JUDGMENT
COURT FILE NO.: 1429-17
DATE: 2019-01-25
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Danijela Ninkovic, Applicant
AND:
Ljubisa Utjesinovic, Respondent
BEFORE: The Honourable Madam Justice L. Madsen
COUNSEL: Alex Toolsie, Counsel for the Applicant
John J. Cvetkovic, Counsel for the Respondent
HEARD: October 4, December 10, 11, 12, 13, 17, 19, 20, and 21, 2018
JUDGMENT
THE HONOURABLE MADAM JUSTICE L. MADSEN
[1] This is the Judgment in relation to a nine day trial regarding whether the maternal grandmother, Danijela Ninkovic [“Danijela”] should have access to her grandson, Mile Ninkovic [“Mile”] over the objection of Mile’s father, Ljubisa Utjesinovic [“Ljubisa”].
[2] For all of the reasons set out herein, this court finds that it is in Mile’s best interests that he have some access to Danijela, as provided for below.
Brief Background
[3] Danijela is the maternal grandmother of Mile, who was born prematurely on December 16, 2014. Mile has just turned four. Danijela lives in Kitchener, Ontario.
[4] Ljubisa is Mile’s father. Mile lives with his father and his paternal grandparents, Dragica and Nikola Utjesinovic, in Hamilton, Ontario. The order of Justice Harper dated November 26, 2015 provides that Ljubisa has sole custody of Mile.
[5] Ljubisa was in a relationship with Mile’s mother, Andrijana Utjesinovic [“Andrijana”], from June, 2013 until May, 2015. Andrijana is presently incarcerated in a federal penitentiary in Kitchener, Ontario, where she is serving time for “possession for the purpose” and “identity theft”. She testified that she is eligible for parole in May 2019.
[6] Under the order of Justice Harper dated November 26, 2015, Andrijana was to have access to Mile each Monday to Thursday, under the supervision of Danijela. However, under the order of Justice Brown dated November 1, 2017, that access term was varied following an uncontested trial such that Andrijana is to have access in the discretion of Ljubisa and in his presence. There has been no access by Andrijana to Mile since that order was made, now 14 months ago.
[7] Mile has two brothers, Nicholas Ninkovic [“Nicholas”], who is 14 years old; and Quentin Ninkovic [“Quentin”], who is 12 years old. Timothy Parthe [“Timothy”] is the father of both Nicholas and Quentin. Andrijana was 15 years old when Nicholas was born.
[8] Danijela, Mile’s grandmother, has custody of Nicholas, and Nicholas has always resided with her.
[9] Quentin resides with his father, Timothy, in Kitchener. Danijela has alternate weekend access with Quentin. This is confirmed in the court order of Justice Oldham dated August 28, 2018. That order was taken out on consent, concluding a proceeding in which the Office of the Children’s Lawyer assigned an agent to represent Quentin.
[10] Therefore, Nicholas and Quentin, Mile’s brothers, are both with Danijela alternate weekends.
[11] Danijela was involved with Family and Children’s Services of the Waterloo Region [“FACS-Waterloo”] when Andrijana was in her care as a child. The concerns related primarily to Andrijana’s mental health, use of drugs, and running away from home. Danijela has also been involved with that agency in relation, primarily, to adult conflict between herself and Andrijana intermittently since that time.
[12] Danijela was also briefly involved with Family and Children’s Services Niagara [“FACS-Niagara”] in 2016 in relation primarily to concerns regarding the state of a home rented by her (mold and roof leakage), and adult conflict.
[13] Danijela was previously married to Boban Ninkovic, [“Boban”]. They separated in the 1990’s after an incident in which Boban stabbed Danijela while intoxicated. Boban and Danijela live close to one another and are now friendly. Boban has recently been charged with an alleged assault on his girlfriend, and those charges are outstanding.
[14] Danijela has not seen Mile since July 24, 2017 following a visit by Mile to Kitchener. She did not return him when asked to do so and Ljubisa has since then cut off all contact.
[15] Danijela brought an unsuccessful motion to be added as a party within a court proceeding between Andrijana and Ljubisa for the purpose of seeking access to Mile. Subsequently, she commenced this action.
Positions of the Parties
[16] Danijela seeks access to Mile each weekend from Friday at 7:00 pm to Sunday at 7:00 pm. Alternately, she seeks access alternate weekends from Friday at 7:00 pm to Sunday at 7:00 pm. Danijela wants to be able to facilitate Mile having time with his brothers, Nicholas and Quentin, and would like to continue her grandparent-grandchild relationship with Mile. Danijela says she was actively involved with Mile’s care and upbringing from shortly after his birth until July 2017 when Ljubisa terminated all contact, and argues that it is in Mile’s best interests that the relationship continue to be nurtured and strengthened. Danijela is agreeable to terms such as not allowing Mile to have time with Andrijana, his mother, or Boban, his maternal grandfather.
[17] Ljubisa seeks an order that Danijela’s claim for access to Mile be dismissed. He says that Mile is happy, well adjusted, stable, and thriving in his care and argues that as Mile’s sole custodian, the court should defer to his view on whom Mile should spend time with. Ljubisa emphasizes that the onus is on Danijela to show why and how access with Mile would be in Mile’s best interests. He argues that Danijela’s home is and has been chaotic and conflict-ridden, and that her home is not a good environment for Mile. Ljubisa argues that Danijela is not a good person, and that she creates problems wherever she goes, including with employers and landlords. Further he argues that Danijela has inappropriately differentiated between Nicholas and Quentin and made poor parenting decisions with respect to Nicholas. In short, his position is that nothing good can come of an access order in Danijela’s favour. Ljubisa also emphasizes that this case is about grandparent access, not about sibling access.
Witnesses
Danijela’s Case
[18] Danijela testified on her own behalf and called the following witnesses: Andrijana Ninkovic (Mile’s mother), Savo Andric (Danijela’s ex-boyfriend), Joshua Van Dyck of FACS-Niagara, as well as April Muszik and Angela Martin of FACS-Waterloo.
