COURT FILE NO.: FC-17-258
DATE: 2018/03/07
ONTARIO SUPERIOR COURT OF JUSTICE (FAMILY BRANCH)
RE: Brenda Marie Whitteker and Francis William Jollotta
-and-
Crystal-Lyn Pauline Legue and Tyler Benoit
BEFORE: Madam Justice D. Summers
COUNSEL: Paul Fitzgerald for the Applicants
Steve Duplain, for the Respondent Crystal Legue
HEARD: October 17, 2017
ENDORSEMENT
[1] The Applicants, Brenda Whitteker and Francis Jollotta, seek an order awarding them alternate weekend and holiday access to their grandson, Bentley Benoit, who recently turned six years of age. Ms. Whitteker is the paternal grandmother and Mr. Jollota is her husband and step-father to the child’s father, Tyler Benoit. The father supports the grandparents’ request although he himself does not have contact with his child. The child’s mother, Crystal-Lyn Legue, who is the parent with primary residence, opposes the motion. Although the circumstances are in dispute, it is agreed that the paternal grandparents have not seen the child since January, 2016.
[2] This action was commenced in February, 2017 when the grandparents issued an application that included a claim for primary care (custody) of the child, or access on a schedule to be determined. Also included was a claim for an order prohibiting the mother from moving the child’s residence away from the Ottawa area.
[3] The paternal grandparents say that they had consistent involvement with the child from the date of his birth until January, 2016. They say that they provided extensive caregiving assistance to the mother including overnight care of the child in the winter of 2015/2016. They further claim that the child resided with them for six consecutive weeks during that winter because the mother was living in a shelter that would not accommodate children. The grandparents maintain that they have always provided good care to their grandson, that he is very happy with them and that they have had a close and supportive relationship with him.
[4] Additionally, the paternal grandparents make serious critical allegations with respect to the mother’s care of the child. In their view, she lacks parenting skills. They point out that the Children’s Aid Society (“CAS”) has been involved consistently since 2014. In particular, they allege that when the child is with his mother he is malnourished and lacks basic hygiene. They say she moves frequently from one filthy, unsafe home to another. The paternal grandparents are of the view that the mother’s motivation in terminating their contact with their grandson is related to her new, current partner with whom she has cohabited since November, 2015. They have one child together and the mother has a third child who is a year and a half younger than Bentley.
[5] The grandparents note that the Ottawa police attended the mother’s home in April, 2016 and contacted the CAS because of the adult conflict and lack of cleanliness in the home.
[6] Although there are considerable facts in dispute as between the grandparents and the child’s mother, she does acknowledge that the police came to her home in April, 2016 and that the condition of her house at that time was inadequate. The mother blames the conflict in her home on her brother who was residing with her and her partner. He has not lived with them since then. The mother says that she welcomed the attendance of the CAS at her home. Both the mother and the CAS social worker confirmed that the home had been considerably cleaned and tidied between the date of the police attendance and that of the social worker a few days later. The mother stated and the social worker confirmed that she and her partner were cooperative with the CAS. They asked for and accepted support from the CAS. The mother and her partner revealed that they were having financial difficulties at the time because they were paying $1,300.00 per month rent which was beyond their means. The types of support offered by the CAS included referrals for daycare and community resources.
[7] The mother denies that the grandparents have provided her with extensive help since the birth of the child and their allegation that she is an inadequate parent. She says that once the paternal grandmother took an interest in the child, she gradually became more and more demanding. In her affidavit, the mother outlines many reasons behind her decision to terminate contact between her son and the paternal grandparents. Some of these are historical. She describes behaviours that include unannounced visits to her home, multiple phone calls, attempts to take the child to his medical appointments when not asked or invited, multiple phone calls in a day, multiple Facebook messages and handwritten letters pressuring her for more access. The mother is now also aware that the paternal grandfather was previously convicted and incarcerated for assault. This information was disclosed in his Form 35.1 Affidavit.
[8] The final precipitating event took place in December, 2015. The mother says she asked the grandmother to keep her son temporarily while she was in the midst of moving and then, the paternal grandparents refused for a period of two weeks to return the child to her care despite her demands. When they finally returned Bentley to her, they told her that he may have seen them “fooling around” in bed. For the next few weeks, the mother says the child engaged in sexualized behaviour with his younger sister. The paternal grandfather also said that during the time the child was in their care he gave him a “couple of good smacks” because he was not listening.
