ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-35-13
DATE: 2014-01-21
BETWEEN:
Barbara Lynnae Hollis
Applicant
- and -
Christian Lynn Sachs & Adam Sachs
Respondents
Appearing in Person
Appearing in Person
HEARD: January 15, 2014
the honourable mr. justice p.b. hambly
Judgment
[1] This is a motion brought by a maternal grandmother for the appointment of the Office of the Children’s Lawyer to do a social work assessment. It is brought in the context of her application for access to three grandchildren who are the children of her daughter.
Background
[2] Barbara Hollis (Barbara), born April 13, 1964, age 49 is the mother of Christian Sachs (Christian), born December 11, 1986, age 27. Barbara was married to Caleb Alderman (Caleb). They had four children – Christian, Cyrus Alderman, age 24; Czarina Alderman, age 18 and Cyann Alderman, age 16. They lived in Alaska. Barbara and Caleb separated in 2000. Barbara moved to Ontario with Christian and Cyann. Barbara commenced living with Stephen Hollis (Steve) in June 2003. They were married on October 2, 2004. On February 25, 2011 Steve adopted Cyann. Barbara, Steve and Cyann live in Fergus, Ontario.
[3] In September 2005, Adam Sachs (Adam) and Christian began living together. They were married on May 23, 2009. They have had children as follows:
Daniella Sachs, born December 17, 2006, age 7
Charlie Sachs, born January 14, 2009, age 5
London Sachs, born August 28, 2010, age 3
Adam and Christian live in Kitchener, Ontario with their children.
[4] Barbara had substantial access to the children of Adam and Christian, her grandchildren, until June 2011. From that time, Christian and Adam have refused to make the children available to her. Barbara alleges that this is the result of Christian’s anger at her for leaving Caleb and for Steve adopting Cyann. It is clear that Christian has considerable resentment at least for the latter. It is less clear that this is the only reason for her denying Barbara access to her grandchildren.
[5] Barbara commenced an application against Christian and Adam for access to the children on March 22, 2013. Adam and Christian filed an Answer and Barbara filed a reply. There was a case conference on July 3, 2013. Justice Reilly gave the parties leave to bring motions. Barbara brought a motion for access, returnable December 4, 2013. Adam and Christian each brought motions returnable on the same date for an order denying Barbara the right to bring motions without leave. The parties and Steve, who supports Barbara, filed affidavits in support of their respective positions. To this stage the parties were self-represented.
[6] The motions came before Justice D. Gordon. He adjourned the motions. His endorsement was “Parties to consider legal advice and OCL appointment”. Barbara brought her motion on before me. She seeks the appointment of the Office of the Children’s Lawyer (OCL) to do a social work assessment. Christian and Adam oppose this. The parties took the advice of Justice Gordon and retained counsel.
Discussion
[7] There is nothing in Barbara’s material to suggest that Christian and Adam are providing anything less than appropriate care for the children. She has filed material setting out the facilities that she and Steve have for the care of the children. Christian and Adam do not dispute this. She has not filed material to support how it is in the best interests of the children for her to have access to them. Her position does not go beyond the general proposition that it is in the best interests of children for them to have a relationship with their grandparents. What this case is about is authority. Should the court override the decision of the parents that the maternal grandmother not have access to their children?
[8] The motion before me is, of course, not about whether the grandmother should have access. The motion is to determine whether I should request the OCL to appoint a social worker to investigate. The OCL can decline to investigate. Typically the OCL is asked to investigate a family in a dispute between parents over the custody of and access to their children. These investigations involve interviews by the social worker with contesting parents, with the children alone and with the parents and the children together. The issues are usually whether joint custody is viable and if it is not, which parent should have custody and the terms of the non-custodial parent’s access. The OCL often seeks input from friends and relatives and others who may have knowledge of the circumstances of the family.
[9] In this case the grandmother does not seek custody. At issue is whether she should have access to her grandchildren against the wishes of their parents. If the assessment goes ahead, the social worker will be put in the position of asking children ages 3, 5 and 7 if they want to have involvement with their grandmother against the wishes of their parents. The parties do not need a government social worker to further investigate the facilities of the grandparents for the children and the feelings of the parties towards each other.
[10] Section 20 of The Children’s Law Reform Act (the Act) gives the parents of a child a presumptive right to custody of and access to their children. Section 21 of the Act gives any person the right to apply for an order respecting the custody of or access to a child. Section 24 of the Act provides that custody of and access to a child shall be determined on the basis of the best interests of the child as defined in the section. Section 112 of The Courts of Justice Act permits the OCL to investigate and make recommendations to the court on all matters concerning custody of and access to a child. This is done without charge to the parties. Section 30 of the Act permits the court to appoint a professional person, often a psychologist, to report to the court on the needs of a child in relation to the custody of or access to the child. It also permits the court to specify the payment of the professional person’s fees.
[11] In MacDonald v. MacDonald [2009] O.J. No. 1381 Justice Pazaratz at para. 70 quoted from an article entitled "To Grandmother's House We Go? An Examination of Grandparent Access" [2003] 21 CFQL 437 by Martha Shaffer which defined the issue. She stated the following:
Should the courts adopt a deferential approach to parental decisions on the assumption that absent a finding of unfitness, parents are entitled to decide what is in their child's best interests where contact with third parties, including grandparents, is concerned? In other words, should the courts come close to recognizing a parental "right" to determine with whom children can associate? Conversely, should the courts approach the analysis with the assumption that contact with grandparents is generally in a child's best interests and should be ordered unless the parents can show specific reasons why access would be harmful to the child? Should the courts effectively recognize a presumption in favour of grandparent access?"
Justice Pazaratz answered this question in the negative and denied a grandmother access to three of her daughter’s children.
