Jefic and Grujicic v. Trovao, 2022 ONSC 7224

COURT FILE NO.: FC-20-00000081-0000

DATE: 2022/12/23

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

NEMANJA JEFIC AND GEORGINA GRUJICIC

Applicants

– and –

BRITTNEY TROVAO

Respondent

Self-Represented

Anna Towlson, Counsel for the Respondent

HEARD: November 21 – 25, 28 – 30 and December 1, 2 and 6, 2022

the honourable justice l. madsen

REASONS FOR JUDGMENT

I Overview

1. This case is primarily about parenting time for a father and contact for a paternal grandmother, in relation to a six-year-old girl, E. My decision follows an eleven-day trial.

2. The Application was technically brought jointly, although, as will be seen below, the positions of the father, Nemanja Grujicic[^1] (“Nem”), and the paternal grandmother, Georgina Grujicic (“Georgina”) were not wholly aligned.

3. While the Application also sought decision-making and residency, those issues were resolved in the Final Consent Order of Justice Braid dated January 17, 2022. Under that Order, the mother, Brittney Trovao (“Brittney”) has sole decision-making, and the child resides with her. In her Answer, Brittney sought ongoing and retroactive child support for E. At the conclusion of the trial, Nem consented to that relief.

4. The issues for the trial were thus parenting time for the child with her father, Nem, and contact with the paternal grandmother, Georgina. Brittney is agreeable to both. The issue to be resolved is what the appropriate terms are.

5. During the trial, it became clear that in reality this was Georgina’s Application, into which Nem, who has self-reported intellectual challenges and mental health issues, was unwillingly drawn. While Georgina attempted to present herself as an advocate for Nem, her conduct in the case (not just in the trial) suggests a concerted effort to usurp his parenting role, and to acquire for herself the parenting role that she feels he should have, but for his disabilities. She has exerted considerable control over him, although as seen below, his own gentle and child-centered voice came through in this trial. In my view, Georgina considerably underestimates Nem’s maturity and capacity.

6. Regrettably, this trial also drew in Nem’s brothers, Stefan and Aleksandar Grujicic (“Stefan” and “Aleks”), who also testified. Georgina has at times wielded significant influence over them, but I find that they testified bravely, honestly, and independently in this trial. It is clear that they love their mother, but also that they have a realistic assessment of her challenges and the high-conflict manner in which she engages in the world. Their evidence is helpful to my determination.

7. For the reasons set out below, and with details set of the Order set out more fully below, I order that:

a. Commencing December 31, 2022, Nem shall have regular parenting time with E., a minimum of five hours on alternate Saturdays or Sundays, in the presence of a third party, on the specific terms set out more fully below; in addition he shall have holiday time as set out below;

b. Commencing December 31, 2023, Georgina may have contact with the child from 9:00 a.m. to 1:00 p.m. on a Sunday once per four weeks, in the presence of a third party. In addition, Georgina may, subject to the approval of both Nem and Brittney, participate in one of Nem’s visits each month; These visits may be suspended in Brittney’s sole discretion;

c. Commencing December 1, 2022 and on the first day of each month thereafter, Nem shall pay child support for E., born [date redacted], in the amount of $153 based on his income of $18,942 Further details with respect to ongoing child support are particularized below; and

d. Retroactive child support is set at $4,384 and shall, commencing January 1, 2023, be paid at a rate of $100 per month until paid in full. Nem may accelerate the payments.

8. I have ordered grandparent contact only because it is consented to by Brittney. I would not otherwise have ordered specified contact by the paternal grandmother to the child E.

II Procedure

9. Shortly before hearing this trial, I heard another trial in which Georgina was a party. She and her former husband, Zeljko Jefic (“Zeljko”), who resides in Manitoba, were before me for a thirteen-day trial on an interjurisdictional support variation. All parties consented to me hearing this trial. Indeed, it was specifically requested by Georgina on multiple occasions. I advised the parties that no evidence in one trial would be considered in the decision in the other trial.

10. This trial took place by Zoom over 11 days. This was an effective mechanism in the context of this high conflict case. Nem also indicated that in light of his anxieties and disabilities, the online forum was preferable to an in-person trial. He was able to have his cat, Susie, join him at various points and he advised that this relieved stress. At no point did any party express a preference that the trial take place in-person at the Courthouse.

11. Both Nem and Georgina were self-represented. At the outset of the trial, Georgina requested permission under Rule 4(1)(c) of the Family Law Rules, O. Reg. 114/99 [“the Rules”] to “represent” Nem, given his intellectual and mental health challenges. Leaving aside whether she would in any event have been an appropriate individual for that role, I ruled that she could not both be a party and “represent” another party in the same trial. I held that Nem must speak for himself in relation to his own claims before the Court. I did permit Georgina to assist him in preparing an outline of his testimony. As indicated above, Nem was well capable of speaking and advocating for himself. Nem did not request that his mother speak for him at any point in the trial.

12. Throughout the trial, Nem articulated his position effectively and thoughtfully, and did not, in any event, need “representation” by Georgina. At various points, Georgina tried inappropriately to “assist” Nem, but this was primarily when Nem’s testimony displeased her. Georgina sought to undermine Nem when she questioned him, notwithstanding that they were co-Applicants.

13. On the consent of Brittney, and recognizing the Court’s duty to assist self-represented parties, I assisted Nem in his examination-in-chief, when it became apparent that questions would help him tell his story. Similarly, to assist Georgina, I used questions to assist in focusing her evidence. At no point did any party object to my assistance to another party.

14. Georgina had great difficulty conducting herself appropriately in the trial. She interrupted frequently, persistently argued with the Court, repeatedly gestured (nodding her head furiously, throwing up her hands, laughing dramatically) and was unable to follow Court direction. She oscillated between complimenting the Court for the manner in which parties were assisted, suggesting at one point that the Court deserved “5 ++ stars”, to repeatedly challenging my determinations on issues such as timing, sequence of witnesses, and the like. I imposed clear timelines on all evidence in order to ensure that the trial could be completed efficiently, with due regard to the many other families who require the Court’s assistance. See Rule 2(2) - 2(5) of the Family Law Rules.

15. I am advised by the registrar that after the evidence had concluded, the Court received an email from Nem. I have not considered that email as it is not appropriate to communicate with the Court in this manner.

A Note about the “Joint” Application and “Manipulation”

16. At many points in this trial and during the case more generally, Georgina accused others, in particular Margaret Trovao [“Margaret”] (Brittney’s mother) and Brittney, of manipulating Nem for their own purposes. Having heard this matter for 11 days and reviewed the extensive documentary evidence put before the Court, I conclude that any manipulation of Nem has in fact been by her.

17. While the Application is presented as “joint”, it is clear that this is Georgina’s Application in which she joined Nem because it suited her purposes. The initial Application was clearly written by her, although it purports to use Nem’s voice; multiple emails from her purport to be signed by her and Nem together, and at least one affidavit was written by her but signed by Nem. While Georgina sought a DNA test, Nem was completely opposed to that because he knew that E. is his daughter.

18. Nem agreed in oral evidence that the Court case was his mother’s and that he had told Brittney he didn’t agree with what was in the paperwork. He signed the documents that his mother put in front of him. Throughout the Court case, he didn’t want to get involved because he wanted to stay out of the drama and bickering. He said that the case caused him so much stress that he stayed in Bosnia for almost a year. He did not attend multiple Court appearances. When Georgina brought a Motion seeking that he have custody, Nem was not even in Canada. Nem was clear that he did not agree with his mother taking matters to Court.

19. During the trial, Georgina interrupted Nem when what he said was not to her liking. She repeatedly tried to suggest that there were things he didn’t know, or couldn’t be “expected” to know, because of his intellectual disability. At one point, when Nem put his hands over his face, she said it was because Brittney’s lawyer was causing him to break down and he might flee. When I asked Nem about that the following day, he stated that he did that because of all the interruptions. It was Georgina who was interrupting. Nem noted that even his daughter, E., who is 6, knows not to interrupt.

Evidence Generally

20. Numerous witnesses testified and many documents were entered into exhibits. I have carefully reviewed all of the evidence in arriving at my decision herein, whether directly referred to or not.

III Steps in the Litigation

21. As indicated above, the Application was initially brought on January 30, 2020. An Answer was filed on March 16, 2020. An Amended Application was brought in December 2020 in which the custody claim was amended to reflect joint custody as between Nem and Brittney (as opposed to custody to Georgina and Nem, which was originally claimed).