[9] The mother says the grandparents continued bullying her into 2016 by calling, emailing, writing letters, using social media, banging on her door, peering in her window, and sitting in their car outside her house for extended periods.
[10] A report dated October 10, 2017 was provided by the Ottawa CAS. It was written by Barbara White, who has been the mother’s social worker since June, 2014. Ms. White reports that she visits the home twice every month. She describes the mother as providing good care for Bentley (and her other children), that he is meeting his milestones, and that the mother is a positive factor for the child. Ms. White states that during the period between 2014 and the most recent file opening in 2016, the mother ended an abusive relationship, stabilized her health, and started a new relationship with her current partner that has been a positive experience for the child. Ms. White did not observe drug or alcohol abuse by either the mother or her partner during that time and similarly, she has not seen any evidence of neglect, of drugs, or alcohol misuse since April, 2016. She reports that the mother is cooperative, follows suggestions, is able to parent, and provides a safe and stable home with good routines for Bentley. Ms. White states that she has no personal knowledge of the paternal grandparents providing help or support to the mother during the period of her involvement.
[11] Finally, Ms. White confirms that the CAS cannot support access for the paternal grandparents without a kin assessment being undertaken and approving them for access.
[12] Given the disputed factual record presented on this motion, the report by the CAS is important. Not only does the CAS not have any protection concerns for the child in the care of the mother, they approve of the level of care that she provides.
[13] The leading Ontario case on grandparent access is Chapman v. Chapman, 2001 CanLII 24015 (ON CA). There, it was held that the court should generally defer to parental autonomy and the decision of the custodial parent in relation to access between the parents’ child and a grandparent. The decision further states that a court may intervene where there has been a positive relationship between the grandparent and grandchild that has been imperilled by the parent, acting arbitrarily. The onus to establish these facts rests with the grandparent seeking access.
[14] Here, the grandparents argue that the amendments to s. 21 and s. 24(2) of the Children’s Law Reform Act elevate them to a special status. Section 21 now states that a parent or any other person, including a grandparent, may apply for custody of or access to a child and s. 24(2) specifically states that the love, affection and emotional ties between the child and grandparent is a factor to be taken into account in considering the child’s best interests. [Emphasis added].
[15] I do not accept the submission that the amendments to the CLRA enhance the grandparents’ status in any way. I agree with the obiter comment of Justice McGee in M.R. v. A.L. and G.L., 2017 ONSC 85, at para. 34, FN 5, where she states that the amendments simply “further articulate the class of persons who may seek an order for custody or access; but do not extend, or give them any special standing”. I also note Justice Parent’s comment in Botelho v. De Medeiros, 2017 ONCJ 463, at para. 17 where she states, “the amendment to section 21 does not give grandparents a presumptive legal right of access to their grandchildren”.
[16] I have concluded that the paternal grandparents have not established the facts required by the Chapman decision to justify an order for access to their grandson in the face of opposition from the mother having regard for her child’s best interests. The mother’s actions were not arbitrary. To the contrary, she has shown legitimate reasons for her decision to stop the contact between the child and the grandparents. In particular, I rely upon the actions of the grandparents in over-holding the child for a period of two weeks and the serious allegations they have made against the mother’s present ability to care for her son which have been discredited by the CAS. I accept the mother’s view that extending access to the paternal grandparents at this time would introduce an unnecessary source of conflict into her home, which would not be in the child’s best interests.
[17] As the successful party, the Respondent mother is entitled to her costs. I encourage the parties to agree on the amount and terms of payment, however, if they cannot do so, I will receive the grandparents’ written submissions within 10 days from the date of this endorsement. The mother will then have 10 days to provide her responding submissions with a further 5 day right of reply to the grandparents. Submissions shall not exceed 2 pages in length exclusive of each party’s Bill of Costs and Offers to Settle.
Madam Justice D. Summers
Date: March7, 2018.
COURT FILE NO.: FC-17-258
DATE: 2018/03/07
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Brenda Marie Whitteker and Francis William Jollotta
-and-
Crystal-Lyn Pauline Legue and Tyler Benoit
BEFORE: Madam Justice D. Summers
COUNSEL: Paul Fitzgerald for the Applicants
Steve Duplain, for the Respondent Crystal Legue
ENDORSEMENT
SUMMERS J.
Released: March 7, 2018