Francine Beckwith v. Kristina Beckwith and Richard Chad Starr
Court File No.: FC-18-FO000091-0000 Date: November 7, 2019 Superior Court of Justice - Ontario
Re: Francine Beckwith, Applicant And Kristina Beckwith, Respondent And Richard Chad Starr, Respondent
Before: Madam Justice W. Malcolm
Counsel: Heather Smith-McGurk, for the Applicant Francine Beckwith Ammar Hussein, for the Respondent Kristina Beckwith Mr. Richard Chad Starr, not appearing
Heard: July 24, 2019, Written submissions made August 28, 2019, permission for father’s submissions given after transcript of witnesses at July 24, 2019 received on September 22, 2019
Endorsement
MALCOLM, J.
Introduction to the Parties and the Relief requested
[1] This decision concerns a child, Destiny who is 12 years of age and whether the court should dismiss the applicant grandmother’s application for specified access to her granddaughter.
[2] The parties to the proceeding are the applicant grandmother, Francine, the respondent mother, Kristina and the respondent father, Richard. The application was commenced by the applicant grandmother in April 2018.
[3] The applicant requested access to her granddaughter. The respondent mother’s response was that any access be supervised in her discretion. The respondent father requested custody and, in the alternative, access to his daughter.
Positions of the parties
[4] The respondent mother’s position at the time of the hearing was that there is no triable issue. The matter was set for a summary judgment motion pursuant to Rule 16 of the Family Law Rules, R.S.O. 1990, c. C.43.
[5] The applicant grandmother’s position is that there is a triable issue and she should be entitled to a trial.
Test for access
[6] Although the grandmother may bring an application for access, she does not have a legal right of access. To be successful she must show that access is in her granddaughter’s best interests. Further the court will give considerable weight to the wishes of the custodial parent. Chapman v. Chapman, 15 RFL (5th) (Ont. C.A.)
[7] The case law supports that the following must be established: does a positive grandparent grandchild relationship already exist; has the parents’ decision to terminate access imperiled the positive grandparent grandchild relationship and has the parent acted arbitrarily. Giansante v. DiChiara 2005 26446 (ON SC), [2005] O.J. No. 3184
[8] Elements of a positive relationship have been summarized as: a strong loving tie between the child and grandparent; the relationship must be constructive in the sense it is worth preserving but if relationships are too poisoned the relationship may not be capable for preserving: the child’s age and the last time the child saw the grandparents. Torabi v. Patterson, 2016 ONCJ 210.
[9] The court, in making an order of access, must consider section 24 of the Children’s Law Reform Act which reads as follows:
Merits of application for custody or access
24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).
Best interests of child
(2) The court shall consider all 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. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10; 2016, c. 23, s. 7 (1, 2); 2016, c. 28, s. 2.
Past conduct
(3) A person’s past conduct shall be considered only,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1); 2016, c. 23, s. 7 (2).
Violence and abuse
(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person’s household; or
(d) any child. 2006, c. 1, s. 3 (1); 2016, c. 23, s. 7 (2, 3).
Materials and evidence before the court
[10] The case came before me on July 24, 2019 scheduled as a summary judgment motion although no one had filed a motion. The applicant grandmother asked to adjourn the motion as she had only recently retained new counsel. She also wanted to provide further evidence as to her good relationship with not only this granddaughter, but her other grandchildren. The applicant grandmother had filed a responding affidavit to the mother’s affidavit but no factum.
[11] She submitted that there was no formal summary judgment motion before the court. The only materials were the affidavit and factum of the applicant mother. She requested that the application by the grandmother for access to the child be dismissed. The mother did not move to amend her answer which asked for access in her discretion.
[12] I did not grant the applicant’s request for an adjournment. The grandmother’s application had been before the court for over a year. Both parties knew the issues at the assignment court in May 2019 when the matter was set for hearing. Both parties had been unrepresented at times but by the hearing of this motion both had counsel.
