Court File and Parties

Newmarket file no. 59638/01

DATE: 2001·IX·21

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

REUVEN BLIUM and LIBA BLIUM,

Applicants (Appellants),

— AND —

LEV BLIUM and JANE BLIUM,

Respondents (Respondents in Appeal).

Before Justices Susan E. Lang, Nicholson D. McRae and Edward F. Then

Heard on 21 September 2001

Reasons for Judgment released on 8 November 2001

Headnotes

ACCESS TO CHILD — Form of order — Access at custodian’s discretion — Self-represented grandparents had dragged claim for access on their own terms through court for over year when parents finally made motion for summary judgment whereby grandparents would have access whose nature and frequency would be within parents’ discretion — Motion judge noted that parents’ circumstances and request fell fully within Court of Appeal ruling on parental rights vis-à-vis grandparents in Chapman v. Chapman, 2001 24015 — Since parents were asking for same outcome as ordered by Court of Appeal, motion judge found that there was no genuine issue for trial and granted parents’ motion — Grandparents’ appeal was dismissed.

CIVIL PROCEDURE — Representation — Party without lawyer — Duty of court — Procedural fairness — Court should strive to strike perfect balance between helping unrepresented litigant and fairness to other parties — In this case, self-represented appellant grandfather was veteran litigator and familiar with process and motion judge afforded him ample time to present case for himself and wife — Appellants failed to establish any procedural unfairness and appeal court could not say that motion judge had failed to strike that balance — Appeal dismissed.

CASES CITED

Chapman v. Chapman and Chapman, 2001 24015, 141 O.A.C. 389, 201 D.L.R. (4th) 443, 15 R.F.L. (5th) 46, [2001] O.J. No. 705, 2001 CarswellOnt 537 (Ont. C.A.).

Robert S. Kaye .................................................. counsel for the appellants (applicant grandparents)

Cheryl L. Appell ......................................................................... counsel for the respondent parents

For previous proceedings, see Blium and Blium v. Blium and Blium, 2001 38887, [2001] O.J. No. 2142, 2001 CarswellOnt 1935 (Ont. Fam. Ct.), per Justice Sherrill M. Rogers.

Reasons for Judgment

[1] JUSTICE N.D. McRAE (orally):— In the matter of Blium and Blium, we will not call on you Ms. Appell. We have been able to reach a unanimous decision with respect to this appeal.

[2] With respect to procedural fairness, the grandparents were served with a cross-motion advising that the parents were seeking summary judgment for a final order, without a trial, granting access to the grandparents, the nature and frequency of which to be in the discretion of the parents.

[3] Although they had previously consulted as many as five lawyers, the grandparents decided to attend this hearing without counsel. This case has a long history. The grandparents were very familiar with the process. The trial judge initially allowed the grandfather only ten minutes but, as can be seen in the transcript, she gave him ample time to present the case.

[4] It is always difficult for a judge to strike a perfect balance between helping an unrepresented litigant and fairness to the other parties. We cannot say that she failed to strike that balance.

[5] In the circumstances of this case and in the context of the ongoing litigation, lack of procedural fairness has not been established. Notwithstanding the efforts of the grandparents to gain access to the grandchildren on their own terms and the lengthy litigation surrounding the issues, the parents recognize that access by the grandparents is in the best interest of the children.

[6] In such circumstances, it was quite appropriate for the motions judge to give the parents control of the times and places of access. No doubt in the expectation that access would be permitted in a reasonable fashion, in the best interest of the children.

[7] The motions judge did not err in rendering a summary judgment as the material before her did not disclose a genuine issue for trial, particularly in view of the decision of the Court of Appeal in Chapman v. Chapman and Chapman, 2001 24015, 141 O.A.C. 389, 201 D.L.R. (4th) 443, 15 R.F.L. (5th) 46, [2001] O.J. No. 705, 2001 CarswellOnt 537 (Ont. C.A.), from which I quote:

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

[8] In the result, the appeal fails and is dismissed.