Danijela Ninkovic
[19] In many respects, Danijela was a credible witness. She acknowledged that there were some difficulties in her relationship with Andrijana and that there had been conflict between them over the years, including in front of the children. She acknowledged that this did affect the children at that time. She also candidly stated that in her view, Mile is safe with his father, that Ljubisa is a good father, and that Mile is currently living in a good home. She did not make allegations against Ljubisa or his parents.
[20] Having said that, given the testimony and records in evidence from the two Children’s Aid Societies who have worked with this family, I find that Danijela to some extent downplayed the level of conflict with Andrijana. She stated for example that she could not recall having been told by FACS-Waterloo that it would be best if she and her daughter did not live together, although Ms. Black, of that agency, testified that Danijela was in fact told this. Andrijana also confirmed that they were told it would not be “wise” to live together. Danijela also could not recall having made problematic statements to Nicholas about his mother’s intentions when she became pregnant, again notwithstanding the CAS evidence to the contrary.
[21] In general, I believed Danijela’s evidence that she had regularly helped care for Mile until July 2017. For example, Danijela said that after she moved to St. Catharines in December, 2015 and Mile moved full-time to his father’s home, she attended Ljubisa’s home “every day” for six or seven months. This is consistent with the records of the CAS worker Mr. Van Dyck. While his notes would have been based on statements Danijela made to him, she would not have had a reason during Mr. Van Dyck’s work with the family, well before the argument with Ljubisa in July 2017 and before litigation, to overstate her involvement with Mile. I note that Ljubisa’s mother also confirmed that Danijela came to her home although she stated it was “sometimes” and that how often depended on the week.
[22] I also believed Danijela’s evidence that she was involved in helping to care for Mile after he came home to Ljubisa and Andrijana’s home in Kitchener a few weeks after he was born. Danijela lived only a few doors down. On several occasions Ljubisa’s mother was also there, for periods of 4 to 5 days to help with the baby. Although Ljubisa testified that Danijela did not help “very much” during this period, he was working and would not have been there to observe how often Danijela attended the home to assist. That both grandmothers may have been involved at the same time is consistent with the evidence regarding the spring of 2016 when Danijela was attending at Ljubisa’s home to assist with Mile when Ljubisa’s mother was there.
[23] Overall, it was clear from Danijela’s testimony that she was involved in caring for Mile between January 2015 and July 2017. The court accepts that she loves Mi2le, that she respects that he is well-cared for by his father, and that she feels it is in Mile’s best interests to know his maternal family. She also wants Mile to have a relationship with both of his brothers.
[24] The court also accepts Danijela’s testimony that she will follow any limitations in a court order with respect to Mile having time with her.
Andrijana Ninkovic
[25] Andrijana testified for the most part in a direct and understated manner. She was candid about the crimes for which she is incarcerated and took responsibility for her actions. She told the court about her addictions issues and her efforts to address them, including through programming in prison. Andrijana stated that Ljubisa’s parents are “good people.” When she did not know the answer to a question, she did not hazard a guess. For example, when she was asked whether her father still drinks alcohol, her answer was that she did not think so, but she was incarcerated and did not know for sure.
[26] Andrijana was also candid that she and Danijela have had some conflict and that she felt that her parents bullied her into accepting the terms of the 2015 consent order that gave Ljubisa custody of Mile. Although she is supporting her mother’s case for access, she did not deny the difficulties she has had with her mother over the years. At the same time, she was clear that she feels her mother has, on balance, parented Nicholas appropriately.
[27] Having said that, it appeared to the court that Andrijana minimized the amount of conflict between herself and Danijela to which the children have been exposed, given the CAS evidence on this issue. The court also had difficulty accepting her testimony that she did not know T.W., given that the CAS worker Ms. Black testified that Andrijana was forced to vacate T.W.’s apartment when T.W.’s children were apprehended due to serious child protection concerns. The court was not able to accept her testimony that she had never told FACS that her father was involved in drugs, given the worker’s contemporaneous notes to that effect and recollection of having been advised of that by Andrijana. When Andrijana’s evidence conflicted with that of the CAS worker Erin Black, the court finds that Ms. Black’s evidence was more credible.
Savo Andric
[28] Danijela called Savo Andric to testify. Savo was in a relationship with Danijela after she separated from her husband, Boban, in the 1990’s. Savo and Danijela broke up when Danijela moved to St. Catharines in December of 2015. Mr. Andric testified that over the years he would visit Danijela regularly, sometimes once per week, sometimes twice per week. His observation was that she provided good care for Nicholas, Quentin, and Mile and that her home was well maintained. He said he did not observe conflict between Danijela and Andrijana.
[29] Savo testified that Ljubisa had given Danijela a van at one point so that Mile could be safely transported back and forth between Kitchener and Hamilton. He found Ljubisa to be a “good guy”, a “very nice guy.”
[30] Overall, the court had no difficulty with Savo’s testimony. However, where he was asked about events about which he would only have known because Danijela had told him, such as why she moved to St. Catharines, his testimony was not of assistance.
Joshua Van Dyck of FACS-Niagara
[31] Mr. Van Dyck is an experienced child protection investigator with Family and Children’s Services of Niagara. He testified that he was involved with the family from approximately mid-January 2016 until May/June of that year. He became involved due to a call from the landlord with respect to the state of the home in St. Catharines to which Danijela, Andrijana, Quentin, and Mile had moved in December, 2015. Mr. Van Dyck testified that when he attended the home he found that there were structural issues related to mold and leakage, but that Danijela and Andrijana had made efforts to ensure that the children were not at immediate risk. Mile was at that point having some breathing issues so Mr. Van Dyck recommended that Mile stay with his father in Hamilton. Danijela and Andrijana complied with that recommendation.
[32] Mr. Van Dyck testified that he was aware through FACS-Waterloo that there was conflict between Danijela and Andrijana. He recommended counselling, and his information from the counsellor was that they did attend as recommended. He further testified that he had concerns regarding Andrijana’s parenting skills, but that he found Danijela to be an attentive, invested grandmother who offered stability to the children. He noted the “obvious bond” between Danijela and the grandchildren and said it was “comforting” that Danijela was involved.