22. On December 4, 2020, Justice Gordon ordered paternity testing, on consent. This had been agreed to in Brittney’s Answer filed nine months earlier.

23. On March 4, 2021, Justice Piccoli ordered, on consent, two visits for Nem supervised by Stefan, and expansion of Nem’s time thereafter if Stefan agreed. No specified time was ordered for Georgina.

24. In the fall of 2021, while Nem was in Bosnia, Georgina brought a Motion seeking custody on Nem’s behalf. It appears that there have been at least two other Motions also brought although Georgina did not properly file materials. When one of the Motions came forward in January 2022, it was Brittney’s counsel who ensured that Georgina’s materials were before the Court.

25. On December 9, 2021, the Office of the Children’s Lawyer (“OCL”) released its report recommending residency with Brittney and sole decision-making by her, with consultation with Nem.

The January 17, 2022 Order

26. On January 17, 2022, a long Motion went before Justice Braid. At that time, the parties consented to an Order that Brittney have primary residency and sole decision-making, and that E. not be removed from Ontario. Parenting time for Nem by Zoom was also agreed to. Justice Braid also ordered, not on consent, that Brittney make her best efforts to accommodate some in-person contact for the paternal family, but that a third party must be present for Georgina’s time with E.

27. At the commencement of trial, Georgina alleged that the January 17, 2022 Order was obtained by “fraud” and stated that she wanted the Order to be set aside. No Motion was before the Court, and I advised the parties that the trial would proceed on the basis that decision-making and residence had been resolved on a final basis, as they had. Nonetheless, Georgina continued to state that decision-making should be changed in her favour.

28. I note that in the amended Application, joint decision-making was sought as between Nem and Brittney. Georgina did not seek decision-making for herself. Georgina acknowledged on several occasions in her testimony that E. should reside with Brittney, and in closing submissions, she sought alternate weekend time, not residency of E.

29. I ordered the transcript of the January 17, 2022 appearance and it was provided to all parties via CaseLines. The transcript is clear on its face that the Order regarding decision-making and residency was consented to on a final basis. The transcript also reflects that the challenges experienced during the trial in terms of Georgina’s interventions and interruptions were also fully in evidence before Justice Braid.

IV Witnesses and Credibility

30. I make the following general comments about witness testimony and credibility in this trial:

Todd Perreault, OCL Investigator

31. Mr. Perreault was the Investigator for the OCL. He has extensive experience as a social worker and as a clinical investigator. He testified as the Court’s witness.

32. I found Mr. Perreault to be forthright and credible Mr. Perreault answered questions thoughtfully and was able to recognize a misstatement in his report (about the frequency of Nem’s parenting time).

33. Towards the end of his evidence, Mr. Perreault appeared to try to appease Georgina, likely in response to what I find was her combative presence in Court. While his report recommended that Nem have parenting time supervised by persons other than Georgina and that she have grandparent contact once per month as part of Nem’s supervised visits, towards the end of questioning at trial, he seemed to suggest that Georgina’s contact with E. need not be supervised, that Georgina could supervise Nem’s time, and that Georgina could be part of alternate weekend parenting time when Nem has repaired his relationship with E. I find that these statements were not consistent with his report.

34. I prefer the analysis and conclusions in Mr. Perreault’s report to his oral evidence on these points. I believe Mr. Perreault was affected by what he described during his evidence as Georgina’s “strong personality.”

Georgina Grujicic, Paternal Grandmother (Applicant)

35. There is no doubt that Georgina loves her granddaughter and that she believes she is acting in E.’s best interests.

36. However, in this case and trial, Georgina has assumed a hostile and aggressive stance both towards Brittney as well as her mother Margaret. When the views of her sons have displeased her, she has assumed a hostile stance towards them as well. The impact of this has coloured how she has chosen to engage throughout, what she has perceived in terms of the actions of others, and the positions she has taken. She has not helped herself and she has not assisted Nem.

37. From the perspective of credibility, I do not believe that Georgina has “lied” or deliberately misled the Court at any point; however, her perceptions, honestly held, do not accord with how a reasonable person would understand what has taken place since E.’s birth.

38. By way of example, Georgina has what I would describe as an overly generous view of her own expertise. This has led her to be unduly critical of Brittney and to discount the conclusions of Mr. Perreault and the collaterals he interviewed, all of whom state that E. is a happy, healthy, well-adjusted little girl who is meeting her milestones. Georgina told Mr. Perreault that on a scale of 1 to 10, Brittney’s parenting skills are a “1”, notwithstanding ample evidence directly to the contrary, including that of all three sons who states that Brittney is a loving and appropriate mother. Indeed, Georgina was the only witness in the trial who had any concerns whatsoever about Brittney’s parenting skills. This is not a credibility issue particularly, as Georgina’s view is, I believe, honestly held, but it suggests she is unable to hear or accept the perspectives of others and intent on taking an adversarial view. This tendency permeated virtually every aspect of her evidence and her approach in questioning other witnesses in the trial.

39. Georgina also has limited, if any, understanding of how her approach to the world impacts others, including her sons. She has held considerable influence over them, at times impacting how they have engaged during the case. When it appeared that Aleks’ testimony would no longer support her perspective, she stated she would not call him as a witness although he was listed on the Trial Scheduling Endorsement Form and she was therefore obliged to make him available. She adamantly insisted that he was not “her” witness. When Nem did not give his evidence in chief in a manner that supported her narrative, she started her examination of him suggesting that in his evidence he was “covering” for Brittney and Margaret and that he was putting his own interest before that of E. She interrupted him repeatedly when his statements did not accord with her view. She appears, presently, to be in opposition to everyone around her who is involved in this case.

40. Overall I have great difficulty with much of Georgina’s evidence and where it is contradicted by that of others, I have preferred the latter testimony, unless stated otherwise below.

Nancy Oliveira, Neighbour

41. Nancy Oliveira was called by Georgina as a witness. Ms. Oliveira was a neighbour to Nem and Brittney when they lived together up to the summer of 2016. She appeared to have been called to testify about Nem and Brittney’s relationship, whether she had information that Brittney cheated on Nem; who brought groceries to Nem and Brittney in 2016; and whether Margaret had been disparaging about Nem. She candidly stated that she had a limited recollection of events and that Nem and Brittney’s relationship was not her priority and that she did not (unsurprisingly) make notes. Her evidence did not confirm what Georgina sought to elicit, except Margaret allegedly being disparaging. She also stated that Georgina, not Margaret, brought groceries to the couple in the spring of 2016.

42. None of this was relevant. With respect to whether Margaret made disparaging statements (allegedly stating that Nem would never see the baby “again”), the timing does not line up as Brittney had already moved out of the apartment by the time E. was born. In any event, I accept that Margaret has been warm and welcoming to Nem over a period of many years, irrespective of what she may or may not have said in 2016 shortly after her daughter was assaulted. With respect to who brought groceries, I accept Nem’s statement that he did not permit his mother to come to the property during the time in question. Again, it is not, in any event, relevant.

Aleksandar Grujicic, Nem’s Brother

43. Aleks is Nem’s youngest brother (age 21). He was reluctant to testify but ultimately attended without a summons. He testified as Georgina’s witness, given that he had been listed on the TSEF as such and in view of the undertaking therein.

44. Aleks is currently a busy university student. He loves his niece, but he candidly stated that she is not his main priority. He confirmed that he and Georgina are “not on the best terms right now”, but I did not find his evidence to be given in spite, or with any intention to hurt his mother. He stated that now that he is residing on his own, he has a clearer perspective and no longer fears consequences from her.

45. Aleks confirmed that his mother is not a reliable narrator of historical events; that she creates conflict; that she pushes Nem to the point that he sometimes walks out; that he is not confident about what his mother has told him about the case; and that she forbade Stefan and Aleks from spending time with E. when Nem was not there because it would be like “stabbing Nem in the back” and “siding with Brittney.”

46. Aleks confirmed that Brittney and Margaret have been warm and welcoming when visits have taken place in their home; that Brittney is “good” with E.; and nothing about Brittney’s interactions with E. made him worry.

47. Aleks stated that he does not think his mother’s time with E. should be supervised, and that E. and Nem would be more comfortable at Georgina’s home than at Margaret and Brittney’s home for visits.

Nemanja Grujicic, Father and Co-Applicant

48. Nem testified with candour, openness, and insight. While Georgina suggested he needed her assistance in the trial, he managed well on his own. He was honest about what he could not remember. He was deeply and appropriately apologetic to Brittney. I found Nem to be a credible and reliable witness.

