ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

COURT FILE NO.: F419/2015
DATE: 23 November 2015

BETWEEN:

L.B.
P.B.

Paul F. Lepine, for the Applicants

Applicants

• and -

R.B.

T.A.

Stephanie Ouellette, for the Respondents

Respondents

HEARD: August 28, 2015

McSORLEY J.

Introduction:

[1] The matter before the court involved an application brought by the maternal grandparents of two children, T.F.B., born […], 2004 and R.G.B., born […], 2011 for access to the children on a regular basis and the right to provide the children with clothing, shoes, coats, back to school supplies and birthday and Christmas gifts. The respondent parents objected to the grandparents having any access to the children. On June 17, 2015 the parties consented to adjourn the matter to a summary hearing on August 28, 2015. The evidence of the parties was presented by way of affidavits and oral submissions were made to the court.

Background

[2] According to the grandparents, historically, they had liberal and generous access to the two children. The children spent extended periods of time in their grandparents’ home and visited them on their boat in Port Stanley throughout the summer months. The grandfather deposed that he regularly took the child T.F.B. to the Aylmer Farmer’s Market on Tuesdays.

[3] The grandparents owned two properties; one at M[…] Place where they resided; and the second at M.1[…]Place where the respondents lived with the children. As a result of the proximity of the houses, the children would go between the two homes on a regular basis. As a result, the grandparents had regular and constant contact with their grandchildren.

[4] The parents deposed that over the years, there had been many verbal altercations between themselves and the grandparents and that on a few occasions the applicants physically assaulted the respondents. The parents deposed that the grandparents had only limited access to the children and only on the condition that they would keep their tempers under control. The parents deposed that the grandparents did not respect the parenting decisions made by the respondents.

[5] The grandparents deposed that the mother had a violent temper and had previously assaulted the grandmother on a few occasions, including a time when the grandmother’s ribs were broken.

[6] At some point in the summer of 2013, the respondents advised the grandparents that they no longer intended to pay rent. The parents deposed that they stopped paying rent because the applicants refused to make necessary repairs to the home. They deposed that walls were missing; there was no complete working bathroom; and there was no insulation in the upstairs area, where the children had their bedrooms.

[7] The grandparents deposed that when the respondents refused to pay rent, they began eviction proceedings. In November 2013, before the eviction proceedings were completed, the respondents left the home and moved elsewhere. After that date, the grandparents were unable to see the children or provide them with gifts. The grandparents retained counsel to assist them in their efforts to have contact and access to the children. Despite attempts to resolve the issue of access by the grandparents, the mother made it clear that she would not allow access and that the grandparents would have to take her to court.

[8] On June 21, 2014, the grandparents’ son, B. received a request from the child T.F.B., asking him to take her to the beach and more specifically to the grandparents’ boat in order that she could visit them. The parents were not advised in advance of this plan. When the child returned home, she was interrogated by her mother about where she had been.

[9] Both the grandparents and B. deposed that the mother banged T.F.B.’s head against the wall until she told her mother where she had been. Neither B. nor the grandparents were present during this interrogation. B. deposed that T.F.B. told him and his daughter, A. that her mother had “smashed her head against the wall until she told her her where she had been”.

[10] A. then apparently told her mother, (C.) what T.F.B. had said and C. contacted the Children’s Aid Society to report it. As a result of the report, the CAS started protection proceedings on June 26, 2014. The grandparents brought a motion in the child protection proceedings to be added as parties. Both parents objected to the grandparents being added as parties. The motion was heard on July 30, 2014. According to the affidavit of Lisa Gashi, law clerk employed by Mr. Lepine, Justice Henderson added the grandparents as parties to the CAS proceeding, endorsing the record as follows:

“This is a motion by the mgp’s to be added as parties. CAS takes no position. Mr. T.A. supports Ms. R.B. in her opposition to the request. The parents argue that adding of the mgp’s would not be in the best interests of the children. It would slow proceedings down and only add to the a (sic) long history of discord. The family situation is fragile and the addition of the mgp’s would only add more tension and jeopardize the reunification of the family.

I have had the benefit of reading not only the material filed in this motion but also prior affidavit of the society worker in support of the order I made earlier this week. I agree there is considerable discord in the family with allegations being exchanged regarding physical abuse of the children, anger management issues, of (sic) alcoholism among others.

