CITATION: Zachariasz v. Johns and Greenan 2017 ONSC 6799
COURT FILE NO.: 1208/08
DATE: 2017-11-21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BRUNON ZACHARIASZ and DARLENE ZACHARIASZ Applicants
– and –
KRISTINE JOHNS and COLIN GREENAN Respondents
Self-represented Self-represented
HEARD: November 8, 2017
REASONS ON MOTION FOR CHANGE
Varpio J.
[1] This matter has a long and acrimonious litigation history. I need not recount the parties’ involvement with each other save and except to state that Gareau J. gave long and detailed reasons cited at 2015 ONSC 1413. The final Order that resulted from this trial included the following terms:
a. The mother, Ms. Kristine Johns resided with the children (now ages 13 and 9) in Windsor, Ontario to allow the mother to pursue her education;
b. The grandparents, Mr. Brunon Zachariasz and Ms. Darlene Zachariasz, had defined access with the grandchildren; and
c. The father, Mr. Colin Greenan (Ms. Zachariasz’ son), was afforded supervised access to his children.
[2] The mother has returned to live in Garden River, Ontario last year and, as a result, the parties have all brought motions to change the final Order.
[3] The grandparents seek the following relief:
a. Changing the Order to reflect the children’s residence in Garden River;
b. Defined monthly access since the access that was awarded by Gareau J. was premised upon the mother and children residing in Windsor;
c. A police enforcement clause;
d. Access to the children’s school, medical and other official records; and
e. An Order that the mother be forced to take the children to an assessment as per the Children’s Law Reform Act so as to determine their particular needs.
[4] The mother seeks the following relief:
a. An Order changing the father’s access from supervised to unsupervised;
b. An Order denying grandparental access if the children do not wish to attend said access; and
c. An Order denying grandparental access as a discrete from of access. Any grandparental access ought to occur during the father’s access time.
[5] The father did not file a Notice of Motion however he did file an affidavit. In said affidavit, he seeks a change from supervised to unsupervised access.
THE FACTS
[6] The parties largely agree as to the facts of this case. As will be seen below, none of the parties appear to like and/or trust one another.
[7] The children had moved from Sault Ste. Marie to Windsor with their mother prior to the trial heard by Gareau J. They have since returned to Garden River, Ontario. The mother swore in an affidavit that she moved back as a result of health issues being suffered by her immediate family members.
[8] Prior to the children’s return, the grandparents enjoyed defined access. The grandparents travelled to Windsor to pick up the children. All parties agree that the mother would not let the children travel through Michigan with their grandparents. The mother submitted that she did not trust the grandparents. The grandparents submitted that the mother was simply being spiteful and not keeping the children’s best interests at heart since driving through Ontario added four hours to the trip.
[9] The parties agree that the children missed an access visit. The mother testified via affidavit that the children did not wish to attend said access visit and that the mother did not want to force them into so attending.
[10] The father swore that he is employed and has largely turned his life around. He enjoys access to his other child with another woman. Accordingly, he would like to have unsupervised access to the children. The mother consents to this position.
[11] I note that the father takes a position opposed to his mother (and step-father’s) request for defined access. He had previously not been opposed to his mother (and step-father’s) position but that has clearly changed.
[12] I note that during the motion, the father appeared agitated and otherwise “twitchy”. This caused me some concern about the father’s state of mind although this behavior may simply have to do with nerves associated with appearing in Court.
[13] The grandparents submitted that they require a police enforcement clause in order to ensure that the mother complies with the Court Order. They point to the missed access visit as proof of said need.
[14] The grandparents also submitted that they require access to the children’s official records in order know how to best care for the children. The grandparents also submitted that they were concerned that “something was up” with the children and that they wanted to be sure that the children’s interests were properly addressed.
[15] The mother is opposed to these latter two submissions by the grandparents in so far as they betray an overreach by the grandparents given the grandparent’s access (as opposed to custodial) role.
[16] I should note that the parties attempted to file certain materials with the Court at various times. First, the mother attempted to provide a letter ostensibly written by the eldest child in concert with a social worker. The mother states that the letter is an indication of the child’s wishes as regards grandparental access. The letter was not attached to an affidavit and I did not have any sworn evidence as to the conditions under which the letter was written. Given the level of mistrust and questionable behavior in this matter, I have concerns about the circumstances surrounding the creation of the letter. Accordingly, I did not accept the letter into evidence.