[33] Mr. Van Dyck attended Ljubisa’s home twice. On one occasion, Andrijana and Danijela were there. On the second occasion Mile was there with Ljubisa’s mother, Dragica. Mr. Van Dyck did not advise the court of any concerns in Ljubisa’s home. He testified that he was aware that Ljubisa had legal custody of Mile.
[34] I found Mr. Van Dyck to be a credible witness. His testimony was straightforward and he was clear about what he could recall and what he did not recall. He authenticated a case note in which he had stated that Danijela had no identified mental health issues.
April Muszik and Angela Martin of FACS-Waterloo
[35] Ms. Muszik and Ms. Martin of FACS-Waterloo were called to testify largely in respect of a letter they had both signed dated April 27, 2018 summarizing Danijela’s involvement with the agency from January 1999 to November 2003.
[36] Ms. Muszik is a Clinical Information and Disclosure Worker with the agency. She explained that where former clients request their history with the agency, she would prepare those documents. In this case, she was away and another worker prepared the summary, but she reviewed it upon her return. Ms. Muszik explained that the summaries are not intended for use in court. Where parties are in court, it is preferable, she said, to request the actual file.
[37] At the time the summary letter was written, Ms. Martin was Ms. Muszik’s supervisor. She explained that part of the reason people request summary letters is that it can take up to a year to have a file disclosure request completed. She also explained that the letter only summarized Danijela’s involvement with the agency as a parent of Andrijana and her brother Petar, not any involvement with the agency as the caregiver for Nicholas or in her role as a grandmother. She explained how cases are “coded” when they come in, and that in this case it may not have been re-coded notwithstanding that Danijela has custody of Nicholas and is in a parenting role for him.
[38] Both Ms. Muszik and Ms. Martin testified credibly. They clearly explained the process with respect to the creation of the letter and why later involvement by Danijela with the agency was not reflected in their letter.
Ljubisa’s Case
[39] Ljubisa testified on his own behalf and called the following witnesses: Dragica Utjesinovic (his mother), and Erin Black of FACS-Waterloo.
Ljubisa Utjesinovic
[40] In many but not all respects I found Ljubisa to be a credible witness. He answered questions directly, and in general did not attempt to answer questions when he did not have direct knowledge. It was clear from Ljubisa’s testimony that he had once loved Andrijana, and that the discovery of her significant drug issues caused him much grief. He testified that he continued to have feelings for her even as it became clear how serious her difficulties were. Ljubisa loves his son and wants what he believes is best for him.
[41] I find that Ljubisa minimized Danijela’s involvement with Mile, particularly when considered in light of his mother’s testimony and other evidence. For example he stated that Danijela did not help “very much” when Mile came home from the hospital in January 2015, although he was working and not there to see how often Danijela was assisting. Further, he minimized the frequency of Danijela’s visits to his parents’ home in the spring of 2016, where the evidence supports a finding that Danijela was attending his parents’ home regularly to assist with the care of Mile. Ljubisa’s mother confirmed that Danijela attended his home during this period although she was vague about how often. Further, the evidence was that Ljubisa at one point gave Danijela a van so “they” could come and see Mile in Hamilton. There would have been no reason to do this if Danijela was not assisting with Mile quite regularly.
[42] Ljubisa’s testimony also revealed a lack of insight into the potential consequences to Mile of effectively cutting off his contact with all members of Mile’s mother’s family: Danijela, Andrijana, Nicholas, and Quentin, in particular. It was clear from his testimony that once he had decided that Danijela is “a bad person,” he has not been open to any contact in any manner, whatsoever. This is so even though on his own evidence Danijela was involved with Mile until late July 2017, albeit less, according to him, than Danijela asserted. While Ljubisa left what might be described as a small opening with respect to potential contact between Mile and Andrijana once she is no longer incarcerated, it was a very small opening indeed. Ljubisa has decided that Mile is better off not knowing his maternal grandmother or either of his brothers. This is concerning.
Dragica Utjesinovic
[43] Ljubisa’s mother, Dragica Utjesinovic, testified through an interpreter about her involvement with caring for Mile after he was born, including caring for Mile at Ljubisa and Andrijana’s home in Kitchener before they separated.
[44] Dragica is in receipt of payments from the Ontario Disability Support Program (ODSP) following employment at McMaster University. She testified that while the work there as a cleaner affected her breathing she does not have limitations affecting her ability to care for Mile. This is consistent with the fact that the two child protection agencies involved have expressed no concern about her having care of Mile.
[45] Dragica acknowledged that after Ljubisa moved to Hamilton, for a period of time Danijela would come to her home to assist with Mile, with the frequency depending on the week. She said Danijela watched Mile and took him to the park. She was not clear about how many times a week Danijela came and about how long she stayed.
[46] Asked by Danijela’s counsel whether she would have concerns about Danijela seeing Mile as long as Boban and Andrijana were not involved, Dragica stated that this would be up to Ljubisa to decide. Asked by the court what she, as a grandmother thought about this, since the issue would now be determined by the court, not by Ljubisa, she stated that she was “not sure.”
[47] I found Dragica’s evidence to be quite general. Her answers were for the most part vague. She seemed concerned not to hurt Ljubisa’s case.
Erin Black, Family and Children’s Services of Waterloo Region
[48] Erin Black is a Child Protection Worker with FACS-Waterloo and has been with that agency since 2008. She testified that she was involved with the family from 2014/2015, and that Andrijana was her “client.” She explained that since Danijela’s involvement with the agency when Andrijana was a youth, there had been a number of file openings.