Ultimately my decision has to be in the best interests of the child. Given the serious allegations of abuse by the mother in particular, it is important that the court have the benefits of all the evidence. To the extent their addition is necessary, the court can then discern issues of creditability and make the appropriate findings of facts.

I do not find by not adding the mgp’s will likely diminish the conflict between the parties. Further at this early stage in the proceedings I do no (sic) find adding the mgps will delay the proceedings. Therefore an Order will go adding P.B. and L.B. as parties. In making this ruling I have also considered the decision of G.A. Campbell J. in CAS of London Middlesex vs. S.H. 2002 46218.”

[11] As a result of this ruling the grandparents filed an Answer and Plan of Care in the CAS proceedings. In August 2014, Mr. Lepine wrote to the society requesting access between the grandparents and the children. The grandparents were prepared to agree to access supervised by the society in order to see their grandchildren. The society took the position that since the children were not in care, but remained with the father, any decision regarding access was up to him or the court. When Mr. T.A.’s solicitor was asked if Mr. T.A. was prepared to negotiate access, his answer was that he was not agreeable to any access between the grandparents and the children, claiming that the grandparents were violent and unstable alcoholics, which the grandparents vehemently denied.

[12] In November 2014, a Legal Aid settlement conference was scheduled to try to reduce some of the animosity between the parties and to try to reach some agreement on access. That conference was unsuccessful. Child protection mediation was again suggested as a way to bring the parties together and reduce the animosity. In December 2014, T.F.B.’s lawyer wrote to all the parties indicating her reservation about another mediation process as opposed to a more therapeutic approach. She asked that all parties consider New Ways for Families, noting “we have seen already that mediation did not work with this family”.

[13] In December 2014, Ms. McLeod wrote that the society would seek approval from the executive director to engage with New Ways for Families. No further information was received from the society although email inquiries were made. In January 2015, Ms. McLeod wrote indicating that the society first needed to meet with Tracey Lipp at ADR Link to see if this case was appropriate. She further noted that Ms. Lipp was on vacation until the end of January and suggested that private mediation or therapy would be faster.

[14] On February 13, 2015, Ms. McLeod wrote advising that the parents were not interested in participating in mediation. She further advised that the balance of the society’s issues appeared to be proceeding on consent. Ms. McLeod inquired whether the grandparents wished to continue to litigate the access issues in the CAS proceeding. On February 19, 2015, an interim order was made in the CAS proceeding.

[15] On March 13, 2015 a final order was made finding the children in need of protection pursuant s. 37(2) (b-i) of the CFSA and placing the children with their parents subject to supervision for six months. Two of the terms of supervision related to the parents refraining from the use of any form of physical punishment on the children and/or physical and verbal aggression towards any other person in the presence of the children or at any time when the children are in the home. The parents were also to ensure that the children were not exposed to domestic violence and/or adult conflict.

[16] In addition to making an order under the CFSA, there was a consent order made that the grandparents’ answer and plan of care be severed from the child protection proceeding; and be appropriately redacted and/or amended to become an application under the CLRA. It was further ordered that the parents and the grandparents were to initiate contact with and participate as may be recommended by New Ways for Families or any other similar therapeutic program within the next 30 days. The grandparents’ motion for access was adjourned to June 1, 2015. It was also agreed that if the parties were unable to attend the therapeutic programs, the grandparents would have the right to set an earlier date for their access motion. On June 17, 2015, the matter was adjourned on consent to a summary judgment hearing on August 28, 2015.

[17] It is with this background, that the motion for access by the grandparents was presented to the court.

Issues:

[18] The issues before the court are as follows:

a) Are the grandparents entitled to access to their grandchildren; and

b) Is it in the best interests of the grandchildren to have access with their grandparents?

Position of the parties

[19] The applicant’s position was that they had a loving, established relationship with the children and that the parents had arbitrarily ended that relationship over a rent issue to the detriment of the children and that it was in the best interests of the children to continue their loving relationship with them through access.

[20] The parents’ position was that the relationship with the grandparents had more often than not, not been positive; that the children had sporadic access with them and that the grandparents were violent alcoholics who conspired with their son to have a secret visit with T.F.B.. Their position was that they were an intact, stable family who made decisions in the best interests of their children and should be permitted to do so with respect to access by the grandparents. The parents were vehemently opposed to the court making any order for access.

