J.A. and Je. A. v. M.S.A. and H.P.
DATE: April 15, 2025
COURT FILE NO.: D44000/23
COURT: Ontario Court of Justice
HEARD: April 7-10, 2025
JUDGE: Stanley B. Sherr
APPLICANTS: J.A. and Je. A.
APPLICANT COUNSEL: Kulbir K. Rahal Vaid
RESPONDENTS: M.S.A. and H.P. (acting in person)
Reasons for Decision
Part One – Introduction
[1] This case is about the applicants’ (the maternal grandparents’) claim for a contact order with their 6-year-old granddaughter (the child). Presently, they exercise contact with her on alternate weekends, pursuant to the February 21, 2024 temporary order of Justice Debra Paulseth.
[2] The respondents are the child’s parents (the parents). The child currently lives primarily with the respondent H.P. (the father) and his wife. The respondent, M.S.A. (the mother), exercises liberal parenting time with the child.
[3] The maternal grandparents seek contact with the child to take place on three out of every four weekends from Friday evening to Sunday evening and on holidays.[1] In the alternative, they ask that contact take place on alternate weekends and on holidays.
[4] The maternal grandparents also seek virtual contact with the child. They ask to be added as emergency contacts for the child, seek terms preventing the parents from relocating with the child without their consent and ask for a right of first refusal to have contact with the child if the parents are unavailable to parent her.
[5] The parents agree that the court should make a defined contact order between the maternal grandparents and the child. However, they believe the amount of contact sought by the maternal grandparents is excessive and not in the child’s best interests.
[6] The parents seek an order that in odd-numbered years, the maternal grandparents have contact with the child on one weekend each month. In addition, they propose that if they and the father’s parents (the paternal grandparents) choose not to take the child on one weekend each month, the child may spend that weekend with the maternal grandparents. In even-numbered years, the parents propose that the maternal grandparents have contact with the child on alternate weekends. The parents also proposed specified holiday contact between the child and the maternal grandparents.[2]
[7] The parents do not oppose the maternal grandparents being added as emergency contacts for the child, provided they be added after them and the paternal grandparents. They oppose any restrictions on their ability to relocate with the child. They also object to the first right of refusal request made by the maternal grandparents.
[8] The court heard evidence from the maternal grandparents, their son, and their niece. It also heard evidence from the mother and her friend. They all provided affidavits for their direct evidence. The parties were permitted to supplement their direct evidence with oral testimony.
[9] The father did not serve and file a trial affidavit, as directed by the case management judge. He advised the court at the outset of the trial that he did not intend to testify. The maternal grandparents informed the court they would call him as a witness. After discussions with the court, the father agreed to provide direct evidence orally. He actively participated in the trial. He questioned witnesses and made submissions.
[10] The parties were all cross-examined.
[11] The issues for the court to decide are what contact order, and terms incidental to the contact order, are in the child’s best interests. In particular:
a) Should the court defer to the parents’ position about what contact order is in the child’s best interests? In doing so, the court must ask:
One: Does a positive grandparent-grandchild relationship already exist?
Two: Does the parents’ decision imperil this relationship?
Three: Have the parents acted arbitrarily?
b) If the court decides not to defer to the parents’ position regarding contact, what contact order between the maternal grandparents and the child is in the child’s best interests?
Part Two – The parties
[12] The maternal grandparents reside together in a home they own in Port Hope, Ontario. The maternal grandmother is 69 years old and works part-time in Toronto. The paternal grandfather is 71 years old and is retired.
[13] The mother is 34 years old and is the maternal grandparents’ daughter. She presently lives in a hotel in Toronto. She is working part-time and attending school at George Brown College.
[14] The father is 41 years old. He is employed full-time. He lives with his wife and the child in a rented condominium in Toronto. The father deposed he has been married for two years. He and his wife have no children together. The father said they are looking for new accommodation as their landlord is selling the condominium.
[15] The father has a 19-year-old child from a previous marriage. That child does not live with him.
Part Three – The child’s residential history and the rupture of the mother’s relationship with the maternal grandparents
[16] The child lived with the parents after she was born.
[17] The mother and the child resided with the maternal grandparents from approximately November 2018 through to the end of 2019. The maternal grandparents stated the mother and child moved out of their home in January 2020 – the mother said this happened in June 2020.
[18] The mother and the child resided with the father at the paternal grandparents’ home for two months in 2020.
[19] The mother found her own residence after she left the paternal grandparents’ home in 2020 and the child lived with her. The father continued to live with the paternal grandparents. The mother said they had shared parenting time with the child.
[20] The mother then prevented the father from seeing the child for almost one year, from approximately the fall of 2021 until the fall of 2022.[3]
[21] The child spent considerable time with the maternal grandparents, often spending several weeks at a time with them, while the mother focused on her own issues. For instance, the child lived with the maternal grandparents for almost two months, from November 2021 until January 2022.
