Court File and Parties

Newmarket Court File No.: FC-18-56666-00 Date: 2018-11-14 Superior Court of Justice - Ontario

Re: Angela Capone, Applicant And: Matthew Pirri, Respondent

Before: The Honourable Mr. Justice D.A. Jarvis

Counsel: B.D. Siegel, Counsel for the Applicant M. Freeman, Counsel for the Respondent

Heard: October 31, 2018

Ruling on Motion

[1] The applicant is the maternal grandmother of MP, her granddaughter born June 24, 2017. The child’s mother (“AQ”) committed suicide on April 13, 2018. The respondent is the child’s father. MP lives with him and his parents. The applicant is seeking an Order for weekend access once a month to MP: her father does not oppose access in principle but says that access should be for brief periods only, and supervised.

Background

[2] These are the relevant facts and evidence:

(a) the applicant is 43 years old and resides in the Picton area with her common law partner in a home she co-owns with an elderly gentleman for whom she has been a caregiver since 2014;

(b) the respondent is 25 years old and resides in Newmarket. Until shortly before this motion was argued, he was employed but now is attending a community college;

(c) the driving time between Picton and Newmarket is about three hours, one way;

(d) after MP was born, her parents planned to marry;

(e) MP’s mother died before she and the father married. Although AQ left a suicide note, neither its details nor any explanation for the suicide were given to the court;

(f) the applicant says that she was a regular feature in MP’s life after her birth, seeing her at least monthly. While the parties dispute the frequency of that contact, the evidence is clear that AQ, the father and MP spent time at the applicant’s residence. In the nine months between MP’s birth and her mother’s death, the father acknowledges that MP had seen her grandmother at least six, possibly seven, times;

(g) the applicant said that before AQ died the relations between her, the father and his family were “always fine”, that she never had any issues with the father. She supported this evidence with photographs of MP and the applicant’s partner and of MP and the applicant’s mother, MP’s great grandmother, as well as text exchanges between her and the father and his mother before and until shortly after AQ’s death. The father contended that before MP was born, the applicant engaged him and his family in a hostile, demanding and aggressive manner but no examples of that behaviour were given, except for some text exchanges;

(h) MP last saw the applicant on or about May 15, 2018 at her mother’s funeral. She was slightly older than 10 months;

(i) the applicant asked to see MP in the weeks after the funeral. When the father did not respond to her phone calls and text messages, she consulted counsel;

(j) the applicant’s counsel wrote to the father on June 22, 2018 to request a negotiated visitation schedule. When there was no response to this letter, the applicant started this proceeding on July 22, 2018;

(k) the father was served with this Application on July 30, 2018, and retained counsel;

(l) on September 22, 2018 Sutherland J. made a case conference Order, with the parties’ consent, appointing the Children’s Lawyer to undertake a social work investigation. When this motion was argued it was unknown whether that appointment had been accepted; and

(m) the evidence is unchallenged that MP is a happy, healthy child who is meeting her developmental milestones.

[3] The father objects to extended and unsupervised visitation for three reasons:

(a) the applicant’s personal, and past criminal, behaviour;

(b) alcohol abuse; and

(c) the applicant’s unsafe living conditions.

[4] AQ and her half-brother were removed from the applicant’s care in 2006. AQ went to live with her maternal grandmother and the half-brother was made a Crown Ward with no access. The applicant says that she was in a violent, unhappy relationship at the time. There was no evidence that AQ ever returned to the applicant’s care afterwards: the parties dispute whether AQ and the applicant were estranged before AQ and the father began their relationship. What is not disputed, and what the applicant freely acknowledged, was that she had a criminal record for a series of property offences in June 2008 and later in June and July 2009 for which she served five months in jail and probation.

[5] After her release from jail, the applicant moved to Prince Edward County and worked between 2009 and 2015 in a managerial capacity for a local business. She earned a business degree from a local college in 2014. She also worked at a brewery from 2015 to the summer of 2018. In 2012, the applicant started a commercial and residential septic service company. She has applied for a pardon.