[17] The grandparents also filed a letter with the Court (post-hearing) indicating that Mr. Greenan’s submission was replete with lies. They state that Mr. Greenan does not enjoy the rosy relationship with the mother of his other child as was described in Court. In fact, the grandparents indicate that Mr. Greenan is on Court Orders to be away from the child’s mother as a result of criminal investigations. Similar to my concerns about the social worker’s letter, I am concerned about the circumstances surrounding this evidence and do not consider same.
[18] Other matters were discussed in Court that largely involve the parties’ level of mistrust with one another. Such matters need not be repeated here save to state that none of the parties appear to trust one another.
ANALYSIS
[19] The law governing Motions to Change is laid out in section 29 of the Children’s Law Reform Act:
29 A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child. R.S.O. 1990, c. C.12, s. 29.
[20] The best interests of the child are defined by section 24(2) of the Children’s Law Reform Act:
24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).
Best interests of child
(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person, including a parent or grandparent, 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 child’s care and upbringing;
(b) the child’s views and preferences, if they 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) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) any familial relationship between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10; 2016, c. 23, s. 7 (1, 2); 2016, c. 28, s. 2
[21] Clearly, the mother’s return to Garden River is such that the test for the motion to change is met and the Order ought to be changed. Therefore, the final Order is hereby amended to reflect the children’s new residence of Garden River, Ontario.
[22] With respect to access, I accept that grandparental access remains in the children’s best interest. There is nothing in the record that satisfies me that there has been a material change such that said access ought to be negated or made subject to the children’s wishes. The grandparents ought to have defined access to the children. Simply put, the level of mistrust between the parties is such that, were the grandparents to have anything other than defined access, I am comfortable that the mother would withhold access as a form of spite.
[23] Given the children’s move back to Garden River, I believe that regular monthly access is in the children’s best interests. I am not satisfied with the evidence that the children do not wish to attend grandparental access. It is probable that any opposition by the children is a direct result of the mothers’ attitude towards the Zachariasz’s. Mr. Greenan indicates that he is opposed to such grandparental access since it would cut into his access. I disagree. Mr. Greenan has not proven to me that his life has, in fact, turned around. He has apparently made some inroads into moving forward with his life but I retain some concerns about his general condition. Further, there is no reason that he cannot enjoy regular access to the children especially since Ms. Johns appears willing to provide him with reasonable, unsupervised access.
[24] Thus, I hereby vary Gareau J.’s final Order and award the grandparents monthly weekend access with the children. They will enjoy access on the second weekend of every month commencing December 8th, 2017. They will pick up the children from Ms. Johns’ residence at 5:00 p.m. each access Friday and return the children to Ms. Johns’ residence at 5:00 p.m. each access Sunday. Ms. Johns will provide the grandparents with the children’s health cards each visit and the grandparents will return same after each visit. October access will occur on the third, as opposed to the second weekend of the month so as not to interfere with Thanksgiving.
[25] As for holidays, it is important to note that the grandparents are not the parents of these children. While it is in the children’s best interests to enjoy grandparental access during the holidays, I am mindful of the father and mother’s position that too much holiday grandparental access might cut into parental time. Accordingly, the grandparents will enjoy access to the children every Boxing Day from 5:00 pm until 5:00 p.m. on December 28. The grandparents will have access to the children on Easter Monday from 10:00 a.m. until 5:00 p.m. If Easter falls on the second weekend of the month, the grandparents’ regular access weekend will be moved to the third weekend of the month. The parents have shown no ability to afford travel or the like for the children. As such, this holiday access schedule ought not to interfere with holiday travel plans.
[26] The grandparents shall also have the first full week of July as holiday access. They will pick up the children the second Friday in July at 5:00 pm and return the children the following Sunday (nine days later) at 5:00 pm.
[27] The grandparents’ access schedule shall continue until the children turn 16 years of age at which time defined access will be terminated (for that particular child) and access shall continue pursuant to the children’s wishes.
[28] As for police enforcement, I agree with the grandparents that the level of acrimony in this file is such that the failure to have a police enforcement clause would invite a breach. Therefore, I hereby Order police enforcement of the final Order.
