Court File and Parties
COURT FILE NO.: FC-22-741 DATE: 20240815 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Steve Pavlakovic and Darinka Pavlakovic, Applicants (Moving Parties) AND: Derrick Volpi and Kristina Volpi, Respondents
BEFORE: McVey J.
COUNSEL: Russel A. Molot, for the Applicants Deanna Paolucci, for the Respondents
HEARD: August 6, 2024
Reasons for Decision
Introduction
[1] Pursuant to the Children’s Law Reform Act, the Applicants seek an interim contact order respecting their grandchildren, Milena Volpi (born December 21, 2009), Matea Volpi (born March 6, 2011), and Luka Volpi (born January 30, 2015). The Applicants are the maternal grandparents. The Respondents are the biological parents. In October 2021, the Respondents terminated all contact and communication between the Applications and their grandchildren. The Respondents maintain that following their separation in July 2017, the Applicants repeatedly tried to undermine the Respondents’ relationship with their children, and in doing so caused the children psychological distress.
[2] Grandparent contact cases are difficult. On the one hand, contact with extended family is generally in a child’s best interests. A loving relationship with a grandparent can undoubtedly enhance the emotional well-being of a child. On the other, parents have an inherent right to decide what relationships are beneficial to their children. There is no automatic right of access by third parties, including grandparents. Courts should defer to parental decision-making unless there is a basis to find that the parents are incapable of acting in their children’s best interests:
…In the absence of any evidence that the parents are behaving in a way which demonstrates an inability to act in accordance with the best interests of their children, their right to make decisions and judgments on their children’s behalf should be respected, including decisions about whom they see, how often, and under what circumstances they see them: Chapman v Chapman (2001), 15 R.F.L. (5th) 46 (Ont. C.A.), at para. 74.
[3] The Applicants submit that they are a positive influence in the children’s lives and that maintaining a relationship with them is in the children’s best interests given the close bond they shared for many years. The Respondents argue that there is no basis to find that they are unable to act in their children’s best interests and therefore this Court should not interfere with their decision-making.
[4] For reasons given below, I agree with the Respondents. The Applicants’ motion for interim relief is therefore denied.
Issues
[5] This motion raises the following issues: See Giansante v Dichiara. at para. 18.
- Does a positive grandparent-grandchild relationship already exist between the Applicants and the children?
- Has the Respondents’ decision-making regarding access imperilled the positive grandparent-grandchild relationship?
- Have the Respondents acted arbitrarily?
[6] Generally, only where the above questions are answered in the affirmative should the Court intervene and conduct its own best interests analysis regarding contact. To the extent that counsel for the Applicants submitted that I must conduct my own assessment regardless of whether the Respondents acted arbitrarily, I disagree. Such an approach, in my view, would fail to pay the high level of deference owed to decisions made by competent and capable parents. See F.S. v N.J. and T.S., 2024 ONCJ 199, per Sherr J., at para. 69.
[7] In the present matter, the first two questions can be dealt with summarily. First, all parties accept that the Applicants had a positive and healthy relationship with the grandchildren up and until approximately 2018. The Applicants cared for them on a regular basis while the Respondents were at work. This included sleepovers and regular family visits with both the children and the Respondents. By all accounts, the family was very close and supported one another however needed. Though the Respondents dispute the precise extent of the assistance provided, [4] they readily accept that the Applicants helped them extensively when the children were young, assistance for which they are very grateful.
[8] Second, in 2021, the Respondents ultimately terminated all contact and communication between their children and the Applicants. This is not a circumstance where contact was reduced in its frequency or altered in nature. Severing all contact between the Applicants and the children has clearly “imperilled” their relationship.
Have the Respondents acted arbitrarily?
[9] Parents act arbitrarily when their decisions regarding access are based on considerations other than the best interests of their children: F.S., at para. 75. The evidentiary record before me does not establish that the Respondents were motivated by factors beyond those of that nature. Far from it. The evidentiary record discloses two parents who tried for years to carve out space for a relationship between the children and the Applicants, notwithstanding the Applicants’ repeated failures to respect the boundaries the Respondents put in place.
[10] As indicated earlier in my reasons, all parties accept that the family enjoyed a close bond for many years. This continued until the Respondents separated in July 2017. Their separation was prompted by the mother’s disclosure of an extra-marital affair. Despite the circumstances, the Respondents’ separation was amicable. They were both committed to a child-focused process. There is no separation agreement in place between the Respondents. The mother moved out of the matrimonial home voluntarily in October 2017. The Respondents share equal parenting time and make decisions regarding the children together. Further, they were able to resolve the financial aspect of their separation informally and without court intervention. The Respondents take trips together as a family. They recently took a family vacation together along with the mother’s new intimate partner. The Respondents have proven that they are fully capable of prioritizing the needs of their children.