49. Nem was clear that it was he who prevented his mother from seeing E. from when she was born to age 3 ½, that he was worried about his mother meddling and creating conflict, and that there have been significant tensions in his relationship with her. He stated that things are “better” now, and that he felt she could spend time with E. on an unsupervised basis. Nem thought that having a third party present for his own time with E. would be prudent.

50. I found that Nem had a child-focused perspective, and while it is clear that his mother still has influence over him, he spoke important truths in the trial. For example, when asked about the most egregious statements Georgina has made in the case and in the trial, such as Brittney being crazy and delusional, he stated that as a teacher his mother should know better than that, and that it is hurtful.

51. Nem did not accept his mother’s narrative about Brittney preventing access, Brittney being a terrible mother, or Margaret being manipulative. Nem was kind-hearted and honest in his statements about Brittney and Margaret. Georgina’s displeasure when Nem gave this evidence was apparent through repeated gestures and efforts to interrupt.

52. Asked why his mother was speaking for him in the case, Nem stated that Georgina told him that if he represented himself the Court wouldn’t listen because of his intellectual disabilities. I find this to have been inappropriate and unnecessary on Georgina’s part.

Brittney Trovao, Respondent, Mother of E.

53. Brittney also testified with candour, openness, and insight. She was clear in her recollections, which rang true on the context of all of the evidence. She was polite and appropriate throughout, including when cross-examined roughly by Georgina. Like Nem, I found her to be a credible and reliable witness.

54. Brittney stated that she would like Nem as involved as possible as a father, and that she wants E. to have a relationship with him. She said that her home is open to Nem and his brothers to spend time with E. While she and Nem had some conflict while they were together, and while she testified about Nem’s assault on her in 2016, she appeared to accept Nem’s apologies at trial and his statement that he wants to make amends.

55. Brittney testified about the conflict that has existed between Nem and Georgina, and about her experience that he could behave differently (and negatively) with her after interactions with his mother. I accept her evidence which suggests that at times Georgina has manipulated Nem, and that Georgina has lied to others about his needs (such as when Georgina told the police in 2014 that Nem needed to come home to take his medication when he was not in fact on medication).

56. Brittney testified with insight into E.’s needs. She testified, and I accept, that she has taken a range of parenting programs, that she listens to the advice of teachers, and that she is attentive to E. in every way. Notwithstanding the many toxic statements that Georgina has made about her, she acknowledged that Georgina may have expertise that could be helpful to E.

57. Like Nem, I found Brittney to be open-hearted in her approach. She testified for example that while she felt tricked by Stefan about an occasion when E. was withheld overnight in October 2021, she accepted his apology and now again trusts him. Brittney also did not show animosity to Georgina when being cross-examined, notwithstanding the toxic statements having been made by Georgina about her in the case and in the trial.

Margaret Trovao, Brittney’s Mother

58. Margaret Trovao is Brittney’s mother, whom Brittney called as a witness. I found Margaret’s testimony to be direct and straightforward, and her recollection of certain events to be more reliable than that of Georgina. While she was unable to remember specific dates in relation to Nem and Brittney’s relationship, I accept her explanation that Brittney’s father was terminally ill with cancer at that time, and that specific dates were a blur.

59. Margaret presented as a loving grandmother who has tried to support Nem and his brothers having a relationship with E., welcoming her home to them on numerous occasions.

Stefan Grujicic, Nem’s Brother

60. Stefan (age 28) is also a brother of Nem’s. I permitted Ms. Towlson to call him as a witness when it became clear that his evidence would be necessary for a full picture of the circumstances affecting the best interests of E. Stefan did not wish to testify and required a summons to attend.

61. Like his brother Aleks, I found Stefan to be a forthright witness. While he, too, is not presently on the best terms with his mother, I did not find his testimony in any way was designed to spite her, nor was it vengeful (as suggested by Georgina). To the contrary, I found that him no longer living with Georgina and earning his own income, has given him the independence to testify without fear of repercussions. He stated as much.

62. Stefan has been part of many visits with E., with or without Nem present. He was open that he is not himself a father and does not have parenting experience, but I found his testimony to be mature, thoughtful, and child-centered. Like Aleks and Nem, he testified that he has no concerns about Brittney as a parent and that her and Margaret’s home is a loving and appropriate.

63. Stefan was involved as a supervisor on many visits and provided feedback to Brittney’s counsel regarding his observations. In numerous emails, he stated that E.’s time with Georgina should be supervised, in part due to the conflictual dynamic with Nem. He briefly changed his view on that, stating in the fall of 2021 that he no longer had any concerns. When asked why the apparent change in perspective, he admitted that he had been under considerable influence by Georgina, who at that time had financial control over him. One email in particular had been drafted by Stefan largely at Georgina’s behest.

64. At trial, Stefan was clear that he continues to regard supervision of his mother’s grandparent contact - whether by him or by Aleks – as important. He stated he would not be concerned about E.’s well-being per se, but about her exposure to conflict frequently given the family dynamic. He is very available and open to supervising as much as once per week. Given his extensive involvement in many visits, I prefer his view on the issue of supervision to that of Aleks.

65. Like Aleks, Stefan confirmed that he would not be surprised if the information he had received from Georgina about this case were not reliable. He confirmed that Georgina has considerable influence over Nem and indicated he would wish for Nem to have some independence from her.

V Background and Findings of Fact

66. Nem and Brittney are the parents of E., born [date redacted for publication], who is now six years old. The evidence is that she is a happy, healthy, affectionate, little girl who brings light to those around her. The reliable evidence is that she in on-track, developmentally.

67. Nem is 31 years old. He has intellectual disabilities, and has experienced a range of mental health issues including depression and anxiety. He also has ADHD. He has been suicidal at times, and has been hospitalized on several occasions because of mental health issues. His most recent admission was in the spring of 2019 when he attended the hospital with concerns about depression, suicide and self-harm. Nem graduated from high school. He has lived with Georgina since 2017.

68. Brittney is 30 years old. She also has intellectual disabilities. She has ADHD and memory issues. She also graduated from high school and lives with her mother Margaret.

69. My observation is that whatever challenges Nem and Brittney have, those challenges did not prevent either of them from participating effectively and thoughtfully in the trial.

70. Georgina is Nem’s mother. She is 56 years old. She immigrated with her husband Zeljko from Bosnia in the mid-1990’s, settling in Winnipeg. She was trained as an engineer, and in Canada, has pursued and obtained teaching qualifications, including for children with special needs. Georgina presently teaches on a contract basis at a local college and is also a supply teacher in a local school board. Georgina believes that she is in “the top 1 – 2% of teachers” in Canada in terms of her qualifications and sees herself as an “expert” on issues related to children’s special needs. She says she has “almost” four degrees.

71. Georgina separated from Zeljko in 2001 when she moved to Kingston, Ontario. She states that the relationship was very abusive, both of her and of Nem. There were criminal charges in Kingston, later withdrawn. She and all three children moved to Waterloo in or around 2010. Zeljko had supervised parenting time in Ontario several times per year. Nem states that Zeljko was verbally and physically abusive to him, at times calling him an idiot. Nem said his father’s abuse left physical scars. He only ever told Brittney that his relationship with his father is “complicated.” Georgina harbours great animosity towards Zeljko, and in the initial Application states that he should not be permitted to “supervise” Nem’s time with E.

72. Nem and Brittney met in 2013. They lived together, first in precarious housing, and then in an apartment, from 2014 - 2016. Their relationship ended in mid-2016, following an altercation. Nem pushed Brittney and spit on her. At that time, Brittney was pregnant although the parents did not know that at the time. Nem was very remorseful about this during the trial and apologized to Brittney.

73. After the separation, Brittney returned to live with her parents. She continues to live with her mother, Margaret, her father having passed away. Nem stayed in their apartment for a time, moving to his mother’s residence in late 2017.

74. E. was born on [date redacted], after the parties’ separation. Brittney did not know she was pregnant until she arrived at the hospital with pains. She thought she was having gallstone issues which she had previously experienced. E. was born a healthy little girl and does not have medical or other issues. E.’s arrival was also a surprise to her mother, Margaret.

75. Family and Children’s Services (FACS) was briefly involved due to concerns about Brittney not having been aware that she was pregnant until the baby was born. She and E. were discharged from the hospital on the expectation that she would reside with Margaret, which she has done. Brittney cooperated fully with the agency, taking recommended classes and meeting with the worker. FACS closed its file and has at no point become reinvolved.