[29] With respect to the grandparents’ motion seeking an assessment and access to other documents, I agree with the mother that this is an encroachment by the grandparents into her sphere as custodial parent. The grandparents provided me with case law and the Children’s Law Reform Act which describe the ability of an access parent (or someone in their position) to receive access to those documents. The grandparents in this case are not access parents or someone standing in loco parentis (that means “standing in the place of parents”). They do not fit the definition of someone who would normally be given permission to receive said documentation. As a result, the grandparents are overstepping their bounds.
[30] I am also not satisfied that they require said records to assist with their access. There is nothing in the affidavits to suggest that the children’s allegedly concerning behavior is such that the grandparents cannot manage without said documentation.
[31] The grandparents have also failed to satisfy me that the children need Court ordered assessments. While the grandparents may feel that the children act oddly when they visit, there is nothing in the record to suggest that this behavior is anything other than behavior typically seen by children in high-conflict family law cases.
[32] Accordingly, the grandparents’ motion to have the children assessed and their motion to have access to the children’s documentation is dismissed.
[33] The mother and father both agree that the father can have reasonable, unsupervised access. The mother and father did not suggest any terms for said access. I also do not have any evidence detailing the father’s access with his other child. Accordingly, I hereby Order that the father can have unsupervised access to the children but leave it to the mother and father to agree to the details of what reasonable access looks like in the circumstances of this case.
THE ORDER
[34] I have no confidence that these unrepresented and confrontational parties can agree to the form and substance of an order. Accordingly, I hereby vary Gareau J.’s final Order to read as follows:
Brunon Zachariasz and Darlene Zachariasz are to have unsupervised access to Joseph Douglas Johns (born December 17, 2004) and William James Johns (born October 21, 2007);
Colin Greenan’s access to Joseph and William shall be unsupervised and shall be on reasonable terms as determined by Kristine Johns and Colin Greenan;
Kristine Johns shall have sole custody of Joseph and William. Joseph and William’s residence shall be in Garden River, Ontario;
Brunon Zachariasz and Darlene Zachariasz shall have access to Joseph and William as follows:
a) The second weekend of every month commencing December 8th, 2017 except for October, where the third weekend of the month shall be the Zachariasz’ weekend. The access shall commence on the Friday at 5:00 pm and shall end at 5:00 pm on Sunday;
b) Summer access commencing the second Friday of every July at 5:00 pm and ending the following Sunday at 5:00 pm (approximately nine days);
c) Every December 26th commencing at 5:00 pm to December 28th at 5:00 pm; and
d) Every Easter Monday from 10:00 am to 5:00 pm. If Easter falls on the second full weekend of the month, the Zachariasz’ access weekend as described in paragraph 4(a) above shall be moved to the third weekend of that month (so that Ms. Johns and Mr. Greenan can spend the majority of the Easter holiday with the children);
This Court hereby directs any police force, having jurisdiction in any area where it appears to the court that the child may be, to locate, apprehend and deliver Joseph Douglas Johns (born December 17, 2004) and William James Johns (born October 21, 2007) to the relevant access or custodial parent and/or grandparent (as the case may be) in enforcement of this order;
Brunon Zachariasz and Darlene Zachariasz shall pick up and drop off Joseph and William at Kristine Johns’ residence. Ms. Johns and the Zachariasz’ shall exchange the children’s health card so that the children are never without same;
Kristine Johns is directed by the court to encourage Joseph and William to telephone Brunon Zachariasz and Darlene Zachariasz and to facilitate the telephone calls when Joseph and William wish to talk to their paternal grandparents;
The applicant can take out this Order without the approval of the other parties.
Each party shall bear their own costs.
COSTS
[35] Results in this matter were divided. No costs shall be ordered as against any party.
Varpio J.
Released: November 21st, 2017
CITATION: Zachariasz v. Johns and Greenan 2017 ONSC 6799 COURT FILE NO.: 1208/08 DATE: 2017-11-21
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
BRUNON ZACHARIASZ and DARLENE ZACHARIASZ Applicants
– and –
KRISTINE JOHNS and COLIN GREENAN Respondents
REASONS ON MOTION FOR CHANGE
Varpio J.
Released: November 21st, 2017