COURT FILE NO.: 5-18 (Perth) DATE: 2018/07/24 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HANNAH VILLENEUVE, Applicant AND SARAH ANNE BELL, Respondent
BEFORE: JUSTICE M. R. LABROSSE
COUNSEL: Craig T. Rogers, Counsel, for the Applicant Alex Ferguson, Counsel for the Respondent
HEARD: JULY 13, 2018
Endorsement
Summary
[1] The Applicant Hannah Villeneuve has brought an application for access to Luna Aurora Pollard, born October 13, 2016. The application for access is opposed by the child’s biological mother, the Respondent Sarah Anne Bell.
[2] This is a motion for temporary access. The applicant is seeking access but does not specify the exact nature of the access and leaves the issue in the discretion of the Court. During the motion, the Applicant stated that she felt that access in the presence of her mother and step-father would be reassuring to the Respondent.
[3] The Respondent opposes access in any form.
Factual Background
[4] For the purposes of this motion, the Applicant filed an affidavit along with affidavits from her mother Christina Boyd and her step-father Darius Watson. The Respondent filed only an affidavit on her own behalf. There is a fair amount of conflicting evidence between the parties. Furthermore, the evidentiary record is not complete.
[5] Both the Applicant and the Respondent are 18 years of age. The Applicant was born in January 2000 and the Respondent in February 2000. Luna was born when the Respondent was 17 years of age. The parties had an intermittent romantic relationship since at least 2014. The Respondent became pregnant with Luna while she was in a relationship with her then boyfriend who is the biological father. He does not appear to be playing an active role in the child’s life but the evidence concerning the biological father is unclear.
[6] Luna was born on October 13, 2017. At that point, it is unclear as to the nature of the relationship between the parties and the roles played by their respective parents. The Applicant alleges that there were difficulties between the Respondent and her mother, which brought the Respondent to rely on the Applicant and her parents for support. It is apparent that there was some instability in the relationship between the Respondent and her mother as the Respondent seemed to change her residence at various times.
[7] Despite the Respondent’s attempts to minimize the role played by the Applicant in Luna’s life, the Applicant was in a caregiving role for Luna. When Luna was at least three (3) months old, the Respondent acknowledges that she began referring to the Applicant as Luna’s “other mom”. However, the affidavit evidence is limited on the extent of the Applicant’s role. It is apparent that both the Applicant and her parents played a role in supporting the Respondent.
[8] It is not disputed that the parties became engaged in May 2017 and moved in together in their own apartment at the end of July 2017. However, the affidavit evidence is unclear on the Respondent’s schedule and the period of time during which she was working full-time with the Applicant being in a caregiving role.
[9] Unfortunately, a great deal of the parties’ evidence focuses on the relationship between the Applicant and the Respondent and less on the role played by the Applicant in Luna’s life and their daily schedule. The Court does not have a great deal of evidence on the bond between the Applicant and Luna.
[10] What is also unclear are the living arrangements. It seems that the Respondent was living with her mother after Luna’s birth. The Applicant’s evidence suggests that the Respondent was spending most of her time at Christina Boyd’s residence in November 2016. The Applicant suggests that the parties were living at Ms. Boyd’s residence in March and April 2017 and that they moved into an apartment at the end of July 2017. However, the chronology is not clear.
[11] It is difficult for the Court to evaluate the Respondent’s credibility in making statements such as in para. 26 of her affidavit where she states: “Any incredibly limited babysitting the Applicant has had to the child was because I had no other babysitting options…”. It is apparent that the Respondent was working full-time at some point in July 2017 and that the Applicant would have been at home with Luna. Essentially, the Respondent treats the Applicant as a glorified babysitter and minimizes all the other aspects of their relationship. I certainly prefer the evidence of the Applicant and have no difficulty finding that the Applicant was acting in a caregiving role. It is difficult, however, to determine the extent of that caregiving role, the roles played by the Respondent’s mother and the Applicant’s parents and the frequency in which the Applicant was alone in a caregiving role with Luna.
[12] What does not seem to be in dispute is the evidence of the Respondent that she always maintained sole decision-making authority over Luna. While the Applicant suggests that she played a role in parenting, her affidavit does not suggest that they shared decision-making. Certainly after the end of the relationship in October 2017, the Applicant’s role was limited to having access 2-3 times per week with Luna.
[13] In November 2017, after receiving a formal letter from the Applicant’s lawyer requesting defined access time, the Respondent cut off all communications between the Applicant and Luna.
[14] Looking back, it is unclear as to when the Applicant began residing with Luna on a full-time basis. Ms. Boyd’s affidavit suggests that in November 2016, the Respondent and Luna were spending most of their time at her home. The Applicant suggest that she was alternating living with her parents and the Respondent’s mother in November 2016. The Applicant then suggests that they moved into Ms. Boyd’s house together shortly after Christmas. The Respondent seems to deny this chronology but offers no evidence of her own to clarify the issue.
