.m.

[26] The paternal grandmother said she will agree to a number of terms to obtain contact with the child. These include terms that she will:

a) Not discuss this dispute, the mother, or the criminal court case in front of the child or within earshot of her.

b) Not communicate directly with the mother without her consent.

c) Have a third party present at the exchanges, if that is what the mother wants.

d) Ensure two of her sons with criminal records are not present at visits.

e) Ensure her dogs are not present at visits.

f) Start with supervised visits.

[27] The paternal grandmother testified as follows:

a) She had a very close relationship with the child until the mother stopped contact in July 2022. The child would cling to her all the time. They went on walks together and loved to watch the fish in her fish tank together.

b) She assisted the mother during her pregnancy and took her to a naturopath and homeopath.

c) She took the mother regularly to her pre-natal appointments.

d) She was present at the child’s birth to support the mother.

e) She arranged a baby shower for the child.

f) She provided financial assistance for the mother, including food and shelter for almost two years and baby supplies and clothing for the child.

g) She assisted the mother with caregiving for the child while she lived with her. She changed the child’s diaper, prepared her meals, played with her and took her on walks through the community.

h) She provided emotional assistance to the mother when she lived with her. They had a positive relationship and a close bond. They often went on long walks together. She treated the mother like her own daughter and continued to let her live in her home after the father was arrested.

i) Many of her children developed a close relationship with the child. Some of her children have their own children. The child has 13 cousins.

j) She is religious and attends the Bible Baptist Church every Sunday. She is active in the church and participates in bible studies held twice each week. She would like to take the child to church.

k) After the mother moved out of her home, she gave her a bed, bed frame, dish towels, linens, dish sets and other furnishings for her apartment.

l) Initially, she had frequent contact with the mother and the child after they moved from her residence. They celebrated the child’s first birthday together. She spoke with the mother frequently. The mother and the child returned to her home for one month in June 2019.

m) The mother and the child continued to attend events and gatherings with the paternal family in 2021 and 2022.

n) The mother dropped off the child with her on July 9, 2022. That visit was the last time she saw the child. She was puzzled why the mother denied contact after that visit as she thought she was on positive terms with her. The mother gave her no notice that she was going to terminate the visits.

o) At times, the mother made arrangements for her to see the child and then canceled at the last minute.

p) She and her paternal family forfeited visits so the mother could visit the father in prison.

q) She and her paternal family love the mother and the child very much.

r) She does not have a criminal record and has never been charged with a criminal offence.

s) She denied multiple allegations made by the mother, including:

i) She emotionally abused, controlled and pressured the mother. She feels she did everything possible to make the mother happy, healthy and comfortable.

ii) She told the mother she should obtain an abortion.

iii) The mother paid her rent. She said this never happened.

iv) She denied her food. She said the mother had full access to the food in her home and often ate it.

v) She improperly supervised the child. She said this never happened.

vi) Her home is an unsafe environment for the child and she is a hoarder. She said her home is busy and sometimes cluttered, but it is not unsafe for a child.

vii) The child would be exposed to criminality. She said:

a) She was shocked when the father was charged with murder.

b) She had no idea the father was keeping guns in her home.

c) Two of her other children have criminal records. However, neither of them live in her home.

d) Many of her children are successful and have wonderful families.

e) Her community is safe.

viii) She was callous and uncaring when the mother, the maternal grandfather and his two children were caught in the middle of gunfire near her home on July 6, 2019. She denied calling the maternal grandfather a snitch because he talked to the police.

ix) She was improperly using the mother’s name to obtain food and clothing from the Scott Mission after the mother moved from her home. She said she had the mother’s permission to obtain items for her.

x) She tried to enlist the mother in a scheme to maintain her subsidized housing. She said she had merely joked about this in a group family text.

xi) She abused and neglected animals in her home. She said she is an animal lover.

xii) She didn’t want to have video calls with the child. She explained she is not good with technology and wanted to have in-person visits.

xiii) She pressured the mother to take the child to see the father in prison. She said she would like the father to see the child. However, she respects the mother’s wishes on this issue.

xiv) She wrote threatening and harassing emails to the mother. She acknowledged she became frustrated with the mother’s resistance to her seeing the child. However, she did not threaten or harass the mother.

xv) She threatened the mother about not contacting the ex-partner and his partner. She said she only warned her about not trusting them.

xvi) She had a problematic parenting history. She said she voluntarily sought the help of the society when she was younger because it was difficult coping with 10 children with no financial assistance from their fathers. She said she willingly attended programming to improve her parenting. A child protection case was never started. The last file opening by the society was in 2006.

[28] Ta. S. filed a trial affidavit and was briefly cross-examined. She lived in the paternal grandmother’s home at the same time as the mother and the child.

[29] Ta. S. said:

a) She used to have a close relationship with the mother and the child. She expressed her desire to renew those relationships. She said she loved them.

b) The paternal grandmother made sure the mother was healthy and helped the mother make connections in the community. The mother was welcome to the food in their home.

c) The paternal grandmother and the mother often went on walks together. When the child was born, the paternal grandmother took the child out for walks and to church.

d) The paternal grandmother played with the child, prepared meals for her and babysat for her. The paternal grandmother gave the child clothing.

d) She was in frequent contact with the mother during 2019. They would meet up and go for walks together. They would see each other at paternal family functions. The mother and the child were always invited. They attended her wedding in September 2021.

e) Her relationship with the mother changed in December 2021. She had invited the mother to a Christmas gathering with the paternal family. The mother felt she was pressuring her.

[30] The paternal grandmother’s friend C. testified and was briefly cross-examined. She spoke about how she views the paternal grandmother as a second mother and she is among the first people she turns to for help and support. She said she observed the paternal grandmother being nurturing towards the mother during her pregnancy. She stated the paternal grandmother lit up when talking about the child.

Part Four – Summary of the mother’s position and evidence regarding contact

[31] The mother asks for an order that the paternal grandmother have no contact with the child.

