Court File and Parties
Court File No.: FC-20-263 Date: 2021-11-12 Superior Court of Justice - Ontario
Re: Felicia Hinrichsen, Applicant And: Angela Regimbald and Alexandre Emond, Respondents
Before: Justice Mary A. Fraser
Counsel: Terese Ferri, Counsel for the Applicant Gonen Snir, Counsel for the Respondent, Angela Regimbald Julie Ada, Counsel for the Respondent, Alexandre Emond
Heard: October 12, 2021
Endorsement
[1] The Applicant grandmother, Felicia Hinrichsen (the “grandmother”) brings a motion for contact with her grandchild, Evelyn Felicia Emond born April 7, 2014 (“Evelyn”). Evelyn’s mother is the Respondent, Angela Regimbald (the “mother”) and her father is the Respondent, Alexandre Emond (the “father”). The mother and father are separated and share a joint, shared week-about residency arrangement with Evelyn.
[2] The grandmother lives in Killaloe, ON with her husband, Warren Ranger. They have been together for 17 years and married for 10 years.
[3] The mother lives in Petawawa, ON with her partner, Nick Marks. Both are in the military.
[4] The father also lives in Petawawa, ON and is also a member of the military.
[5] The grandmother maintains that she had a very close relationship with Evelyn and that from Evelyn’s birth until February 2020, she spent a considerable amount of time in her care, including:
a. Being at Evelyn’s birth;
b. Helping to care for Evelyn while the mother attended basic training when Evelyn was two years old;
c. Having Evelyn stay with her for three to seven days at a time;
d. Assisting with Evelyn’s care while she resided primarily with the father and the mother was posted in New Brunswick for training; and
e. Having Evelyn visit, including at the grandmother’s cottage near Deacon.
[6] The grandmother asserts that in February 2020 the mother arbitrarily suspended any contact between the grandmother and Evelyn. The grandmother states that she has attempted to restore contact with Evelyn but that the mother has refused to allow contact between them.
[7] The grandmother’s evidence is that around that time, the mother and her present partner were planning their wedding. The grandmother maintains that the mother borrowed money from her and was becoming increasingly “moody and unpredictable.”
[8] The grandmother states that Evelyn was visiting, and that Evelyn saw her partner, Warren Ranger, when he was showering. She advises that this occurred by accident as the bathroom door could not of be tightly closed and Evelyn had looked in.
[9] The grandmother told the mother what occurred. The mother became upset. This appears to have triggered a falling out which has not been repaired. The grandmother maintains that now the mother is making a number of allegations against her which have never previously been made and which she believes are self-serving.
[10] The mother maintains she opposes contact between the grandmother and Evelyn and she asserts she has concerns for Evelyn’s safety while in the grandmother’s care. She claims the grandmother is exaggerating the “bond” she maintains Evelyn has with her.
[11] The mother claims that as a child she was exposed to “grossly inappropriate sexual conversations” between her mother and her partner and that this inappropriate behaviour has continued and that she opposes Evelyn’s continued exposure to this.
[12] The father takes the position that he does not wish the grandmother to be granted a full weekend a month and shared holidays with Evelyn as this will affect the amount of time Evelyn is able to spend with him and his family. He is additionally concerned with the impact an Order for contact could have on both parents’ abilities to relocate as they from time to time may be expected to do as members of the military. He does express any concerns about the grandmother in his affidavit evidence. However, he also questions the need for such an order given Evelyn is well cared for by her parents ( he and the mother) who he feels ought to have the right to decide who is going to participate in Evelyn’s life without court intervention.
[13] Both the mother and the father oppose requesting the involvement of the Office of the Children’s Lawyer on the basis that it is unnecessarily intrusive to involve third parties, lawyers and social workers with Evelyn.
Analysis:
[14] Pursuant to section 24(1) of the Children’s Law Reform Act R.S.O. 1990, c.C12, in making a parenting order or contact order I am to only take into account the best interests of the child in accordance with that section.
[15] Section 24(2) provides that in determining the best interests of a child, I shall consider all factors related to the circumstances of the child, including those factors set out in section 24(3) and, in doing so, I am to give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
[16] Section 24 applies with respect to interim parenting orders and contact orders, and to variations of parenting orders and contact orders or interim parenting orders and contact orders.
[17] That stated, parenting determinations at temporary motions are challenging as decisions are being made without the benefit of a full evidentiary record. Temporary orders are intended to provide a “band-aid” solution pending a full hearing. The status quo is ordinarily maintained until trial unless there is material evidence that the best interests of the child requires a change.
[18] In this instance, Evelyn has not spent time with the grandmother since February 2020. Evelyn is 7 years old. Evidence of her views and comfort level are not available at this juncture.
[19] The mother’s affidavit materials would suggest there may be inappropriate behavior occurring at the grandmothers. The grandmother denies this is the case.
[20] The Ontario Court of Appeal in Chapman v. Chapman 2001 24015 (ON CA), [2001 CarswellOnt 537 (Ont. C.A.)], 2001 24015 held that the court should generally defer to parental autonomy and the decision of the custodial parent in relation to access between the parents' child and a grandparent. The decision further states that a court may intervene where there has been a positive relationship between the grandparent and grandchild that has been imperilled by the parent, acting arbitrarily. The onus to establish these facts rests with the grandparent seeking access.
[21] While this case was decided before the amendments to s. 21 and s. 24(2) of the Children's Law Reform Act and the legislation now states that the love, affection and emotional ties between the child and grandparent is a factor to be taken into account in considering the child's best interests, the amendments have been found to simply further articulate the class of persons who may seek an order for contact. It does not extend their rights or give them any special standing (See: R. (M.) v. L. (A.), 2017 ONSC 85 (Ont. S.C.J.).
[22] Based on the disputed facts before me, I am not able to conclude that the grandmother has established the facts required by the Chapman decision to justify an order for contact at a temporary motion. It could be that the mother's actions were arbitrary. However, until the allegations she has made have been properly determined, it is not possible to draw such a conclusion at this juncture. I am not therefore prepared to order contact on a temporary basis based upon the limited and disputed evidence before me.
[23] That stated, I am of the view that the involvement of the Office of the Children’s Lawyer could very much assist the court in making this determination, particularly if the court is provided with the benefit of a s.112 assessment and report.
[24] While I recognize that the parents feel that an assessment is unduly intrusive and unnecessary, I disagree. If the Office of the Children’s Lawyer is prepared to become involved, I am fully confident that any representative from the Office of the Children’s Lawyer tasked with conducting such an assessment, will do so with appropriate sensitivity. It is my view that Evelyn’s interests could be best determined with this assistance of a s.112 report.
[25] Disposition:
[26] The following order shall issue:
The grandmother’s request for a temporary order for contact is denied.
An order shall be made requesting the involvement of the Office of the Children’s Lawyer, preferably by way of a s.112 assessment and report.
If the parties are unable to agree on the issue of costs for this motion, the Respondents may file submissions concerning costs on or before November 17, 2021. The Applicant may file submissions concerning costs on or before November 24, 2021. In that event, cost submissions of both parties shall be no more than three pages in length, plus any offers to settle and bills of costs. If there are no submissions received by November 24, 2021, then there shall be no order as to costs.
M. Fraser J.
Date: November 12, 2021