[6] Attached to the applicant’s affidavit were 72 letters from family, friends and colleagues expressing their support for the applicant and attesting to her caregiving abilities and her character as well as the several photographs already noted. Attached to the father’s affidavit were text exchanges between AQ and her mother in which colourful, certainly earthy, language was used and in which the applicant threatened to blow up the law office where the father’s mother worked. The applicant said that this was made “in jest.” Also attached to the father’s affidavit were two pictures sent to AQ by the applicant’s partner shortly before her death that showed the applicant “passed out” on a floor and in a snowbank. These photographs were undated: there was no evidence as to whether they reflected one event or two separate events. The father said that the applicant and her partner drank alcohol constantly, and to excess. The applicant said that she only drank once or so a year.

[7] The father’s evidence was unchallenged that the applicant and her partner kept a still behind their residence. The applicant described her home as being located in a very safe neighbourhood and having a very large backyard: the father said that the property was unfenced, fronted a busy street and had a garage from which the applicant’s partner serviced trucks that came and went during the day.

Analysis

[8] In any matter involving the custody of or access to a child the court is charged with considering the child’s best interests as set out in section 24(2) of the Children’s Law Reform Act [1] (“the Act”). The list is not exhaustive. Section 21(1) of the Act deals with who may apply for custody or access. This section was amended in December 2016 to specifically include “grandparents” with parents or other persons as being entitled to apply to the court. This amendment does not, in my view, elevate grandparents to a special status. [2]

[9] In Chapman v. Chapman [3], the leading case dealing with grandparent access rights, a paternal grandmother sought access to two children, aged 8 and 10 years old over the wishes of their parents. In allowing the parents’ appeal from a judgment ordering access, and dismissing the grandmother’s application, the Court of Appeal affirmed that deference should generally be given to a parent’s decision.

[10] In Giansante v. DiChiara [4], a case that involved the death of a young mother of a one year old child and an access dispute between her parents and the child’s father, Nelson J. reviewed Chapman and ruled that deference should generally be given to a parent’s decision unless three questions were all answered in the affirmative:

(a) does a positive grandparent-grandchild relationship already exist?;

(b) has the parent’s decision imperilled the positive grandparent-grandchild relationship?; and

(c) has the parent acted arbitrarily?

[11] In Torabi v. Patterson [5], a case to which both parties referred the court and that also involved the death of the young mother of a four year old child, several members of the deceased mother’s family, including her parents, applied for access to the child. Kurz J. observed that the rule of general deference to parental decisions,

“…may not be as strong when one of the parents has died, and the deceased’s parent’s relatives seek access against the wishes of the surviving parent. In such a case, the court may be less deferential to the surviving parent in order to preserve the child’s relationship with the otherwise lost family.” [6]

[12] Kurz J. summarized the analysis of grandparent or extended family access as having two parts:

(a) first, the determination of whether the court should defer to the decision(s) of the parents. That decision involves the consideration of the three-part test articulated by Nelson J. in Giansante following Chapman. Less deference may be owed when one of the parents has died, meaning that the child may lose a relationship with the other side of his family; and

(b) second, and only if the court refuses to defer to the parent(s), whether in the view of the court, access is in the best interests of the child. In that case, reference must be made to the criteria found in CLRA section 24(2). [7]

[13] In Giansante, Nelson J. ordered bi-weekly, unsupervised access for one day for two hours. In Torabi, Kurz J. ordered a minimal level of bi-weekly unsupervised access for three hours increasing to one weekend day per month for six hours. In each of these cases, like this case, the surviving parent was not so much opposed to the access request as he was insistent that his parental discretion should be respected as to when, where, how, by whom and under what circumstances access should occur [8]. As already noted, the father in this case does not oppose access but wishes that it be for brief periods, supervised.

Is There a Positive Grandparent-Grandchild Relationship?

[14] Given MP’s age when her mother died and the limited times that she and the applicant interacted, it is impossible to determine how positive is their relationship. In Giansante Nelson J. observed that the child was “frequently in the company of [the deceased mother’s] family” [9] although the degree of that frequency was unclear from the report. The existence of a positive relationship was conceded. In Torabi, Kurz J. noted that the child was two years old when his mother died and that her mother, in particular, had a positive relationship with the child. This fact was also conceded by the father. [10] There is no such concession by the father in this case, although his position that brief, supervised access is the only appropriate Order implies that there is a relationship. But is that enough?