[32] The mother testified as follows:

a) She was emotionally abused and controlled by the paternal grandmother while she lived with her. The paternal grandmother would mock her body, make-up and eating habits. The paternal grandmother would often call her “a bitch” and “evil” and criticized how she cared for the child. These criticisms saddened her and made her question her ability to parent the child.

b) The paternal grandmother wanted her to get an abortion.

c) She paid monthly rent in cash to the paternal grandmother while she lived with her. She also paid for her own landline.

d) The paternal grandmother provided little food for her and the child. She preferred buying her own food.

e) The paternal grandmother grossly exaggerated her involvement with the child. The paternal grandmother did not watch the child overnight and only, on occasion, watched the child while she showered. The child did not cling to the paternal grandmother.

f) She was home full-time and the sole caregiver for the child.

g) The paternal grandmother did not adequately supervise the child when she watched her. She did not feel comfortable leaving the child alone with her.

h) The paternal grandmother exaggerated her contributions for the child after birth. The mother said she was the one who had arranged for, paid for, and hosted the baby shower.

i) The paternal grandmother was aggressive and demanding and always insisted on getting her own way. She pressured her to be present at the child’s birth and to have her pastor pray over the child against her wishes. She pressured her to have the child take her last name. [^1] She feels the paternal grandmother does not take no for an answer.

j) The paternal grandmother went through her belongings and took the child’s identification documents.

k) The paternal grandmother’s home was always full of people, many of whom she did not know. It was often overwhelming.

l) There was constant loud arguing between the mother, Y. and Ta. S.

m) The state of the paternal grandmother’s home was cluttered, filthy, unsanitary and dangerous for the child. The paternal grandmother was a hoarder, including hoarding food. The mother attached photos of the poor condition of the home.

n) The paternal grandmother had many dogs. They would leave a mess everywhere that wouldn’t be cleaned up. They were often let loose in the home and there would be no safe place to play for the child. The paternal grandmother and Y. neglected the dogs.

o) She spent a lot of time in her room to avoid the paternal grandmother.

p) She infrequently went for walks with the paternal grandmother.

q) She moved out because she found the household and issues with the paternal grandmother unbearable. She was sad and crying a lot when she lived there.

r) The paternal grandmother did not help her or give her anything when she moved from her home. The father let her take his bed.

s) During 2020 and 2021, she proposed that the paternal grandmother have video calls with the child but the paternal grandmother turned this down and insisted the child come to her home.

t) She has not taken the child to the paternal grandmother to babysit.

u) The paternal grandmother tried to enlist her in a scheme to maintain her subsidized housing. She said no.

v) The paternal grandmother used her name to obtain food and clothing from the Scott Mission after she left her home. She did not have her permission to do this.

w) The paternal grandmother asked her to give her receipts for money she had paid for the father’s canteen in prison and for phone charges she had incurred for calling the father in prison. The paternal grandmother then used these receipts to claim special expense contribution from T.S.’s father (the ex-partner) in their family court case.

x) The paternal grandmother sent her threatening messages to stay away from the ex-partner who had reached out to her.

y) The paternal grandmother often pressured her to see the child. She sent her text messages at 4 a.m. The mother started avoiding her. In July 2022, the paternal grandmother sent long harassing messages about visits with the child. She felt exhausted from the pressure being applied by the paternal grandmother. She ended contact at that time.

z) The child has contact with the father by telephone. She does not feel it is a good idea for the child to see her father in prison. She has been pressured by the paternal grandmother and other paternal family members to take the child to the prison. She feels the paternal grandmother is very loyal to the father and would not ensure that she and other family members would not talk about the father’s situation in front of the child. She feels the child should be told about her father in a therapeutic manner.

aa) She finds the paternal grandmother to be “patronizing, demeaning, toxic, bullying, harassing, threatening and triggering”.

bb) The paternal grandmother threatens her that “She knows a lot of people in high places”.

cc) She has low self esteem from how the paternal grandmother and the paternal family have treated her.

dd) She is scared of the paternal grandmother and has kept her address private.

ee) The paternal grandmother’s community is not safe. She often heard shootings – it could be every week for a month. She would constantly hear loud arguing.

ff) She was traumatized by the police raid on the paternal grandmother’s home, the discovery of guns in the father’s room, his arrest, charges and eventual conviction. No one in the paternal family ever asked her if she was OK.

gg) She slept in a separate room from the father at the paternal grandmother’s home. She had no idea he had guns and was shocked by his arrest.

hh) The paternal grandmother pressured her to come to the father’s trial and to bring the child.

ii) She is afraid for her and the child to return to the paternal grandmother’s community as she feels they may be targeted by the community of the murder victim.

jj) Two other sons of the paternal grandmother have recently been in the media for serious criminal offences. They both have active criminal cases. She is afraid of exposing the child to the criminality revolving around the paternal grandmother.

kk) On July 6, 2019, the mother and the child had spent the day with the maternal grandfather and the mother’s two younger siblings. They were all returning by car to the paternal grandmother’s home. While they were coming out of the car she heard gunshots. They were in the middle of gunfire. She and the maternal grandfather covered the children’s bodies, while the maternal grandfather called 911. They were terrified. The paternal grandmother was outside watching the shootout with a smirk on her face. She didn’t even ask how they were. The paternal grandmother only told her to tell the maternal grandfather to stop talking to the police. She later heard the paternal grandmother tell her sons that the maternal grandfather was a snitch.

[33] The mother talked with considerable affection about the child. She described her as an energetic and friendly girl. The child enjoys playing with her Barbies, watching the movie Barbie (several times) and goes to gymnastics. She is in senior kindergarten and doing well. She is a healthy and happy child. The child has a close relationship with several maternal family members.

[34] A summary of the society records for the paternal grandmother were filed on consent. They covered the period from 1992 to 2006. The paternal grandmother has a troubled parenting history. Three of her children have serious criminal records. The paternal grandmother had extensive involvement with the society from 1992 to 2006, although no child protection proceedings were started. Records from the society reflect concerns about the paternal grandmother’s ability to manage 10 children, get the children to school on time, pick up the children on time and properly supervise them. Twice there were file openings because of concerns about sexualized behaviour between her children. The paternal grandmother struggled with financially supporting the children.

