COURT FILE NO.: FC-19-768
DATE: 20200914
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Carol Ann Taylor, Applicant
AND:
Stacy Denise Boon and Shane Taylor (deceased), Respondents
BEFORE: McDermot J.
COUNSEL: Jennifer K. Howard and Mason Morningstar, for the Applicant and added Respondent, Sherri-Lyn Taylor
Kara-Lynne Chapman, for the Respondent Mother, Stacy Denise Boon
HEARD: September 10, 2020
ENDORSEMENT
[1] The Respondent in this matter, Stacy Boon, is the mother of Sara Boon-Taylor, who has just turned nine years old. Sara’s father, Shane Taylor, tragically died suddenly on April 15, 2015, when Sara was just three years old.
[2] Because of the numbers of players in this scenario and for clarity’s sake, I will take the liberty of referring to the parties by their first names.
[3] The Applicant, Carol Taylor, is the paternal grandmother of Sara. Her daughter, Sherri-Lynn Taylor, is Sara’s paternal aunt. After Mr. Taylor’s death, both Carol and Sherri remained close to Sara, and Carol provided child care on an ongoing basis while Stacy worked full time in a pizza franchise owned by her and Shane at the time of his death. It is common ground that the parties got along well during the years after Shane’s death and Sara spent significant amounts of time with both Carol and Sherri including overnights at Carol’s home and cottage.
[4] Unfortunately, life got in the way. Shane had not adequately provided for either of Stacy or Sara in his will, leaving his entire estate to Sherri and naming Sherri as estate trustee. This was because he never updated his will (although he did provide for Stacy in a $100,000 life insurance policy). Estate litigation ensued. The parties remained, however, civil to one another, although Stacy obtained independent day care and no longer used Carol as a child care provider. Sherri and Carol’s time with Sara was gradually cut back until there was a motion served for production in the estate litigation. Stacy became upset over an affidavit authored by Sherri and Carol and ended all access on January 2, 2019. Other than some supervised visits with Carol arranged in late 2020 after a case conference, Sara has had no contact with her father’s family since December 26, 2018.
[5] After three supervised visits with Carol which the Brayden notes confirm went well, Stacy and her new partner, Richard Duhammel then moved to Dryden, Ontario and advised the OCL investigator of this in May, 2020.
[6] The original motion in this matter was brought by Carol on August 25, 2020. She requested four virtual or telephone visits with Sara per month. Because of the move to Dryden, that is the only access option available to Carol and Stacy has consented to Carol’s access request.
[7] Carol has brought, since then, an amended motion dated September 4, 2020; that motion requested that Sherri be named as a party to these proceedings, as well as a request that Sherri participate in the calls between Carol and Stacy. Stacy has consented to Sherri being named as a party, but not in Sherri’s participation in the calls: her position is summed up in her affidavit when she states that:
However, I am not agreeable to the re-establishing a connection between Sara and Sherri as Sherri has more consistently undermined my role as Sara’s mother, even to the point of being present in the background of Carol’s current phone calls and whispering to Carol during the calls despite knowing that I do not want her to participate in the calls in any way. I firmly believe that if Sherri is permitted to participate in Carol’s visits, that she will continue to undermine me and will continue to have a negative impact on Sara.[^1]
[8] The only issue argued was as raised in para. 3 of the Applicant’s amended Notice of Motion, which was whether Sherri could participate in the telephone calls or facetime between Carol and Sara.
Analysis
[9] This is a motion brought under s. 21(1) of the Children’s Law Reform Act[^2] (the “CLRA”) which provides as follows:
A parent of a child or any other person, including a grandparent, may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child.
[10] Under s. 24(1) of the CLRA, the determination of the court as to access by Sara to Sherri is governed by reference to the best interests of the child as determined under s. 24(2). Those factors include the “love, affection and emotional ties” which may exist between the child and the Applicants as well as the “familial relationship between the child and each person who is a party to the application”. Both of these factors militate for access between the deceased parent’s family member and the child if the relationship between the child and that family member is positive.
[11] However, there is substantial case law which confirms that there must be deference to parental authority in the best interests of the child, especially where there is a questionable relationship between the Applicant and the child.
[12] The leading case in Ontario in this regard is Chapman v. Chapman, 2001 CanLII 24015 (ON CA), [2001] O.J. No. 705 (C.A.) which was an appeal from a final order after trial granting access to a grandmother and her 8 and 10 year old grandchildren. Abella J.A. noted that there was a finding by the trial judge that the relationship between the grandmother and children was not positive, and that the purpose of the trial judge’s order was to “create” a positive relationship. She noted that this is the job of the parents and not the court, and if the parents’ decision was not arbitrary, it was not for the court to interfere with that decision unless it was in the best interests of the children to do so.
