Court File and Parties

COURT FILE NO.: 18-287 DATE: November 2, 2018

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Deshane v Deshane

BETWEEN: Lynn Yvonne Deshane, Applicant and Ronald George Deshane and Jessica Lyn Michelle Young and Jamieson Bruce Dyer, Respondents

BEFORE: Honourable Mr Justice Martin James

COUNSEL: Dylan Crosby for the Applicant Natasha Pappin for the Respondents Jessica Young and Jamieson Bruce Dyer No one appearing for Ronald Deshane

DATE HEARD: October 24, 2018

REASONS FOR DECISION

James, J

[1] The applicant Lynn Deshane seeks a temporary order granting access in relation to her granddaughter, Beatrice Dyer, who is 5 years old.

[2] For clarity and convenience, I will sometimes refer to the parties by their first names.

[3] Beatrice is the only daughter of Jessica Young and Jamieson Dyer. Jessica is the applicant’s daughter.

[4] Jessica and Jamieson are both teachers. Jessica is currently a secondary school vice-principal. Jamieson is a supply teacher.

[5] Jennifer Young is Jessica’s sister. She resides in Toronto. Jessica and Jennifer are not on good terms. Jessica and Jamieson have made it known within the family that they do not want Beatrice to have contact with Jennifer.

[6] Ronald Deshane is the applicant’s husband of 31 years. They separated in February 2018. This was Ronald’s second marriage and Lynn’s third.

[7] Prior to separation, Lynn and Ronald occupied a basement apartment in a home constructed by Jessica and Jamieson. After separation, Ronald remained in the apartment and Lynn moved to new premises.

[8] Ronald is a retired provincial government employee. He is 79 years old. Lynn, who is 75 years old, is also retired, having worked at a bank for over 30 years.

[9] Ronald continues to have regular contact with Beatrice with her parent’s permission.

[10] In response to Lynn’s request for access, affidavits opposing this request have been filed by the following persons:

a) Jessica Young - Beatrice’s mother b) Jamieson Dyer - Beatrice’s father c) Ronald Deshane - Beatrice’s maternal grandfather; d) Patricia Dyer - Beatrice’s paternal grandmother; e) Marlene Thomson - Ronald’s daughter from his first marriage

[11] To some extent, the responding affidavits focus less on Lynn’s relationship with Beatrice and more on allegations respecting what may be described as Lynn’s unusual personality characteristics and the affiants’ difficult relations with Lynn. With this in mind, I have considered these affidavits in the context of the weighing process that is necessary when assessing the prejudicial effect of allegations versus their probative value, especially when they are untested by cross-examination.

[12] Custody and access are governed by sections 21 and 24 of the Children’s Law Reform Act. Section 24 emphasizes that it is the best interests of the child that must be the foremost consideration.

[13] The application of the statutory factors to be considered in a situation involving a grandparent and a grandchild have been refined by case law. In particular, the case of Chapman v. Chapman appears to be the leading authority in Ontario. In Chapman, the Court of Appeal held that in the absence of 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 (paragraph 21).

[14] A distinguishing characteristic of the Chapman case was that the grandchildren in that case did not have a close bond with their grandmother and they expressed negative feelings towards her. There was a concern that this may have been the result of parental influence. In the present case the evidence falls short of establishing that Beatrice has negative feelings towards Lynn and I am prepared to assume for the purposes of this motion that they have a good relationship and a close bond.

[15] In my view, this motion turns on i) whether the parents have shown an inability to act in accordance with Beatrice’s best interests and, ii) the reasonableness of the parents’ decision to limit or suspend Lynn’s access (see Giovanni v. Dichara at para. 18).

[16] On the evidentiary record before me, it appears that Jessica and Jamieson are attentive, capable and loving parents. There is no indication that they have shown an inability to act in Beatrice’ best interests. They have articulated the reasons why they are concerned about Lynn’s request for access which include the following allegations:

a) Lynn has used physical discipline when she knows they do not approve; b) They say that Lynn makes religious references and promotes her religious views in the presence of Beatrice despite the parents expressed preference to avoid religious topics until Beatrice is older. In response Lynn says that she has taken Beatrice to Sunday school on a few occasions with the approval of her parents. c) They say that Lynn has facilitated contact with Jessica’s estranged sister Jennifer. Lynn denies this; d) Jessica contended that during an argument, Lynn said to her that, “I’m going to make sure Beatrice knows about all of the lies and manipulation” and kept repeating, “She’ll know, she’ll know.” e) Jamieson contended that Lynn responded to his requests to adjust or discontinue certain practices in relation to Beatrice by saying, “I’m her grandmother. I can do what I want.” f) Jamieson alleged that after he spoke sharply to Lynn when requesting that she leave him and Beatrice alone, she responded by saying “Oh you know everything Jamieson, you’re always right Jamieson, you just know everything.” Jamieson further alleged that when he sought to discuss the incident with Lynn, she refused to do so and did not respond to his attempt to defuse the situation.

[17] I am not prepared to find that, as alleged by Lynn, the parents’ decision to suspend access is based on a desire for retribution due to Lynn’s decision to separate from Ronald or is based on other, improper motives.

[18] Interim motions and motions for temporary orders pending trial are typically decided on affidavit evidence only. Experience shows that it is often difficult to determine where the truth lies when confronted with affidavits that contain contradictory allegations and competing versions of particular events. Lynn has denied many of the allegations that have been made against her. At the same time, temporary motions are, of necessity, decided on incomplete evidentiary records. Decisions have to be made pending trial. At this relatively early stage of the case the evidence suggests to me that:

a) Sometimes Lynn does not respect the parents’ decisions and values and chooses not to comply with them; b) On occasion Lynn has undermined their child-rearing preferences and there is a risk that she will continue to do so if given the opportunity; c) Lynn has a sense of entitlement based solely on her status as one of Beatrice’s grandmothers.

[19] While it may be true that the parents’ decision to limit access has imperiled the relationship between Lynn and Beatrice, I am not prepared to find that they have acted arbitrarily or unreasonably in coming to their decision.

[20] Lynn’s motion for an order for temporary access is dismissed.

[21] If the parties are unable to agree on the issue of the costs of the motion, written submissions by the respondents may be delivered within 10 days and the applicant shall have 10 days to respond.

James, J.

DATE: November 2, 2018