Part Five – Credibility and reliability

5.1 The mother

[35] The court found the mother to be a credible witness. For the most part, she was also a reliable witness.

[36] The mother demonstrated a good memory of specific events. She didn’t embellish her evidence and didn’t minimize concerns. She readily conceded points that did not advance her position – such as agreeing that many paternal members loved the child, and the child enjoyed attending the paternal family gatherings.

[37] The mother’s evidence was often corroborated by business records and photographs. The maternal grandfather corroborated the mother’s version of the July 6, 2019 incident, where they were caught in the middle of crossfire between three gunmen.

[38] The mother answered questions directly and politely.

[39] The mother struggled to keep her composure during her testimony. She was often in tears. She was in pain reliving many of her experiences. It was evident she has experienced considerable trauma. She was particularly emotional and sad when discussing her estrangement from Ta. S., with whom she had had a close relationship (Ta. S. reacted in a similar manner).

[40] The mother kept repeating she did not trust the paternal grandmother and did not trust the paternal family. She disclosed her fear that obtaining a contact order might be the first step in the paternal grandmother undermining her relationship with the child and trying to take the child away from her.

[41] The mother’s fear of the paternal grandmother’s power was visceral and sincere. She fears for herself and the child being under the paternal grandmother’s influence.

[42] The mother’s fear of the paternal grandmother had some impact on the reliability of her evidence. She views any outreach by the paternal grandmother and the paternal family as intimidation and extreme pressure.

[43] One example of the mother assuming the worst was an incident she said led to her estrangement with Ta. S. When the father was convicted, she said Ta. S. turned to her and said “don’t worry, you are still a part of this family”. The mother felt this was very inappropriate and had been said to embarrass her in front of everyone, when Ta. S. was likely just trying to comfort her. To her credit, the mother conceded at trial she may have “taken her comment the wrong way”.

5.2 The paternal grandmother

5.2.1 Reliability

[44] The court finds that the paternal grandmother was not a reliable witness. She had a poor memory of dates and events. She tended to minimize, rationalize or bluntly dismiss evidence unfavourable to her.

[45] The paternal grandmother initially provided a benign description of previous society involvement in her Form 35.1A affidavit. She was ordered by Justice Curtis to provide a more detailed affidavit. The mother had to obtain disclosure from the society to learn the paternal grandmother had a long and extensive (albeit dated) history with the society.

[46] The paternal grandmother also omitted her involvement in a lengthy family court proceeding in her original Form 35.1 parenting affidavit.

[47] Persons who are not parents seeking parenting or contact orders have an enhanced obligation under the Children’s Law Reform Act (the Act) to provide complete disclosure. [^2] The evidence indicates the court cannot rely upon the paternal grandmother to disclose important information. The mother had to find this important information out on her own.

[48] The paternal grandmother minimized the risks posed by two of her children who have extensive criminal records and presently face serious charges. She attested that neither lived with her. However, in cross-examination, it became apparent these children had lived with the paternal grandmother at times in the past year and she is presently a surety for one of them.

[49] The paternal grandmother was particularly evasive and vague when asked where her children were living. She couldn’t provide any specific addresses. She couldn’t explain why Y., who she said was living with her, gave a different address to the court when he became a surety for another son.

[50] The paternal grandmother claimed her community is safe. However, at the father’s bail hearing held in December 2020, she told the court she had purchased a bullet-proof vest to be used for her family in her community. At this trial, the paternal grandmother softened her evidence, saying she was just being overly cautious.

[51] The paternal grandmother minimized the mother’s fear of being in her community, claiming the mother knew about the community she was coming to and had agreed to live there even after the father was charged. The paternal grandmother displayed a total lack of empathy for the mother’s experiences – a mother who had experienced a frightening police raid in her home, the arrest, public trial and conviction of her partner and who had been caught in the middle of gunfire with her child, fearing for their lives, outside of the paternal grandmother’s home.

[52] The paternal grandmother minimized and rationalized the condition of her home and safety conditions for the child. The pictures provided by the mother showed it was in very poor condition.

[53] The paternal grandmother painted a rosy picture of paternal family relations. In cross-examination (after receiving audiotapes from the mother), she conceded she was involved in verbally violent and profane arguments with her son Y. The child was present during these arguments.

5.2.2 Credibility

[54] The court also finds that the paternal grandmother was not a credible witness. The paternal grandmother answered uncontentious questions directly and calmly. She became more evasive when asked more difficult questions.

[55] The paternal grandmother asserted in her application and in her Form 35.1 parenting affidavit that the mother and the child had lived with her until December 2020. In fact, the mother and the child left her home in February 2019. [^3] The paternal grandmother did not concede this fact until a letter sent by her counsel in November 2023. If the initial assertion by the paternal grandmother had been accepted, the child would have lived with the paternal grandmother three times as long as she actually did – strengthening the paternal grandmother’s claim that she had a strong pre-existing relationship with the child. At best, this material error seriously impacts the reliability of the paternal grandmother’s evidence. At worst, the paternal grandmother deliberately misled the court to obtain an advantage.

[56] The paternal grandmother’s care of dogs over the years was an issue in this case. She claimed her three dogs are licensed. She was asked to bring the licence to court. She only brought part of the licence, claiming she had thrown the rest out. [^4] The mother obtained a copy of the complete licence. It showed the paternal grandmother had only obtained the licence on March 4, 2024. This happened to be the same day she was in criminal court to become a surety for her son (A.S.).

[57] A.S. had recently been charged with criminal negligence for failing to keep dogs on a leash, causing bodily harm to two people. One was seriously disfigured. One of the conditions of A.S.’s release was that he was not to possess or control dogs. The paternal grandmother claimed the timing of her application for the dog licence was a coincidence. This was not credible. The court finds she tried to hide the fact she had only recently applied for the dog licence. She conceded the last time she had a dog licence had been in 2010.

[58] The paternal grandmother deposed in her trial affidavit that her dogs have never bitten anyone. In cross-examination, the paternal grandmother conceded that 10 years ago three of her dogs had to be euthanized because one bit a neighbour’s child.