[15] In Sproule v. Sproule [11], a case often referenced in grandparent access cases, and to which Kurz J. referred in Torabi, a positive relationship requires time and depth,

To be a positive grandparent-and-grandchild relationship, there must exist something more than an occasional pleasant experience with the children. The grandparent-and grandchild relationship must consist of a close bond with strong emotional ties deserving of preservation in order to displace this principle of parental autonomy. As in the Saskatchewan case of Tucker v. Lester and Lester, 2002 SKQB 225, 220 Sask. R. 309, [2002] 9 W.W.R. 585, 29 R.F.L. (5th) 238, [2002] S.J. No. 322, 2002 CarswellSask 331, a 2002 decision of the Court of Queen’s Bench in Saskatchewan, which was referred to by the applicant, for the court to impose an access order in favour of a grandparent against an unwilling and unmoving parent, the child had either lived with or spent considerable time with the grandparent over a significant period leading up to the matter’s coming before the courts. This again was supported in the Court of Queen’s Bench of Saskatchewan in the case of Bellamy and Bellamy v. Wendzina, 2004 SKQB 78, 246 Sask. R. 287, 49 R.F.L. (5th) 239, [2004] S.J. No. 163, 2004 CarswellSask 175. [12]

[16] I agree with Kurz J. that the “legal threshold of a “positive” relationship…one that would allow the court to consider superseding its normal deference to a parent or parents, is necessarily a high one” [13]. While there is undoubtedly some relationship between the child and the applicant in this case, it is not such that the court should interfere with the father’s decisions. As noted in Chapman, it is not usually the court’s duty to create a better, or more positive, grandparent-grandchild relationship. [14]

Has the Father Imperilled the Grandparent-Grandchild Relationship?

[17] The fact that MP has not seen the applicant since her mother’s funeral is concerning. The father failed to respond to the letter from the applicant’s counsel in a timely manner. He should have.

[18] The parties could not agree on the details of what access should look like as they disputed whether it should be supervised, under what auspices and how, if a service was needed, who would pay for that service. There was a genuine dispute between the parties not so much as over whether there should be access but rather its details. I am not persuaded that that the father’s delay in responding to the letter from the applicant’s counsel was made in bad faith or that his position about brief periods of supervised access was taken with a view to imperilling MP’s relationship with the applicant.

Has the Father Acted Arbitrarily?

[19] In Giansante, Nelson J. was guided by Chapman about the meaning of arbitrary in the context of superseding parental decisions about grandparent access and concluded that “a parent acts arbitrarily when the evidence shows that his or her decisions about access are based on considerations other than the best interests of the child.” [15]

[20] I do not think that the father has acted arbitrarily in this case. He has raised what I view are some valid concerns about the applicant and her caregiving abilities such as the following:

(a) the applicant never regained custody of AQ after she was removed from her care in 2006. Few details about the reasons for the intervention of child protection services were provided except that the applicant was involved in a “very nasty, unhealthy relationship” with AQ’s adoptive father. Two years later the applicant had serial criminal convictions for which she was incarcerated;

(b) the applicant minimized her threat to blow up the paternal grandmother’s law office where she worked as being made “in jest.” The context of the exchange in which that threat was made is disturbing and, in my view, confirms the father’s fear about the applicant’s unpredictable, possibly abusive, behaviour when challenged;

(c) the applicant also sought to minimize the significance of the photographs sent by her partner to AQ before her death showing the applicant passed out. While that behaviour is, in itself, concerning, equally concerning is why the photographs would have been taken in the first place and then sent to AQ with the caption “Say hi mom.” These photographs were taken, presumably, from the residence to which the applicant wishes to take MP; and

(d) the relief sought by the applicant in this motion for monthly weekend unsupervised access mirrors the most substantive relief sought in her Application. The applicant’s insistence in seeking this relief in light of the father’s resistance suggests a potential challenge to the father’s authority.

[21] The applicant is to be commended for having, as she said, and as her letters of support indicate, turned around her life but at this point in time the father has the primary responsibility for MP’s well-being. And that authority must be respected. In reaching this decision, no reliance has been made on the hearsay contained in the father’s affidavit dealing with third party statements and observations.

Is Access in MP’s Best Interests?

[22] In light of the foregoing reasons, and the father’s willingness to allow access, it is unnecessary to address the second part of the analysis as articulated by Kurz J. in Torabi.