76. Brittney contacted Nem upon the birth of the child. Thereafter, Nem saw E. intermittently until January 2019, sometimes in the company of one or both of his brothers, Stefan and Aleks. In total, he appears to have 9 or 10 visits during that period. On several occasions, the paternal grandfather, Zeljko, was present.

77. I accept the evidence that Brittney’s door was open for Nem to spend additional time with E. When asked why he didn’t come see her more often, Nem said that he was feeling depressed and not at his best and didn’t want E. exposed to that energy. Mr. Perreault testified, and I accept, that this showed insight on Nem’s part.

78. The evidence is that during this period of time Georgina requested to see E., but Nem always said no. He said he was afraid that she would meddle and create conflict. There was a great deal of conflict between Nem and Georgina at the time and Nem was worried about exposing E. to that dynamic as well. There is no evidence that during this time, Georgina ever asked Brittney directly for a visit or an opportunity to meet E. While Georgina suggests that Brittney and/or Margaret prevented her from seeing E. during this time, this is not borne out on the evidence.

79. In late 2019, a visit was organized for Zeljko, Stefan, and Aleks with E., Brittney, and her mother Margaret, at McDonalds. Nem was told about the visit and it appears he told Georgina. By this time, Georgina had been diagnosed with what she described as invasive breast cancer, and Nem felt she should have a chance to meet E. He was worried that it might not go well but wanted to at least give her the chance. He said “if she messes up that would be on her.”

80. Georgina attended the McDonald’s uninvited, and a “scene” unfolded (just as Nem had feared). The accounts vary somewhat but there is agreement that Georgina asked to take a photo of E. and either Brittney or Margaret said no. Brittney remembers Georgina placing a hand on E.’s shoulder, but others do not remember that. Stefan testified that E. looked frightened. Georgina became very angry and said that she would be taking the matter to Court. This was the first time Georgina had seen E. At that time, E. was 3 ½ years old.

81. The Application was issued shortly thereafter on January 31, 2020, and an Answer filed dated March 16, 2020. The Application was amended December 18, 2020. The Application sought a DNA test to show paternity, parenting time and grandparent contact, and “custody” to “us” (Nem and Georgina). The Application listed both Nem and Georgina as Applicants. Nem was clear in the trial that he wanted nothing to do with the case, had no interest in or need for a paternity test, and was signing documents his mother told him to sign. He told Brittney at the time that the document was full of lies.

82. In her Answer, Brittney consented to a DNA test. Nem testified that for a time he prevented that from happening because he knew E. was his and that it was his mother who wanted the test. Georgina seemed focused on trying to prove that Brittney was “promiscuous” and forged ahead with the DNA test, nevertheless. The test showed E. to be Nem’s daughter, just as he expected.

83. From the filing of the Application and until early January 2021, almost a year later, neither Nem nor Georgina saw E. nor requested time with her. This seemed to be because of Georgina’s insistence on the DNA test taking place first and the sense that contact should happen only after that. There is no evidence that Brittney or Margaret prevented contact during this time.

84. From January 2021 onwards, parenting time and grandparent contact can be summarized as follows:

a. There were six supervised visits through By Peaceful Waters (BPW) between early January 2021 and February 2021. There were positive moments in these visits but also concerns. Nem was not always engaged and spent time on his devices. On one occasion he called E. a brat. Georgina promised E. a range of gifts and then didn’t follow through, and had inappropriate conversations with her. At least once, Georgina disparaged Brittney to staff, and on another occasion, she stated she would not follow BPW’s masking policy. She referred to Brittney allowing E. to watch “porn” because she disagreed with a specific movie (rated PG) the child had seen. The visits at BPW were terminated by Georgina.

b. On March 7 and 14, 2021, following an appearance before Justice Piccoli (a Motion converted to a conference), two visits took place at Georgina’s home, with Stefan present as supervisor. These were Nem’s visits, at which Georgina was permitted to be present. The Order of Justice Piccoli provided that if Stefan reported that the visits went well, Nem’s parenting time could be expanded and supervised by Georgina, with a view to eventual overnights. Stefan reported concerns about the visits to Brittney’s counsel and stated his mother’s time should continue to be supervised. Georgina then said Stefan would not supervise any more visits and the matter should go back to Court. It appears that he was no longer permitted to live at Georgina’s home shortly thereafter.

c. In May June, and July, 2021, Nem had a number of visits (approximately 9) with E., without Georgina present, some of which Georgina was not aware of and others which took place when she was out of the country. They involved, variously, Nem’s brothers, and/or the paternal grandfather.

d. There were several visits in August 2021 at Georgina’s home. On one occasion E. did not want to go and the visit did not proceed, but three other visits went ahead. Nem and Georgina were both present for these visits.

e. The OCL investigator, Todd Perreault observed a visit on August 22, 2021. He observed that E. had fun, that Georgina talked to Nem about parenting, and that E. was a happy, high-energy little girl. Nem and Georgina were both attentive to E. He did not note concerns during this visit.

f. In early September 2021, Georgina, Nem, Aleks, and Stefan all travelled to Bosnia. Georgina returned mid-September 2021, but Nem stayed until the following July 2022. It was initially unclear whether and when Stefan and Aleks would return. Georgina requested Zoom visits for Nem with E., and attempted to set up face-to-face visits for herself in Waterloo. She appeared to believe that the March 4, 2021 Order of Justice Piccoli gave her a free-standing right of contact to E., which it did not.

g. There were several attempted Zoom visits but they did not go very well. In early October 2021, Georgina cancelled those visits. She appeared to feel that Brittney was interfering. Nem had a more realistic view. He noted that E. was only 5, that he has ADHD, and that it was reasonable for Brittney to be available to assist E. as necessary during the calls. He also said that Georgina was late in getting the calls started so there was a lot of waiting. Nem testified that he had not wanted those visits to be cancelled.

h. On October 12, 2021, while still in Bosnia, Stefan wrote an email to Ms. Towlson stating that he no longer had concerns about his mother’s time with E. and that further supervision was not necessary. That email refers to Georgina’s “extensive qualifications” as an educator, in a manner that sounds very much like Georgina’s own descriptions of herself. Stefan acknowledged at trial that while he did write that email, he was being heavily pressured by his mother, and she had financial leverage over him at that time.

i. Stefan returned from Bosnia in October 2021. He contacted Brittney on short notice to arrange a visit to take place on October 23, 2021, implying that everyone, including Nem, was back from Bosnia. He said that it would be a “short visit.” Once E. was at Georgina’s home however, it became clear that Nem was not there (he was still in Bosnia). Georgina and Stefan decided that this should be an overnight visit. Brittney did not consent, but E. was not returned until October 24, 2021, Georgina “taking” an overnight visit in full knowledge that Brittney had not agreed. Brittney was upset and called the police, who attended on October 24, 2021 for a wellness check. Stefan later apologized to Brittney, and testified that he understood why Brittney had called the police. In his report, Mr. Perreault expressed great concern about this incident, calling it “unimaginable” that Georgina and Stefan would unilaterally decide to withhold E. in this way, demonstrating an inability to be child-centered.

j. When the parties attended before Justice Braid on the long Motion on January 17, 2022, Nem (who was still in Bosnia) requested that Zoom visits be restarted. Weekend Zoom visits were included in the Order, on consent, and took place. Nem set them up and called E. at agreed times. Those visits were discontinued by Nem in February 2022. Nem told Brittney’s lawyer that he was sick and that on a couple of visits he had waited and no one attended. Nem testified that he thought perhaps Brittney didn’t want further visits. He testified that he regretted not emailing Brittney’s counsel to clarify what was going on.

k. Nem did not ask for parenting time after he returned from Bosnia in late July 2022. It is unclear why. He candidly stated, “I have no idea why I didn’t email you or Brittney for that.”