[59] Where their evidence conflicted, the court preferred the mother’s evidence to the paternal grandmother’s evidence.

Part Six – Legal considerations for contact

6.1 The legislation

[60] The paternal grandmother has brought her application pursuant to subsection 21 (3) of the Children’s Law Reform Act (the Act), which states that 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.

[61] Subsection 24 (1) of the Act states that 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.

[62] Subsections 24 (2) to (5) set out legislative considerations in determining a child’s best interests as follows:

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. 2020, c. 25 , Sched. 1, s. 6.

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.

Factors relating to family violence

(4) In considering the impact of any family violence under clause (3) (j), the court shall take into account,

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and

(h) any other relevant factor.

Past conduct

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact with respect to the child.

[63] Section 28 of the Act sets out the types of orders the court can make 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,

(i) decision-making responsibility with respect to a child to one or more persons, in the case of an application under clause 21 (1) (a) or subsection 21 (2),

(ii) parenting time with respect to a child to one or more parents of the child, in the case of an application under clause 21 (1) (b), or

(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,

(iii) prohibiting a party from changing the child’s residence, school or day care facility without the consent of another party or an order of the court,

(iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court,

(v) requiring the delivery, to the court or to a person or body specified by the court, of the child’s passport, the child’s health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify,

(vi) requiring a party to give information or to consent to the release of information respecting the child’s well-being, including in relation to the child’s health and education, to another party or other person specified by the court, or

(vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child.

6.2 Best interests factors

[64] The list of best interests considerations in the Act is not exhaustive. See: White v. Kozun, 2021 ONSC 41; Pereira v. Ramos, 2021 ONSC 1736.

[65] An assessment of the best interests of the child must take into account all of the relevant circumstances with respect to the needs of the child and the ability of each parent to meet those needs. See: Mokhov v. Ratayeva, 2021 ONSC 5454.

[66] A starting point to assess a child’s best interests when making a parenting order is to ensure that the child will be physically and emotionally safe. It is also in a child's best interests when making a parenting order that his or her caregiver be physically and emotionally safe. See: I.A. v. M.Z., 2016 ONCJ 615. Also see: Armstrong v. Coupland, 2023 ONSC 5451; J.N. v. A.S., 2020 ONSC 5292; A.L.M. v. V.L.S., 2020 ONCJ 502; M.R.-J. v. K.J., 2020 ONCJ 305; Abbas v. Downey, 2020 ONCJ 283; N.D. v. R.K., 2020 ONCJ 266. The court finds that this principle also applies when making a contact order.

[67] A party's failure to protect a child from conflict may be an important consideration in making a parenting order. See: Dayboll v. Binag, 2022 ONSC 6510; I.A. v. I.G., 2023 ONCJ 523. This court finds that this principle also applies when making a contact order.

6.3 Jurisprudence on grandparent contact

[68] Grandparents do not have a legal right of contact with their grandchildren. The onus is on the grandparents to show contact is in the children’s best interests. The starting presumption is that deference should be given to a parent’s decision whether to award a grandparent access to a child. See: Chapman v. Chapman, 2001 ONCA 24015.

[69] It is always important to defer to the decisions of parents regarding their children. However, deference is only accorded when those decisions are reasonable and they are acting in the child’s bests interests. See: McLaughlin v. Huehn, 2004 ONCJ 426; Bennett v. MacFarlane, 2021 ONSC 3700; Arbuzova v. Scriver et al, 2024 ONSC 832.

[70] In Giansante v. DiChiara, 2005 ONSC 26446, [2005] O.J. No. 3184 (SCJ), the court reviewed the Ontario Court of Appeal’s decision in Chapman, and 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:

One: Does a positive grandparent-grandchild relationship already exist?

Two: Does the parent’s decision imperil this relationship?

Three: Has the parent acted arbitrarily?

[71] The Ontario Court of Appeal in B.F. v. A.N., 2024 ONCA 94 set out that there is now a two-part test to determine contact cases. The three questions posed in Giansante are now the first part of the test to determine if the court will defer to the parent’s wishes.

[72] The court in B.F. stated that if the court determines it will not defer to the parent’s wishes, the second part of the test requires a best interests analysis taking into account many factors, including the following: the nature and strength of the child’s relationship with the grandparent and the history of the child’s care; the child’s needs, her special needs; the grandparent’s willingness and ability to meet the child’s needs; their willingness and ability to co-operate with the child’s parent and other caregivers; the child's cultural, linguistic, and religious upbringing; and any criminal proceeding, order, condition or measure relevant to the safety of the child.

[73] In Capone v. Pirri, 2018 ONSC 6541, the court considered that to be a positive relationship, there must exist something more than an occasional pleasant experience with the child. The grandparent and grandchild relationship must consist of a close bond with strong emotional ties, deserving of preservation in order to displace the principle of parental autonomy. The court held that the legal threshold of a positive relationship for the court to consider superseding its deference to a parent is “necessarily a high one”.

[74] In Torabi v. Patterson, 2016 ONCJ 210, Justice Marvin Kurz set out the following factors in determining whether the court should defer to the parent’s decision:

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.

[75] Acting arbitrarily, under the test set out in Giansante, means to make decisions about contact that are based on considerations other than the best interests of the child. As stated in that case, “this is consistent with section 24(1) of the Act which provides that decisions about access must be based on the best interests of the child.” See: Giansante, paragraph 27.

[76] The determination of whether the parent is acting reasonably in denying contact must be approached from the standpoint of the child’s best interests. See: Arbuzova, supra, par. 26.

[77] In Simmons v. Simmons, 2016 NSCA 1017, the court wrote at paragraph 41:

In addition, judicial deference to parental authority can be tempered by the court's willingness to recognize benefits that extended family bring to a child whose life has been marked by the loss of a parent, such as love, support, and stability. These cases sometimes present best interest factors not apparent in cases with two living parents, including the fact that a child can know his or her deceased parent, including his or her personality, heritage, and culture, through his or her grandparents. See, for example, White v. Matthews and Brooks v. Joudrey, 2011 NSFC 5.