Law:

[21] Section 20 to 24 of the Children’s Law Reform Act, deals with the issues of custody and access. Section 20 deals with entitlement regarding custody and access between a father and a mother. Section 21 (1) states that:

“(1) A parent of a child or any other person may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child.”

[22] Section 24(1) states that custody or access is to be decided based on the “best interests” of the child, the determination of which depends on the facts of the particular case and includes the factors set out in section 24(2):

(2) In determining the best interests of a child for the purposes of an application under this Part in respect of custody of or access to a child, a court shall consider all the needs and circumstances of the child, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child;

(ii) other members of the child’s family who reside with the child; and

(iii) persons involved in the care and upbringing of the child;

(b) the views and preferences of the child, where such views and preferences can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) any plans proposed for the care and upbringing of the child;

(f) the permanence and stability of the family unit with which it is proposed that the child will live; and

(g) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

[23] It has long been accepted that persons other than parents may make applications to the court for custody and/or access to children. There is nothing in the statute that grants a greater or lesser right to grandparents. However, over the last fifteen years there have been many cases dealing specifically with the issue of grandparent and/or extended family access. Both parties provided a book of authorities to the court.

[24] In 2001, the Ontario Court of Appeal dealt with the issue of whether access by a grandparent to grandchildren who live with their parents should be imposed over the wishes of those parents and children, in the case of Chapman v. Chapman 2001 24015 (ON CA), 2001 CarswellOnt 537, 141 O.A.C. 389, 15 R.F.L. (5th) 46, 201 D.L.R. (4th) 443 (C.A.). This case was included in the respondent’s case brief. The court indicated in its opening paragraph that,

“No one disputes that the purpose of access is to preserve a child’s positive relationships in as constructive manner as possible (Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3). This issue in this case arises because the relationship between the grandparent and the grandchildren is, regrettably, not a positive one.”

[25] In the Chapman case the relationship between the grandmother and parents had deteriorated over the years. The grandmother’s visits with her son’s family decreased over time from six to three times yearly, usually occurring on religious holidays. Visits with the grandmother were almost always in the presence of the parents. The grandmother sought access through the court. In March 1999 an interim order was made granting the grandmother three 4 hour visits, to occur in the presence of the father’s brother or his brother’s wife. A further order was made for three 4 ½ hour visits in June 1999.

[26] In March 2000 a trial was held on the issue. The parents’ position was that they did not oppose access, suggesting four visits per year, but took the position that as the parents of the children, they, not the grandmother should determine when and how access should take place in the children’s best interests. The grandmother’s position was that it was in the best interests of the children to have frequent access to her and members of their extended family and requested ten visits per year. She acknowledged that she would need assistance from her son (uncle to the children) during access. The trial judge ordered access for 44 hours per year to occur in six visits, and not to include travel time. The parents appealed this decision.

[27] In setting aside the trial judge’s decision, the court found the following:

a) The case was not about the needs or even the wishes of the grandmother – it was about the needs and best interests of the children. The issue had to be determined from the children’s view, not the grandmother’s;

b) Although the general theory is that it is best for children to maintain contact with their extended family, the test to be applied is not what is best for children in general, but what is in the best interests of the particular children before the court.

c) The children were being forced to travel some distance on a regular basis to visit a grandparent with whom they did not, at that time, have a positive relationship. It was difficult to see how this disruptive situation could be said to be in the best interests of the children.

d) A relationship with a grandparent could and ideally should enhance the emotional well-being of a child. Loving and nurturing relationships with members of the extended family can be important to children. When those positive relationships are imperiled arbitrarily, the court may intervene to protect the continuation of the benefit of the relationship.

e) However, the Chapman case was not about preserving a positive relationship, but whether the disruption and stress generated by the grandmother’s insistent attempts to get access on her own terms was in the best interests of the children.

[28] The court held that in the absence of any evidence that the parents were behaving in a way which demonstrated 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 who they see, how often and under what circumstances. The court indicated that although the grandmother loved her grandchildren and wanted to maintain contact with them, the right to decide the extent and nature of the contact was not hers and that neither she nor the court should be permitted to impose their perception of the children’s best interests in circumstances where the parents were so demonstrably attentive to the needs of their children.