[13] I directed the hearing to proceed as a focused hearing with the respondent mother’s affidavit as the motion, for summary judgment or relief. I granted leave for oral evidence of the witnesses who came with the applicant including her partner and her eldest daughter Victoria.
[14] The applicant did not call her partner Norm, but she and Victoria testified. I ordered a transcript of the evidence that was not received until September 22, 2019. I directed that the transcript be sent to counsel to determine if they wished to make further submissions but none were received.
[15] It was agreed that the respondent could also provide brief oral evidence. The case proceeded as a focused hearing pursuant to Rule 2(2)(3) which provides that the court is to ensure the procedure is fair to the parties, save expense and time and deal with the case in a way that is appropriate to its importance and complexity. I gave a short-written endorsement on July 24, 2019 as to my reasons in proceeding in this way.
[16] At the hearing, I had before me, in addition to the oral testimony of the witnesses: the application; amended application; the parenting affidavit of the parties; and their answers. There were criminal records of the grandmother and child protection reports filed.
[17] On Sept. 10, 2018 I had made an order requesting the involvement of the Office of the Children’s Lawyer (OCL). The OCL accepted the referral and Ms. Flint, MSW, was assigned the file in November 2018. She was unable to complete her full report and did not make specific recommendations as to custody and access because the respondent mother declined to allow the clinician to observe visits with either the grandmother or father. However, a 46-page Section 112 report dated March 21, 2019 was filed. There was no dispute to the report filed by either party and both parties referred to the report. Although the court may make negative inferences when a party does not cooperate with the completion of a report given the circumstances, I do not make that inference.
[18] Counsel were given until August 28, 2019 to file written materials. Although the matter was adjourned to September 19, 2019 for a decision. The transcript of the evidence for the applicant grandmother and her daughter was not received and the matter was adjourned to December 2019 to receive the transcript and to allow counsel to file further material based on the transcript if they wished. No further submissions were made and the decision is being released prior to the return date of December.
[19] There was considerable delay in this application moving forward. The applicant grandmother’s initial application did not include the father as a party. On May 5, 2018 she amended her application but did not serve the respondent father with her amended application. The first case conference scheduled for July 16, 2018 could not proceed because of lack of the service on the respondent father. Further the grandmother had not provided her full criminal record and authorization to obtain and release information from child protection agencies. Further she did not file her case conference brief on time for the first case conference. Costs were reserved.
[20] The applicant grandmother in her Form 35.1 indicated her only criminal conviction was for mischief. When her criminal record was finally received it indicated that she was convicted of the following:
i. in April 1985 - obstructing a police officer,
ii. in August 1995 - failing to attend court and possession of a narcotic,
iii. in December 1995 - assault,
iv. in March 1996 - driving while her ability was impaired,
v. in June 1996 - unlawfully being in a dwelling house and
vi. in September 1996 - failure to comply with a recognizance and a breach of recognizance.
vii. in 2009 - driving with more than 80 mg of alcohol in her blood.
[21] After the July 16, 2018 case conference, the father did file an answer and his counsel also represented the applicant.
[22] The next case conference date was September 10, 2018. It could not proceed as the applicant grandmother and the respondent father were not present believing that the conference was scheduled for a different time during that day. However, neither had not filed conference briefs or confirmations. Permission was given for the respondent mother to bring a motion for summary judgment on the issue of her custody and the involvement of the office of the OCL was requested. No motion was brought.
[23] On March 27, 2019 the report from the OCL was received by the court and the parties. The respondent father withdrew his answer and consented to an order of custody to the respondent mother. His withdrawal indicated that he and the mother “had both addressed and expressed our questions and concerns in regards to our daughter, and now both feel there is no more concerns or reasons to continue this in a court matter”. An order was made on consent of all parties for the respondent mother to have sole custody of the child and the father to have access in the sole discretion of the respondent mother.
[24] The issue of the applicant grandmother’s access was adjourned to May 15, 2019 to set a date for summary judgment and on May 15, 2019 a date of July 24, 2019 was set.