[78] In Ninkovic v. Utjesinovic, 2019 ONSC 558, Justice Lene Madsen drew a parallel with the unavailability of a parent who was in jail to a child having lost a parent, in assessing whether the court should defer to a parent’s decision not to permit contact.

[79] Justice Madsen also set out the following factors to consider in engaging with the best interests analysis in the second part of the test at paragraphs 72 to 74 of her decision in Ninkovic:

[72] In considering, at the second stage, whether access to the grandparent is in the best interests of the child, an important consideration is the extent to which this would cause anxiety and stress for the parent, which in turn could have a deleterious impact on the child. For example in Barber v. Mangal, 2009 ONCJ 631, Justice Brownstone found that the intensity of the conflict between the parents and the grandmother seeking access was such that any access would be extremely stressful for the parents and “given their personalities, there is a very real and substantial risk that such stress would be visited upon the child.” See para. 17. At the same time, animosity does not necessarily preclude an access order. See para. 18.

[73] See also MacDonald v. MacDonald, 2005 ONSC 15444 in which Justice Pazaratz found that the “level of conflict between the applicant and the respondent is so overwhelming that any future contact will invariably result in the children and their family experiencing more upset, commotion, and grief,” and dismissed the grandmother’s request for access to her daughter’s children.

[74] A further consideration is whether an access order would destabilize the family unit. See Blackburn v. Fortin, 2006 ONCJ 195. In that case, Justice Smith declined to grant access to a grandmother where significant tension existed between the grandmother and mother, the grandmother often imposed unsolicited views on proper child-rearing, and the grandmother had made a heavy handed attempt to change the parents’ decision regarding schooling. The court found that access could destabilize the family unit.

Part Seven – Is it in the child’s best interests to defer to the mother’s decision to deny contact to the paternal grandmother?

7.1 Does a positive relationship already exist between the paternal grandmother and the child?

[80] The first question for the court to decide is what date it uses to determine if a positive relationship already exists between the paternal grandmother and the child. Is it determined as of the date of trial? Is it when the mother left the paternal grandmother’s home for the last time in July 2019, or is it when she ended contact with the paternal grandmother in July 2022?

[81] The answer to this question makes a difference in this case.

[82] The court finds that the paternal grandmother had a positive pre-existing relationship with the child for the first 16 months of the child’s life (until July 2019), despite the paternal grandmother having overstated the level of her involvement with the child.

[83] The paternal grandmother was present daily in the child’s life until February 2019 and was an important part of the child’s world. She obtained supplies and clothes for the child after her birth. The paternal grandmother played with the child, took her for walks and proudly showed her off in the community.

[84] The mother acknowledged the importance of having the paternal grandmother present at the child’s first birthday and made sure the child went to paternal family functions.

[85] However, the child only saw the paternal grandmother 9 times between July 2019 and July 2022. Part of this was due to the pandemic and the mother limiting the child’s contacts outside her home. Part of this was due to the paternal grandmother turning down the mother’s offers of having virtual contact with the child. And, part of this was due to the mother’s increasing unwillingness to engage with the paternal grandmother.

[86] By July 2022, when contact was terminated, the existing relationship between the child and the paternal grandmother could not be characterized as positive as defined in the jurisprudence. The paternal grandmother wrote a text to the mother on July 2, 2022, setting out the reality of this change in her relationship with the child, stating:

Time has been passing to the point she acts strange when seeing me after being so close.

[87] In making this determination, the court took into consideration that until July 2022:

a) The child enjoyed the visits with her paternal family.

b) The child enjoyed playing with her cousins.

c) The child recognized the paternal grandmother at the visits; and

d) The father is unavailable to meaningfully parent the child and the paternal grandmother is the child’s connection to the paternal family.

[88] The child has had no contact with the paternal grandmother since July 2022. If the court selects the date of trial to make the determination, it is clear that a positive relationship with the paternal grandmother does not already exist.

[89] The jurisprudence indicates courts tend to use the date when a grandparent’s contact was denied or severely restricted when determining if a positive pre-existing relationship already exists.

[90] In Giansante, the child was 10 months old when his mother died and was two years old when the case came to trial. The court assessed the quality of the pre-existing relationship as of the date of the mother’s death.

[91] In Ninkovich, supra, the child was two and a half years old when contact was terminated and was four years old at trial. The court found the child should not be deprived of the benefits of continuing his relationship with his grandparent just because time had passed and the parent had succeeded in denying contact for so long.

[92] In B.F. v. A.N., 2022 ONSC 7125, the child was 5 years old at trial. The court found the grandparents had a positive pre-existing relationship with the child as of the date a child protection court ordered supervised access for them when the child was 3 years old. This decision was upheld on appeal. See: B.F. v. A.N., 2024 ONCA 94.

[93] The court will not choose the July 2019 date to make the determination if a positive pre-existing relationship already exists between the child and the paternal grandmother. It is a very historical date that bears little relation to determining whether the mother is reasonably acting in the child’s best interests today.

[94] Using the date of trial as the date for this determination would also be unfair. As stated in Ninkovich, a child should not be deprived of the benefits of continuing a positive relationship with a grandparent just because a parent has succeeded in denying contact for so long through the litigation process.

[95] The court finds that the appropriate time to determine whether a positive grandparent-grandchild already exists in this case is when the mother terminated their contact in July 2022.

[96] A positive grandparent- grandchild relationship did not already exist at that time. The child had only seen the paternal grandmother 9 times in the previous three years. She no longer had a strong bond or strong emotional ties with the paternal grandmother.

7.2 Does the mother’s decision imperil this relationship?

[97] The mother’s decision to deny the child contact with the paternal grandmother has not imperiled a positive relationship that already exists, although it has imperiled what relationship they do have.

[98] The court also considered that the paternal grandmother has imperiled her relationship with the child through her actions. The mother offered her video contact with the child and she turned this down. She claimed she was unable to operate technology. However, she agreed she has been able to attend zoom hearings for criminal appearances involving her sons. Further, the paternal grandmother’s conduct towards the mother, as set out below, imperiled her relationship with the child.