[29] The applicants argued that the Chapman case stood for the proposition that while the duty to create and maintain a relationship falls to the parents, the court should intervene when decisions are not being made well. The applicants also argued that the Chapman decision was not about a full and complete denial of the relationship but who should decide the type and frequency of such contact. While it is true that the parents in the Chapman case supported access, they did not support the grandmother determining the frequency and type of contact. Although the case did suggest that it was the duty of well intentioned, protective and loving parents to determine what and when such contact should occur, the court went further and stated that in situations where parents were acting in the best interests of their children, they were the persons who should decide who the children see, how often and under what circumstances. Certainly, this decision included the possibility that loving, caring and well-meaning parents who were meeting all the needs of the children, could decide not only when and how their children would visit with extended family, but also with which members of the extended family they would maintain a relationship.

[30] The applicants also referred to the decision of Justice Brownstone of the Ontario Court of Justice in Barber v. Mangal and Hurst, 2009 ONCJ 631. In that case the paternal grandmother sought access to her grandson. At the time of the application, the mother and father were living separately. The mother had custody of the child and the father had frequent access. The grandmother’s request for access was vigorously opposed by the parents to the point that during the first case conference, Brownstone J. found that the parent’s behavior was hostile and out of control. He found the parents’ behavior to be so hostile that he contemplated involving the Children’s Aid Society to investigate any potential risk of emotional harm to the child occasioned by both parent’s patently obvious anger management and impulse control problems.

[31] In that case, a motion brought by the grandmother was adjourned on at least two occasions because the parents were unprepared to argue the motion. It was only after five months had elapsed that the motion was heard.

[32] The parties did not agree on the frequency and depth of the child’s relationship with his grandmother. After reviewing the materials filed on the motion, Brownstone J. found that the grandmother had had access with the child on average, one weekend per month from 2006 to mid 2007 and the first half of 2008. Brownstone J. did not accept the parents’ evidence that the grandmother possessed bad parenting skills and that she constantly interfered with and criticized the parents’ parenting skills. The father’s brother denied any allegations of bad parenting by his mother. Further, the grandmother was providing child care services for the Simcoe County Children’s Aid Society for which she undertook vigorous screening and training.

[33] Brownstone J. found that the parents’ true motivation in ending the grandmother’s access to the child related to the grandmother revoking the father’s bail; and that the grandmother had told her son to seek custody of the child from the mother. The court found that the denial of access was motivated by spite and vindictiveness, not by any concern for the child’s best interests. Unfortunately, over the time of the court proceedings, the parents’ anger toward the grandmother intensified and solidified and worsened. The court found that the parents had no intention of ever allowing the child to see his grandmother again.

[34] The court found that the grandmother was not entirely blameless in that she chose to focus her materials and arguments on criticizing the parents’ relationship and parenting skills. Brownstone J. found that the grandmother loved her grandson and that the child likely found his time with his grandmother enjoyable, but that the emotional bond for the child had not reached the level that would justify interfering with the parents’ decision making rights. While Brownstone J. had no hesitation in finding that the parents were mean spirited, spiteful and capricious in cutting the child off from his grandmother, he found that, they were, given the state of the law, entitled to terminate that relationship because the relationship was not of such importance to the child’s well-being that it would merit intervention by the court.

[35] Brownstone J. also found that if he was wrong on the issue of the child’s pre-litigation relationship with the grandmother, a second but equally important reason existed that lead the court not to make an access order. At paragraph 17, Justice Brownstone stated that:

“The intensity and hostility of the conflict between Denise, Jennifer and Kevin leads me to the very sad but indisputable conclusion that any access between Nathan and his grandmother at this time 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”.

[36] At paragraph 18, Justice Brownstone stated that the court had to carefully balance the benefit to be gained by the child in having occasional visits with his grandmother, against the risk to Nathan of having to contend with the very predictable and emotional manifestations exhibited by his parents as they acted out their anger and stress over access. He went on to say that while animosity between adults does not necessarily preclude an access order, in that case, the anxiety and stress of the parents due to access would most definitely have a deleterious impact on the child.