[22] The mother had an uneasy relationship with the maternal grandparents. She denied them contact with the child when she was upset with them. She did this for two months in early 2020 and for two months in the summer of 2022.
[23] The mother’s relationships with the father and with the maternal grandparents had improved by the fall of 2022. This is when the child started junior kindergarten. The child lived with the mother in Toronto during the weekdays and spent every weekend with the maternal grandparents in Port Hope.
[24] The child spent three weeks with the maternal grandparents in Port Hope in December 2022.
[25] In April 2023, the mother asked the maternal grandparents to look after the child because both she and the child were sick. The following sequence of events occurred:
a) The child stayed with the maternal grandparents in Port Hope from April 14 to 19.
b) The mother picked up the child on April 19 and returned the child to the maternal grandparents in Port Hope on April 20. The child stayed with them until May 2.
c) The maternal grandfather tried to reach the mother to confirm when he should return the child to her. He expressed concern about the child missing so much school. The mother kept asking him to keep the child, either due to her being sick or her having to write exams.
d) The father attended the mother’s home on May 2. He observed it was a mess. He helped clean it up. He left the child with the mother.
e) On May 2, the mother called her friend to take the child.
f) On May 3, arising from concerns raised by the mother’s friend, the maternal grandparents picked up the child from that friend and brought her to their home.
g) On May 5, the mother contacted the maternal grandparents to let them know they would not be able to see the child that weekend. She was unaware that the child was already with them.
h) On May 7, the mother sent the maternal grandfather a message threatening to cut off all future contact with the child.
i) On May 10, the mother picked up the child from the maternal grandparents. At that point, she ended contact between the child and the maternal grandparents.
j) On May 13, the maternal grandparents called the Children’s Aid Society (the society) to report concerns about the state of the mother’s home, her drinking, and the child’s safety.
k) The father moved into the mother’s home for a couple of weeks to assist the mother.
l) On May 22, the father sent the maternal grandfather texts and pictures expressing concerns about the state of the mother’s home, her drinking and her not putting the child first. He asked the maternal grandparents to report the matter to the society and they did.[4]
m) On June 2, the maternal grandparents issued this application.
[26] The mother has chosen not to directly communicate with the maternal grandparents since May 10, 2023. The maternal grandparents communicate about the child with the father.
[27] The mother permitted only sporadic contact between the maternal grandparents and the child until the temporary order was made by Justice Paulseth on February 21, 2024. That order provides for contact to take place on alternate weekends. It also provides for virtual contact once each week.
[28] The father began to see the child more often after May 2023. He said the child started spending equal time with him and the mother.
[29] The father married and moved out of the paternal grandparents’ home in September 2023. The equal-parenting time arrangement with the child continued.
[30] The mother lost her housing in July 2024. She and the child moved in with the paternal grandparents. The child moved back and forth between the mother and the father.
[31] In November or December 2024, the mother and the father agreed that the child should primarily live with the father until the mother obtained suitable housing.[5]
[32] The mother moved out of the paternal grandparents’ home and into a hotel in December 2024, where she currently resides. The mother and the father gave conflicting evidence about how often the mother sees the child. The father said the hotel is not suitable for the child and he only permits one overnight visit each week. The mother’s evidence fluctuated on this point. Her evidence seemed to land on having had one overnight with the child each week until a few weeks ago, when she and the father went back to an equal time-sharing arrangement.
[33] The court finds that the father has been the child’s primary caregiver since at least December 2024.
[34] The mother and father have not complied with the order for virtual contact between the child and the maternal grandparents. They have only facilitated a few video calls. The father claimed that he is often too busy or the child does not want to call the maternal grandparents. He prefers a looser arrangement where the child will call the maternal grandparents when she wants to.
Part Four – Assessment of the parties and their evidence
4.1 The maternal grandparents
[35] The maternal grandparents have been much more involved with the child than most grandparents are with their grandchildren. Until May 2023, the child spent extensive time with them. They were instrumental in raising the child.
[36] The maternal grandparents love the child and are very committed to her. She loves them and enjoys spending time with them. The maternal grandparents engage her in many activities. The father expressed his admiration about this and said he hopes to emulate what they do with the child.
[37] The child also enjoys spending time with her uncle and her cousins when they visit the maternal grandparents’ home.
[38] The maternal grandparents are good caregivers. There is no issue regarding their ability to care for the child.
[39] The evidence supports the maternal grandparents’ contention that they have been supportive of the mother. They provided her with parenting relief when requested. They kept the child with them when she wanted to focus on work or school. They gave her financial support and the use of a car. They assisted her with rent. They assisted her roommate with rent. When she was emotionally struggling, they said she could live with them.