Brief History of the relationship between the parties
[25] Although the father withdrew his answer, a brief history of the relationship between the maternal grandmother and respondent father is necessary to understand the dynamics between the parties.
[26] The respondent father at the time of the application or shortly thereafter was residing with the grandmother. In the section 112 report of the OCL the grandmother stated to the clinician that she brought her application because she supported the respondent father having access to his child and at the time, he was not exercising access. She said that she asked her lawyer to represent both parties. She also said that subsequently she fired her lawyer because of the conflict of interest and was going to represent both herself and the father in court as she has represented herself before and is experienced.
[27] On November 21, 2018 the court had recommended separate counsel for the grandmother and father.
[28] The applicant grandmother also told the OCL clinician that the relationship between her and the respondent father deteriorated as a result of him not arriving home on time with promised dinner for the applicant grandmother, her spouse and grandchildren in March 2019. He moved out of the grandmother’s home around the same time.
[29] Two weeks prior to that time she reported that the respondent father had been arrested in Toronto. He reported it was for public intoxication, but the applicant grandmother said it was for assault. The applicant grandmother reported there was some communication between the two parties and the respondent father allegedly told her that “he was sick of jumping through hoops” and that the grandmother applicant was “bipolar and that he is sick of her”. The applicant grandmother responded by telling him that “he is dead to them” and “good luck in the future” and “go F yourself, you are a deadbeat loser” (page 9 of section 112 report).
[30] After her relationship with the respondent father had ended the applicant grandmother reported to Ms. Flint that she had told him to not to have alcohol on his breath when he had access in March 2019. She also admitted that the respondent father had been abusive to the respondent mother when they were together, and he had various girlfriends living in her home one of whom was withdrawing from crack. The applicant grandmother also admitted to Ms. Flint that “she should’ve realized that it wouldn’t work when he was caught with rifles in his car and that he lied and had said the rifles were in order to teach his daughter to hunt” (page 9 of the section 112 report).
[31] The child is now having access with her father and the applicant mother supports his relationship with her daughter.
Evidence at the hearing
[32] At the hearing on July 24, 2019 I considered the affidavits of the parties and the oral evidence. Attached to the affidavit of the grandmother were several letters which were not admitted given they were not in affidavit form. However, there are certain facts that are not disputed between the parties as follows.
[33] The applicant grandmother has three daughters Victoria, now 33, Kristina now 28 and Angel now 26.
[34] The daughters have children and the grandmother has had access with 5 grandchildren at her trailer home that she shares with her partner of many years.
[35] The children Kristina and Angel had a difficult upbringing. Their mother was involved with the Children’s Aid Society on a regular basis because of her alcohol abuse and conflict with her late husband and the children. Kristina has fetal alcohol syndrome as a result of her mother’s alcohol consumption when she was pregnant and suffers from posttraumatic stress disorder. The applicant grandmother was a party to court proceedings with her late former partner. There was involvement of the OCL concerning her daughters. While incarcerated she lost custody of the children for a time.
[36] The OCL report outlines the considerable difficulties that the family experienced due to the applicant grandmother’s alcoholism and mental health issues.
[37] The grandmother indicates that she no longer drinks but her “reality” means that she does not drink more than several drinks after work and five drinks on the weekend. Of note, she attended an interview with Ms. Flint and had an alcoholic cooler in her coffee mug. Further when the clinician interviewed her partner, he also was drinking alcohol. The grandmother suffers from a number of health issues including cirrhosis of the liver. I find the grandmother does not make good decisions and she should not have been drinking during the interview.
Relationship between mother and father
[38] Kristina’s relationship with the respondent father has also been fraught with conflict and she has been the victim of domestic violence and the police have been involved from time to time in the relationship.
Grandmother’s relationship with her grandchild
[39] After the death of the respondent mother’s father, her stepmother exercised access with her and her younger sister and continues to be a positive support for her and her children.