85. Several other facts about parenting time and grandparent contact are worth noting:

a. A number of Nem’s visits with E. set out above took place without Georgina’s knowledge. In my view, this shows Nem’s own interest in maintaining and nurturing his bond with E. outside of his mother’s influence.

b. On March 28, 2021, there was confusion about whether a visit was to go ahead. Brittney and Margaret brought E. to Georgina’s home but she was not there. Arrangements were about to be made for Nem to see E. at Brittney’s home that day. However, Georgina again “forbade” the visit (she testified that “she didn’t put that much time and money into the case for Margaret to take everything back to zero”). All parties except Georgina agreed in evidence that this visit would otherwise have gone ahead. Incredibly, Georgina’s response to Margaret and Brittney attending at her home to facilitate access was to try to secure a Peace Bond/Restraining Order against them. She continues to believe that such an Order is in place although her Application was clearly dismissed, and she was told by Justice Braid on January 17, 2022 that no such Order is in place.

c. Georgina’s communication with Brittney’s counsel to set up grandparent contact and parenting time for Nem since the Court case was initiated can be described as consistently inflammatory, inappropriate, and derogatory, both to Brittney and to her counsel. She alternately praises and then disparages Brittney’s lawyer. At one point, Georgina submitted an extensive complaint to the Law Society of Ontario about Brittney’s lawyer. My observation of the correspondence from Brittney’s counsel to Georgina is that it has been measured, appropriate, and has consistently sought to reduce conflict.

86. There are occasions when Georgina has behaved appropriately in relation to E. As noted above, there were some positive interactions during the supervised access at BPW. In addition, Georgina tendered several videos showing interactions with E., with Georgina behaving lovingly and kindly to E. On one occasion she said to E. that she prays for E.’s mommy, and that “you should love your mommy most in the world.” This is positive messaging (although I note that it was made on the overnight that E. was being withheld from her mother without permission). Nevertheless, it shows that Georgina is capable of messaging well when she chooses to.

87. Georgina travelled to Bosnia at various points during this litigation. She testified that after the withholding of E. on October 23 and 24, 2021, she was in Bosnia from October 28, 2021 to January 29, 2022, and again from June 24, 2022 to July 29, 2022. She has not had contact with E. since October 24, 2021.

88. Nem was in Bosnia from early September 2021 to July 29, 2022, almost a full year. He testified that he stayed away so long in part because he needed respite from the Court case. He said he needed to recuperate from everything that was going on. Nem has not had physical contact with E. since before he left for Bosnia in July 2021. It is not clear why he has not reached out to Brittney to set up a visit. It is clear he loves E. and equally clear that Brittney would make arrangements for them to spend time together.

89. Brittney and her mother have been open, welcoming, and flexible when time has been requested, even on short notice. They remained so during the trial.

90. Georgina has been adversarial and conflictual throughout this proceeding, making unwarranted accusations both against Brittney and against her mother Margaret. Brittney testified that she found this hurtful. Georgina also sought in various ways to undermine some aspects of the testimony of all three of her sons.

VI OCL Report

91. Todd Perreault was appointed as clinical investigator for the OCL. He conducted an extensive investigation which included interviews with the parties, home observation visits, interviews with Nem’s brothers (the paternal uncles); an interview with Nem and Georgina’s physician; an interview with Brittney’s physician; an interview with FACS staff person; an interview with the principal of E.’s school; an interview with the maternal grandmother; review of Court documents; and review of collateral records, including supervised access notes.

92. In summary, Mr. Perreault found as follows:

a. He had no concerns about Brittney’s parenting of E. Based on information from collaterals, including FACS, her physician, the school principal, Nem, and Nem’s brothers, he concluded that Brittney is an appropriate and caring parent who has taken direction and advice from community professionals.

b. Mr. Perreault found Nem to be an insightful and thoughtful father who has a realistic perspective on how he can and should be involved with his daughter, given his challenges. Mr. Perreault found Nem to be reflective and self-aware. He encouraged Nem to develop a parenting relationship with E., independent of his relationship with Georgina, and stressed the importance of developing a father-daughter bond that can grow over time. He recommended regular and expanding parenting time, with a third party present. He encouraged consistency.

c. Mr. Perreault had significant concerns about Georgina’s role and approach. He noted that she has been very disparaging of Brittney in the face of all of the evidence, that she creates conflict. He found Georgina’s hostility and anger towards Brittney to be “very concerning” and expressed great concern about the overholding incident on October 23 and 24, 2021. He stated that Georgina is a grandmother, and that she needs to understand this. Brittney and Nem are the parents, not Georgina.

d. While critical of Stefan’s involvement in the October 23, 24, 2021 overholding, Mr. Perrault noted both Stefan and Aleks’ insights into their mother’s functioning, which included describing Georgina as “very tunnel vision”; that she does not respect Nem’s boundaries; and that Georgina acts on emotion, gets worked up, and takes action based on that. Stefan stated in a March 2021 email that his mother is not adequately aware of how she dominates by badgering, and that he was extremely worried about her doing that to Nem when E. is there. Ultimately Mr. Perreault found them both to be appropriate supervisors.

93. Based on his investigation, Mr. Perreault recommended:

a. sole decision-making to Brittney;

b. 2-hour weekly visits for Nem with E. on a supervised basis, expanding over time;

c. The inclusion of Georgina in one visit per month between Nem and E., at Georgina’s home, with Stefan and/or Aleks present; and

d. Extra time for E. to spend with Nem during specified holidays.

VII Law and Analysis

94. There are two main issues for the Court to be decided in this trial:

95. The appropriate amount and terms of parenting time for Nem with E.; and

96. Whether a Court Order for grandparent contact is appropriate and if so on what terms.

97. In addition, I will briefly address:

98. The involvement of the paternal grandfather, Zeljko Jefic, with E.;

99. On consent, ongoing and retroactive child support;

100. Allocation of By Peaceful Waters fees from 2021.

101. The parenting time and grandparent contact questions are to be decided within the framework of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”), in particular ss. 21, 22, 24 and 28.

102. Section 21(1) provides that a parent may apply to the Court for an Order for parenting time or decision-making responsibility.

103. Section 21(2) provides that any person other than a parent, including a grandparent, may apply to the Court for an Order for decision-making responsibility.

104. Section 21(3) provides that any person other than a parent, including a grandparent, may apply to the Court for a contact Order.

105. Section 24 provides that in making an Order with respect to parenting time or contact, the Court shall consider only the best interests of the child. In determining best interests, the Court shall consider all factors related to the circumstances of the child, and in doing so, shall give primary consideration to the child’s physical, emotional, and psychological safety, security and well-being.

106. Section 24 also sets out factors for consideration in assessing best interests:

a. the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

b. the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

c. each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

d. the history of care of the child;

e. the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

f. the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

g. any plans for the child’s care;

h. the ability and willingness of each person in respect of whom the Order would apply to care for and meet the needs of the child;

i. the ability and willingness of each person in respect of whom the Order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

j. any family violence and its impact on, among other things,

i. the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

ii. the appropriateness of making an Order that would require persons in respect of whom the Order would apply to co-operate on issues affecting the child; and

k. any civil or criminal proceeding, Order, condition or measure that is relevant to the safety, security and well-being of the child.

102. Section 28 sets out the Orders available to the Court in a case involving parenting or contact. The Court may grant decision-making authority and residency in relation to a child, may decide any aspect of the incident of decision-making or parenting time, and may, additionally, make any Order it considers necessary and proper in the circumstances. This could include Orders related to communication, prohibiting specified conduct, prohibiting change of residence without consent or prior Court Order, terms related to travel, and Orders requiring the release of information related to the child.

103. A number of principles guide the application of the factors set out in s. 24 of the CLRA. These include:

a. The importance of minimizing children’s exposure to conflict;

b. The importance of continuing and strengthening children’s bond with loving family members; and

c. The importance of ensuring continuity of care arrangements that have been demonstrated to be in a child’s best interests.

104. Beyond the factors and principles set out above, the principles that ground parenting time and grandparent contact are in many ways distinct.

Parenting Time

105. Nem’s statements about the parenting time he seeks have been somewhat inconsistent. I find that at times, he has put forward what his mother thinks should be his parenting time, rather than what he actually seeks or believes is appropriate.

106. The Application, which was prepared by Georgina, sought an Order that there be shared parenting time. At the commencement of trial, Nem also stated he was seeking parenting time along those lines. However, in his oral evidence, Nem stated that he seeks weekly or alternate weekly parenting time of about four hours per visit. This is more consistent with what appears to be his true perspective on the parenting arrangement, and also respects that the issue of primary residency has in fact already been determined, on consent, as set out in the January 17, 2022 Order of Justice Braid.

107. Under s. 20 of the CLRA, the starting point is that parents have an equal right to be involved with their child after separation.

108. When addressing a request for parenting time or decision-making, the Court thus proceeds directly to the analysis of the best interests’ factors, and applies those factors to craft a parenting arrangement that best meets the needs of the child in all of the circumstances.