[40] The maternal grandparents are very worried about the mother, and by extension, the child. They believe the mother is a good parent when she is functioning well but worry about the child when the mother is not functioning well. The mother has often given them good reason to worry.
[41] The maternal grandparents have complied with the temporary court order. They have been respectful of the parents. When the parents enrolled the child in a swimming program during their contact time, they took the child to her swimming lessons on Friday evenings. The court is confident they will follow the terms of this order.
[42] The maternal grandparents are saddened by their daughter’s refusal to have a relationship with them or with the extended maternal family. They worry that she will arbitrarily keep the child from them unless there is a detailed contact order. This is a legitimate concern.
[43] The maternal grandparents have a positive relationship with the father. They spoke highly of him at trial. They feel he is a protective factor for the child. However, they worry that he is under considerable pressure from the mother to limit their relationship with the child and that he accedes to her wishes.
[44] The maternal grandparents also spoke positively about the paternal grandparents.
[45] The maternal grandparents presented as sincere and committed to the child. They did their best to answer questions thoughtfully and honestly. If there was a minor inconsistency in their evidence, they readily admitted it. They were credible witnesses.
[46] This does not mean the maternal grandparents were without flaws.
[47] The maternal grandmother presented as rigid when it came to her position on contact. She maintained it was best for the child to have contact with them every weekend. When asked about when the parents could have leisure time with the child, she said they would have it during the weekdays. She showed little insight into the reality of the child’s life. The parents work or go to school during the weekdays. They rush to pick her up from daycare at 6 p.m., get her home, feed her, do any homework and then get her ready for bed starting at 8 p.m. The father has a similar rushed routine with the child in the mornings. There is little leisure time.
[48] The maternal grandmother also showed little regard for the paternal grandparents’ relationship with the child. When can they spend extended time with the child under her plan? She said they can see the child on weekdays. The paternal grandparents do not live with the child. In the maternal grandmother’s plan, they would need to insert themselves into the child’s busy evening schedule to have a relationship with her.
[49] It should have been apparent to the maternal grandmother that her proposal was not workable. Instead, she stuck to a mantra, that “this was the status quo before May 2023 and this is what the child wants”. Her inflexibility was a concern and informed the court that the breakdown of the maternal grandparents’ relationship with the mother is not as one-sided as they presented.
[50] The paternal grandfather initially stuck to the same script as the maternal grandmother. “This was the status quo, this is what the child wants”. To his credit, he eventually conceded that their proposal of having the child with them every weekend was no longer workable for the child. He said this is due to the new roles of the father and the paternal grandparents in the child’s life that have evolved since the application was started.
[51] However, when asked why he was still maintaining an “every weekend position”, the paternal grandfather answered, “why would I negotiate against myself”? This informed the court that for him, “winning” was also an important consideration in this case.
[52] The maternal grandparents were reluctant to accept that the child’s needs today are different than they were two years ago. Her life is different. The roles of the adults in her life are different. As she ages and becomes more independent, she needs to spend more time with her friends and not the adults.
[53] The maternal grandparents’ position of having the child with them every weekend (or even on three out of four weekends) was not helpful. It was unfair, given the importance of the child’s relationships with the parents and the paternal grandparents. It also made the parents more defensive. It reinforced the mother’s fears that the maternal grandparents’ agenda is to replace her as the child’s parent. The maternal grandparents’ position has escalated this conflict.
4.2 The father
[54] The father had to be encouraged to be engaged in this case. He did not file a trial affidavit and advised the court at the start of the trial that he did not want to testify.
[55] The court’s impression at the start of the trial, based on the trial affidavits filed and the father’s presentation was that he had tangential involvement in the issue before the court. This impression changed as the trial developed.
[56] Once prompted, the father became very involved in the case. He asked relevant questions and made thoughtful submissions. He testified in a balanced manner. He tried very hard to understand everyone’s perspectives and propose solutions.
[57] It also became evident during the father’s testimony that it is now he, and not the mother, who is the child’s primary caregiver.
[58] The father presented as very child-focused throughout the trial. He has been the peacemaker in the strained mother/maternal grandparents dynamic. He wants to protect the child from that conflict. He wants the child to have a positive relationship with every family member who loves her.
[59] The father spoke very positively about the maternal grandparents. He feels they are wonderful people who love the child very much. He feels the same about the paternal grandparents. He wants an arrangement that provides a fair balance of time for the child with the parents and her two sets of grandparents. He also made a compelling argument that the child needs some time off for herself where she is not constantly on the move between homes.
[60] The father described how his wife and the paternal grandparents are very close with the child and have provided him with considerable assistance in raising her.
[61] The father did his best to answer questions at the trial. He was not avoidant. He did not profess to perfection. He was a credible witness. He struggled at times with memory and the timing of events, so there was concern with the reliability of some of his evidence. He readily admitted that he might be wrong about the timing of events when confronted with conflicting evidence.