[37] In Kazakevicius v.Kazakevicius and Kazakevicius 2013 ONSC 7523, Justice Parayeski dealt with a motion for summary judgment on the issue of grandparent access. He granted the motion and dismissed the claim by the grandmother for access. He found that the parties were at “considerable odds” regarding the historical relationship between the grandmother and the children, but the relationship at its highest was an ordinary one between grandparent and grandchildren and that it never reached the “special” relationship level. Parayeski J. also noted that the past relationship had to be considered in the context of present reality

[38] The court found that ordering access would overturn the status quo and place the children squarely into the middle of a battleground between the parties. The court rejected the argument from the grandmother that the conflict was between the adults and should not raise concern about the children, stating that “I am of the view that the children are very likely to be affected by the deterioration of their parents’ marriage.” He found that ordering access was not in the best interests of the children.

[39] In the case T.L. v. J.L.S. and J.S, 2006 ONCJ 194, the maternal grandmother sought access to a four year old granddaughter. Selkirk J. found that there was no pre-existing relationship between the grandmother and the child. Although such a relationship makes it easier to assess if the relationship is in the best interests of the child, the lack of such a pre-existing relationship does not end the enquiry. The court acknowledged that deference was to be paid to the parent’s authority to make decisions on behalf of the child, but only so long as those decisions are child-focused and reasonable. If such decisions are not made in the best interests of the children, then the court can exercise its discretion and override the parental decision.

[40] Despite there being no pre-existing relationship between the grandmother and the child, a relationship commenced subsequently to the bringing of the court application. The court held that the positive nature of the beginning of this relationship speaks well for its future. The other significant factor considered by the court was that the child was very isolated from contact with persons other than her parents. Selkirk J. held that it was in the child’s best interests to have an awareness of a wider base of affection available to her and through that, an awareness of available support or assistance.

[41] In the case before the court, the respondent parents’ book of authorities included three cases related to the issue of interim access, which was not on point. One of the decisions, Giansante v. DiChiara, (2005) 2005 26446 (ON SC), W.D.F.L. 4015 (Ont. S.C.), discussed in paragraph 46 below, was noted by Selkirk J. in his decision on T.L. v. J.L.S. and J.S., supra. The Chapman case was also included in the respondents’ book of authorities, which the court dealt with above.

[42] There was one additional case referred by the respondents. The case of Blackburn v. Fortin and Lepage, 2006 19044 (ON SC), was a trial decision of R. Smith J. regarding the issue of access by a grandmother. The trial judge found that the grandmother had had access to the children in the past; that the parents had terminated that access in September 2003; and that the parents did not dispute the right of the grandmother to have access, but wished to decide when and under what circumstances such access would occur.

[43] Having reviewed the factors under the CLRA and the various cases, the court held at pages 12 and 13, that allowing a grandparent to obtain a court order granting him or her access, against the wishes of both parents, who were living together in a stable family unit, and who were acknowledged to be loving devoted parents committed to their children’s welfare, risked destabilizing the family unit in which the children resided. The court found that this was a factor that weighed against the potential benefits to the children in maintaining a relationship with their grandmother. The court stated at paragraph 38:

“I find that when a court overrides the decision of competent caring parents, who are acting in their children’s best interests, there is a risk of destabilizing the family unit in which the grandchildren reside. In addition, there is also a risk of involving the grandchildren in a conflict and hostility between their parents and their grandparent, which would not be beneficial and potentially harmful to the grandchildren.”

[44] Smith J. found that the grandmother exceeded her role as a grandparent in decision making for the child, deciding what type of stimulation the child needed, and taking the child from a caregiver without the consent or knowledge of the parents. The court found that there was no evidence that the children were demonstrating any adverse effects of not seeing their grandmother; the children were properly cared for by the parents and were living in a secure and stable two parent home; and that there was a potential to involve the children in conflict and hostility. The grandmother’s application for access to her grandchildren was dismissed.