[40] The OCL interviewed the child’s teacher in March 2019 and the teacher noted the child told her she enjoyed visiting with her grandmother where she was able to go horseback riding. The grandmother submits that the teacher was discussing the child’s relationship with her. I find she was not. By March 2019 the grandmother had very little contact with the child and only at family functions. Further it is the step-grandmother who facilitates the horseback riding now.
[41] Despite the considerable conflict and trauma that the applicant mother experienced with her parents, after the birth of her daughter she did allow contact with her mother. She lived in New Brunswick for either two or four years after the birth of the child and there was not much contact at that time.
[42] The applicant grandmother testified that when the child was about two, she and her partner went to New Brunswick to pick up her daughter, granddaughter and “grand dog”. She said that they lived with her in Hastings County for about three months although the respondent mother said it was for three weeks.
[43] When I reviewed the affidavit of the applicant grandmother, she refers to two times that she went to New Brunswick; once when her granddaughter was two years of age and once when the child was four years of age. In any event there was some relationship during that time but for a number of years the mother, father and child lived apart from the grandmother.
[44] The grandmother testified that she has her five grandchildren with her most of the summer and every other weekend. She lives in a trailer with her partner. The report of the OCL at page 30 and 31 summarizes her interview with the applicant grandmother’s partner, Norm.
[45] Norm confirms that he and the applicant grandmother had lived together for approximately 10 years. He describes the applicant grandmother having conflict with her children with every year a different daughter being mad at her and states they eventually end up forgiving each other.
[46] He believes that the issue between the grandmother and mother which has resulted in this application is that he would not allow the applicant mother to take his car anymore. He also indicated there was conflict around a decision to sell a trailer.
[47] He stated to the clinician that there has always been a lot of drama with his partner and her three daughters. He says access with the grandchildren in the summer is fine but in the winter their trailer is relatively small. He says that it sometimes causes issues with the younger children when the older children want to go out visiting on the road for a walk and the younger children cannot join them.
[48] The applicant grandmother testified that she spends time with her grandchildren at the water park, pool, train tracks, parks, walks in the woods and watching movies.
Nature of the preexisting grandmother – grandchild relationship
[49] The applicant grandmother describes an excellent relationship with all her grandchildren. She described having access to her grandchild all the time, 5 to 6 days on end.
[50] This evidence is not accepted by the applicant mother who indicates the contact was less frequent.
[51] The evidence of the eldest sister, Victoria is that her mother has an excellent relationship with all her grandchildren and that she just tries to give her daughters a break by taking the children as often as she can. She lives close to her mother and her children see their grandmother very frequently. She said that until the summer of 2017 her mother and Destiny had a great relationship. She said that the child had an opportunity to go to the “Big Apple” for the first time.
[52] She claims that her younger sister is manipulating Destiny and she finds it “disgusting”. Interestingly, she says she maintained a good relationship with her sister until the summer of 2018 when they went camping together. She said there was an incident or fight between her sister and her boyfriend and Victoria’s boyfriend intervened.
[53] Victoria testified that her sister had a great relationship with the applicant grandmother as long as she was getting a free car, money in her pocket or free babysitting. It is hard to follow this logic given that the applicant grandmother offers to give money to the respondent mother on birthdays and wants to provide free babysitting, yet the mother asks to control the contact between Destiny and her grandmother. Only the car belonging to Norm seems to be withheld.
Conflict between grandmother and mother
[54] The applicant grandmother said that the access with her granddaughter ended because she called the Society for the Prevention of Cruelty to Animals (SPCA) as a result of her grand dog. She said she came into her daughter’s home and she stepped in her “grand dog’s” urine and her granddaughter told her the dog was drinking its pee. The affidavit of the grandmother indicates that the dog had Lyme disease and her daughter had a $400 veterinarian bill. She also indicated that the mother would not let the dog drink enough water and would make the dog wait between 30 minutes to an hour to be let outside. Based on the evidence I find that the mother did take care of the dog. She paid for the veterinarian bill to treat the dog’s Lyme disease.