[13] The ratio of this decision has been summed up in several cases[^3] as an inquiry as to the following questions:
a. Is there a positive relationship between the Applicant and the child?
b. If there is a positive relationship, has the parents’ decision imperiled that relationship?
c. Has the parent acted arbitrarily?
[14] It is to be noted that the doctrine of parental deference may not be as compelling where the family of a deceased parent seeks access to a child: See Giansante v. Di Chiara, 2005 CarswellOnt 2190 (S.C.J.) and Torabi v. Patterson, 2016 ONCJ 210.
[15] Finally, there were a number of doubts expressed by judges involved in similar matters to addressing these issues in a motion where the evidence is often conflicting without an easy pathway to the truth. I can only recite the words of Nelson J. from Giansante v. Di Chiara, 2005, supra where he notes that waiting until trial to address the access issue may not meet the child’s best interests:
Although [waiting until trial] has much to commend itself in terms of efficiency, I am not satisfied that it would be appropriate to ignore the issue by dismissing it now. While it is probable that the trial can proceed in October 2005 it is also possible that it might not. There are a number of parties involved: five applicants and the respondent. The respondent is still struggling with injuries and psychological problems caused by the accident. Should an adjournment of the trial occur, it is unlikely that the case would be tried prior to April 2006. Jayden is turning twenty-three months old. He is forming attachments to significant people in his life now. An adjournment of an October trial would not be in this child's interests.
[16] This is even more applicable in COVID times where there is a large backlog of trials after the closure of the courts over the past six months. Trial is an unrealistic option in the coming year when we will be addressing that backlog for much of 2021 and it is unlikely that these parties will be able to have a trial until 2022 at best. Under the circumstances, the only realistic way to address disagreements between the parties is by managing the case through motions rather than waiting for trial; this is, unfortunately, the only means of providing adequate access to justice in the coming year.
[17] I will now address the Chapman criteria as to parental deference, and then whether access by Sara to her aunt meets this child’s best interests.
Was there a positive relationship between Sara and Sherri?
[18] In this case, there was a significant period of time between Shane’s death and the date that the Respondent determined that access was no longer appropriate between Sara and both Carol and Sherri. Shane died in 2015 and for a period of time, Carol and to a lesser extent, Sherri provided day care services for Stacy. It was only when Stacy re-partnered and the estate litigation began that the time sharing between these parties and Sara began to fall off.
[19] There was no question that everyone including Stacy always thought the relationship between Sherri and Sara to be positive for much of that time. It was only later in the day, once access ended that Stacy began to complain about Sherri’s conduct and her undermining of Stacy’s parenting. The complaints included the fact that both Carol and Sherri went against a counsellor’s recommendations regarding Sara’s grieving the death of Sara’s father, Sherri’s insistence of “over-gifting” for special events including Sara’s birthday, again contrary to Stacy’s wishes, and Sherri’s presence during the visits notwithstanding Stacy’s request that she not be present.
[20] However, this is an interim motion, and there are conflicting affidavits between the parties. I cannot help but look at the facts which are uncontested which includes the fact that for three years after Shane’s death, Stacy found the relationship with Shane’s extended family (which include only Carol and Sherri) to be positive enough to provide extensive time-sharing including overnights and weekends. The relationship was also positive enough that Stacy was content to allow Carol and Sherri to provide child care for Sara.
[21] There are texts between Sherri and Stacy from June to August, 2018 which clearly indicate that Stacy still thought that it was in Sara’s best interests to spend time with Sherri and her mother. In August, 2018, Stacy said that, “There was never anything said about you guys not seeing Sara. I would not do that.”[^4] As late as November of 2018, the texts indicate that there still did not seem to be a problem setting up Sunday visits.
[22] To all intents and purposes, the parties seemed to be on all fours that the relationship between Sherri and Sara was positive until January 2, 2019 when the access stopped. It appears as though this occurred because of the estate litigation and the material filed by Sherri and Carol in that litigation. The lawyer in the estate litigation said that the access ended because of Sherri continuing with a motion for production in that litigation. That was corroborated by the statement to Derek Lee that Sherri and Carol would never see Sara again because of an affidavit filed in the estate litigation. Those reasons do not relate to the relationship between Sherri and Sara, but to the adult issues connected to the estate litigation. Significantly, Stacy does not complain about being undermined by Sherri when she cut access off; she complains about the perceived betrayal in the litigation involving Shane’s estate.