[62] The father maintains a close relationship with the mother. He feels she has many positive parenting attributes. The court observed that closeness during the trial. They prepared the draft orders together, sat close together and exchanged ideas on what questions to ask in cross-examination. They were respectful to each other at trial.
[63] This does not mean the father glossed over the mother’s flaws. He acknowledged that at times he has been very concerned about her functioning and reached out to the maternal grandparents for help. He is acutely aware of how angry the mother is with the maternal grandparents and wishes this was different.
[64] The court has the following concerns about the father when it comes to how a contact order will work:
a) He has not consistently facilitated the video contact order. There may be good reasons for changing that order but he cannot unilaterally do this. That is the court’s decision.
b) He has sometimes gone long periods without responding to the maternal grandparents. Communication is very important with this family. He needs to be more consistent about this.
c) He is aligned with the mother. He will not provide additional contact to the maternal grandparents without her consent. This means there is a risk that if the mother wants to cut off contact, he will accede to this, even if he does not agree with her. A court order to preserve contact is essential.
d) Although their relationship is presently positive, he and the mother have had a rocky history. They have often fought. The mother kept him away from the child for almost a year. She was angry with him when he encouraged the maternal grandparents to call the society about her.
e) The parents have had fluid and quick-changing parenting arrangements between them. He was involved with the child, then not involved at all when the mother cut him off. He then became involved again, to the point where they equally parented the child. Now, he is primarily parenting the child. This could change again and quickly. If it did, and the mother became the primary decision-maker regarding contact, the relationship between the child and the maternal grandparents would be at risk.[6]
f) There is a risk of him disengaging from the process if he becomes too frustrated with the family conflict. This almost happened here, as he had to be encouraged to participate in the trial. He testified, “I guess I kind of checked-out”. If he “checks out” again this could compromise the child’s relationship with the maternal grandparents and the maternal family.
4.3 The mother
[65] The mother was the person in the most pain at the trial. She presented as an intelligent and articulate young woman who struggles with her sense of self-worth.
[66] The mother expressed great love for the child. She wants her to have a good life. She wants to be a good mother.
[67] The mother spoke very positively about the father and the paternal grandparents. She said she wants the child to spend a fair amount of time with all the people who love her. She feels the child’s time with the father and her should be prioritized.
[68] The mother is very angry. She worked hard to control that anger and her emotions during the trial. She feels that the maternal grandparents are judgmental and condescending towards her. Her feelings about them go back to her childhood.
[69] The mother’s narrative is that the maternal grandparents are advancing this claim to control her and minimize her role in the child’s life. She viewed the considerable help they provided to her prior to May 2023 through this prism. She felt they only helped her to advance their own agenda. She views this litigation as a continuation of that agenda.
[70] The mother wants nothing to do with the maternal grandparents.
[71] The mother sometimes does not function well. She struggles in her relationships. She has poor relationships with the maternal family. Her relationship with the father has sometimes been fractious. In 2023, she was charged with assaulting another partner. The child was living with her at the time. There was a no-contact order. It became apparent during the trial that the mother did not comply with that order. The mother testified that relationship is now over.
[72] The mother was struggling in April and May 2023. She kept the child out of school. She asked the maternal grandparents to care for the child. They could not reach her to return the child. The court accepts the maternal grandfather’s evidence that when he went to the mother’s home on May 2, 2023, her home was in disarray, with dog feces all over the floor. The father and the mother’s friend became concerned about her functioning. The mother gave the child to her friend. She was not even aware three days later that the friend had called the maternal grandparents and had delivered the child to them.
[73] The mother lost her housing in July 2024. Her explanation about why this happened didn’t make a lot of sense. She attributed it at one point to financial reasons. However, the difference in her housing costs after she left that home was not significant. At another point, she claimed she lost the home to the stressors in her life. She testified: “I was crying in the middle of my shifts, I think I am not good enough, I am tired of all the criticism all the time. It is really hard. I can barely go to work now. I am horrible at school”.
[74] The mother has bounced around since then. She has slept on a couch at the paternal grandparents’ home. She moved into a hotel.
[75] The mother had a mental health crisis in November 2024. The father became so concerned he reached out to the maternal grandparents for help. The court reviewed text messages confirming this. The father was concerned that the mother was drinking and had tried to commit suicide. The mother denied this. The child was not with her at that time.
[76] The mother externalized the blame for her struggles on the maternal grandparents. This showed little insight into her own issues and makes her a poor candidate to make meaningful change. Unlike the father, she took no accountability for her problems.
[77] The mother was the least credible and reliable witness at trial. She did not mention in her detailed trial affidavit that the child was primarily living with the father and she was living in a hotel. The impression she tried to give was that she was the child’s primary caregiver. She withheld important information about her criminal proceedings with her former partner despite a request for information. Her evidence was inconsistent at times. She had difficulty remembering events unless she had photos or documents to prompt her memory. The reliability of her evidence was impaired by how she views the maternal grandparents.