[55] The mother testified and denies the claim of animal neglect and claims that the report to the SPCA was malicious and not supported. It is important that after the report she continued to allow access.
[56] The respondent mother testifies that there is too much conflict between the applicant and her and further that her child does not want to visit with the grandmother. The child has told the OCL that she doesn’t want to see her grandmother and if she did have to go, she would ignore her. The applicant mother indicates that the child is a good student and very vocal but if she wanted to visit with her grandmother, if it was safe and supervised, she would support it.
[57] There was tension in the court when the respondent mother testified, and she claimed that her sister was gesturing at her causing me to request that the sister move out of the mother’s line of sight.
Is there a positive preexisting relationship between the grandmother and child?
[58] On the materials filed and the oral evidence I find that the applicant grandmother had considerable contact with all 5 of her grandchildren at her home. Present at the home was also Norm, her partner and sometimes Victoria. There is no evidence that there was specific contact only between Destiny and the applicant grandmother except when the child and mother lived with the grandmother for a short period of time. These were family gatherings that seemed to be enjoyed by all involved. Although pleasant to those involved there, I find there is insufficient evidence that the relationship was constructive and worth preserving in its earlier form.
Has the mother imperiled the grandmother – grandchild relationship and acted arbitrarily in limiting the access?
[59] The respondent mother testified that she didn’t terminate access after she found out her mother made the report to the SPCA but after her mother continued to make malicious reports to the Children’s Aid Society. There was subsequent contact between the child and her grandmother, but the mother was also present.
[60] In support of the mother’s statement, the OCL report outlines numerous reports to the Highland Shores Children’s Aid Society (Society) by the applicant grandmother which are deemed to be unfounded. These reports which were not disputed by the parties. (pages 34-38 of section 112 report)
[61] Despite the applicant grandmother’s allegations of abuse or neglect the concerns were not verified by the Society.
[62] The applicant grandmother testified that her daughter Angel told her that the applicant mother’s partner, Sean had “beat” a three-month old child and then changed her disclosure and said he had assaulted a three-year-old.
[63] The applicant grandmother did report the respondent mother to the Society. There is no evidence that the applicant grandmother as a result of these reports tried to talk first to her daughter. As in the case of the SPCA she made a report directly to the Society.
[64] The respondent mother testified and the report of the OCL supports that the Society was aware that she wished to reconcile with Sean and that she had a safety plan. Further Sean has fulfilled all the criminal court conditions and the mother has made a referral for counselling for both herself and her child as recommended.
[65] Although the applicant grandmother indicates she had a good relationship with the applicant mother, the evidence supports a very tumultuous, conflictual relationship. When the relationship is good there is communication and cooperation and the grandchildren visit their grandmother and step grandfather and when the relationship is poor there is little communication or contact.
[66] To say that this family is dysfunctional is an understatement.
[67] The grandmother also disclosed that as of July 1, 2019 she does not have a relationship with her daughter Angel or her children because of the release of OCL report.
[68] The applicant grandmother indicates she has had no real access with her granddaughter since 2017 except for two birthday parties in 2018. In her affidavit she indicates she saw her granddaughter at her birthday and at a granddaughter’s birthday. In her oral evidence she said she saw her granddaughter at two other granddaughters’ birthdays. She said she asked her granddaughter if she could have a hug and kiss and her granddaughter asked the respondent mother who nodded yes and there was a hug and kiss.
[69] The respondent mother testified that she would have allowed access between Destiny and her grandmother at her sister’s wedding, but the applicant grandmother told her she was no longer invited. Further the applicant grandmother had sent emails to the applicant mother recently telling her to “burn in hell” and “hoping that she hears her screams as she burns in hell”.
[70] This is inconsistent with the applicant grandmother’s written materials which indicate she is only looking for contact with her grandchild and that she wants to support the mother and wants to make up for her past wrongs.