[49] The main protection concerns initially related to Andrijana’s drug use, Andrijana’s mental health and parenting skills, and adult conflict between Danijela and Andrijana. In Ms. Black’s view, there was a dysfunctional pattern of alignment, with Danijela being aligned with Nicholas (of whom she had full time care) and Andrijana being aligned with Quentin. Danijela made some concerning choices with respect to schooling for Nicholas and did not follow medical advice regarding medication for Attention Deficit Hyperactivity Disorder (ADHD) for him. There was conflict in the home between Andrijana and Danijela, and the women were advised not to live together. Based on the agency’s records, there was a pattern of each woman reporting the other to FACS-Waterloo.
[50] Ms. Black acknowledged in cross-examination that the main concerns were with respect to Andrijana, not Danijela, and that she did not have concerns about the quality of Danijela’s care of Mile. She testified that Danijela’s home was clean, although small, and had the appropriate items for a baby.
[51] I found Ms. Black to be a credible witness. She was balanced in her testimony, answering questions from both counsel carefully and responsively.
Findings of Fact
[52] Having thoroughly considered all of the documentary and oral evidence, I make the following findings of fact:
a. There was conflict in the relationship between Ljubisa and Andrijana. When Ljubisa discovered Andrijana’s drug issues, the relationship became quite rocky. He did not want to be in a relationship with a person with addictions issues and tried to support Andrijana to address those problems. There were arguments and on at least one occasion the police were called. Ljubisa testified that Andrijana had many mood swings which in combination with the drug issues lead to their separation in 2015. Andrijana testified that Ljubisa was controlling.
b. Andrijana was on methodone when Mile was born. He was addicted to methodone at birth.
c. Mile is currently living in a stable, loving, appropriate home with his father and paternal grandparents. He is well taken care of. There is no evidence that any children’s aid society has had or currently has any concerns about the quality of the care that Ljubisa or his parents provide for Mile.
d. There have been serious child protection concerns in relation to Andrijana, as a parent. Those concerns have centered on her mental health, continued addictions issues, parenting capacity, and adult conflict when she is with her mother.
e. Danijela has been regarded as a protective factor with respect to the child protection concerns relating to Andrijana. When Mile has been in Danijela’s care, he has been found to be “happy, healthy, and clean.” Mile has been found to be safe in Danijela’s care.
f. The most substantial child protection issues relating to Danijela have had to do with adult conflict with Andrijana and the failure to shield the children from that conflict.
g. There were also concerns about the state of Danijela’s St. Catharines home. However, those concerns related primarily to mold and leakage which needed to be addressed by the landlord (ironically, as it was the landlord who called the agency). Danijela took appropriate steps including ensuring that the affected areas of the home were not accessible to the children. The evidence of both child protection agencies was that Danijela keeps a clean and appropriate home.
h. There was extensive cross-examination of Danijela on her parenting of Andrijana, and subsequently Nicholas, as well as regarding Nicholas’ learning and other challenges. While there have been historical child protection concerns related to Danijela’s approach to schooling Nicholas and administering medication for ADHD, for example, these have limited relevance on the question of access with Mile. Danijela is not asking for custody of Mile, to make any medical decisions for Mile, or for any involvement in decisions about his education.
i. While Ljubisa alleged in his testimony that Danijela refused to give Mile water containing a stool softening agent on one occasion when she had care of him, this was not put to Danijela in cross-examination. Danijela testified, and I accept, that she would administer medications to Mile if requested to do so by Ljubisa.
j. Nicholas, who is 14, has ADHD, Oppositional Defiance Disorder (ODD), and some behavioural issues. The evidence does not support a finding that Danijela is unable to manage Nicholas when either Quentin or Mile is also in her care. The evidence does also not support a finding that Quentin, who is 12, has behavioural or other issues. While there were diffuse allegations during the trial that Quentin’s and Nicholas’ father Timothy has drug issues and that therefore Quentin may exhibit problematic behaviours when around Mile, this was unsubstantiated. As noted, Timothy has full-time care of Quentin following a proceeding in which the OCL was involved.
k. Andrijana did not spend time with Mile between March 24, 2016 and July 2017, a period of 15 months. During this period she relapsed, became involved in criminal activities, and was arrested. As set out below, notwithstanding that Danijela did not have her own “access” under the court order during this time, (“access” being for Andrijana with Danijela as a supervisor), Danijela continued to spend time with Mile.
l. Mile spent time with Danijela from the age of about one month to July 25, 2017, when he was two and a half years old. On all of the evidence, including that of the CAS workers and Dragica, I find that Ljubisa understated how much time Mile spent with Danijela. I find that contact included the following:
i. Between January 2015 when Mile was released from the hospital after his birth and March 2015, Danijela spent some time with Mile, who lived several doors down from her with Ljubisa and Andrijana in Kitchener. On several occasions, Ljubisa’s mother Dragica also stayed with Ljubisa and Andrijana for periods of four or five days to help with Mile during this period. That both grandmothers were involved in caring for Mile at this time is consistent with Danijela attending at Ljubisa’s home in 2016 to assist with Mile when he was with Dragica.
ii. From about March 2015, Ljubisa started taking Mile to Hamilton more as Andrijana was not bonding with the baby and was making threats to harm Mile. Ljubisa had concerns about Andrijana’s mental health. He brought Mile from Hamilton to Kitchener regularly to spend time with Andrijana, supervised by Danijela.
iii. After the parties separated in May of 2015, even on Ljubisa’s evidence, Mile visited Kitchener regularly, for example, three or four times in June, one or two nights in July, in August after Andrijana returned from a rehabilitation trip to Mexico, and “a bit more” in September. There was at least one visit in October, 2015.
iv. After Danijela moved to St. Catharines in December 2015, the structural problems with that house became evident, and Mile was full time at Ljubisa’s home. Danijela spent time with Mile at Ljubisa’s parents’ home helping to care for Mile. This was confirmed by Ljubisa’s mother, who also stated that Danijela would watch Mile and take him to the park. I accept Danijela’s evidence that she attended frequently. She stated that she attended “daily” for the most part.
v. From August to December 2016, Danijela moved to Toronto. On Danijela’s own evidence, Mile saw Danijela less during this period.