7.3 Has the mother acted arbitrarily?

[99] The court will break this question down into two parts.

7.3.1 Has the mother acted arbitrarily by denying contact with the paternal grandmother in her home or community?

[100] The answer to this question is no for the following reasons:

a) The mother has good reason to fear for the child’s safety in the paternal grandmother’s community. The mother has experienced considerable trauma. She would hear gunfire monthly when she lived at the paternal grandmother’s home. The police conducted a frightening raid of the paternal grandmother’s home when the father was arrested. Her partner was charged and convicted of first-degree murder. She worries, with reason, that she may be targeted by the community of the person the father was convicted of killing. Then, when she briefly returned to live with the paternal grandmother in June 2019, she and the child were caught in the middle of frightening gunfire and they could have been killed. Her decision to stay away from that community is understandable.

b) The court accepts the mother’s evidence that there are considerable safety concerns for a young child at the paternal grandmother’s home. The mother provided photos showing the paternal grandmother has a cluttered, unkempt home with several safety hazards. The paternal grandmother’s explanation for the condition of her home was not very convincing.

c) The court accepts the mother’s evidence that the paternal grandmother was not a vigilant supervisor for the child. She described one incident where the paternal grandmother left the child unattended while she tended to her dogs, putting the child at risk. While recognizing her challenges in managing 10 children, the society records, although historical, indicate that supervision of her children was an ongoing concern about the paternal grandmother.

d) The court finds that a lot of the mess in the paternal grandmother’s home was caused by her many dogs. The paternal grandmother claimed the dogs were kept downstairs but the mother provided videos of the dogs playing upstairs. She provided photos showing some of the dogs in very poor condition. The court accepts the mother’s evidence that there were not safe places for the child to play in the paternal grandmother’s home.

e) The paternal family’s dogs are a concern for the court. The paternal grandmother conceded she once had three dogs put down by authorities after one bit a neighbour’s child. A.S. is currently facing criminal charges because he allegedly did not control dogs in his possession and they caused serious injuries. The paternal grandmother admitted the last time she had a dog licence was in 2010, despite having had many dogs in her home since then. The court finds that the dogs in the paternal grandmother’s home are a safety concern for the child.

f) Three of the paternal grandmother’s children have had significant criminal involvement. The father is in jail serving a life sentence. One other son (T.) has a lengthy criminal record. T. served four years in jail for gun and drug offences. He was recently acquitted of more gun charges. He is still facing criminal charges for dangerous operation of a motor vehicle causing bodily harm. A.S. also has a criminal record and is presently facing several serious charges related to the dog attacks. The paternal grandmother is his surety. It came out in cross-examination that T. and A.S. come and go from the paternal grandmother’s home.

What was concerning to the court was how the paternal grandmother minimized the mother’s concern about the child’s safety because of the criminal conduct of her sons. The paternal grandmother felt there was no risk. She even said she had no problem with any of her children babysitting the child. She said T. has been acquitted of the gun charges. When asked about A.S.’s charges she said, “they weren’t his dogs”- glossing over the serious injuries caused by the dogs. She seemed oblivious to the pattern of criminal behaviour in her family and how these criminal charges, in the context of everything else she has experienced, would concern the mother for her safety and the child’s safety.

g) The court accepts the mother’s evidence that the paternal grandmother’s home was often chaotic, with several people coming and going, many of whom she did not know. There was often fighting in the home. The paternal grandmother and her children would engage in loud arguments, with insults and swearing at each other. The child would be present.

h) It is reasonable that the mother does not want to expose the child to this environment.

7.3.2 Has the mother acted arbitrarily by deciding that the paternal grandmother should have no contact with the paternal grandmother?

[101] The court is posing this question because there are contact options other than ordering contact, as requested, in the paternal grandmother’s home or community. The court could order contact to take place outside the paternal grandmother’s community. It could order supervised contact to address many of the mother’s fears.

[102] However, the answer to this question is no. The mother is not acting arbitrarily. In addition to the reasons set out in paragraph 100, the mother’s decision is reasonable for the following reasons:

a) There is a significant power imbalance between the mother and the paternal grandmother. The paternal grandmother is a strong and assertive person. She presented as a person hardened by her life experiences. The court appreciates she has had many challenges. She struggled to raise 10 children with little help from their fathers. She financially struggled. She has had significant health challenges. She is on ODSP for sciatica and fibromyalgia. She has had to deal with the serious criminal behaviour of three of her children.

The mother deposed she suffers from a lack of self-esteem. When she lived with the paternal grandmother she was very vulnerable. She was young, isolated and financially insecure. Her partner had been charged with murder and she became a single mother. She felt the paternal grandmother was verbally abusive and disrespectful to her and constantly pressured her to do what she wanted. She felt she couldn’t express how she felt to the paternal grandmother. She felt powerless. She was trapped in a home that she couldn’t tolerate. The mother couldn’t even make eye contact with the paternal grandmother during the trial. This dynamic makes interactions between them very stressful for the mother. By extension, they will likely make interactions stressful for the child.

The court realizes it has taken a lot of time and courage for the mother to extricate herself from a very problematic environment.

b) The paternal grandmother displayed a lack of empathy at trial towards the mother. The mother has endured some terrible experiences. The paternal grandmother did not acknowledge them. Instead, she was focused on how the mother’s decisions have affected her and her family. She minimized the mother’s concerns throughout the trial. Her lack of empathy gave more credence to the claim of the mother and the maternal grandfather that she did not even ask how they were after the shooting incident on July 6, 2019 and instead declared that the maternal grandfather was a snitch.

c) The paternal grandmother displayed no insight into why the mother has made her decision to prevent her from having contact with the child. She expressed puzzlement that the mother has made this decision. She expressed this sentiment at trial even though the mother set out her concerns in detail in her Answer/Claim and again in her trial affidavit. She cannot understand why the mother does not feel safe in her home and in her community despite the overwhelming evidence of safety concerns set out above. The evidence indicates she had a troubled relationship with the mother. Her inability to recognize this by now gives the court little hope that this dynamic will change.