109. In this case, decision-making and residency already having been resolved, the evidence supports bi-weekly parenting time for Nem with E. with a third party present, to be expanded if the parents agree, and so long as a third party is available. Details are set out below. I reach this conclusion for reasons including the following:

a. This arrangement is consented to by Brittney, who also sees Nem’s involvement with E. as being in E.’s best interests. Brittney supports Nem’s involvement. She stated that she wants his involvement to be “constant and frequent” and she wants him to be regularly involved with E.

b. While the OCL investigator recommended weekly time and potentially mid-week visits as well, given the length of time since Nem has had contact with E., it is appropriate to start with bi-weekly visits. On the evidence, I have every confidence that if Nem follows through with those visits, Brittney will consent to expanding his time with E. as recommended by Mr. Perreault. Mr. Perreault suggested that if consistency is demonstrated, adding mid-week visits would be appropriate.

c. Nem has made appropriate and mature decisions regarding his parenting time with E. Those decisions have prioritized E.’s emotional well-being. For example, he exercised minimal time with her during the first three and a half years because he did not want to expose E. to his own anger and negativity at that time. He said he was not in the right “headspace.” The OCL investigator stated, and I agree, that this showed insight on Nem’s part. Similarly, although Georgina asked Nem to see E. during this time, he did not permit it, again wanting to shield E. from conflict and tension. This was a mature decision reflecting a concern for E.’s emotional well-being.

d. Nem is supportive of E. being cared for primarily by Brittney and there is no evidence that he will seek to undermine her in that role or create conflict. He seeks to be involved but not in any way to usurp Brittney’s role.

e. While there has been conflict between Nem and Brittney in the past, including several incidents for which Nem accepts responsibility, there is no evidence of conflict between them since 2016 and I accept the evidence that they will be able to communicate effectively and peacefully about E. Both Nem and Brittney state that they will be able to communicate about E. They are both open to using Our Family Wizard to do so.

f. Witnesses have observed Nem to be loving and appropriate with E. While at times he was not focused on her (being on his electronic devices, for example), it appears that this was primarily when his mother was also present for his parenting time. I have confidence that if spending time with E. without his mother present, there will be more “space” for Nem to be a father to his daughter.

g. Nem agrees that it is prudent for a third party to be present during his parenting time. He stated that he is not sure he should be alone with a six-year-old. When he is stressed, he tends to leave situations. While it does not appear that he needs “supervision” per se, a third party should be present to assist if a difficult circumstance arises.

h. In my view, the appropriate third parties to be present are: Brittney, Margaret, Stefan, or Aleks, or any combination thereof. Any further third party to whom Brittney and Nem can agree would also be acceptable. The third party should not be Georgina, given the evidence of the fraught relationship between Nem and Georgina and her tendency to overwhelm when she is present.

i. Parenting time should take place at Brittney’s home, at Nem’s home if he chooses to live apart from Georgina, in the community, or at a location agreed to by Brittney, which could include Stefan and Aleks’ home.

j. Except as set out below, Nem’s parenting time should not take place at Georgina’s home. I make this determination given the conflict that arises between Georgina and Nem, and my concerns regarding Georgina’s inability to consistently message positively about Brittney or Margaret. It is also important that Nem have time apart from Georgina to build his relationship with his daughter in a conflict-free and warm setting.

110. For all of the same reasons, the evidence also supports Nem having time with E. during holiday periods. I have set out the details below. These are minimums, and Brittney and Nem may make arrangements for additional time, so long as a third party is available to be present.

111. I have set out below the details regarding how this parenting arrangement should be implemented. Both Stefan and Aleks have indicated a willingness to be present to Nem’s parenting time, and Brittney and Margaret similarly indicated that they are prepared to be present.

Grandparent Contact

112. Notwithstanding that the CLRA mentions grandparents as individuals who might seek contact or decision-making, there is no legal “right” of grandparent access or presumption in favour of same.

113. In Ninkovic v. Utjesinovic, 2018 ONSC 558, I addressed the law on grandparent contact at length. The principles set out therein continue to govern and can be summarized as follows:

a. The issue to be decided in not what is good for the grandparent, but what is in the best interests of the child. Further, that question is not theoretical. What is at issue is what is in the best interests of the specific child in the case at hand: see Chapman v. Chapman (2001), 141 O.A.C. 389, 2001 CanLII 24015 (Ont. C.A.), at paras. 13-14.

b. Where parents are demonstrably attentive to the needs of their children, it is parents, not grandparents, who have the right to determine the “extent and nature of contact” with grandparents: Chapman, para 22. In Chapman, the Court declined to Order access to an insistent grandmother where the Court found that such access would cause disruption and stress.

c. 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": Chapman, at para. 19. When those relationships are imperilled arbitrarily, "the Court may intervene to protect the continuation of the benefit of the family relationship": Chapman, at para. 19.

d. In the absence of any evidence that parents show 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: Chapman, at para. 21; Nichols v. Herdman, [2015] 61 R.F.L. (7th) 380 (Ont. S.C.J.), at para. 66.

e. The amendments to the CLRA, by which the word “grandparent” was included in ss. 22(1) and 24(2)(a)(i) have not changed the law on grandparent contact in Ontario or resulted in enhanced standing or new rights for grandparents. 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": R. (M.) v. L. (A.), 2017 ONSC 85 (S.C.), per McGee J. See also: Capone v. Pirri, 2018 ONSC 6541 (S.C.), at para. 8; Tzvetkova v. Petrova, 2018 ONSC 2899 (S.C.), at para. 4; Botelho v. De Medeiros, 2017 ONCJ 463 (S.C.), at para. 17.

f. The onus remains upon a grandparent seeking contact to show that this is in the best interests of the child.

g. Deference should generally be given to a custodial parent's decision regarding access unless the following three questions are answered in the affirmative.

i. Does a positive grandparent-grandchild relationship already exist?

ii. Has the parent's decision imperilled the positive grandparent-grandchild relationship?

iii. Has the parent acted arbitrarily?

See Giansante v. Di Chiara, 2005 CanLII 26446, at para. 18, per Nelson J.

h. A “positive relationship” generally requires "time and depth": Torabi v. Patterson, 2016 ONCJ 210, at para. 72. 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 Sproule v. Sproule, 2012 ONCJ 839, at para. 27; Capone v. Pirri, 2018 ONSC 6541, at para. 15.

i. The following factors set out by Kurz J. in Torabi, at para. 74 are helpful in determining whether there is a positive relationship:

i. There must generally be a substantial pre-existing relationship, with strong, loving, and nurturing ties;

ii. 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;

iii. The determination must include the age of the child and the time since the child last saw the relative; and,

iv. 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.

j. Under the test set out in Giansante, at para. 18, “act[ing] arbitrarily,” 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": at para. 27.

k. In Torabi, the Court re-formulated the Giansante test for grandparent access into a two-part test, as follows at para. 61:

i. 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.

ii. 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 s. 24(2).

See also Capone, at para. 12, in which the Court endorsed and applied the same two-part formulation. See also Botelho, at paras. 21 - 29.

l. In considering whether contact with a grandparent is in the best interests of the child, the significance and weight to be put on any given factor varies from case to case. Each case turns on its particular facts: see Bennett v. MacFarlane, 2021 ONSC 3700, at para. 28.

m. Potential stress and anxiety for the parent is an important consideration in determining best interests because this can have a deleterious impact on the child. In Barber v. Mangal and Hurst, 2009 ONCJ 631, at para. 17, Brownstone J. found that the intensity of the conflict between the parents and the grandmother 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.” Similarly, in MacDonald v. MacDonald, 2009 CanLII 15444, at para. 6, Pazaratz J. found that the level of conflict between the applicant grandmother and respondent mother was “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 Application.

n. A further consideration is whether an access Order would destabilize the family unit: see Blackburn v. Fortin, 2006 CanLII 19044 (Ont. S.C.), at para. 38. In that case, Smith J. 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.