vi. From January 2017 to July 2017, when Danijela moved back to Kitchener, it was Danijela’s evidence that Mile stayed with her one or two nights each week. She would take him to parks and playgrounds, as well as swimming. Ljubisa’s evidence was that Mile stayed with her once or twice per month (except March), with some overnights. On either party’s evidence, during this period, Mile spent regular time with Danijela.
m. Ljubisa became very angry with Danijela on July 24, 2017. He had allowed Mile to visit with Danijela on July 23, 2017 but expected him back home on the 24th. Danijela had planned to take the boys swimming the following day and said she would not bring him back until July 25, 2017, after swimming. She said she wanted Mile to have time with Andrijana who had been released on bail, and from her perspective this was within the terms of the court order which provided for supervised access to Andrijana from Monday to Thursday each week. From Ljubisa’s perspective, that order was no longer applicable as it addressed access for Andrijana who had not exercised access since March 24, 2016, some 15 months prior. Ljubisa felt Danijela had no right, whatsoever, to not return his son when asked to do so. The police were called but did not intervene.
n. Danijela has had no time with Mile since July 25, 2017, despite taking steps to try to secure some access.
o. Ljubisa has denied all access for Mile to Andrijana while she has been incarcerated, including telephone access. On his own evidence he has received 8 – 12 letters requesting access. He stated that he does not intend to allow Mile to have access to his mother while she is in jail. There was no evidence that he has taken any steps to learn age-appropriate ways in which access by Mile to his mother might be facilitated in the circumstances.
p. Ljubisa did suggest that when Andrijana is released from jail he might consider Mile having access to her, depending on her circumstances at that time.
q. From Ljubisa’s perspective, Danijela is a “bad person”, and, in the words of his counsel, Mile’s maternal family writ large is “troubled and dysfunctional.” Ljubisa sees no value in Mile having a continued relationship with Danijela, or the maternal family. This is confirmed by statements in his testimony including the following:
i. “This family [is] not good for my child.”
ii. “I want him to have a normal life which with this family it’s not gonna be normal.”
iii. “They have nothing to show this boy, nothing good. All they do is fight. All they do, or all the kids know… how to call the police, how to call the Children’s Aid Society, how to fight with mother or grandmother. That’s all they teach them.”
iv. “She is just the grandmother. That’s all.”
v. “This woman is a bad woman. Bad influence on everybody… not stable, she’s emotional…”
vi. “She is nobody.”
vii. “This family is a bad influence to my family, to my son.”
viii. “When I think somebody’s no good…there is no such thing that I would allow any meeting with my son.”
r. Ljubisa sees no value in Mile knowing his siblings through spending time with Danijela. When it was put to him that “most brothers love each other,” he stated simply “I don’t have brothers.” Ljubisa is of the view that because Nicholas has challenges, it is better for Mile simply not to know him.
s. Currently, without access to Danijela, Mile is unlikely to have any relationship with his brothers. Were Andrijana to have access with Mile upon her release, it would not necessarily result in Mile spending time with his brothers, as Nicholas is in Danijela’s care and Quentin is in his father Timothy’s care.
t. While there has been adult conflict between Andrijana and Danijela and between Andrijana and Ljubisa, and notwithstanding Ljubisa’s strong views about Danijela and her family, the evidence does not support a finding that the relationship between Danijela and Ljubisa should be characterized as “high conflict.” In fact, on the evidence, Danijela and Ljubisa had an amicable relationship until around the time that Danijela withheld Mile in July 2017. Ljubisa had been agreeable to Danijela supervising Andrijana’s access, Danijela had attended frequently at Ljubisa’s home with his parents to assist with Mile in early 2016, and at one point, as noted, Ljubisa had even given Danijela a vehicle to assist her in travelling back and forth. There was little evidence of conflict between Danijela and Ljubisa even after access was terminated. Even at trial, Danijela stated that Ljubisa is a good father and that he provides Mile with a good home. Danijela and Ljubisa are capable of working together for Mile’s benefit.
u. Danijela stated, and the court accepts, that Danijela would respect terms of a court order, including a term that neither Andrijana nor Boban not be present for access. This mitigates any concern about adult conflict between Danijela and Andrijana, which as stated above, was the main protection concern involving Danijela.
Law and Analysis
[53] This case is to be decided under the Children’s Law Reform Act, R.S.O. 1990, s. c. C. 12.
[54] Section 21(1) of that Act provides that a parent of a child, or any other person including a grandparent, may apply to the court for an order for custody of or access to a child.
[55] Section 24(1) provides that a decision regarding custody or access to a child must be determined on the basis of the child’s best interests.
[56] Section 24(2) provides guidance to the court on how best interests are to be determined, stating that the court shall consider all of the child’s needs and circumstances including:
(a) the love, affection and emotional ties between the child and,
(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) any familial relationship between the child and each person who is a party to the application.
[57] Chapman v. Chapman, 2001 24015 (ON CA), 2001 CarswellOnt 537 remains the leading case on grandparent access in Ontario. In Chapman, the Ontario Court of Appeal held that in cases such as these, the question is not what is good for the grandparent, but what is in the best interests of the child. Further, the question is not what is theoretically in children’s best interests, but what is in the best interests of the particular child in the case at hand. Justice Abella cited Justice McLachlin in Gordon v. Goertz, 1996 191 (SCC), 1996 CarswellSask 199 (S.C.C.) at 60, in which Justice McLachlin stated, “each case turns on its own unique circumstances and the only issue is the best interests of the child in the particular circumstances of the case.”
[58] In Chapman, the Ontario Court of Appeal held that where parents are “demonstrably attentive” to the needs of their children, it is parents, not grandparents, who have the right to decide the “extent and nature of the contact” with grandparents. See para. 22. In that case, where the court found that the disruption and stress of the grandmother’s insistent attempts to get access on her own terms was not in the children’s best interests, her application for access was denied.
[59] The court stated that a child’s relationship with a grandparent “can – and ideally should – enhance the emotional well-being of a child. Loving and nurturing relationships with members of extended family can be important for children.” The court held that when those relationships are imperilled arbitrarily, “the court may intervene to protect the continuation of the benefit of the family relationship.” See para. 19.
