Court File and Parties

Court File No.: FC166/24 Date: 2024/11/13 Superior Court of Justice – Ontario

Re: L. H., Applicant And: C.B. and J.L., Respondents

Before: T. Price J.

Counsel: Rebecca Coyne - Counsel for the Applicant Respondents Unrepresented (Ms. B. assisted by K. Veenstra, Duty Counsel)

Heard: October 30, 2024

Endorsement

Overview

[1] This is a motion brought by the Applicant, Ms. H., against her daughter, the Respondent, Ms. B.[^1], for an interim order allowing her to have contact with her twin, two-year-old granddaughters who were born in July, 2022.

[2] Although the motion as originally framed sought six-hour contact on either Saturday or Sunday of alternating weekends and contact of three to four hours on alternating Friday evening, when the motion was argued, Ms. H. indicated that she was prepared to accept whatever contact the court might allow her.

[3] Ms. B.’s position is that a contact order is not in the best interests of the children. She requested that the motion be dismissed.

[4] The second respondent, J.L., is the father of the children. He resides in Quebec and did not participate in the motion.

Background Events on Which Ms. H. and Ms. B. Agreed

[5] The relationship between Ms. H. and Ms. B. has long been strained, beginning as far back as Ms. B.’s teenage years. While they disagree on the underlying reasons, Ms. B. first left her parents’ home at 14 or 15 years of age and lived away from them for a few years. She returned once or twice for brief periods before beginning, in 2020, to cohabit in Quebec with Mr. L., whom she met in 2019.

[6] Ms. B.’s relationship with Mr. L. was marked by repeated acts of domestic violence that he perpetrated against her. She terminated at least one earlier pregnancy after Mr. L. insisted that she do so. They finally separated in March 2023, after he had been charged with a number of criminal offences, some involving physical violence, with Ms. B. being the victim.

[7] Ms. B. contacted Ms. H. seeking her assistance to return to Ontario. In response, Ms. H. secured a moving van and drove to Montreal to retrieve Ms. B., the children and some of their possessions, after which she drove them back to stay with her at her residence in London. It was not the first time that Ms. H. had travelled to Quebec. She had also visited the children in the hospital in Montreal after their birth.

[8] Ms. B. and the children resided with Ms. H. from March 5, 2023 until March 26, 2024, when they left following a disagreement between Ms. H. and Ms. B. during the evening of March 25, 2024 over Ms. B.’s plan to “sleep train” the children by leaving them to cry themselves to sleep after being placed in bed that evening. It was a parenting technique with which Ms. H. did not agree, telling Ms. B. that she was being abusive and neglectful of the children. The disagreement escalated and, ultimately, Ms. B. called police, who attended the residence. No criminal charges were laid, despite allegations of Ms. H. making physical contact with Ms. B. and Ms. B. breaking a door, both of which were denied by the allegedly responsible party.

[9] The next day, Ms. B. took the children to, and secured residence in, a domestic violence shelter. Ms. H. has not seen the children since that time.

Evidence of Ms. H.

[10] Prior to moving into Ms. H.’s residence in March 2023, Ms. B. and the children also stayed at her residence on multiple occasions. She specifically identified visits at the following times:

a. the middle two weeks of July and August, 2022; b. the month of September, 2022; c. the middle two weeks of October, 2022; d. the first two weeks of November, 2022; e. the month of December, 2022; and f. for two weeks in February, 2023.

Her “Care of” the Children

[11] From the beginning of their cohabitation, she and Ms. B. divided childcare between them on a 50/50 basis, with Ms. B. caring for one child overnight while she cared for the other. She included in the word “care” the feeding, changing, burping and settling of whatever child she was responsible for at the time.

[12] If she was not at work or attending school, the children would “race” into her bedroom in the morning and jump on her bed, ready to play with her. She described the children “always” crying when she went to work if they were awake when she left, so much so that she would contact them by FaceTime on her arrival.

[13] According to her evidence, the children’s daily routine “with [her]” included her visiting them upon their awakening, a visit which caused the children to display their happiness at seeing her. She cleaned them and dressed them for the day. She then listed a number of activities that she engaged in with the children throughout the day, including doing crafts, playing with them, going outside, having lunch, putting them down for a nap, waking them, giving them a snack; going outside again, having dinner, playing after dinner, bathing them and putting them to bed.

[14] There was no mention of Ms. B. being involved in any of these activities.

[15] She regularly took them to the park, read to them every day, developed communication boards for them and sang songs with them.

[16] She listed a number of fun activities in which the children liked to engage without indicating if either party participated with them.

[17] One of the children loved to visit farms and zoos with her and to cuddle regularly with her in her bed. The other child was said to be independent and inquisitive, but cautious, not liking to dirty her hands.

[18] She was present for the children’s medical appointments at the beginning of 2024, and “helped the girls meet and exceed developmental milestones.”

[19] She listed a number of attractions within the City of London to which she took the children and indicated that when she had a day off she would be with them “all of my time.”

[20] She expressed the opinion that the children were “deeply bonded” with her, directing words and gestures to her, asking to be picked up, and objecting when she put them down or if she left their sight.

[21] She described the children as being the light and joy of her life, waiting for her to return from work, running up to her for a hug and a kiss. She could see the children’s love for her in their eyes.