[78] The mother expressed that she wanted the child to have a good relationship with the maternal grandparents. She probably means that. However, her anger and emotional inconsistency informs the court that without a court order there is a high risk she will arbitrarily end the child’s contact with the maternal grandparents if she becomes upset with them.
Part Five – Legal considerations for contact
5.1 The legislation
[79] The maternal grandparents have brought their 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.
[80] 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.
[81] Subsections 24 (2) and (3) of the Act set out legislative considerations in determining a child’s best interests when making a contact order. The court has taken the relevant factors into consideration as set out in section seven below.
[82] Section 28 of the Act sets out the types of orders the court can make.
5.2 Best interests factors
[83] 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.
[84] 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 (SCJ).
[85] 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 principle also applies when making a contact order. See: F.S. v. N.J., 2024 ONCJ 199.
5.3 Jurisprudence on grandparent contact
[86] 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.
[87] 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 best interests. See: F.S. v. N.J., supra; Kirshenblatt v. Kirshenblatt, 2024 ONSC 2896; Bennett v. MacFarlane, 2021 ONSC 3700; Arbuzova v. Scriver et al, 2024 ONSC 832.
[88] 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 parenting time 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?
[89] 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.
[90] 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. See: F.S. v. N.J., supra.
[91] 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.
[92] 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.
[93] In Ninkovic v. Utjesinovic, 2019 ONSC 558, at paragraphs 72 to 74, the court set out the following factors to consider in engaging with the best interests analysis:
[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 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 CarswellOnt 3458. 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 Six – Is it in the child’s best interests to defer to the parents’ decision regarding the maternal grandparents’ contact with the child?
6.1 Does a positive relationship already exist between the maternal grandparents and the child?
[94] The answer to this question is yes. All the parties agreed to this. The child has always had an excellent relationship with the maternal grandparents. It is an important relationship for the child that needs to be preserved.
6.2 Does the parents’ decision imperil this relationship?
[95] This case raises the issue of what time frame should be used to determine questions two and three from Giansante. Does the court use the time when the mother materially reduced the maternal grandparents’ contact with the child? Does it use the date of her Answer/Claim when she asked for an order that any contact be in her discretion? Does it use the third day of trial, when the parents submitted more reasonable contact proposals? Or, does it choose some other time?
[96] In F.S. v. N.J., supra, this court raised the issue of what time frame the court should use to determine question number one in Giansante – Does a positive pre-existing relationship exist between the child and the grandparent? The court determined it should ask that question as of the time when the mother in that case unilaterally decided to end contact with the child’s grandmother. Justice Andrea Himel followed that approach in Kirshenblatt v. Kirshenblatt, supra.
[97] It is essential for a court to maintain its focus on the child’s best interests when interpreting jurisprudence affecting children. A flexible approach, adaptive to the circumstances of the case, is preferable to a rigid and technical approach. Here, the court will take an approach similar to the one it took in F.S. in determining what time frame to apply to questions two and three from Giansante. The court will use the time frame when the mother materially reduced the maternal grandparents’ contact with the child. Did that decision imperil that relationship? Was it arbitrary? After all, it was the material change to the child’s relationship with the maternal grandparents that prompted this court action and the ensuing litigation.
[98] The court finds that the mother’s decision on May 10, 2023 to stop the child’s contact with the maternal grandparents, and her subsequent decision to only permit occasional contact between them imperiled the child’s relationship with the maternal grandparents. The child went from having the stability of seeing the maternal grandparents every weekend and for extended periods to sporadic and unpredictable parenting time. This decision was solely made by the mother as the father was not making decisions for the child at that time. He had just restored his own parenting time near the end of 2022 after the mother had withheld it for nearly one year.
6.3 Has the mother acted arbitrarily?
[99] The answer to this question is yes. The mother was very angry at the maternal grandparents for calling the society about her. She reacted in anger without regard to how this would impact and upset the child. She removed the maternal grandparents from the child’s daycare pick-up list. This was spiteful. She put her own needs ahead of the child’s needs. She did not act in the child’s best interests.
6.4 Conclusion
[100] The court answers the three Giansante questions in the affirmative. When the mother materially reduced the maternal grandparents’ contact with the child in an arbitrary manner, she forfeited her ability to rely on judicial deference. She cannot restore that advantage by taking more reasonable positions once faced with a trial.
[101] The court emphasizes that it would have answered these questions in the affirmative, even if it had used the date of trial to answer Giansante questions two and three. The mother is still deeply angry at the maternal grandparents and emotionally reactive. She has stopped the father’s parenting time and the maternal grandparents’ contact with the child when she is upset with them. There were two earlier instances where she threatened the maternal grandparents that she would cut off contact before she actually did it. Without a detailed contact order, that the court determines is in the child’s best interests, there is a very strong chance she would cut off their contact again.