[60] In Nichols v. Nichols, 2015 CarswellOnt 9262, Justice Stevenson summarized the impact of Chapman as follows: “…In the absence of any evidence that [the parents] are behaving in a way which demonstrated an inability to act in accordance with the best interests of [the child], their right to make decisions and judgments on [the child’s] behalf should be respected.” See para. 66.
[61] Danijela’s counsel suggested that the recent amendments to the Children’s Law Reform Act in Ontario, in particular the insertion of the word “grandparent” into section 21(1) and section 24(2)(a)(i), fundamentally changed the law on grandparent access in Ontario. Multiple decisions of this court, however, have been clear that the amendments create no new rights or enhanced standing for grandparents. In M.R. v A.L., 2017 ONSC 85, Justice McGee stated 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.” See para. 34, FN 5. See also Whitteker v. Legue, 2018 ONSC 1557 at para. 15; Capone v. Pirri, 2018 ONSC 6541 at para. 8; Tzvetkova v. Petrova, 2018 ONSC 2899 at para. 4 and Botelho v. De Medeiros, 2017 ONCJ 463 at para. 17.
[62] In the result, notwithstanding the amendments, there is no presumptive legal right of access by grandparents to their grandchildren. The onus remains upon a grandparent seeking access to show that this is in the best interests of the child.
[63] In the oft-quoted case of Giansante v. DiChiara, 2005 26446 (ON SC), 2005 CarswellOnt 3290 at para. 18, Justice Nelson reviewed the Ontario Court of Appeal’s decision in Chapman, and held that deference should generally be given to a custodial parent’s decision regarding access unless the following three questions are 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?
[64] In Capone, Justice Jarvis considered what constitutes a “positive relationship” under the first branch of the Giansante test, stating that a positive relationship generally requires “time and depth.” He cited Sproule v. Sproule, 2012 O.J. No. 6423 in which the court stated that:
…to be a positive 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 the principle of parental autonomy. See para. 15.
[65] In Capone, Justice Jarvis held that the legal threshold of a positive relationship for the court to consider superseding its deference to a parent is “necessarily a high one.” The court found in that case that given the young age of the child (six months when the application was heard), it was impossible to determine how positive the relationship between the child and the grandmother was.
[66] In Torabi v. Patterson, 2016 ONCJ 201 at para. 74, Justice Kurz also considered what constitutes a positive relationship setting out a four-part test as follows:
a. There must generally be a substantial pre-existing relationship, with strong, loving, and nurturing ties;
b. The relationship must be constructive for the child in the sense that it is worth preserving. If relations are too poisoned, a previously positive relationship may not be capable of preservation;
c. The determination must include the age of the child and the time since the child last saw the relative; and,
d. A fourth factor may apply in the exceptional circumstance of a young child who has lost a parent. In that event, the existence of a strong pre-existing relationship may not be necessary when the relative(s) of the lost parent applies for access.
[67] In Giansante, where the child was ten months old at the time of an accident in which his mother died and two years old at the time of trial, the court inferred a positive relationship based on the frequency of the child’s contact with the grandmother before the mother’s death. The court recognized that given the child’s young age it was difficult to say whether he felt the same way about his time with his grandmother as did his grandmother about him, but accepted the grandmother’s evidence that the child enjoyed his time with her. See paras. 21 and 40.
[68] Acting arbitrarily, under the test set out in Giansante, means to make decisions about access that are based on considerations other than the best interests of the child. As stated in that case, “this is consistent with section 24(1) of the CLRA which provides that decisions about access must be based on the next interests of the child.” See para. 27.
[69] In Torabi, the court considered the application of the three-part Giansante test in the context of a deceased parent, where access to the grandparent also means a link to or connection with the deceased parent’s side of the family. In that case, where a mother of a four year-old child had died and several of her family members applied for access, Justice Kurz observed as follows, stating that general deference to parental decisions:
…may not be as strong when one of the parents has died, and the deceased 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.” (See para. 57).
See also Capone, at para. 11.
[70] This is reminiscent of the Nova Scotia Court of Appeal’s statement in Simmons v Simmons, 2016 NSCA 86, where that court stated:
In addition, judicial deference to parental authority can be tempered by the court’s willingness to recognize benefits that extended family bring to a child whose life has been marked by the loss of a parent, such as love, support, and stability. These cases sometimes present best interest factors not apparent with two living parents, including the fact that a child can know his or her deceased parent, including his or her personality, heritage, and culture, through his or her grandparents. See para. 41.
[71] In Torabi, the court re-formulated the Giansante test for grandparent access into a two-part test, as follows:
a. First, the determination of whether the court should defer to the decision of the parent(s). 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 had died, meaning that the child may lose a relationship with the other side of the family.
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).
See para. 61. See also Capone v. Pirri, para. 12 in which the court endorses and applies the same two-part formulation. Further, see Botelho v. De Medeiros, 2017 ONCJ 463 at paras. 21 – 29.
[72] In considering, at the second stage, whether access to the grandparent is in the best interests of the child, an important consideration is the extent to which this would cause anxiety and stress for the parent, which in turn could have a deleterious impact on the child. For example in Barber v. Mangal, 2009 ONCJ 631, Justice Brownstone found that the intensity of the conflict between the parents and the grandmother seeking access was such that any access would be extremely stressful for the parents and “given their personalities, there is a very real and substantial risk that such stress would be visited upon the child.” See para. 17. At the same time, animosity does not necessarily preclude an access order. See para. 18.
[73] See also MacDonald v. MacDonald, 15444 in which Justice Pazaratz found that the “level of conflict between the applicant and the respondent is so overwhelming that any future contact will invariably result in the children and their family experiencing more upset, commotion, and grief,” and dismissed the grandmother’s request for access to her daughter’s children.
[74] A further consideration is whether an access order would destabilize the family unit. See Blackburn v. Fortin, 2006 CarswellOnt 3458. In that case, Justice Smith declined to grant access to a grandmother where significant tension existed between the grandmother and mother, the grandmother often imposed unsolicited views on proper child-rearing, and the grandmother had made a heavy handed attempt to change the parents’ decision regarding schooling. The court found that access could destabilize the family unit.