114. This Court finds that it is entirely appropriate to defer to Brittney’s decisions regarding whether and how much paternal grandparent contact should be afforded to Georgina, and that there is no basis – whatsoever – for overriding her discretion, as the parent with primary decision-making authority. This is so for reasons including the following:

a. Brittney is demonstrably attentive to E.’s needs and has consistently acted in E.’s best interests. All of the evidence, other than that tendered by Georgina (who has had little contact), is that Brittney is a loving, capable, and attentive parent. All of E.’s needs are being met and she is on track in meeting her milestones. Brittney is an excellent mother.

b. Brittney has amply shown that she values E. having relationships with her paternal family, including Nem, the paternal uncles, and the paternal grandfather. Any reticence or caution on Brittney’s part in extending time to Georgina is a direct consequence of Georgina generating conflict, disruption, and “drama” when she is involved. And, nevertheless, Brittney has extended some time to her. This is not a mother who is alienating E. from the paternal family.

c. Turning to the first branch of the test in Giansante, as further developed in Torabi, it cannot be said that there is a positive grandparent-grandchild relationship at this time. While there have been positive interactions, and E. at times has enjoyed time with Georgina, it cannot be said that the relationship is “substantial”, with strong, loving nurturing ties. The evidence from supervised access would suggest there have been pleasant moments, but not more. This is not in any way to question that Georgina loves E.; however, there is little “depth” of relationship at this time. It must be remembered that the child is 6 years old, and that Georgina did not approach Brittney to spend time with E. until she was three and a half years old, did not spend time with E. until she was four and a half, and there have been few visits since then. Their time together can still be counted in hours, not days or weeks (except for the overnight when E. was withheld against Brittney’s wishes).

d. The relationship as it presently stands is not constructive. Any time that Georgina and E. would spend together is embedded in a toxic soup of disregard for E.’s mother Brittney and maternal grandmother Margaret, conflict with Nem in the child’s presence, and disrespect for boundaries including when the child is to be returned home. This is not a healthy environment or context.

e. Georgina has not spent time with E. since October 2021 when she withheld E. from her mother. This is almost 14 months ago.

f. I am unable to find that to the extent that the relationship between E. and Georgina is weak, it is Brittney who has imperilled it. By contrast, it is Georgina herself who has created a context of disrespect, conflict, and volatility which has limited contact. Further, her engagement with Brittney and Margaret has been inappropriate at best. And yet, even at trial it was clear that the door remains at least partly open, so long as there are boundaries and a third party present.

g. It should be clear that I find that to the extent that Brittney has managed contact, she has in no way acted arbitrarily. In fact, I find that she and Margaret have kept the door open wider than could reasonably be expected in the circumstances.

115. Having found that the evidence supports deferring to Brittney’s decisions about contact, I need not, strictly speaking, turn to the best interests’ analysis set out in CLRA, s. 24(3). However, out of an abundance of caution, I make the following additional findings:

a. While there is love by Georgina for E., the emotional ties between E. and Georgina cannot be said to be strong, in light of the minimal time they have spent together and the fraught circumstances of some of the visits;

b. While the child has said she likes seeing her grandmother and stated that she would like an overnight visit, these views were not strongly articulated and must be balanced against all of the other evidence in the trial;

c. While Georgina has shown herself capable (as seen in the short video referenced above) of speaking positively about Brittney, this has been very much the exception. The tenor of her engagement in this case has been marked by disrespect and disdain for Brittney and Margaret who have provided a stable and loving home for E. since she was born. At the conclusion of her evidence in the trial, Georgina described Brittney as a “horrific, merciless mother”, stated that E. is “severely abused,” and said that Brittney is “insane.” She summed her up as a “delusional mother who is abusing her child.” There is not a scintilla of evidence to support these statements.

d. While Georgina states that she has expertise which could assist in supporting E. in her development, it is clear that she seeks to interfere in Brittney’s decisions as custodial parent regarding what supports E. may or may not need over time;

e. Georgina’s plan to have the child spend extensive time with her is not consistent with her role as grandparent but appears to attempt to usurp both Brittney’s role as the child’s mother and Nem’s potentially expanding role as father. Indeed, it appears that she is attempting to step into Nem’s shoes and take over his parenting role.

116. I find that it would cause great stress and anxiety for Brittney to impose grandparent contact beyond that which she is prepared to consent to in this proceeding, and that in turn could have a deleterious impact on E.: see Barber, at para. 17. The level of conflict – generated by Georgina, not by Brittney, Nem, or Margaret—is “so overwhelming” that imposed contact would cause “upset, commotion, and grief”: MacDonald, at para. 6.

117. Indeed, were Brittney not consenting to grandparent contact, I would make no such Order on the facts of this case. The evidence of inappropriate conduct and conflict-generation is breathtaking.

118. Accordingly, the Order I make for grandparent contact by Georgina is on the terms proposed by Brittney, which terms are reasonable and generous in the circumstances. In summary, that comprises one visit per four weeks, for four hours, supervised by either Stefan or Aleks (or another third party approved by Brittney). Georgina may decide whether Nem is present for these visits, which may take place in her home.

119. In addition, on approval of Brittney and Nem, Georgina may participate in one of Nem’s visits each four weeks. Georgina’s grandparent contact may be suspended by Brittney in her sole discretion. Further details are set out below.

Paternal Grandfather’s Time

120. An issue arose during the trial with respect to the context in which the paternal grandfather, Zeljko Jefic, spends time with E. Georgina believes that he had some sort of supervisory role in Nem’s parenting time. She appears to not want Zeljko to have contact with E., based on the history of abuse as she has articulated. As indicated above, Nem also stated that Zeljko was abusive to him.

121. There is no evidence that Zeljko has been in a supervisory role with any person’s time with E. Nor is there any evidence that he has ever been alone with her. While it appears that at one point Brittney may have proposed him as a supervisor, he has never had that role, and this was in a context where all she had been told by Nem was that his relationship with his father is “complicated.” She has now heard Nem’s evidence about his experience with his father.

122. I accept the evidence that Zeljko had supervised access with his and Georgina’s three sons. I also accept the evidence that there was a criminal charge against him in Kingston, many years ago after Georgina and Zeljko separated, which was later withdrawn.

123. There is ample evidence that Zeljko is a loving and kind grandfather to E. He is attentive to E., respectful of Brittney and Margaret, and dotes on his granddaughter. Nem testified that E. should be able to continue her relationship with her grandfather, although Nem himself may not wish to be present for those visits. Both Stefan and Aleks have observed Zeljko with E. and raised no concerns. Stefan said Zeljko adores E. and stated that every grandchild should hope for such visits.

124. Brittney is the sole decision-maker for E., under the Order of Justice Braid. I have every expectation that to the extent that she makes further decisions about third parties being present in a supervisory role during Nem’s time with E., she will make sound decisions having regard to the evidence she has heard in the trial. Brittney is a child-focused and appropriate parent.

125. There is, in any event, no relief sought which would enable this Court to fetter Brittney’s discretion with respect to the manner in which Zeljko spends time with E., nor would I in any event exercise my discretion to do so.

Child Support

126. Nem did not pay child support up to the commencement of trial. He agreed, on consent, that there should be ongoing child support based on his income from ODSP, as well as retroactive child support to the date of the Application. He stated that this was “very reasonable.”

127. In the Order below, on consent, ongoing monthly child support is set at $153.00 commencing December 1, 2022, based on Nem’s current annual income from all sources, totalling $18,942. This combines Nem’s ODSP, a gross up to reflect that it is received on a tax-free basis, and employment income of $2,400 per year (income paid by Georgina in light of domestic tasks undertaken by Nem).

128. Also on consent, retroactive child support is set at $4,384.00 for the period commencing March 1, 2020 until November 30, 2022. This will be paid at a rate of $100 per month until paid in full. The payments may be accelerated if Nem is able to manage that.

By Peaceful Waters Fees

129. Georgina seeks an Order that Brittney pay 50% of the By Peaceful Waters fees incurred in 2021. While not pled, Brittney’s counsel agreed that this could be determined in the trial. The fees total $1,887.10.

130. In my view, it is entirely appropriate that these fees be borne solely by Georgina. She testified repeatedly that it was she who wanted supervision so that false complaints could not be made about her. Indeed, had she not been part of this case I am certain that Nem and Brittney could have worked out parenting terms without the need for any professional supervision.

131. The fees shall be borne solely by Georgina, whose conduct and position herein necessitated that service.

VIII Conclusion

132. E. is loved by both her maternal family and paternal family and developing well. She deserves a warm, kind, and caring relationship with both parents and an environment free of conflict and strife.

133. I have found above that Nem is able to give E. the peaceful environment she deserves when he spends time with her. He not only loves E. but is respectful of Brittney and Margaret. He is child-focused. He is kind, gentle, and thoughtful.