d) The paternal grandmother spoke very little about the child at trial. She was focused on her rights and how the mother’s decision to deny her contact has affected her and her family.

e) The mother was adamant she does not trust the paternal grandmother. She has legitimate reasons to feel this way. The court accepts the mother’s evidence that:

i) The paternal grandmother used her name without her permission after she had left the paternal grandmother’s home, to obtain additional food and clothing from the Scott Mission.

ii) The paternal grandmother tried to enlist the mother to say she had visiting rights to the child in her home to maintain her subsidized housing. The paternal grandmother lives in a six-bedroom home and only Y. lives there. The mother submitted the following text message sent to her and children of the paternal grandmother in 2020:

So Family! Housing wants us to move unless I can put a grandchild on the lease! Anyone offering. Don’t need custody just grandmother’s visiting right which you know I have no intention on acting on ever! Let me know.

The court does not accept the paternal grandmother’s explanation that this text was sent as a joke. This evidence supports a concern that one of the paternal grandmother’s motivations in bringing this application is to preserve her present housing. The paternal grandmother testified her current housing is in jeopardy.

iii) The paternal grandmother obtained receipts for payments made by the mother on behalf of the father to claim extra support from the ex-partner in family court.

iv) The paternal grandmother did not disclose the extent of her child protection history and did not disclose her prior family court case when she started this application.

v) The paternal grandmother has minimized damaging evidence and provided evidence that lacked credibility in this case to advance her position.

vi) The paternal grandmother prioritizes her loyalty to her children to providing a safe environment for the mother and the child.

vii) The paternal grandmother accepted no responsibility for her role in not seeing the child. She believes she has done nothing wrong.

viii) The paternal grandmother said little positive about the mother at the trial.

ix) The paternal grandmother strongly believes the mother is not making the right decision by not taking the child to see the father in jail. The mother has good reason to believe the paternal grandmother, if given the opportunity, might inappropriately discuss the father with the child.

f) The mother has reasonable grounds to believe that if the paternal grandmother is given any contact that it won’t end there. The paternal grandmother is determined to get her own way. She is experienced in the court system. If contact is ordered, the mother will likely have to deal with motions to change and more litigation in the future.

7.4 Conclusion

[103] Even if the court had taken an expansive approach and had found that a positive relationship already existed between the child and the paternal grandmother that was imperiled by the mother’s decision, the evidence did not come close to supporting a finding that the mother acted arbitrarily.

[104] The court did not answer the three Giansante questions in the affirmative. This was required to move to the second part of the test – the best interests analysis.

[105] The court finds that the mother is acting responsibly and protectively for her child. She is acting in her best interests and is not acting arbitrarily. The court finds it is in the child’s best interests to defer to the mother’s decision to deny the child having contact with the paternal grandmother.

Part Eight – Best interests

[106] The court finds that even if it had decided it should not defer to the mother’s decision, it is not in the child’s best interests to make a contact order.

[107] The court considered the following best interests factors in support of ordering contact:

a) The paternal grandmother had a positive pre-existing relationship with the child for the first 16 months of her life.

b) The paternal grandmother and many paternal family members love the child.

c) The child has many paternal aunts, uncles and cousins. In the ideal scenario, the child should have the benefit of knowing them and being part of their family. This is one-half of her identity.

d) The father will not be available to have a meaningful relationship with the child for many years.

e) The child will be exposed to the culture of his paternal family. [^5]

f) The paternal grandmother offered flexible arrangements and conditions for contact.

[108] These factors are significantly outweighed by the factors militating against contact extensively set out in Part 7.3 above.

[109] The court considered the child has not had a relationship with the paternal grandmother since July 2022.

[110] The court has also considered the emotional safety of the mother. She remains very vulnerable. Her experiences while living with the paternal grandmother have scarred her. She has made significant gains in her life since she extricated herself from the paternal grandmother’s influence, home and community. She is working in social media for non-profit organizations. She is supporting herself and the child. Most importantly, she is doing an excellent job raising the child, who is functioning very well. Her fears of compromising these gains by re-engaging with the paternal grandmother are reasonable.

[111] Any contact order would risk destabilizing the gains made by the mother. It could compromise her parenting and the child’s stability and continuity. The benefits of contact, in these circumstances, do not justify taking this risk.

Part Nine – Restraining order

[112] The mother seeks a restraining order against the paternal grandmother pursuant to section 35 of the Act. She says she is afraid of the paternal grandmother. She says that the paternal grandmother has sent her threatening and aggressive messages.

[113] The mother did not seek, in the alternative, a non-contact and communication order, pursuant to subclause 28 (c) (i) of the Act (a section 28 order). She submitted she did not want to return to court with the paternal grandmother to enforce it or to defend a motion to change. [^6]

[114] The paternal grandmother asks that this claim be dismissed.

[115] In G.P. v. R.P., 2023 ONCJ 388, this court set out the legal principles to apply in determining whether to grant a restraining order as follows:

a. Restraining orders are serious and should not be ordered unless a clear case has been made out. See: Ciffolillo v. Niewelglowski, 2007 ONCJ 469.

b. Courts should not order restraining orders in borderline cases just to be cautious. That ignores the test and the onus of proof. See: A.H. v. M.T., 2023 ONSC 2365.

c. A restraining order is serious, with criminal consequences if there is a breach. It will also likely appear if prospective employers conduct a criminal record (CPIC) search. This could adversely affect a person’s ability to work. It may affect a person’s immigration status. See: F.K. v. M.C., 2017 ONCJ 181.

d. It is not sufficient to argue that there would be no harm in granting the order. See: Purewal v. Purewal, 2004 ONCJ 195.

e. Courts should be hesitant to make the order simply because there was a similar order in place before that has now expired. Orders expire. See: A.H. v. M.T., supra.

f. Before the court can grant a restraining order, it must be satisfied that there are “reasonable grounds for the person to fear for his or her own safety or for the safety of their child”. See: McCall v. Res, 2013 ONCJ 254.