[11] The Applicants, however, did not react well to the Respondents’ separation and the relationship between the parties began to breakdown. The mother alleges that on one occasion, in the fall of 2017, her mother called her a “whore” in front of Milena, who was seven years old at the time. To minimize future conflict, the Respondents decided that the father would communicate with the Applicants to arrange contact between them and the children. Multiple text-based exchanges between the father and the Applicants were filed on the motion. The communications demonstrate that contact between the Applicants and the children was repeatedly facilitated by the father in 2018, despite tensions that may have existed between the mother and the Applicants. The Applicants’ contact with the children was reduced during this period but that was more a reflection of the children being in school and involved in extra-curricular activities. The Respondents set aside their own personal dispute with the Applicants to maintain the relationship between the Applicants and the children.
[12] In late 2018, however, Milena’s behavior began to raise concerns for the Respondents. She became distant and cold. She no longer wished to engage with her paternal grandparents despite there having been a pre-existing positive relationship. Eventually, Milena purportedly disclosed that the Applicants had advised her not to trust her paternal grandparents or her own sister. Further, the Applicants themselves began to exhibit overt resentment towards the paternal grandparents, which culminated in tense exchanges taking place between the paternal and maternal grandparents in front of the children.
[13] As a result of escalating tensions and Milena’s disclosure, the Respondents began to reduce contact between the children and the Applicants. Commencing early 2019, the Applicants were only permitted to see the children at the bus stop in the morning before school. This too did not go well according to the Respondents. The Applicants purportedly told the children repeatedly that their parents were no longer allowing them to see the children. They began to whisper things to the children that caused the children visible upset.
[14] In February 2019, the father took the two girls to the bus stop but left the younger child at home because he was sick with the flu. The grandmother asked him why Luka was not with him at the bus stop and the father advised her that it was because he was sick at home. In the following days, the father received a call from the Children’s Aid Society as someone had called to complain that he had left his child home unattended. CAS closed the file after speaking with the father, though cautioned him against leaving a child home alone in those circumstances. In its written report, CAS notes that the father was polite and entirely cooperative with the process.
[15] When the father confronted the grandmother and asked her to speak with him directly about any concerns she may have in future, she denied having made the call. During this litigation, the Respondents received disclosure of the associated CAS report confirming that the grandmother reported the incident. The report discloses that the grandmother referred to the Respondents as “sociopaths” who should “be forced to take a psychological assessment”.
[16] Milena’s teacher also called CAS in early 2019 after Milena reported that her paternal grandfather had pulled her hair and scratched her. When CAS spoke with Milena, she was unable to provide any specifics regarding the alleged incident. Further, she had no visible injuries. Milena advised CAS that her maternal grandmother had told her that her paternal grandparents pay her mother to restrict contact between the children and their maternal grandparents. When asked how her grandmother could have told her this when contact between the two was not permitted, Milena indicated that her grandmother told her at the bus stop and that her grandmother knows “she can keep a secret”. After speaking with Milena, CAS had no safety concerns and closed their file without interviewing the paternal grandparents. Milena later disclosed that she had been coached by her maternal grandmother to make the complaint.
[17] On yet another occasion at the bus stop in early 2019, the grandfather gave one of the children a chocolate before 8:00am. The father asked him not to do so. The grandfather followed up with the father via email challenging and ridiculing his position. The father responded briefly indicating that it was his right as a parent to ask that they not provide the children chocolate in the morning before school. This is yet another example of the Applicants having little to no respect for the Respondents’ decision-making authority regarding their own children.
[18] On May 9, 2019, the Respondents wrote an email to the Applicants referring to many of the above incidents. They warned the Applicants that their behavior was “detrimental to [their] children’s behavior and mood”. The Respondents ended their email by emphasizing that the Applicants’ inappropriate conduct had to stop immediately, or the Respondents would consider other means to address the “harm being done to their children”. The email is entirely child focused.
[19] Later in May 2019, the Respondents became aware that the grandmother had been secretly visiting Milena during Milena’s playdates at a nearby residence. The grandmother was friends with the other child’s mother, so she was able to coordinate the visits. The grandmother arranged this contact despite knowing that the Respondents only approved of the Applicants seeing the children at the bus stop.
[20] In 2020, while at the bus stop the grandmother allegedly told Milena not to trust her father or her mother’s new partner, Shawn. This both confused and upset Milena. The Applicants then continued to attend the bus stop over the objection of the Respondents. Emails and text messages sent between the parties in 2020 were filed wherein the Applicants referred to the children as “hostages” and accused the Respondents of “abducting” the children. The Applicants also accused the Respondents of mentally abusing their own children.