134. Georgina loves E. but has shown herself unable to engage in a positive, respectful way with E.’s mother Brittney, who is her primary caregiver. Georgina has created conflict around virtually every aspect of this case. She has not been child-focused.

135. If Georgina wishes to have time with E. independent of Nem and/or in excess of the time that is set out in the Order, and without designated third parties present, she will need to reset, start fresh, and rethink her perspective. She will need to make amends with Brittney and Margaret. Showing respect for Brittney and recognizing that E.’s well-being is in large measure due to the positive and appropriate parenting E. has received would be a good first step.

136. In all of the circumstances, and for the reasons set out above, I make the following Order:

IX Order

1. This Order is to be read in conjunction with the Order of Justice Braid dated January 17, 2022.

Parenting Time

2. Commencing December 31, 2022, Nemanja Grujicic, shall have parenting time with the child, E.B.T., born [date redacted], as follows:

(a) At least one afternoon every other Saturday or Sunday from 1:00 p.m. to 6:00 p.m, to be arranged between Nemanja Grujicic and Brittney Trovao;

(b) These visits shall be facilitated by any of the following third parties: Stefan Grujicic, Aleks Grujicic, Brittney Trovao, or Margaret Trovao, or such other person as may be agreed upon by Nemanja Grujicic and Brittney Trovao in advance, but who shall not include Georgina Grujicic, who shall not be present except on the terms set out below. The third party shall remain nearby and available to Nemanja Grujicic and the child for the duration of the visit;

(c) The visits may occur in the home of either paternal uncle, Brittney Trovao’s home, in the community or such other location as may be selected by Nemanja Grujicic in consultation with the third party referred to in clause 2(b) but shall not, except as set out below, be in Georgina Grujicic’s home.

(d) Nemanja Grujicic may have parenting time at such further or other times as agreed upon in writing between Nemanja Grujicic and Brittney Trovao, subject to the same terms set out above in clause 2(b) and 2(c);

(e) Nemanja Grujicic may have parenting time every Father’s Day for at least five hours as arranged in writing between Nemanja Grujicic and Brittney Trovao. If no times are agreed upon in writing, the time shall be from 1:00 p.m. to 6:00 p.m. subject to the same terms set out above in clause 2(b) and 2(c);

(f) Nemanja may have parenting time every January 7, Orthodox Christmas, for at least five hours as arranged in writing between Nemanja Grujicic and Brittney Trovao. This parenting time may take place in the home of Georgina Grujicic who may also be present in addition to an identified third party as set out above;

(g) The parents shall make their best efforts to arrange additional visits for Nemanja Grujicic for special holidays such as Easter, Thanksgiving, and other special days throughout the year. In the event that Nemanja Grujicic and Brittney Trovao disagree on a request for additional parenting time, Brittney Trovao shall have the right to decide.

3. On consent, Nemanja Grujicic and Brittney Trovao shall register for Our Family Wizard (“OFW”) forthwith. The parents shall utilize the communication and shared calendar and shared document features on this app to share the parenting time schedule of the Applicant father and the child’s report cards. Georgina Grujicic shall not access the OFW account set up by the parents.

4. Brittney Trovao shall share the child’s activity schedule on the OFW shared calendar with Nemanja Grujicic. Nemanja Grujicic may attend and participate in the child’s school events and extra-curricular activities where family members are welcomed.

Grandparent Contact

5. Georgina Grujicic may have contact with the child, E.B.T., born [date redacted], only as follows:

(a) Commencing December 31, 2022, once per four weeks, on a Sunday from 9:00 a.m. to 1:00 p.m. and supervised by either Stefan Grujicic or Aleksandar Grujicic (if they agree) or by a third party supervisor approved by Brittney Trovao, in advance, in writing; If Georgina Grujicic and Brittney Trovao do not agree on which Sunday a monthly visit shall take place, Brittney Trovao shall determine which Sunday by the 15^th day of the month prior to the contact time and advise Georgina Grujicic by email. Nemanja Grujicic’s attendance at these monthly visits is optional, as may be determined by Georgina Grujicic.

(b) Exchanges of the child for the visits with Georgina Grujicic shall be supervised by and occur at By Peaceful Waters in Kitchener, Ontario, unless and until there is an agreement in writing otherwise between Brittney Trovao and Georgina Grujicic. If the parties have agreed that exchanges may take place in a location other than By Peaceful Waters, Brittney Trovao may, in her sole discretion, require that the exchanges resume being supervised at By Peaceful Waters as she may deem necessary or preferable in the circumstances. Georgina Grujicic shall be solely responsible for all costs associated with all the supervised exchanges at By Peaceful Waters.

(c) In consultation with Brittney Trovao, Nemanja Grujicic may, once per four weeks, approve Georgina Grujicic to participate in one of Nemanja Grujicic’s visits set out in clause 2(a) above. In the event that the parents disagree, Brittney Trovao shall decide whether this additional visit will take place. To be clear, both parents must approve this extra visit in order for it to occur and Nemanja Grujicic shall determine the location and nature of the visit subject to the provisions of clause 2(c) above;

(d) Any additional contact between the child and Georgina Grujicic shall be in the sole and unfettered discretion of Brittney Trovao, in consultation with Nemanja Grujicic. In the event that the parents disagree on such expansion, Brittney Trovao shall have the right to make the decision.

(e) Brittney Trovao may, in her sole and unfettered discretion reduce, suspend, or terminate contact between E. and Georgina Grujicic.

6. Georgina Grujicic shall not attend the child’s events or extra-curricular activities unless invited to do so by Brittney Trovao, in advance, in writing.

7. Georgina Grujicic shall not speak for or write on behalf of Nemanja Grujicic in any communications between himself and Brittney Trovao.

8. Georgina Grujicic shall not contact third party service providers for the child including but not limited to the child’s teachers, principal, or physician without prior written permission of the mother.

General Terms

9. No party shall disparage another party or his/her extended family members in the presence or earshot of the child nor shall any party permit any third party to do so.

10. All parties shall protect and shield the child from adult conflict and shall refrain from discussing this litigation with her.

Child Support Terms

11. On consent, commencing December 1, 2022, and on the first of each month thereafter, Nemanja Grujicic, shall pay to Brittney Trovao, child support for the child, E.B.T., born [date redacted], in the amount of $153.00 per month and pursuant to the Ontario Child Support Guidelines, O. Reg. 391/97 based on his current annual income of $18,942.00 (ODSP income grossed up and $2,400.00 in employment income per year).

12. In full and final satisfaction of all claims to retroactive child support from March 1, 2020 to November 30, 2022, Nemanja Grujicic shall pay to Brittney Trovao, $4,384.00. This amount shall be payable at a rate of $100 per month.

13. Support Deduction Order to issue.

By Peaceful Waters Fees to date of this Order

14. The claim by Georgina Grujicic for reimbursement for fees paid to By Peaceful Waters is dismissed.

Other

15. “Nemanja Jefic’s” name shall hereinafter be shown as “Nemanja Grujicic” in the style of cause and Court staff are directed to make the necessary changes to the file.

Costs

16. The parties may submit written costs submissions on the following schedule:

a. Brittney Trovao by January 13, 2023;

b. Nemanja Grujicic by January 20, 2023;

c. Georgina Grujicic by January 27, 2023; and

d. Brittney Trovao Reply Submissions, if any, by February 3, 2023.

17. Costs submissions shall not exceed 4 pages, double spaced, 12-point font. Costs submissions shall contain no new evidence. Reply submissions shall not exceed two pages double spaced, 12-point font. Any Offers to Settle exchanged prior to the trial (in relation to the trial, not prior Motions) shall be appended. If claiming costs, parties shall attach a bill of costs. Cost submissions should be directed to my attention and may be emailed to my judicial assistant at mona.goodwin@ontario.ca and Kitchener.SCJJA@ontario.ca.

18. The timeline set out above may not be extended without leave granted by me. If submissions are not received by the date set out above, the question of costs shall be deemed to have been resolved by the parties on consent.

L. Madsen J.

Released: December 23, 2022

COURT FILE NO.: FC-20-00000081-0000

DATE: 2022/12/23

ONTARIO

SUPERIOR COURT OF JUSTICE

NEMANJA JEFIC AND GEORGINA GRUJICIC

– and –

BRITTNEY TROVAO

REASONS FOR JUDGMENT

L. Madsen J.

Released: December 23, 2022

[^1]: Nemanja’s surname is shown as “Jefic” in the style of cause. However, he advised that he now uses “Grujicic” as his surname and prefers that.