COURT FILE NO.: 140/20
DATE: 20210322
SUPERIOR COURT OF JUSTICE - ONTARIO
FAMILY COURT
RE: Fiona Jacqueline McDonald, Applicant
AND:
Shallyne Deborah Coelho, Respondent
BEFORE: The Honourable Justice M. J. Donohue
COUNSEL: S. King, Counsel for the Applicant
F. Guilbeault, Counsel for the Respondent
HEARD: March 19, 2021
CORRECTED DECISION – August 26, 2021
Paragraph numbering added. Spelling of Coelho corrected.
Para. 16, spelling of “criticism” corrected (1st line).
No changes to content have been made.
ENDORSEMENT
[1] The respondent mother brings her motion seeking to have the applicant’s pleadings dismissed, and any access or contact with the applicant grandmother to be in the discretion of the mother. The subject child is five and a half years old. There has been a cessation of contact since March 6, 2020 (one year ago).
[2] The applicant grandmother brings this motion for alternate weekend access/contact.
[3] The child’s father is incarcerated and did not respond to this motion. The father has not filed an answer in this application.
The Motion to Dismiss
[4] No evidence or argument was given why the applicant’s pleading should be dismissed without a hearing. On the pleadings before me there are triable issues as to whether a positive relationship existed between the applicant and the child; whether the mother has acted arbitrarily; and what is in the best interests of the child.
[5] The court was not given any basis for why the pleadings are to be dismissed out of hand. There are no procedural irregularities alleged.
[6] The respondent’s motion to dismiss the applicant’s pleadings is dismissed.
Access/Contact between the Applicant Grandmother and the Child
[7] The respondent mother asks the court to order that any contact be in the discretion of the mother. For the last year the mother has not allowed or arranged any contact. In essence, this is a request that there be no contact between the grandmother and the child.
[8] The applicant grandmother asks the court to order alternate weekend access, from Friday after school to Sunday at 7:00 p.m. with the exchange to be at a third party location, to be agreed upon.
The Law
[9] Both parties referred to Chapman v Chapman, 2001 24015 (ONCA) as the leading case which recognized that the court is to give deference to the custodial parent’s decisions. At paragraph 21 the court stated,
In the absence of any evidence that the parents are behaving in a way which demonstrates an inability to act in accordance with the best interests of their children, their right to make decisions and judgments on their children’s behalf should be respected, including decisions about whom they see, how often, and under what circumstances they see them.
[10] Since that decision, the courts have looked at:
• Does a positive grandparent-grandchild relationship already exist?
• Has the parent’s decision imperiled the positive grandparent-grandchild relationship?
• Has the parent acted arbitrarily?
• Has the parent connected to the grandparent died or been incarcerated?
[11] Following these considerations, if the court refuses to defer to the parent, then the issue is whether access/contact is in the best interests of the child?
Grandparent-Grandchild relationship
[12] The evidence provided by the applicant grandmother shows significant contact between herself and the child since the child’s birth. The evidence supports that there was weekend access at least every month. The evidence is conflicting as to whether it was every weekend, two weekends a month or less but it was significant for four and a half years. The child had her own bedroom at the grandmother’s house.
[13] The grandmother paid for and arranged extracurricular activities with the child including soccer, dance, swimming, and summer camps. She purchased clothing and presents for the child and has continued to do so despite access/contact being stopped.
[14] The evidence presented by both parties is that the child’s father abused drugs, is violent, and that he is currently incarcerated. The respondent mother is clear that she cannot have the child’s father in the child’s life and feels in danger from him. This appears to be well-supported and not disputed.
[15] The text messages between the applicant and respondent are almost all polite, respectful, helpful, cooperative, and mostly loving.
[16] There is one criticism of the grandmother teaching the child to say the mother’s boyfriend is a goof. Otherwise, there is no evidence of poor parenting, poor caregiving, or negative influencing of the child.
[17] The mother’s affidavit makes a number of bald statements that the grandmother has belittled and degraded the mother. There are insufficient particulars to give this weight.
[18] Their communications, as set out in the back and forth text messaging, speak to a respectful relationship between the grandmother and mother.