[71] I find that the mother did not act arbitrarily in limiting the access. There is considerable evidence of continuing conflict between the parties and it is impacting the emotional health of Destiny who is caught in the middle of her grandmother’s and mother’s dispute.
[72] The child has spoken with the clinician of the OCL report and she is aware of the conflict between her grandmother and mother.
[73] Victoria testified that she and her mother do discuss these adult issues when the grandchildren are in the grandmother’s home but in the next room. She seemed to be dismissive of the children being able to listen to their discussions. Norm has said it is a small home. I find that all the grandchildren are likely well aware of the conflict between the grandmother and her daughters at times.
[74] Unfortunately, the report does not make recommendations as to custody or access although the parties did resolve custody on consent in March 2019. The report is not complete because the respondent mother would not allow access between the father and the child after he was charged with assault in Toronto and carrying the rifles in his vehicle. There had been one visit between the father and child not observed by the clinician but then the intervening events occurred. Given the child’s express wishes not to have a visit with her grandmother, the criminal involvement with the father and the father and grandmother living together and presenting a united front until late in the file I will not make a negative inference against the mother.
[75] Despite the respondent mother not allowing the clinician to observe the access between Destiny and the father she is allowing access now.
OCL report recommendations
[76] With respect to access between the child and grandmother the clinician indicates that the child did not wish to go to a visit with her grandmother and the clinician did not force the issue. At page 27 she notes:
“Destiny’s physical, mental and emotional needs appeared to be met while in the care of Miss Kristina Beckwith. It is of the utmost importance for Destiny to have a positive relationship with her mother Miss Kristina Beckwith. Given the level of dysfunctional history and the current conflict that exists between Ms. Francine Beckwith and Ms. Kristina Beckwith, if Destiny were to have contact with Ms. Francine Beckwith it would be extremely unlikely that she would not be drawn further into the conflict. In addition, it is important that as an adult Ms. Kristina Beckwith is empowered to make her own decisions and to direct her own life and that of her daughter separate and apart from Ms. Francine Beckwith who she identifies as her abuser.”
[77] The “uncompleted report” is very detailed and thoughtful. I found it extremely helpful in making my decision as to what is in the best interest of the child. It supports the position of the mother that there has always been conflict in her relationship with their mother. However, there are times where her mother (applicant grandmother) has been very supportive and nurturing too.
The Law on Summary Judgment Motions
[78] Pursuant to Rule 16(6) if the court finds there is no genuine issue regarding a trial the court may make a final order accordingly.
[79] In determining whether there is a genuine issue regarding a trial the court shall consider the evidence submitted by the parties and the court may exercise any of the following powers for the purpose unless it is in the interest of justice for such powers to be exercised only at trial:
a) weighing the evidence
b) evaluating the credibility of a deponent
c) drawing any reasonable inference from the evidence
[80] Paragraph 2(2) of the Family Law Rules the primary objectives of the Rules is to enable the court to deal with cases justly and dealing with a case justly includes ensuring that the procedure is fair to the parties, saving expense and time dealing with the case in ways that are appropriate to its importance and complexity and giving appropriate court resources to the case while taking account of the need to give resources to other cases as appropriate.
[81] The Supreme Court of Canada in Hyrniak v. Mauldin, [2014] 1 SCR 87, 2014 SCC 7 set out when there would be no genuine issue regarding a trial. “There will be no genuine issue regarding a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process:
(1) allows the judge to make necessary findings of fact
(2) allows the judge to apply the law to the facts and
(3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[82] Here I was able to hear from the parties and see first hand the conflict in the family relationship. It proceeded more as a focused hearing than summary judgment motion although I will still apply the summary judgment motion test.