[102] The relationship between the mother and the father has historically been unstable. Primary care for the child shifts between them and may shift again. The father does not want to upset the mother. He has been cut off from the child before. She has threatened him with making a retroactive support claim before. There is a strong possibility that the father will be pressured by the mother to stop or diminish the child’s contact with the maternal grandparents without a court order.
[103] The court will not defer to the parents’ wishes about contact between the child and the maternal grandparents. Doing so is not in the child’s best interests.
Part Seven – Best interests analysis
[104] This leaves the court to determine what contact order between the child and the maternal grandparents is in the child’s best interests. Regarding the relevant best interests factors set out in subsection 24 (2) and (3) of the Act the court has considered the following:
a) The child has a very close relationship with the maternal grandparents. They were very involved in her upbringing. They were spending extensive time together before the mother unilaterally changed this in May 2023, including large amounts of extended time. The maternal grandparents did not spend much time with the child from May 2023 until February 21, 2024. That was not their fault. They have consistently exercised alternate weekend contact with the child since February 21, 2024. That contact has been positive for the child.
b) The child also has a close relationship with other members of the maternal family. The maternal grandparents’ son described how his family, and especially his children, have a close relationship with the child.
c) The child has a very close relationship with the parents.
d) The child also has a very close relationship with the paternal grandparents. They have provided considerable parenting assistance for the father. They have also provided the mother with support in parenting the child. The mother expressed her appreciation for this.
e) The child has a close relationship with the father’s spouse. Although she was not called as a witness, the court accepts that she has assumed a caregiving role for the child.
f) The maternal grandparents have provided the child with consistency and security. This is particularly important given the instability in the mother’s life, including her relationships, schooling, and more recently, her housing. The father also has had several changes in his housing and plans to move again soon.
g) The maternal grandparents are very capable of meeting the child’s needs while she is with them.
h) The court did not have independent evidence about the child’s views and wishes. All the parties said she was reluctant to leave them. The court placed little weight on the parties’ evidence about the child’s statements. The court accepts that the child loves all of them and wants to spend time with all of them. It accepts the maternal grandparents’ evidence that the child was upset and confused when she went long periods without seeing them after May 2023.
i) The court is confident the maternal grandparents will follow court orders. The parents followed the in-person provisions of the temporary contact order. They have breached the virtual contact terms in the order.
j) The maternal grandparents will promote the child’s relationship with her parents. They facilitated parenting time for the father when the mother stopped him from seeing the child during 2022. The father will do his best to promote the child’s relationship with the maternal grandparents, although he is vulnerable to pressure from the mother not to do so. The court is not confident the mother will consistently promote the child’s relationship with the maternal grandparents or with the extended maternal family. Without an enforceable court order, she is capable of cutting them off when she is angry.
k) The maternal grandparents and the father will communicate respectfully about the child. The mother and the father are communicating well at this point. The mother does not want to communicate with the maternal grandparents.
l) The maternal grandparents have proposed going to therapy with the mother. The mother does not feel she is ready to do this.
m) The court has considered that the contact arrangements are very stressful for the parties, particularly the mother. Her functioning is already fragile and constant worry over contact might destabilize her parenting. There is evidence of this happening in May 2023 and in November 2024. This is not in the child’s best interests.
n) All the parties are Roman Catholic.
o) The father and the paternal family teach the child the paternal Chilean culture.
p) The maternal grandparents involve the child in the maternal family culture and traditions. They want her to come with the extended family to traditional dinners. They fear the child will lose out on that unless a contact order is made.
q) The parents raised a concern that the trip from Toronto to Port Hope is too far for the child. This argument has some weight when it comes to the frequency of contact. However, the child made that trip every week when the mother’s relationship with the maternal grandparents was better. She did not express any concerns about it then.
[105] The court finds it is in the child’s best interests to have generous contact with the maternal grandparents. The challenge for the court is in determining how much contact is in her best interests.
[106] The determination of contact is complicated by the number of people involved in the child’s life. The mother and the father do not live together. The child needs separate parenting time with them, including on weekends, when the parents do not have to deal with the chaos of getting the child ready for school, going themselves to school or work, picking up the child at 6 p.m. from daycare and then rushing home for the evening routine.
[107] It is important for parents to have full uninterrupted weekends with their children. Weekends are precious time for families, particularly if the children and both parents have fairly rigid weekday commitments. See: H.P. v. L.V., 2020 ONSC 6023; Oriaku v. Ransome, 2021 ONCJ 660.
[108] Many activities for children are only open on weekends. Children should be able to enjoy this time with both parents. See: A.R. v. M.C., 2021 ONCJ 525; Donovan Bonnay v. Hines, 2022 ONSC 1747.