[45] Despite the dismissal, the court went on to say that maintaining contact between the grandchildren and their grandmother was desirable and should be encouraged, provided that the grandchildren were not involved in any conflict and provided that the grandmother respected the appropriate boundaries of her role as a grandparent. The court did order that the grandmother could send birthday cards and gifts on holidays and special occasions and that the parents were to ensure that those cards and gifts were delivered to the children in an appropriate manner and that the children were aware of the source of the cards and gifts received from their grandmother

[46] The court also cited and considered cases where access had been ordered against a parent’s wishes. The cases referred to all dealt with unique situations. In one case, (Giansante v. DiChiara, (2005) 2005 26446 (ON SC), W.D.F.L. 4015 (Ont. S.C.), access was ordered after the mother of the children died in a car accident and the denial of access had nothing to do with the best interests of the child. The court intervened to maintain the positive influence of the relationship between the grandchildren and their maternal grandmother.

[47] In Parsons v. Parsons, (2002) 2002 45505 (ON SC), 29 R.F.L. (5th) 137, access was ordered between a five year old and the maternal grandparents, where the child had had daily contact over a five year period. The mother’s reason for denying access had nothing to do with the best interests of the child and was related solely to the grandparents’ slow acceptance of the mother’s homosexual relationship with another woman.

[48] In R. (N.V.) v. K. (J.) 2001 239 N.B.R. (2nd) 89 (N.B. S.C.) the court granted access to the paternal grandparents after finding that the children had bonded with the grandparents and that the mother was denying access to punish the grandmother for her son’s misconduct. The court found that the mother’s denial was not in the best interests of the children.

Analysis:

[49] The matter before the court contains all the elements of the many grandparent access cases that have been before the court. There is evidence of a positive pre-existing relationship between the grandparents and the children; there is evidence of conflict and hostility between the adults; there was a visit with T.F.B. of which the parents were unaware; there has been intervention by the Children’s Aid Society; and there has been an arbitrary denial of access by the parents. Efforts at mediation were unsuccessful.

[50] The contents of the affidavits were very disturbing. The parents claimed that the grandparents were violent and that the grandfather abused alcohol and had a violent temper. The father deposed that the mother’s brother threatened to kill the mother and tried to run the father over with his car. The father claimed both physical and verbal abuse by the grandparents. The father claimed that the mother was assaulted by her brother in 2003 when she was pregnant. The father claimed that the grandparents manipulated T.F.B. into visiting them by promising gifts and a cell phone. The father claimed that T.F.B. herself advised him that the grandparents threatened to kill the mother and father if T.F.B. told her parents about the visit. Finally, attached to the father’s affidavit dated July 22, 2014 was a drawing purportedly by T.F.B. showing her grandparents with weapons and threatening to kill the family.

[51] In a later affidavit, the father indicated that T.F.B. had a good relationship with her grandparents but was sometimes subjected to the anger and yelling between the grownups. This information verified that the parents also engaged in the same argumentative and hostile behavior in the presence of the children, that they attributed to the grandparents.

[52] Although the court accepts that there was and continues to be a hostile and conflictual relationship between the parents and grandparents, the court does not accept all of the statements of the father or the mother. Both raised an issue of assault from 2003 on the mother and her husband, by her brother. The mother referred to a hospital admission that was attached to the husband’s affidavit of March 10, 2015. In that hospital record, no mention was made as to who had assaulted the father and there was no treatment form at all for the mother. There was also no evidence of police involvement as a result of this assault.

[53] Further years later, when the mother was told to leave the home by the society during their investigation, she attended her brother’s home and asked to stay with him – which he agreed to. If B. had assaulted the mother and the father in 2003, the mother must have forgiven B. because he was the first person she turned to when she had nowhere to live. This was an example of the parents using an historical event to buttress their case, when over the years, the relationships had continued. The parents not only continued their relationship despite these allegations, they lived next door to the grandparents, in a home owned by the grandparents and allowed their children to freely move back and forth between the two homes. The court finds that in addition to dredging up historical events to support their recent actions, the parent’s claims were exaggerated.

[54] The claim that the grandfather is violent and an alcoholic is not corroborated by any other person, either in the family or in the community. During the CAS investigation the society had no protection concerns about the grandparents. The society had no issue about the grandparents having access to the children, which would not have been the case had either one or both of them been alcoholic and violent.

[55] With respect to the picture purportedly drawn by T.F.B. that the father attached to his affidavit, the court does not accept this as being her drawing. The drawing when compared to others done by the child is far more detailed and includes a man with a ragged shirt, with his navel exposed, holding well drawn rifles.