Disposition

[23] Supervised access is a short term expedient. As noted by Sherr J. in Burnett v. Ffrench [16] it “is not intended to be a long term arrangement for a child.” [17] In this case, there needs to be a graduated reintroduction of the applicant into MP’s life.

[24] The father has proposed one on one supervised access twice a month, the cost of which would be shared if arranged through a facility associated with Seneca College for which there currently is a wait time. If the applicant wants access to start earlier through a private service, which is more costly, the father said that he would be agreeable to that too but that the applicant would have to pay for the service because she is employed and he is a student. Until such time as it is known whether the Children’s Lawyer will accept the appointment made by Sutherland J. that is a reasonable proposal.

[25] Accordingly, the following is ordered:

1. The applicant shall have access to MP twice monthly for two hours between 10:00 a.m. and 2:30 p.m., the selection of which two hours shall be mutually agreed by the parties.
2. The access shall be one on one access and shall be supervised.
3. Subject to 1. above dealing with access time, the provisions of paragraph 42 of the father’s affidavit sworn October 25, 2018 shall apply.
4. In addition to the foregoing, MP shall have an extended access visit for the Christmas period for a period up to three hours and may be accompanied by her partner or another person, such access to take place at the supervised access facility upon which the parties have agreed.
5. After six access visits (not including Christmas access), the applicant may move to vary the supervision term of this Order and request more extended overnight access. Any such motion to vary shall be accompanied by observation notes from the access supervisor or facility as the case may be.
6. In the event of any disagreement between the parties involving the selection of access times (subparagraph 1. above) or the choice of day for the Christmas period access (subparagraph 5. above) either party may bring a motion by Form 14B on seven days’ notice to the other party to my attention.

[26] This is not the outcome wished by the applicant, particularly in light of the challenges associated with the distance between the parties’ homes but the father’s wish that the court proceed with caution is reasonable and should be respected. It is the court’s expectation that the father will accommodate the applicant’s choice of timing for the access notwithstanding MP’s daily routine in light of the travel distance and time that the applicant will encounter. This comment applies equally to Christmas access.

[27] At the conclusion of argument, counsel for the parties agreed that the court deal with the costs of this motion without requiring written submissions or a further appearance. Both parties have filed sealed envelopes containing their costs submissions and related material. A separate endorsement will follow with respect to costs.

Justice David A. Jarvis

Date: November 14, 2018

Footnotes

[1] R.S.O. 1990, c. C.12

[2] Whitteker v. Legue, 2018 CarswellOnt 3450, 2018 ONSC 1557, [2018] O.J. No. 1227, 289 A.C.W.S. (3d) 761 at paras 14 and 15. Summers J. in Whitteker approved the observation of Parent J. in Botelho v. Medeiros, 2017 ONCJ 463 at para. 17 that the amendment did not “give grandparents a presumptive right of access to their grandchildren.”

[3] , 2001 CarswellOnt 537, [2001] O.J. No. 705, 106 A.C.W.S. (3d) 676, 141 O.A.C. 389, 15 R.F.L. (5th) 46, 201 D.L.R. (4th) 443

[4] , 2005 CarswellOnt 3290, [2005] W.D.F.L. 4015, [2005] O.J. No. 318, 141 A.C.W.S. (3d) 71

[5] 2016 CarswellOnt 5814, 2016 ONCJ 210, [2016] W.D.F.L. 3865, [2016] W.D.F.L. 3872, 265 A.C.W.S. (3d) 954, 79 R.F.L. (7th) 228

[6] ibid, para.57

[7] ibid, para. 61

[8] In Giansante the father’s position was that he was not opposed to access but wanted the details about when, where and how access would occur left to him. Nelson J. doubted the father’s willingness to permit access in the absence of an Order.

[9] ibid, para. 21

[10] supra, #6, para. 77

[11] [2012] O.J. No. 6423 (Ont. C.J.)

[12] ibid, para 72

[13] supra #6, para. 88: see also Chapman, supra #3, para. 21

[14] supra #3, para.23

[15] supra #6, para. 27

[16] 2011 ONCJ 527, 2011 CarswellOnt 11686, [2011] O.J. No. 4781, [2012] W.D.F.L. 1538, [2012] W.D.F.L. 1590, 208 A.C.W.S. (3d) 336

[17] ibid, para. 17