Court File and Parties
COURT FILE NO.: FC-16-1580
DATE: 2018/05/22
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Anna Tzvetkova and Ilian Ivanov Kirimidtchiev - Applicants v. Svetlozara Petrova - Respondent
BEFORE: The Honourable Mr. Justice Robert L. Maranger
COUNSEL: Chris Rutherford, for the Applicants Kellie Stewart, for the Respondent
HEARD: May 8, 2018
ENDORSEMENT
[1] This was an interim motion brought by a paternal grandmother and uncle for an access order to their 13 year old grandson and nephew. The respondent mother says that the child has expressed no interest in access with either of the applicants and she wants to abide by his wishes.
Factual background:
[2] The relevant factual background to this case was taken from the affidavits filed on behalf of the parties and from a report authored by the social worker Janet Claridge; it is as follows:
• The child "Mark" was born on October 7, 2004. He is the son of Marious Kirimidtichiev and Svetlozara Petrova who were in a common law spousal relationship.
• Mr. Kirimidtichiev and Ms. Petrova separated in 2006, when Mark was 18 months old. The mother was the primary caregiver, the father was not involved in the upbringing of the child to any significant degree. He did, however exercise access, the precise amount of access is disputed.
• The grandmother and uncle maintain that there was a close relationship between the father and Mark. They also submit that access was frequent and regular. They point out in particular, an annual summer trip lasting 7 to 10 days, where Mark and his father would spend quality time with his extended family. This annual access event began when the child was about eight years old.
• Attached to the affidavit of the uncle were numerous photographs of the child with this extended paternal family; the photographs show a happy young child in what appears to be a loving and caring environment.
• The evidence supports the proposition that at one time there was a positive and likely beneficial relationship between the grandmother, the uncle and this little boy.
• On February 7, 2015 Mark's father passed away.
• Since that time there has only been one occasion where there was direct access between the applicants and Mark. This was at a tennis competition in which he participated in March of 2015.
• Emails were exchanged between the grandmother, uncle and the mother concerning their desire to have access to Mark. They were in some measure confrontational. The parties do not get along, the mother no longer wishes to have anything to do with the two applicants. There were samples of emails attached to the affidavits of both parties. While they cut both ways. The applicant uncle's sent on May 29, 2015 was threatening and cannot be interpreted any other way.
• The report authored by Ms. Janet Claridge MSW; in part indicates the following "Mark expressed feelings similar to his mother. He found the grandmother pushy and described one occasion that the cousins were "mean" to him. He stated he did not want to see his paternal family. He would not agree to see them. However, Mark did speak positively about his relationship with his father. It is obvious that Ms. Petrova has greatly influenced Mark due to her feelings of mistrust and anger. Ms. Petrova is the "gatekeeper" and it is through her that Mark's attitude might change."
Applicable legal principles:
[3] It was submitted by counsel for the Applicants that a grandmother now enjoys an elevated right or status visa vie access to a grandchild because of the recent amendments to s. 21 and s. 24 (2) of the Children's Law Reform Act. The sections now specify grandparents when describing persons who can apply for custody or access and when assessing the nature of a relationship in determining a child's best interests.
[4] In Whitteker v. Legue 2018 ONSC 1557, [2018] O.J. No. 1227 Justice Summers dealt with the issue of the amendments in question, and also succinctly stated the law to be applied to a grandparent seeking access. I agree with the analysis of Justice Summers at paragraphs 14 and 15 of Whitteker and with her statement of the applicable law at paragraph 13:
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"
Principles applied:
[5] This is an unfortunate situation. I have no doubt the applicants want to honour the memory of Mark's father. They want him to fondly remember his father to know his history and to stay connected to his family. These wishes and feelings are understandable. They could indeed benefit Mark. With that said however, Mark is 13 years old, his mother has a strained relationship with the applicants, and while there was a positive history when the father was alive, it cannot be said that the falling out that transpired afterwards was due to the mother acting arbitrarily so as to "imperil the relationship."
[6] I would deny the interim motion for access based upon the following:
• The relationship between the mother, grandmother and uncle is not positive, it is strained, the responsibility for this state of affairs cannot be exclusively blamed on the mother.
• Mark is 13 years old, he has not had any meaningful contact with the applicants in over three years. His wishes cannot be ignored and carry significant weight.
• This is an interim motion, a far more compelling case for the relief requested was required. While I have sympathy and respect for the wishes of the grandmother and the uncle, they have not met the burden of establishing that there was a positive relationship that was imperilled arbitrarily by virtue of the mother's behaviour.
[7] Therefore, for all of the above reasons, the motion for interim access by the applicants is dismissed. With respect to the issue of costs, if unresolved, I will accept two pages of written argument on the subject within 15 days of the release of this decision.
Mr. Justice Robert L. Maranger
Date: May 22, 2018
COURT FILE NO.: FC-16-1580
DATE: 2018/05/22
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Anna Tzvetkova and Ilian Ivanov Kirimidtchiev - Applicants
AND
Svetlozara Petrova - Respondent
BEFORE: Mr. Justice Robert L. Maranger
COUNSEL: Chris Rutherford, for the Applicants Kellie Stewart, for the Respondent
ENDORSEMENT
Released: May 22, 2018