[109] The determination of contact is also complicated by the importance of the child spending time with the paternal grandparents. The evidence informed the court that they also play important roles in the child’s life. It is not enough to say they can visit the child during weekdays when the child and the parents are busy and stressed.
[110] And most importantly, the court has to consider the child’s needs. She needs quiet time, when she is not being bustled from one location to another. She needs the opportunity to have a stable home and community, where she can make friends and participate in community activities. She needs the time to quietly do her homework.
[111] The court agrees with the father’s submission that quality of time is more important to the child than quantity of time. The child should not be over-extended. The more transitions and coordination that is required, the more stress is placed on the parents and the child.
[112] The maternal grandparents’ proposals for contact, whether every weekend, or three weekends out of four, are not in the child’s best interests. The maternal grandmother was stuck at trial on restoring the status quo. However, the reality is that the child has developed strong relationships with the father and the paternal grandparents over the past two years that have changed the parenting equation. The father is now married and the child’s primary caregiver. The child is now older. It is preferable that she not be traveling back and forth from Port Hope every weekend.
[113] The court considered implementing the parents’ contact proposal. However, it finds that their plan is also not in the child’s best interests for the following reasons:
a) The security and stability the maternal grandparents offer the child is a very important factor given the concerns expressed about the parents above.
b) The child is used to spending extensive time with the maternal grandparents. This time has been important for her development and sense of security and consistency. It is in her best interests to spend more time with the maternal grandparents than the time proposed by the parents.
c) Their proposal for a “flex week” leaves too much discretion to them. The child had insufficient contact with the maternal grandparents when the parents exercised their discretion over contact between the start of the court case and the temporary court order on February 21, 2024. The court is not confident the maternal grandparents would be given additional contact.
[114] In his closing submissions, the father emphasized the importance of a balanced parenting plan for the child. The court agrees with him that such a plan is in the child’s best interests.
[115] The court will order that the maternal grandparents have contact with the child on one out of every three weekends from Friday after school until Sunday at 6 p.m. The court is ordering an earlier drop-off time than in the temporary order, so the child can settle in for school the next morning. The weekend visits will be extended if a statutory holiday or professional development day at school falls on the Friday or the Monday of their contact weekend.
[116] This regular parenting regime will give the parents and the paternal grandparents the opportunity to share weekend time with the child and give the child the opportunity to relax and develop more roots in the community she will live in.
[117] The court will also order extended holiday contact for the maternal grandparents. This will include additional days over the school’s winter holiday break and March break. They will be able to have contact with the child for up to two exclusive weeks in the summer. This will let them take her on vacations.
[118] The parties will be required to provide each other with notice of any change in address as required in sections 39.1 and 39.2 of the Act. The text of those sections will be attached to this order.
[119] The mother and the father will be required to follow the notice provisions set out in section 39.3 of the Act if either wishes to relocate with the child. Again, the text of that section will be attached to this decision.
[120] The parents agreed to add the maternal grandparents as emergency contacts for the child at her school and daycare. This will be ordered.
[121] The parties agreed to use a parenting app to communicate with each other about the child. This will be ordered.
[122] The court will not make a defined order for virtual contact. Confining the parents to a set time creates resentment. The order will provide that the parents ensure that the child makes at least one virtual or telephone call to the maternal grandparents each week. If the maternal grandparents are not available, they shall facilitate a virtual or telephone call when the call is returned.
[123] The court will not make an order giving the maternal grandparents the right of first refusal, if the parents are unable to care for the child. The logistics for the child to spend time with the people who love her are already complicated. The maternal grandparents live in Port Hope and the parents should be able to decide if someone else living closer will care for the child, such as the paternal grandparents or a sitter.
[124] The court will order several of the incidents of contact requested by the parties in their draft orders to facilitate the contact, their communication and to ensure the child’s best interests.
[125] The court will not put a time limit on the order as requested by the parents. It will also not make a review order. The parties have already engaged in far too much litigation that has damaged their family.
[126] The court will make this order effective on April 25, 2025, so there is no confusion about contact this coming weekend.
Part Eight – Conclusion
[127] A final order shall go as follows:
a) This order will take effect starting on Friday April 25, 2025. The terms of the temporary order will continue until then.
b) The child shall have contact with the maternal grandparents on the following terms and conditions:
Regular contact schedule
i) Starting on April 25, 2025, one out of every three weekends, from Friday after school (or at 4 p.m. if there is no school) until Sunday at 6 p.m. If the Friday is a statutory holiday or a professional development day at school, the pick-up shall be on Thursday at the same times. If the Monday after the weekend is a statutory holiday or a professional development day at school, the drop off shall be on Monday at the same time.
ii) Save and except for the child’s current Friday swimming sessions, the parents shall not schedule extracurricular activities or camps for the child during the maternal grandparents’ contact time, without the maternal grandparents’ consent, such consent not to be unreasonably withheld.