[23] To all intents and purposes, as disclosed by Stacy’s own statements at the time, the relationship between Sherri and Sara appears to have been positive as of December, 2018 when access stopped. And the evidence indicates that the relationship between Carol and Sara is still positive if the supervised visits are any indication. As well, at one point during the December 1, 2019 supervised visit, Sara pointed at a picture on the Applicant’s refrigerator and said that “she misses her, and did not like what happened.” That was a picture of Sherri and Carol.[^5] It appears that Sara still enjoys her relationship with her grandmother, and still remembers Sherri who was also involved with Sara.
[24] An OCL investigation was requested in order to assess the relationship between Sara and her grandmother. Unfortunately, because there was a consent for visits with Carol and because of the mother’s move to Dryden, Ontario, that investigation was never completed.
[25] I find that both Carol and Sherri had a positive relationship with Sara until access was terminated in January, 2019. The fact that Sara still remembers both of them fondly is evidence of the quality of that relationship, which still exits.
Have Stacy’s actions imperiled that relationship?
[26] The actions of Stacy have obviously significantly impaired the relationship between Sherri (as well as Carol) insofar as Sara has lost a connection with her father’s family and as time goes on without seeing her aunt, Sara will begin to forget that connection.
[27] It seems that it is Stacy’s goal to make a new start with her new partner in Dryden. She was upset that Sherri and Carol had insisted upon recalling her father, Shane, to Sara contrary to the advice of a child psychologist and she said that Sara was upset after visits with both of them because they insisted upon giving more information about Shane’s death to Sara than she could handle. Stacy notes that Sara is now close to her new partner, who she refers to as “Dad”. Stacy sees her move to Dryden with her new partner as being positive for Sara.
[28] To be fair, the decision as to how Shane’s death should have been addressed with his four-year-old daughter is a parental decision, something that Sherri should have accepted whether she liked it or not. However, grief reactions are chaotic and sometimes inappropriate and it is clear that, at this point, that Carol and Sherri have accepted the move to Dryden and the limits this puts on their relationship with Sara. Those limitations mean that there is very little opportunity for Sherri to undermine Stacy’s parental relationship with Sara as we are discussing short Skype visits which can have only limited effect on Sara.
[29] As well, there was an issue raised during argument by Stacy’s counsel, wherein it was concerning to her that Sherri might introduce her recently born son, Sara’s step-brother, to Sara before she was ready. When I asked counsel for Sherri and Carol about this, I was told that Sherri would respect that direction as well and allow Stacy to make that decision as to when Sherri’s brother would be introduced to Sara.
[30] I finally note the statement in para. 49 of the Respondent Mother’s affidavit, wherein she says:
It should be noted that Sara has not had any direct contact (either in person or by phone) with Sherri in almost two years. She does not ask about her, she does not ask to speak with her, and she does not ask to visit with her. Sara does not mention her aunt or refer to memories of her. There is no indication that my decision to terminate her contact with Sherri has been detrimental to her.[^6]
[31] It may be that the termination of the relationship has not been detrimental to Sara. However, this paragraph also demonstrates that the relationship between Sherri and Sara, which I have found to be positive, was also imperiled by Stacy’s actions, which have resulted in Sara’s memories of her aunt being increasingly lost.
[32] I therefore find that Stacy’s decision to end access in January, 2019 was something that would impair the relationship between Sherri and Sara.
Was Stacy’s decision to end access arbitrary?
[33] Stacy says in her materials that the estate litigation was not the major reason for the termination of access. She says that was really the tipping point, but she had previously had concerns relating to the fact that Carol and Sherri had ignored her parenting decisions concerning Sara, resulting in Sara having difficulties before and during access visits.
[34] If that was the case, it is not reflected by the communications made by Stacy during that time. If the mother was having doubts, she did not disclose this to Sherri when she said in text messages in August, 2019 that she would “never” cut Sara out of Sherri and Carol’s lives. Although she was reducing the access back to Sundays from then on, the text messages seem to indicate that she seemed to be content to permit Sara in seeing her grandmother and aunt right up to December, 2019.
[35] As noted above, the best indication of the truth in a contested motion are statements made by the parties at the time of the occurrences in question. And those communications indicate that the reason for the termination of access was Stacy’s anger over the estate litigation.