[83] In Chapman, the court found that when parents are demonstrably attentive to the needs of their children, they have the right to make decisions about their children’s access to their grandparents. (para 22 and 24) Further the court observed that loving and nurturing relationships with members of the extended family can be important for children and concluded that when these positive relationships are imperiled arbitrarily the court may intervene to prevent the continuation of the benefit of the relationship. (para 19)
Summary
[84] In this case the grandmother and child did have enjoyable family visits but the conflict between the grandmother and mother puts the child squarely in the middle and any access ordered by me would not be in her best interests or in accordance her wishes at present.
[85] Despite the numerous reports to the Children’s Aid Society there has never been a court protection application with respect to the child.
[86] The child has regular contact with both sides of her family including aunts and uncles, cousins and other family members.
[87] Despite the concerns about the respondent mother’s partner, he and she have worked with the Society to alleviate the verified concerns.
[88] The section 112 report indicates that the mother’s home was clean and appropriate and that the mother met the child’s dietary and emotional needs.
[89] Although there is some concern that the child’s views and preferences may be influenced by her mother, she told Ms. Flint that she was happy living with her mother and her mother’s partner. She has said she does not wish to see her grandmother. Despite that wish, the respondent mother has taken the child to family events where she has seen her grandmother. She indicates that she will continue to do so and I believe her having had the benefit of seeing her testify.
[90] Although at one point the respondent mother did not support contact between the child and the respondent father there is now access between them, and according to the respondent mother and father, appears to be going well.
[91] The affidavit evidence, OCL report and oral testimony all support that there is considerable conflict between the respondent mother and applicant grandmother. I find that any access not controlled by the respondent mother would cause extreme distress and stress to the respondent mother who understandably feels herself victimized by the applicant grandmother.
[92] Despite the history between the respondent mother and applicant grandmother, the respondent mother has supported access at times.
[93] I find that the amount of access was not as frequent as indicated by the grandmother but likely more than indicated by the respondent mother. I find that the access usually occurred with other grandchildren at the applicant grandmother’s home primarily on weekends and in the summer. It was family access.
[94] There has been conflict over the years between the applicant grandmother and her two daughters, but this conflict may be resolved in the future.
[95] I cannot make an order of access that will ensure that the child is protected from the conflict between her mother and grandmother. Given the very aggressive emails sent by the grandmother to the mother and discussions held in her home within earshot of the children about the mother I find that the child would likely be aware of the grandmother’s anger towards her mother who is her custodial parent.
[96] The custodial parent should be given great deference to make decisions. Although the grandmother may have been acting out of concern for her grandchild when she called the Society, she could have made her concerns known first to the respondent mother and worked with her as opposed to behind her back.
[97] The reports to the Children’s Aid Society have been deemed to be malicious by the Society and not supported, to the upset of the applicant grandmother.
Conclusion
[98] The respondent mother asks the court to simply dismiss the application of the applicant grandmother. However, she did not ask to amend her answer, nor did she file a motion for summary judgment making that request. Therefore, it would be unfair to the applicant grandmother for the court to make a different order than the one requested by the mother.
[99] I order that the grandmother shall have access in the discretion of the mother and consistent with the child’s views and preferences. In this fashion if the relationship between the applicant grandmother and respondent mother improves as it has in the past, access can be afforded without the applicant grandmother being forced to come back to the court. Further it will allow for the grandmother to have contact at family events when the child and respondent mother are present.
[100] I will not specify access given my findings as to the conflict between the parties. The mother shall have full control of the access.
[101] Although the respondent mother asks for costs, I will not order costs given the procedural confusion of her not bringing a formal motion for summary judgment, not amending her answer to request no access, and the divided success of the motion.
[102] Final Order:
The applicant grandmother shall have access to the child Destiny in the sole discretion of the mother and consistent with the child’s wishes.
Each party to pay their own costs.
The December 3, 2019 date is vacated.
Under section 70 of the Children’s Law Reform Act, no person shall publish or make public information that has the effect of identifying any person referred to in any document relating to the application that appears in the court file or in this court order.
This court reserves the right to replace the parties and child’s name with initials.
Justice W. Malcolm
Date: November 7, 2019