[75] Numerous cases emphasize the importance of sibling relationships to children’s well-being and development. While generally, these cases involve determinations of where children will reside (and a concern that they not be raised separately absent “compelling” circumstances), these cases also more generally reflect a recognition that sibling relationships are usually significant to children’s best interests. See for example Hurdle v. Hurdle, 1991 CarswellOnt 247 at para. 6; Callaghan v. Callaghan, 2015 ONSC 7559 at para. 49, upheld 2017 ONSC 593; Wardell v. Perreault, 2011 ONCJ 288 at paras. 22 and 23; and Hill v. Hill, 2008 CarswellOnt 6992 at para. 42. As cited in Nloga v Ndjouga, 2015 ONSC 5925,
Without enriching and nurturing contact, siblings may not be able to establish and maintain the types of formative bonds that can allow them to experience sustainable interaction over their lifespan. In the long term, the quality of their lives may be diminished.
L.(M.E.) v. H.(P.R.), [2010] N.B.J. No. 457 at para. 428 as cited in Nloga, at para. 163.
[76] In applying the law to the facts of this case, this court finds that notwithstanding that in most respects Ljubisa is a good and loving parent to Mile, it is not in Mile’s best interests to defer to Ljubisa’s decision regarding Mile’s access to his maternal grandmother. This is so for the following reasons:
a. On a balance of probabilities I find that on the evidence, there was a positive grandparent-grandchild relationship between Mile and Danijela in the first two and a half years of Mile’s life before that contact was terminated by Ljubisa. Danijela was involved in caring for Mile throughout that period. Mr. Van Dyck testified that Danijela is an attentive and loving grandmother, and that there was an “obvious bond” between herself and her grandchildren. Mr. Van Dyck’s case notes reflect that he had the opportunity to observe Danijela with Mile on several occasions and each time appeared “happy” and “healthy.” Given the care that Danijela provided for Mile, I am satisfied that there were strong, loving, and nurturing ties between them and that the relationship is worth preserving.
b. In this case, it is relevant that Mile was only two and half years of age when his time with Danijela was terminated and is now four years old. There is little doubt that this could affect the grandparent-grandchild relationship. This is not for lack of Danijela taking the appropriate steps to re-establish contact, but it is nevertheless a consideration. However, at the same time, Mile should not be deprived of the benefits of continuing his relationship with his maternal grandmother simply because time has passed and Ljubisa has succeeded in denying contact for so long. As in Giansante, Danijela testified to the quality of her relationship with Mile. Having said that, any order for access must consider that there must be a period of re-introduction given Mile’s age and the time that has passed.
c. This case is in some ways analogous to a situation to the exceptional circumstance where a young child has lost a parent. Given that Mile’s mother is incarcerated, that Ljubisa has used his discretion under the existing order to entirely deny access to her, and the uncertainty of any access arrangements when Andrijana is released, Mile’s ability to know his maternal family through his mother is significantly compromised. As in the cases cited above, any diminishment of Mile’s relationship with Danijela due to his young age and the passage of time must be considered in the context that Danijela is in many respects a relative of a “lost parent.” See Torabi, Capone, and Simmons. On the evidence Mile has seen his mother on one occasion in the more than two and a half year period between March 24, 2016 and the date of the trial in late 2018, that being when the incident took place in July 2017. Mile is certainly a child whose “life has been marked by the loss of a parent.”
d. Ljubisa’s decision not to permit Mile to spend any time with Danijela has without question imperilled the positive grandparent-grandchild relationship. Ljubisa has not voluntarily extended any time for Mile to spend with Danijela for 18 months.
e. I understand that in this case Ljubisa might argue that while he has terminated the relationship, he has not done so arbitrarily. Asked about why he has not allowed Mile to see Danijela he said there were “thousands of reasons.” From his perspective it is not arbitrary to deny contact because, among other things: Danijela is a bad person; there have been calls to the CAS and police; there was significant adult conflict with Andrijana; Danijela had difficulties with landlords; Danijela allegedly failed to administer stool-softening medicine to Mile; and finally – what was clearly the last straw – Danijela refused to return Mile when told to do so on July 24th, 2017. As Ljubisa stated in his testimony, “Who is she to not return my son?”
f. However, on the facts of this case, where the evidence is that Danijela had a positive relationship with Mile; that she, according to two child protection agencies, is an appropriate caregiver for Mile; and where there is no opportunity for adult conflict with Andrijana due to her incarceration, I find that the decision to terminate all contact rather than consider terms of access which could address his concerns is wholly disproportionate to the issues and therefore arbitrary in its effect. See Giansante, at para. 31 where the court stated, “[A] more appropriate way to handle this problem is by fashioning an access regime that takes the respondent’s concerns into account.” Ljubisa’s decision was not made in Mile’s best interests.
g. The decision to effectively “write off” the maternal family, including the possibility of a relationship with his two brothers through spending time with Danijela so that Mile can have a “normal life” has arbitrarily imperilled the grandchild-grandparent relationship. This has the very real potential to cause emotional harm to Mile. A “normal life” for a child, in my view, does not mean cutting off all contact with one side of the family and in effect pretending they do not exist. Mile has a right to know both sides of his family in the factual context of this case.
h. Having applied the test in Giansante, bearing in mind that the onus is on Danijela, and having determined that in this case there is a positive relationship that has been arbitrarily imperilled, I turn now to a consideration of whether access is in Mile’s best interests in consideration of section 24 of the Children’s Law Reform Act. See Torabi.
i. I find that it is in Mile’s best interests to have access to Danijela as set out below. Before Ljubisa terminated Mile’s time with Danijela there was a loving and affectionate bond between them.
j. Further, as Danijela has custody of Nicholas and access to Quentin, establishing access for Mile with Danijela has the added benefit of nurturing bonds between Mile and both of his brothers.