[21] Later in October 2021, the grandparents angrily confronted the father about why his youngest child, Luka, looked “sad” while waiting for the bus. They later followed up with a text message. The Applicants threatened that unless the Respondents responded to their request to see the children, they would contact the father’s employer and allege that he had threatened them with his work-issued firearm. The Applicants also wrote that they “raised the children” and therefore the Respondents had no legal right to withhold access. This incident resulted in the father filing a harassment complaint with the police. A police officer spoke with the Applicants and warned them not to attend the bus stop in future. The Applicants have not seen or spoken to the children since that time.
[22] The Respondents terminated contact between the children and the Applicants only after the Respondents made consistent efforts to manage the Applicants’ problematic behavior and the impact it was having on their children. The Applicants consistently ignored the boundaries established by the Respondents. The Applicants launched an unnecessary complaint with CAS. They secretly arranged unapproved visits with Milena. They unnecessarily exposed the children to the conflict by telling the children that their parents were the reason they could not spend more time together. The Applicants allegedly encouraged Milena to launch a false complaint about her paternal grandfather and advised her that the paternal grandparents were paying her parents to prevent contact between the Applicants and the children. They also threatened to interfere with the father’s employment. The Applicants engaged in this behavior despite being told by the Respondents that it was harming the children.
[23] To sever contact with the Applicants in the above circumstances was the opposite of arbitrary. It was reasoned, incremental, and motivated by the emotional needs of their children. The Applicants had proven to the Respondents repeatedly that they could not be trusted and were unwilling to respect the Respondents’ parental autonomy.
[24] This case is distinguishable from Giansante, where the Court granted the grandparents contact with their grandchild over the objection of the father. There, the Court found the father’s decision to terminate access arbitrary for two reasons. First, there was no evidentiary basis for the father’s concern that the grandparents would act inappropriately around the child or attempt to undermine the father’s parental authority. The grandparents arguably did so only for a very brief period following the tragic death of their daughter when all parties were vulnerable and emotionally raw. Second, the father’s decision was not borne out of what was best for his child, but rather what was easier for him in terms of dealing with the psychological blow of losing his wife and mother of his child.
[25] The matter before me is distinguishable. First, the Respondents had ample basis to fear that the Applicants would continue to undermine their relationship with the children. Second, their decision to terminate contact was motivated by what was in the best interests of their children.
Conclusion
[26] The breakdown in the parties’ relationship is incredibly unfortunate given that they were once very close and supportive of one another. Though the past behavior of the Applicants has been misguided and inappropriate, they undoubtedly love their grandchildren. They made personal sacrifices to be there for the children when the Respondents needed them the most. They are, however, not the children’s parents. This is a distinction I am not sure they understand. Notwithstanding the tremendous amount of love and support they provided early in the children’s lives, the Applicants were not entitled to disregard the Respondents’ wishes simply because they disagreed with them.
[27] In response to a question posed by me, counsel for the Applicants submitted that the Applicants now understand the inappropriateness of their past behavior and will respect the boundaries in future should contact be resumed. I note that there is nothing in the grandmother’s affidavit to suggest this is so. It may very well be that that was the first time the Respondents have heard anything from the Applicants about remorse or insight. Accepting for the moment that the Applicants are contrite, the impact of genuine remorse is an issue for the Respondents to weigh. As the parents, the Respondents possess the right to assess whether rebuilding the broken relationship with the Applicants is in their children’s best interests. The Respondents can determine for themselves whether the Applicants are sincere and whether they are satisfied that past behavior will not be repeated. It is not my place to decide this on their behalf when they have proven themselves entirely capable of making reasoned decisions that promote the welfare of their children.
[28] The issue before me is not whether I would have dealt with the conflict slightly differently than the Respondents. Interfering with their decision for that reason would constitute an impermissible usurping of the parental function. The question I must answer is whether the parents acted arbitrarily or unreasonably when deciding that continued contact with the Applicants was not in their children’s best interests. Such a finding is simply not available on this evidentiary record. As a result, it is not necessary for me to conduct my own best interests analysis as I am satisfied that the children’s parents have already done so reasonably and in good faith. Performing my own best interests analysis and imposing the result on the parties would fail to pay any deference to the decision-making of loving, dedicated and highly capable parents.
Costs
[29] The Respondents are the successful parties and are presumptively entitled to costs. They shall file their written costs submissions within 10 days of the release of these reasons. The Applicants shall have seven days to respond. Written submissions shall not exceed three pages.
McVey J. Date: August 15, 2024
[4] For example, the Respondents adamantly deny that their children spent up to three weeks at a time with their grandparents without returning home.