[56] The court finds that the affidavits of the parents are exaggerated, at times untrue and designed to make the grandparents appear to be violent and hateful people who should never see their grandchildren. No police reports were filed to substantiate any of the many threatening and assaultive behavior suggested by the parents. Corroborating affidavits by family and friends of the grandparents attest to the character of the grandparents.

[57] One example of the parents attempting to couch their evidence so that the grandparents would be found to be at fault for the deteriorating relationship was contained in paragraph 11 of the father’s affidavit dated July 22, 2014. In that paragraph, he was talking about the lack of repairs to the home which he and his wife rented from the grandparents and their decision to stop paying rent. He then stated: “P.B. and L.B. had us evicted in the winter with nowhere to go.” The mother’s affidavit of March 10, 2015 indicated at paragraph 18, that “After spending almost a year beside them with no contact, we left voluntarily in the fall of 2013. It was conceded that eviction proceedings were started, but never concluded, because the mother, father and the children left the home voluntarily. Mr. T.A.’s statement that the grandparents evicted them in the winter when they had no place to go, was untrue and designed to have the court believe that the applicants were uncaring grandparents.

[58] Another example is at paragraph 41 of the mother’s affidavit. In it she indicates that “Our family is just now starting to heal after months of separation”. This statement seemed to suggest that allowing the grandparents to have access might affect this healing process.

[59] It must be clearly understood that the separation of which the mother speaks was entirely due to her behavior. She was removed from the home after some form of physical assault was perpetrated on T.F.B., following the visit in Port Stanley. The grandparents were not present. None of the parties provided information from the CAS file, but the children were found to be in need of protection pursuant to s. 37(2) (b-i) (risk of physical harm); the mother was required to remove herself from the home; she was not to have any unauthorized contact with the children in the initial months and the final supervision order required the parents not to use any form of physical discipline on the children or expose them to adult conflict. The only proof the court has of violent and aggressive behavior is that of the mother which resulted in society involvement and a court order. During the entire involvement with the society, the society expressed no concerns about the grandparents.

[60] Having said that, the grandparents are not entirely blameless for the hostility that has grown over the years. The willingness to commence eviction proceedings against their daughter and son-in-law, which could have resulted in their grandchildren being homeless, strongly suggests a long standing conflictual relationship. Most intact families would try to negotiate and mediate problems regarding money issues rather than take other family members to court or to a tribunal. They actively participated in a visit in Port Stanley with T.F.B. without advising the parents or seeking their consent. The mother’s brother B. was also complicit in this event. No person has a right to remove a child from his or her custodial parent without consent. The grandparents overstepped their role as grandparents and were likely the catalyst for what happened to T.F.B. later at home.

[61] Based on all the evidence the court finds that the access by the grandparents was ended when the grandparents insisted that the parents pay rent for the home in which they were living and then started eviction proceedings when the parents refused. Any hope of reconciliation between the parents and grandparents likely ended when B. took T.F.B. to Port Stanley to visit with her grandparents without the consent or knowledge of the parents. This action led to the inappropriate response by the mother when T.F.B. would not tell her where she had been, effectively conspiring with the grandparents to keep a secret from her parents. The actions of the mother in response to T.F.B.’s reluctance to say where she had been led to society intervention, the removal of the mother from the home and a subsequent supervision order.

[62] During the CAS proceedings, mediation was not successful. The mother walked out of the first session and refused to return. The hostility among these family members is long standing. Since 2013, there has been no movement toward resolution or reconciliation and the court doubts that such steps will be taken any time in the near future.

[63] The court believes that the grandparents are loving, concerned people who care deeply for their grandchildren. The refusal of the parents to allow access by the grandparents has far less to do with the well-being of the children and more to do with the adult conflict, that after a period of more than two years, shows no sign of resolution or even reduction.

[64] As stated by Abella J.A. (as she then was) a relationship with a grandparent should ideally enhance the emotional well- being of a child. Having loving and nurturing relationships with members of the extended family can be important for children. However, it is the parents who are responsible for the welfare of the children. The right to decide the extent and nature of the contact is the parents’ alone and should not be interfered with by imposition of what the court thinks is in the best interests of the children, where parents are attentive to the needs of their children.

[65] In this case, there was no evidence that the parents were not meeting the needs of the children.