ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 32-13 (Simcoe)
DATE: 2013-12-06
B E T W E E N:
JANET KAZAKEVICIUS
Deborah L. Ditchfield, for the Applicant
Applicant
- and -
JOHN MURRAY RICHARD KAZAKEVICIUS and CHRISTINE ELIZABETH KAZAKEVICIUS
J. Fraser Bushell, for the Defendants
Defendants
HEARD: November 20, 2013 at Simcoe
REASONS FOR JUDGMENT
PARAYESKI J.
[1] Before me is a summary judgment motion by the respondents whereby they seek dismissal of the application. The applicant is the paternal grandmother of the respondents’ two sons, namely Jonas Murray Blake Kazakevicius, born on November 27th, 2005 and Jaxon Robert Kazakevicius born on September 12th, 2007 [“the children”]. Logically enough, the respondent John Murray Richard Kazakevicius is the son of the applicant, the spouse of the respondent Christine Elizabeth Kazakevicius, and the father of the children mentioned above. Christine Elizabeth Kazakevicius is the daughter-in-law of the applicant, the spouse of the respondent John Murray Richard Kazakevicius, and the mother of the children.
[2] By means of her application, the applicant seeks access to the children. She has not had access to them since at least October 10th, 2010, at which time the respondents decided that access should cease. I pause to note that the respondents are an intact couple, which is different from the spousal status of most of the parents in the cases to which I was referred.
[3] The children live with the respondents. The evidence is that they are thriving notwithstanding the current absence of their paternal grandmother in their lives. They remember her and some of the gifts that she had given to them.
[4] The applicant founds this procedure on s. 21(1) of the Childrens’ Law Reform Act. S. 24(1) of that Act makes it plain that access shall be determined on the basis of the best interests of the children, in accordance with the factors enumerated at subsections 2, 3 and 4.
[5] The oft-cited decision of McLachlin J. in the Supreme Court of Canada decision of Gordon v. Goetz, 1996 191, reminds us that in determining the best interests of a child “[e]ach case turns on its own unique circumstances, and the only issue is the best interests of the child in the particular circumstances of the case.”
[6] One of the factors to be considered in arriving at a result that is in the best interests of the children in grandparent access cases is the nature of the historical relationship between the applicant and those grandchildren. The parties in the present action are at considerable odds with respect to the nature of that historical relationship. The affidavit materials show plainly differing interpretations on that particular topic. The applicant argues that a trial is required to arrive at a fulsome appreciation of the true nature of the relationship, thus making the granting of summary judgment under Rule 16 of the Family Law Rules inappropriate.
[7] While I appreciate that argument, I must disagree with where it is said to lead. I do so because even if the applicant’s description of the historical relationship is fully accepted, its being factored into the analysis would not materially change the particular, present circumstances of this case. The applicant’s own description of the relationship puts it, at its highest, as an ordinary one between a grandparent and grandchildren. It certainly never reached the “special” relationship level as is described in some of the cases to which I was referred.
[8] A factor like the past relationship must be considered in the context of present reality in order to arrive at what is in the best interests of the children. The present reality here includes the following:
An extraordinarily bad relationship between the adult parties going back for several years. One need only refer to the applicant’s own factum to see the various problems enumerated, even from her perspective alone;
The fact that the children are thriving in the present circumstances.
[9] Regardless of who is to blame for the status quo, which is now of some three years duration, it cannot be in the best interests of the children to place them squarely into the middle of the battleground between the parties, which is what overturning the status quo and ordering access would do.
[10] The children are presently eight and six years old respectively. From their perspective, which is paramount here, three years is a very long time indeed.
[11] I also note that the respondents say that the stress of this litigation and that which preceded it has caused problems in their own relationship. They say that they have sought counselling as a result. I reject the applicant’s argument that this is a “adult issue” which does not or should not give concern regarding the children. To the contrary, I am of the view that the children are very likely to be affected by the deterioration of their parents’ marriage.
[12] I was given the benefit of a substantial number of cases and learned articles which reflect the ongoing struggle between giving due deference to parental autonomy on the one hand and notions of blameworthy alienation and the potential benefits of grandparent access on the other. I have endeavoured to balance those notions to the degree possible. In the end, I have concluded that there is no genuine issue for trial because the evidence on the summary judgment motion discloses that commencing or recommencing and continuing access now would not be in the best interests of the children. The summary judgment motion is granted, and, accordingly, the application is dismissed.
[13] If the parties are unable to agree with respect to costs, they may make brief written submissions to me in that regard. Each set of submissions, if any, should be not more than three typewritten pages in length, not including a costs outline. The respondents’ submission is due on or before January 31st, 2014. The applicant has until February 28th, 2014 to respond. All such submissions should be sent to my attention at the John Sopinka Court House in Hamilton.
Parayeski J.
Released: December 6, 2013
COURT FILE NO.: 32-13 (Simcoe)
DATE: 2013-12-06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
JANET KAZAKEVICIUS
Applicant
- and –
JOHN MURRAY RICHARD KAZAKEVICIUS and CHRISTINE ELIZABETH KAZAKEVICIUS
Defendants
REASONS FOR JUDGMENT
Parayeski J.
Released: December 6, 2013