k. The access contemplated in this decision would not compromise the stability of Mile’s home with his father and paternal grandparents. Rather, access to Danijela would enhance Mile’s emotional well-being and stability through knowing both sides of his family.
l. As found by both child protection agencies, Danijela has the ability to care for Mile appropriately.
m. Danijela is prepared to exercise access on terms imposed by the court which would address any concerns about adult conflict with Andrijana when she is released from custody.
n. Danijela and Ljubisa are capable of working together for Mile’s benefit. Their relationship was amicable before Danijela withheld Mile. Unlike the situation in Barber v. Mangal, at para. 17, any conflict between Danijela and Ljubisa is not such that it would be deleterious to Mile. The evidence does not support a finding that there is a “real and substantial risk” that Mile’s time with Danijela would result in him experiencing stress. Access will not place Mile in the middle of conflict between Danijela and Ljubisa. The facts of this case are also distinguishable from MacDonald.
o. Having said that, Danijela’s plan for care, namely to have access to Mile each weekend or in the alternative on alternative weekends, is excessive. Mile lives in Hamilton with his father and his paternal grandparents while Danijela lives in Kitchener. Access each weekend or alternate weekends would compromise Ljubisa’s ability to plan weekend activities with his son or for Mile to be involved in week-end extracurricular activities in his home community. At the same time, given Danijela’s involvement with Mile from January 2015 until July 2017, and the fact that time with Danijela allows also for time with Nicholas and Quentin, Mile’s time with Danijela should not be unduly limited.
p. Given Mile’s young age and the passage of time since Ljubisa terminated contact, a plan for reintroduction of Mile to Danijela is required. Once that reintroduction has taken place, access one weekend per month (from Saturday to Sunday) is reasonable in all of the circumstances and in Mile’s best interests. As set out below, during the period of reintroduction, given Mile’s young age, visits shall be shorter but bi-weekly. After a period of reintroduction, visits shall be every four weeks but longer. The purpose of this structure is to allow an opportunity to rekindle the relationship given Mile’s young age, and once the relationship is once again strong, to maintain that relationship through overnight access one weekend per month.
q. In ordering access, I find that it is in Mile’s best interests that Danijela be required to ensure that when Mile is in her care, neither Boban Ninkovic nor Andrijana Ninkovic be present. As noted, Boban has been convicted of a serious crime and is currently facing charges in relation to an alleged assault. In view of the history of conflict between Danijela and Andrijana, it is in Mile’s best interests that any access between Andrijana and Mile be considered separately by the court if Andrijana and Ljubisa are not able to agree on terms. At this time, the reintroduction of Danijela should be as simple as possible.
r. To be clear, this court is not ordering sibling access, which was not the issue before the court. However, the court is recognizing that in light of the fact that Danijela has care of Nicholas and access to Quentin, an additional benefit to Mile of time with his maternal grandmother will be time with his brothers and therefore a strengthening of those familial bonds.
Conclusion and Order
[77] For all of the reasons set out above, this court makes the following order:
On Sunday February 3, 2019, and Sunday February 17, 2019, Danijela shall have access with Mile from 12:00 noon to 6:00 pm;
On Sunday March 3, 2019 and Sunday March 17, 2019, Danijela shall have access with Mile from 10:00 am to 6:00 pm;
On Sunday March 31 and Sunday April 15, 2019, Danijela shall have access with Mile from 10:00 am to 8:00 pm;
On Saturday April 27, 2019 and Saturday May 25, 2019, Danijela shall have access with Mile from 10:00 am that day until noon on the next day;
On Saturday June 8, 2019 and Saturday June 22, 2019, Danijela shall have access with Mile from 10:00 am until 4:00 pm on the next day;
On Saturday July 6, 2019 and on every fourth Saturday thereafter, Danijela shall have access with Mile from 10:00 am until 6:00 pm on the next day.
If the schedule set out above does not align with Danijela’s alternate weekend access schedule with Quentin, the schedule set out above shall be delayed one week to coincide with Danijela’s schedule with Quentin (and shall commence February 3, 2019). Danijela shall advise Ljubisa by January 21, 2019 of her schedule with Quentin.
Four times per calendar year, Ljubisa may advise Danijela that access will not take place that weekend, in his sole discretion. In that event access shall take place the following weekend, two weekends hence, or three weekends hence, as the parties may agree. If the parties do not agree, the access shall take place the weekend following the scheduled access. Ljubisa shall advise Danijela a minimum of 21 days in advance, in writing (email or text shall suffice) of an intention to invoke this paragraph. The application of this paragraph shall not cause an adjustment to the regular underlying schedule.
Danijela shall be responsible for all transportation for access unless the parties agree otherwise;
Danijela shall ensure that neither Boban Ninkovic and Andrijana Ninkovic are present at any time during her access with Mile, unless the court orders or the parties agree otherwise in writing in advance;
Danijela shall administer any medication to Mile as may be directed by Ljubisa, in accordance with the directions given.
Neither party may make disparaging statements about the other party or the other party’s family in the presence of the child.
Costs
[78] If the parties cannot agree upon costs, the court will accept brief written costs submissions, including bills of costs, on the following schedule: Danijela, by February 8, 2019; Ljubisa by February 22, 2019; and Reply submissions from Danijela by March 8, 2019. Timelines for costs submissions may not be extended without permission of the Court. If submissions are not received within the timelines set out here, costs shall be deemed to have been settled.
Other
[79] I encourage Danijela and Ljubisa to make every effort to make the arrangements set out above work smoothly for the benefit of the young boy whom they both love. Danijela has testified that she knows that Ljubisa is a good father and that his parents are “good people.” This is important testimony which means that she respects that Mile’s home is appropriately with his father. Ljubisa is encouraged to recognize the testimony and evidence of the CAS workers who have stated that Danijela is an appropriate caregiver, and that Mile is happy and healthy when in her care. In this case, access to Danijela means Mile will have the benefit of more love as he grows up. This can only be good for him now and in the future.
Madsen J.
Date: January 25, 2019