[15] This leads me to conclude that the Applicant resided with Luna on a full-time or close to full-time basis for approximately 10 months from January 2017 to October 2017. For at least part of that time including from May to July 2017, both parties were in school and the Respondent was working part-time. It appears that as of July 2017, the Applicant was caring for Luna on a full-time basis up to the end of the relationship.
[16] Finally, Luna has not seen the Applicant in approximately 8-9 months. Once again, the exact dates are unclear.
Analysis
[17] As was apparent at the hearing of the motion, the Court is of the view that the Respondent has been somewhat unfair in her treatment of the Applicant since they terminated their relationship in October 2017. In addition, the Respondent’s affidavit evidence lacks credibility in so much as it seeks to minimize the relationship between the parties, the relationship between the Respondent and Christina Boyd and her partner who obviously assisted both the Respondent and Luna and most importantly the relationship between the Applicant and Luna by treating her as a glorified babysitter.
[18] The evidence leads me to conclude that that factual situation is much more aligned with the evidence of the Applicant. As of at least January 2017, the parties resided together on a full-time basis with Luna. In May 2017, the parties were engaged to be married and they resided alone in an apartment as of the end of July 2017. The Respondent worked full-time as of July 2017 and the Applicant cared primarily for Luna while the Respondent was at work from July 2017 until October 2017.
[19] However, one must remember that all this is transpiring while Luna is less than one year old, the parties are less than 18 years of age and receiving varying levels of support from their respective parents.
[20] When considering the perspective of the Applicant, who saw herself as Luna’s “other mom”, it is frustrating to see how this situation has unfolded. This is not, however, the criteria that is to be applied in deciding the Applicant’s motion for temporary access. The Court’s focus must be on what is in Luna’s best interest while considering the criteria enumerated in para. 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”).
[21] There are a number of legal principles that I have considered in this matter:
a. A non-parent does not have a presumptive right to access or to maintain an ongoing relationship with a child. The onus is on a non-parent seeking access to prove that it is in a child’s best interest to have such a relationship. A court will not usually grant access to a non-parent if the custodial parent objects and there is no obvious benefit to the child from ongoing contact with the stranger: see Farber v. Robitaille.
b. Courts are reluctant to allow a relationship to develop between a child and a legal stranger that might put undue stress on a custodial parent; anything that interferes with a custodial parent’s day-to-day life may adversely affect his or her ability to meet a child’s needs: see Gibson v. Emmons, 2015 ONSC 4458, at para. 24.
c. “It may be convenient to lump decided cases into categories such as “grandparent cases” or “step-parent cases” or “same sex couple cases”, but the reality is that there are no hard and fast categories in the law pertaining to custody and access. A grandparent who has stepped into a full time primary parenting role presents a different type of case than a long distance grandparent with limited actual connection to the child. A parent in a same sex couple may or may not be a psychological parent depending on the actual circumstances of the child’s birth, the commencement and duration of the couple’s relationship, and myriad other factors.
In my view, the statutory direction to determine the child’s best interests should be accomplished by a careful consideration of the facts in each case rather than by focusing on the status of each adult in relation to the child.” (Johnstone v. Locke, 2012 ONSC 719, at paras. 103-104).
d. “In the absence of any 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 they see them.” (Chapman v. Chapman, 141 O.A.C. 389, at para. 21).
[22] Ultimately, the Court’s consideration must focus on the best interests of the child as set out in Agmon v. James, 2018 ONCJ 4. Amongst the criteria set out in para. 24(2) of the CLRA, I note the following:
(1) The Love, Affection and Emotional Ties Between the Child and the Applicant and her Family. In the present case, there is no doubt that the Applicant, her mother and step-father have demonstrated significant love and affection for Luna. They have cared for her during the first year of Luna’s life. They have been there to support the Respondent.
However, the question is what evidence do I have on the record before me that there is love, affection and emotional ties between the child and the Applicant. There is no evidence before me of the nature of the bond that is created between a child and such persons who acted in a caregiving role during the first year of the child’s life. Regardless of having any expert evidence, I can certainly recognize that there would have been a certain bond that would have existed between Luna and the Applicant and her parents who saw her regularly. It is, however, impacted by the length of time since the Applicant has seen Luna. Luna has further developed during this time and there would clearly have been significant if not complete estrangement over this period of non-contact. While this is caused by the Respondent, it is still a factor to be considered.
I am persuaded that the Applicant enjoyed a relationship with Luna that spanned the entire first year of her life. This was not infrequent or sporadic access. I am satisfied that the Applicant acted principally as a parent or as her “other mom” for at least 10 months leading up to the end of the relationship between the parties. This would tend to favour access.