Virtual and telephone contact
iii) The parents shall ensure that the child makes at least one virtual or telephone call to the maternal grandparents each week. If they are not available when the child calls them, they will do their best to accommodate a virtual or telephone call when the maternal grandparents call the child back.
Summer school break
iv) Two additional weeks over the school summer break, in addition to the regular contact schedule. The maternal grandparents shall notify the parents through the parenting app by June 1st each year the two weeks they will exercise. They shall not schedule summer weeks during the week the child has her birthday.
March Break
v) Three extra days over the school March break. If their regular contact weekend is at the start of the break, then the child will stay with them until Wednesday at 6 p.m. If their regular contact weekend is at the end of the break, they will start their contact on Tuesday at 6 p.m. before that weekend. If they do not have a contact weekend during that time, the parents will choose the three extra days and advise the maternal grandparents what days they have chosen in the parenting app by February 1st.
Winter school break
vi) The regular contact schedule will be paused during the child’s winter school break. The grandparents shall have contact with the child during this break as follows:
- December 22 at 2 p.m. until December 24 at 8:30 p.m.
- The Friday before the child returns to school at 4 p.m. until the Sunday before the child returns to school at 6 p.m.
The regular weekend contact rotation will follow two weeks later.[7]
Other holiday times
vii) The child shall spend Halloween with the parents.
viii) The child shall spend Mother’s Day with the mother and Father’s Day with the father, if those days fall on the maternal grandparents’ contact weekend. If this happens, the child shall spend the following Sunday with the maternal grandparents from 10 a.m. to 6 p.m.
ix) The parents will upload the details of any birthday party for the child to the parenting app by July 24th each year in order to coordinate times for an extended maternal family gathering to celebrate her birthday.
Exchanges
x) When the child is in school or daycare, the grandparents shall pick her up from either the school or the daycare. When there is no school or daycare, the maternal grandparents shall pick up and drop off the child with whichever parent she is residing with at the time, or with the paternal grandparents, if directed to do so by that parent.
Cancellations
xi) Each year, either parent, if they have travel plans or a special event planned for the child, may cancel up to two contact weekends, or an extended holiday contact period (except for the summer weeks chosen by the maternal grandparents). If they decide to do this, they shall give the maternal grandparents at least one month’s notice on the parenting app. Make-up contact shall be provided to the maternal grandparents at the earliest opportunity.
Communication
xii) The parties shall all sign up for the MyFamilyWizard app. All important information will be uploaded and shared on the app, including health card information, extra-curricular schedules, visitation schedules and exchange arrangements.
xiii) The parents and the maternal grandparents shall keep each other updated with current phone numbers, addresses and email addresses.
xiv) The parents shall add and maintain the maternal grandparents to the list of authorized contacts to pick up the child at the child’s school and daycare. They shall also add and maintain them as emergency contacts. They shall provide proof of this to them. They shall not change this.
Change of address and relocation
xv) If either parent intends to change their address, they shall follow the notice provisions set out in section 39.1 of the Act.
xvi) If the maternal grandparents intend to change their address, they shall follow the notice provisions set out in section 39.2 of the Act.
xvii) If either parent wishes to relocate with the child, they are to follow the notice requirements set out in section 39.3 of the Act.
xviii) The full text of subsections 39.1, 39.2 and 39.3 of the Act are to be attached as a schedule to the court order.
[128] If any party seeks costs, they shall serve and file written submissions by April 30, 2025. The other parties will then have until May 14, 2025 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.
[129] Any remaining claims made by the parties not addressed above are dismissed.
[130] Counsel for the applicants shall take out the order.
[131] The court thanks the parties for the civility they demonstrated during the trial.
[132] The court also thanks counsel for the maternal grandparents for her highly professional presentation of this matter.
Released: April 15, 2025
Justice Stanley B. Sherr
Footnotes
[1] In their draft order for trial, the maternal grandparents sought contact on every weekend. They modified that position in their closing submissions.
[2] The parents’ position also changed during the trial. They did not file their draft order until the third day of the trial. They filed two draft orders that day. In their opening submissions, they had submitted that the maternal grandparents should have contact with the child on one weekend each month. One of their draft orders mirrored that position. The other modified it.
[3] The parents were unclear about the precise dates when this happened.
[4] The society investigated the concerns. The mother filed its business records. The society concluded it did not need to intervene further. The child reported she felt safe with the mother.
[5] The mother and father gave conflicting evidence about when this happened. The father said the child came to live with him in November 2024, the mother said this happened in early December 2024.
[6] The court notes that in his Answer/Claim, the father supported the mother’s position that any contact between the maternal grandparents and the child should be in the mother’s sole discretion.
[7] For instance, if school starts on Monday January 5, 2026, the next contact weekend will start on Friday January 16, 2026.