[12] In Chapman v. Chapman, 2001 24015 (ON CA), [2001] O.J. No. 705 the Court of Appeal in the judgment of Justice Abella overturned a trial judgment which had granted extensive access to a grandmother to two of her grandchildren. She stated the following:
17 The essence of the grandmother's submission is that, in general, it is in the best interests of children to maintain contact with members of their extended family. The test, however, is not what, in theory, is best for children in general, but what is in the best interests of the particular children before the court.
18 In the particular circumstances of this case, the children are being forced to travel some distance on a regular basis to visit a grandparent with whom they do not, at the moment, have a positive relationship. It is difficult to see how this disruptive situation could be said to be in the best interests of the children.
19 A relationship with a grandparent can - and ideally should - enhance the emotional well-being of a child. Loving and nurturing relationships with members of the extended family can be important for children. When those positive relationships are imperiled arbitrarily, as can happen, for example, in the reorganization of a family following the separation of the parents, the court may intervene to protect the continuation of the benefit of the relationship
20 In this case, however, the issue is not about preserving a positive relationship, but about whether the disruption and stress generated by the grandmother's insistent attempts to get access on her own terms are in the children's best interests. (citations omitted)
21 The trial judge acknowledged that the right of Larry and Monica Chapman "to independently raise their children should not be lightly interfered with", yet he defers that right to the speculative hope that continued imposed access to the grandmother will one day produce a positive relationship for these children. This speculation, it seems to me, is an insufficient basis for overriding the parents' right to protect the children's interests and determine how their needs are best met. These are loving, devoted parents committed to their children's welfare. 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 interests 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.
22 Larry and Monica Chapman, not Esther Chapman, are responsible for the welfare of the children. They alone have this legal duty. Esther Chapman, as a grandparent, loves her grandchildren and, understandably, wants to maintain contact with them. Nonetheless, the right to decide the extent and nature of the contact is not hers, and neither she nor a court should be permitted to impose their perception of the children's best interests in circumstances such as these where the parents are so demonstrably attentive to the needs of their children. The parents have, for the moment, decided that those needs do not include lengthy, frequent visits with their grandmother. Although the parents' conflict with Esther Chapman is unfortunate, there is no evidence that this parental decision is currently detrimental to the children. It should therefore be respected by the court and the children's best interests left in the exclusive care of their parents.
[13] In Manuel v. Hughes, [2005] N.S.J. 380 Justice C. Sparks of the Nova Scotia Family Court granted leave to one grandmother and denied leave to the other grandmother to apply for access to two grandchildren. He stated the following:
19 I start with the proposition that a child, generally speaking, will benefit from the additional love and support offered by grandparents, with the grandparents for the most part lending support not only to grandchildren but to biological parents as well. In a nuclear family, it is the parents who set the ground rules, if you will, for raising their own children; and if there are harmonious relations between the parents and grandparents, most grandparents will wisely defer to the guidance provided by the parents. One obvious reason for this deference to a parent's wishes is so that the child will not be placed in the unenviable position of having to choose between the direction of a parent or a grandparent when a conflict arises. Even though the importance of grandparental involvement has been advantageous throughout time as a means to augmenting or broadening the base of support for a child, this valuable intra-familial relationship has not been recognized by the legislature as warranting an automatic right by a grandparent to apply for access to a grandchild.
24 … In the present circumstances, I find there is no evidence which indicates anything other than the children being in good health and well adjusted with parents who have been able to provide a stable and loving home for them. Furthermore, there is no evidence the parents have been unwise in exercising their judgment in their protective role as parents. Thus, I conclude the magnitude and prolonged nature of the acrimony between the paternal grandparents and Darin and Margo Murphy demonstrates the non-existence of an ability to communicate and co-operate without hostility and denigration. It would be, therefore, imprudent, in my view, to place innocent children in the middle of this active minefield.
[14] In Leonardo v. Meloche, [2002] O.J. No. 4922 a grandmother sought access of a grandson. Justice Roy had ordered a referral to the OCL. It had declined to accept it. The grandmother then sought an assessment under s. 30 of the Act. Justice Blishen denied this. She held that a referral under s. 30 of the Act should only be made where there are clinical issues. There were none. She stated the following:
13 Assessments under s. 30 of the Children's Law Reform Act are intrusive, time consuming and expensive and should be limited to cases in which there are clinical issues to be determined in order to provide expert evidence on the appropriate manner to address the emotional and psychological stresses within the family unit. … (citations omitted)
16 A court ordered clinical assessment of this eight year old child who is not exhibiting any behavioural difficulties would be very intrusive. It would also be costly and time consuming. I do not find such an assessment to be necessary nor would it be of assistance to the court, based on the evidence before me. It would not be in Dean's best interests.
Result
[15] This is a motion for an order for a referral to the OCL under s. 112 of the Courts of Justice Act for a social work assessment rather than for a report under s. 30 of the Act. Its cost to the parties would be limited to the cost of their time. However, it would be time consuming. It would also be intrusive to Christian, Adam and their young children. It would put children of the ages of 3, 5 and 7 in the difficult position of being asked if they want to go against the wishes of their parents. The children are so young that their responses, particularly of the younger two would not likely be meaningful. In my view its value to the court would be much less than its cost in terms of the disruption to the family of Christian and Adam. It would not be in the best interests of the children.
[16] The motion for a referral to the OCL is denied. Christian and Adam may make written submissions on costs within 10 days and Barbara may have 10 days to respond.
Justice P.B. Hambly
Released: January 21, 2014
COURT FILE NO.: FS-35-13
DATE: 2014-01-21
ONTARIO
SUPERIOR COURT OF JUSTICE
Barbara Lynnae Hollis
– and –
Christian Lynn Sachs & Adam Sachs
JUDGMENT
Justice P.B. Hambly
Released: January 21, 2014