(2) The Child’s Views and Preferences. Clearly, there is no way to determine Luna’s views and preferences given her age. This is a factor that distinguishes this case with many others where step-parent or non-parent access is granted. While the Court discussed with the parties the possible merit of appointing the Office of the Children’s Lawyer to obtain independent information about the child’s views and preferences, it seems that such an appointment would be of little assistance given Luna’s age. I do not have evidence that allows me to conclude that the Applicant and Luna had a very important pre-existing relationship given Luna’s age. This does not favour access.
(3) Stable Home Environment. The Respondent has been with Luna since birth but she has clearly relied on the stable home environment provided by Christina Boyd and her husband. Furthermore, the Applicant was a big part of providing that stable home environment, particularly from July 2017 to August 2017 when they lived alone together. I am not aware of the parties’ current circumstances. I assume that they both continue to reside with their parents.
(4) Ability to Provide for the Child. Here, the age of the Applicant and the fact that she has been limited in her opportunity to be in a caregiving role works against her. While she cared for Luna as an infant, it does not allow the Court to assess what the Applicant can offer to a child who is approaching two years of age. She has not been a parent to a young child like Luna and while I have no reason to believe that she would not have learned to do so, with the assistance of her parents, the opportunity to learn to parent with limited access will be very challenging.
(5) Permanence and Stability of the Family Unit. Once again, the age of the Applicant and her lack of a permanent and stable family unit of her own work against her. While she proposes that access take place with her mother and step-father, she is left to rely on her parents’ family unit. While this may favour access at this point, it is unknown how the Applicant’s circumstances may change prior to trial and the Court has no evidence of what the Applicant is currently doing. Is she in school? Is she working? Has she moved back in with her parents? These questions make it impossible to assess the Applicant’s family unit in the time leading up to trial. This criterion requires further evidence.
(6) Ability to Act as a Parent. As stated above, the Applicant is proposing for access to take place with her mother and step-father. She has not had the opportunity to act as a parent, with the exception of Luna as an infant. The evidence does not allow me to conclude that she has the ability to act a parent for Luna at this stage of her life.
(7) The Relationship by Blood or Through an Adoption. This is the only criterion that speaks directly to the status of a non-parent. The law seems established that the Applicant’s status as a non-parent is only one of the factors to consider. With that said, the status of a non-parent is impacted by the estrangement between the parties. There is no doubt risk that the access may interfere with the Respondent’s day-to-day life and it is unclear if it can easily be accommodated. While this decision only deals with temporary access, I have not been provided a proposal of when the access would take place, for how long and how frequently. The Applicant has left this to be decided by the Court; however, the absence of a proposal makes it impossible for the Court to decide on the best access schedule when considering the current schedules of the parties and the Applicant’s parents. Further submissions would be required.
[23] In the end, the onus is on the Applicant to prove that it is in the best interests of Luna to have access with the Applicant and her parents. Although I have concluded that the Applicant was in a caregiving role at least from July to October 2017 and likely even longer, I am unable to conclude based on the evidentiary record before me that there was an important pre-existing relationship with the child that needs to be maintained. While there is conflicting evidence between the parties, I have already stated that I am not impressed with the manner in which the Respondent has minimized the Applicant’s role while they were in a relationship and living together. This does not speak to the bond between the Applicant and Luna and the need to maintain it against the wishes of the biological mother.
[24] Furthermore, the passage of time since the Applicant has had contact with Luna cannot be ignored. This is by no way the fault of the Applicant and the Court highlights that the Applicant has demonstrated the best of intentions and had come forward with a most reasonable request for access with her parents. It may be possible that an expanded evidentiary record at a trial would offer more details of the nature of the bond created between Luna and the Applicant, the current circumstances for both the parties, what Luna’s needs are today and how access could be meaningful for Luna. However, based on the evidentiary record before me, I am unable to conclude that the requested access is in Luna’s best interest.
[25] There is no doubt that these circumstances are very emotional and I repeat that the Applicant has come forward with a most reasonable request. I can appreciate that she was Luna’s “other mom” for close to one year and that the break in that relationship has caused her hardship. I can also assume that this created a certain void for Luna but the extent to which that void continues to exist is certainly unclear for an infant of that age. While I find the circumstances unfortunate, I am unable to conclude that the Respondent is behaving in a way that demonstrates an inability to act in accordance with the best interests of Luna and her right to make decisions and judgments on Luna’s behalf should be respected leading up to an eventual trial with a more fulsome evidentiary record.
Disposition
[26] For the reasons set out herein, the motion is dismissed.
[27] If the parties are unable to agree on the issue of costs, they may submit written representations to me. The Respondent will send her representations as to costs within fifteen (15) days of the release of this decision, to a maximum of three (3) pages not counting the summary of costs. The Applicant will then have fifteen (15) days to submit written representations on costs. Costs will be three (3) pages maximum, not counting the summary of costs. The parties will be required to comply with Rule 4.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
Justice M. Labrosse Date: 2017/07/26