[36] Stacy’s lawyer put his client’s views into writing on January 2, 2019, when he said that she was terminating access because “it looks as though your client plans to move forward with the motion and not attempt to resolve the litigation that continuing visitation between your client and Sara can no longer be maintained.”[^7] This was confirmed by Derek Lee who deposed that, on May 18. 2020, when he tried to discuss the issue with Stacy, she said “that Sherri and Carol will never see her daughter again, after what they wrote in the affidavit [in the estate litigation]”.[^8]
[37] In none of these statements is the allegation of parental undermining addressed by Stacy. Nowhere does she speak of the access not being in Sara’s best interests; nor did she mention to Derek Lee in May, 2019 that Sara was doing better in the absence of her grandmother and aunt. Uppermost in her mind is her perceived betrayal by both Carol and Sherri in the estate litigation. It is telling that Sherri, the beneficiary of Shane’s estate and the estate trustee instructing counsel in that litigation, is the one person who is the subject matter of this access motion; Stacy has come around to permitting access between Carol (peripherally involved in the estate litigation) but not Sherri (who was the beneficiary of Shane’s estate and perceived to be the driving force in that litigation).
[38] As Stacy seemed to be unconcerned about Sara’s best interests in denying access during the early part of 2019, I can only find that Stacy terminated access because of her sense of betrayal in the context of the estate litigation. I therefore find that she was arbitrary in her decision to suspend access to both Carol and Sherri.
Best Interests
[39] The case law is clear that parental autonomy is important in addressing the question of access between children and non-parent relatives. On several occasions, Abella J.A. says in Chapman that the disruption of access in the face of parental resistance was not in the children’s best interests. At para. 20, she states:
In this case, however, the issue is not about preserving a positive relationship, but about whether the disruption and stress generated by the grandmother's insistent attempts to get access on her own terms are in the children's best interests.
[40] However, as noted in that case and others, an exception may very well be where the relationship between the child and the access claimant is positive. In Chapman, there was a specific finding that the relationship between the children and the grandmother was not positive. In both other cases cited by the Respondent Mother, Deshane v. Deshane, 2018 ONSC 6584 and Young v. Young, 2019 ONCJ 747, similar concerns were expressed of a doubtful relationship between the access seekers and the children in question.
[41] That is not reflective of the present case. I have already found the relationship between Sherri and Sara to be positive in nature. There was evidence from the supervised access notes that Sara remembered her aunt fondly, and there is no question, as noted in the texts, that Sherri was heavily and positively involved in her niece’s life for years after Shane’s death right up until the termination of access.
[42] This is more important where there is a death of a parent resulting in the access issues concerning the deceased’s extended family. Relying upon Nelson J.’s statements in Giansante, Kurz J. in Torabi v. Patterson, supra, stated at para. 57:
That deference 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.
[43] I understand Stacy’s desire to put the tragic circumstances of Sara’s father’s death and the ensuing estate litigation behind her. However, the only two relations to Sara’s late father are Sherri and Carol. Sherri lives with Carol and indicates that she will honour any reasonable restrictions on the issues she addresses with Sara. The relationship is positive for Sara. The access requested will be extremely limited, and will not provide much, if any, opportunity to Sherri to undermine Stacy’s parenting of Sara.
[44] I therefore find it to be in the best interests of Sara to have Sherri involved in the access that Carol exercises to Sara notwithstanding Stacy’s determination to prevent that from occurring. I will confirm in my order Sherri’s duty to defer to reasonable parental decisions and restrictions made by Stacy.
Order
[45] There shall therefore be a temporary order as follows:
a. On consent, temporary order to go as per para. 1 and 2 of the Applicant’s Notice of Motion at Tab 15 of the Continuing Record;
b. Not on consent, temporary order to as per para. 3 of the said Notice of Motion.
c. The Respondent, Sherri-Lynn Taylor shall respect and adhere to all reasonable parental directions concerning Sara communicated to her by the Respondent Mother.
[46] I agree with Nelson J. when he said in Giansante that costs would not assist these parties in the resolution of the issues between them. The estate litigation was corrosive and damaging for the relationship between these parties and an award of costs against Stacy would do the same. No order as to costs.
Justice J.P.L. McDermot
Date: September 14, 2020
[^1]: Affidavit of Stacy Boon sworn September 2, 2020, para. 48 [^2]: R.S.O. 1990, c. C.12 [^3]: See Young v. Young, 2019 ONCJ 747 at para. 23 and Giansante v. Di Chiara, 2005 CarswellOnt 2190 (S.C.J.) [^4]: Ex. “D” to the affidavit of Sherri-Lynn Taylor sworn September 8, 2020. [^5]: Ex. “F” and “H” to the affidavit of Carol Taylor sworn August 25, 2020. [^6]: Affidavit of Respondent Mother sworn September 2, 2020, para. 49 [^7]: Ex. “C” to the affidavit of Carol Taylor sworn August 25, 2020. [^8]: Affidavit of Derek Lee sworn August 25, 2020, para. 13.