g. The test for a restraining order is both objective and subjective. The legislation itself makes that clear, as an entirely subjective test would have no use for the words “reasonable grounds” as a qualifier to the fear(s) expressed by the requesting party. See: A.H. v. M.T., supra; McGowan v. McGowan, 2018 ONSC 5950, at paragraph 38. [^7]

h. The relief is discretionary. While there are subjective and objective elements in the test, more is required than an expression of concern. There must be evidence as to specific events and a connection to the present situation. See: Noriega v. Litke, 2020 ONSC 2970; S.S.L. v. M.A.B., 2022 ONSC 6326.

i. It is not necessary for a respondent to have actually committed an act, gesture or words of harassment to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have to have an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated. See: Fuda v. Fuda, supra.

j. A restraining order cannot be issued to forestall every perceived fear of insult or possible harm without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent’s actions or words. A court must be able to connect or associate a respondent’s actions or words with an applicant’s fears. See: Fuda v. Fuda, supra.

k. A restraining order will be made where a person has demonstrated a lengthy period of harassment or irresponsible, impulsive behaviour with the objective of harassing or distressing a party. There should be some persistence to the conduct complained of and a reasonable expectation that it will continue without court involvement. See: Purewal v. Purewal, 2004 ONCJ 195.

l. Courts should have regard for the passage of time. Events that once triggered a temporary restraining order may not be so compelling on the issue of a permanent order. See: D.C. v. M.T.C., 2015 ONCJ 242; Jumale v. Mahamed, 2022 ONSC 566.

m. In borderline cases, the court must consider what other protections may be available if a restraining order is not granted. See: D.C. v. M.T.C., supra; M.H.S. v. M.R., 2021 ONCJ 665.

n. It is appropriate, in borderline cases, to consider the balancing prejudice to the respondent if the restraining order is granted. See: D.C. v. M.T.C., supra; M.H.S. v. M.R., supra.

o. A court is not precluded from making a final restraining order if a party has complied with a temporary order under section 28 of the Act. On a temporary motion, the court does not have the benefit of the fulsome record it has at trial. Cross-examination at trial can provide valuable information in the court’s risk assessment. Further, the court should be alert to the fact that parties may improve their behaviour when the eyes of the court are on them. This might not continue once the case ends. See: F.K. v. M.C., supra.

[116] The evidence does not support the court making a restraining order for the following reasons:

a) The paternal grandmother testified if the mother does not want her to contact her, she will not contact her. The paternal grandmother has not communicated with the mother since July 2022 despite the absence of a restraining order or a section 28 order. This shows the paternal grandmother means what she said.

b) The mother claimed a May 13, 2020 text sent by the paternal grandmother threatened her if she continued to speak with the ex-partner and his partner. The court read the text and it could be interpreted as a threat, or it could be interpreted as a warning that the ex-partner and his partner will take advantage of her and it could compromise her relationship with the paternal family. As an isolated message, it does not rise to a level warranting making a restraining order. This type of message was not repeated.

c) The content of the other text messages provided by the mother did not come close to rising to the level required to grant a restraining order – a very serious remedy. While some of the messages the paternal grandmother sent were harsh and argumentative, the court understands the paternal grandmother was frustrated because the mother was denying her contact. She was trying to convince the mother to permit it.

d) Except for a series of texts sent by the paternal grandmother to the mother on July 2, 2022, the paternal grandmother did not persistently send inappropriate text messages to the mother.

Part Ten – Conclusion

[117] A final order shall go as follows:

a) The paternal grandmother’s claim for contact is dismissed.

b) The mother’s claim for a restraining order is dismissed.

[118] The court appreciates that the paternal grandmother will be disappointed by this decision. It was apparent to the court how much she wants to have a relationship with the child and for the child to have a relationship with the paternal family.

[119] This decision does not necessarily mean the paternal grandmother or the paternal family will never have a relationship with the child. The mother testified she is not foreclosing contact in the future. She facilitated the child coming to paternal family functions for two years after she left the paternal grandmother’s home. She recognized the potential benefits to the child. At this time, the paternal grandmother and the paternal family need to show they respect the mother’s decision and her concerns. The paternal grandmother needs to remove the pressure she has placed on the mother. This is a start to rebuilding trust.

[120] If either party seeks costs, they shall serve and file written submissions by May 7, 2024. The other party will then have until May 21, 2024 to serve and file their written response (not to make their own costs submissions). The submissions shall not exceed 3 pages, not including any bill of costs or offer to settle. They are to be either delivered or emailed to the trial coordinator’s office.

[121] The court thanks counsel for their professional presentation of this sensitive and difficult case.

Released: April 22, 2024

Justice Stanley B. Sherr

Footnotes

[^1]: The mother gave the child her own last name. [^2]: Subsection 21.1 of the Act requires persons who are not parents to obtain a police records clearance. Subsection 21.2 of the Act requires them to do searches with Children’s Aid Societies and provide information about any prior child protection involvement and subsection 21.3 requires the clerk of the court to provide to the court and to the parties information in writing respecting any current or previous family proceedings involving the child or any person who is a party to the application and who is not a parent of the child. [^3]: The mother also made this assertion in an unissued application and in a Form 35.1 parenting affidavit she had prepared in anticipation of starting her case at the court at 311 Jarvis Street. She never issued that application. However, she sent these documents to the mother. [^4]: Her three dog licences were on one form. [^5]: The paternal grandmother did not provide any evidence about her culture. She merely said she was active in her church and attended regularly. [^6]: The mother also submitted that the court does not have jurisdiction to make a section 28 order unless a contact order is made. Since this relief is not being claimed, the court will not address the jurisdictional issue in this decision. [^7]: The court notes that there is jurisprudence the person’s fear may be entirely subjective so long as it is legitimate. See: Fuda v. Fuda, 2011 ONSC 154, 2011 CarswellOnt 146 (Ont. SCJ); McCall v. Res, supra. A person’s subjective fear can extend to both the person’s physical safety and psychological safety. See: Azimi v. Mirzaei, 2010 ONSC 3000.