[19] The evidence supports a longstanding positive relationship between the grandmother and the child.
Has the Mother Imperiled the relationship? If so, was it done Arbitrarily?
[20] The mother has stopped the relationship by cutting off all contact in March 2020.
[21] The mother points to the evidence that in April 2019 the grandmother reported to the CAS that the child said she saw “Tyler’s big boy pee-pee”. The investigation by the Society found no concerns but the mother explained how upsetting this was to both her and her partner Tyler.
[22] The evidence shows that after this incident the parties were able to resume cordial relations and access was restored between the grandmother and child.
[23] The precipitating event for stopping contact was when the grandmother dropped off the litigation papers which Mr. Wood wished to have served on the mother. Mr. Wood had asked his sister to do it and when her child was ill she asked the grandmother to do it.
[24] The mother’s evidence is that she stopped contact because the child reported seeing the grandmother with Mr. Wood and the mother did not want him to have any contact with the child. This evidence lacks detail and is not as persuasive as the mother’s own words in her last text in February 2020,
I thought you weren’t to get involved with anything to do with me and Craig [the father] ever. After everything that has happened. It makes absolutely no sense to me how things like this just continue to happen I just don’t get it even with a full out restraining order and CPS warnings some how your involved even if it’s just passing along a letter witch happens to be about Daniella me and Craig…I know how it is to take care of a sick baby if Michelle [Craig’s sister] was the one to serve me I would have been more then respectful towards her situation and we could have met. In no way you had to be that person and Craig having zero brain cells he just incriminated him self buy using you to give me papers?! I’ve been more than fair. [sic]
[25] The grandmother’s response was clearly related to this issue of service of papers,
Shallyne, Michelle gave me the envelope as I explained. I am not involved with your custody access. Nor do I wish to be as we already discussed. All I want is to have my relationship with Daniella continue. Nothing more. Nothing less. I hope this will not set us back.
[26] The service of a document by the grandmother on behalf of her daughter, who’s child was sick, should not have formed the basis for eliminating a long-standing relationship which the child Daniella had with her grandmother. The court understands that family litigation is emotional and stressful but it appears clear the mother was acting to serve her own concerns here and not thinking of the best interests of the child.
The Importance of the Relationship
[27] From the materials filed, it appears unlikely that there will be a relationship between the father, Craig Wood, and the child. He is presently incarcerated. He is facing criminal charges which the mother states are extremely serious. She has hidden her address as she is concerned about her safety.
[28] The child’s paternal grandmother seeks to maintain that connection in place of her son. This is a serious consideration.
[29] It was acknowledged by counsel for the grandmother that any proposed contact would be without the involvement of the father, Craig Wood.
Order
[30] I am persuaded that it is in the best interests of the child to have a connection with her paternal family when her father is unlikely to be present in her life.
[31] The child is now five and a half and has not seen her grandmother in an entire year. A gentle reintegration of contact time would best serve the child and reassure the mother that the contact is going well. The applicant is to take all necessary steps to ensure that the father is not present or involved (even virtually) during any of her contact time.
[32] On a temporary without prejudice basis, I order contact time for the applicant of two full Saturdays per month from 9:00 a.m. to 5:00 p.m. I order the first and third Saturdays of the month to be the contact days, or as agreed by the parties in writing. The exchange location is to be at a neutral place, as agreed by the parties.
[33] If the parties are unable to agree on the exchange details, they are to make submissions in writing of one page each within seven days of this decision. Failing receipt of submissions, the matter will be considered resolved at the expiry of those seven days.
Costs
[34] If the parties are unable to resolve costs, the applicant may file one page submissions plus costs outlines and any offer to settle the motion by April 9, 2021. The respondent may file one page submissions plus cost outlines and any offer to settle the motion by April 16, 2021. Failing receipt of submissions by April 19, 2021, the costs will be considered resolved.
M. J. Donohue J.
Date: March 22, 2021
COURT FILE NO.: 140/20
DATE: 20210322
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Fiona Jacqueline McDonald, Applicant
AND:
Shallyne Deborah Coelho, Respondent
E N D O R S E M E N T
M. J. Donohue J.
Released: March 22, 2021