[22] She opined that the children love her and need her. She wishes to be reunited with the children immediately, for their best interests.

Her Descriptions of Ms. B.

As a Person

[23] Ms. H. offered the following information about Ms. B., ostensibly to assist the court in determining whether she should have contact with her grandchildren:

a. that Ms. B. was diagnosed with ADD around the age of 10 and on medication for it until about age 18; b. that she has subjected Ms. H. and her estranged spouse (Ms. B.’s father) to years of verbal and mental abuse since she was 12; c. that she has been struggling with mental health issues since late adolescence; d. that it was “suggested” during her teenage years, by some unidentified person, that she “could have” borderline personality disorder order; e. that, as her “mental health has deteriorated,” she immediately escalates if even the possibility of her having borderline personality disorder is mentioned to her “calmly and compassionately;” f. that, in 2014, she was charged with a number of offences under the Youth Criminal Justice Act[^2]; g. that, after the age of 18, she: i. stole from Ms. H. and her estranged spouse; ii. lied about “anything and everything;” and iii. “would miss every important family gathering from simple meals to funerals;” h. that she would have periods where she would not communicate for a couple of months, then re-appear, “always” wanting money, a place to sleep, or being pregnant; i. that she has terminated “two or three” previous pregnancies; j. that she had been prescribed medication for postpartum depression and anxiety but never took it; k. that she is a binge drinker and has been an alcoholic since she was 18 years of age; l. that she “vapes non-stop” – including in the presence of the children and when they were infants; m. that she occasionally smokes/vapes marijuana; and n. that she seemingly left behind a cocaine straw in her room at Ms. H.’s residence when she departed, since Ms. H. found one there.

As a Parent

[24] According to Ms. H., Ms. B.:

a. “was overwhelmed with parenting from the beginning;” b. “avoided the children, laying around on her phone for 10-16 hours a day, neglecting” them; c. “needed help, direction and emotional support for everything, including in relation to ensuring the girls got basic medical care;” d. did not prioritize the children’s immunization schedules, causing them to fall behind; e. refused to take the children to the dentist, despite Ms. H.’s efforts to get her to do so, because she claimed to not like making phone calls; f. did not understand the need for the children to have a routine; g. did not appear to understand the children’s needs to be read to, sung to, and played with; h. did not know how to comfort the children or distract them, being mostly annoyed when they were crying or if they were struggling to separate from Ms. H.; i. ignored the children when they awakened in the morning, preferring, instead, to play on her phone for about an hour, leaving the children to entertain themselves; j. did not socialize with the girls at mealtimes, being on her telephone instead, or setting them up to watch television; k. when going out with friends, often returned far later than she said she would, compelling Ms. H. to care for the children the following day because she was hung over; l. struggled with showering or bathing the children even every other day, resulting in Ms. H. having to step in and complete the task before a third day had passed; m. failed to assist the children when they were learning to walk, expecting them, instead, to do it themselves because she was “disengaged, flat, and disinterested;” and n. never took the children to gymnastics, despite asking Ms. H. to register them, because she “didn’t know it was a Monday.”

[25] Ms. H. further claimed that, after she returned to work in December 2022, prior to which she had helped Ms. B. get the girls on a routine because she needed “so much help personally and especially in caring for the girls,” she would return home from 12–14-hour shifts to find the children smelling like urine, still wearing the pyjamas she had placed them in 24 hours before. Moreover, their highchairs would have a “day’s worth of food in them, not having been cleaned between meals.”

[26] Ms. H. further deposed that the children did not seem to care whenever Ms. B. left or returned to the residence. As she saw it, the children did not behave as though they were bonded with their mother because she did not see eye contact between the children and Ms. B., or any effort on their part to get her attention.

[27] Despite what she called their “challenges,” Ms. H. asserted that she and Ms. B. “did pretty well together,” while also acknowledging that there was friction in their relationship.

[28] According to Ms. H., her efforts to “strike a balance between stepping in to make sure the girls got what they needed and supporting Ms. B. as she learned to be a parent” caused much conflict between her and Ms. B. to which the children were exposed.

[29] Notwithstanding, Ms. H. asserted that, because she wanted to help her daughter and grandchildren escape from Mr. L., after she had returned them to Ontario, she “paid for everything in the house” and for the children except their food and diapers, and drove them everywhere.

[30] She further assisted Ms. B. in completing her last high school credit in the summer of 2023 and helped her register for courses at Fanshawe College in the autumn of 2024.

[31] She seeks the contact order because her home is the only stable and permanent residence the children have known or remembered. She is also concerned about the lack of stability in their lives and is worried that the children feel abandoned by her.

Evidence of Ms. B.[^3]

[32] She denied staying with Ms. H. for most of the periods that she had alleged in her affidavit. The children were born in Quebec in mid-July, 2022 and spent a month in the hospital, two weeks of which were in the neo-natal intensive care unit.[^4] That excluded the claim that she stayed with Ms. H. during the middle two weeks of July, 2022. She further denied staying with Ms. H. for any part of September, October[^5], or November 2022, or February, 2023. She agreed that she brought the children to Ontario for an extended Christmas visit in December 2022.

[33] She indicated that, when Ms. H. attended the hospital after the birth of the children, she was denied access to Ms. B.’s room because of Covid restrictions. As a result, Ms. H. became angry, resulting in her removal from the hospital by security.[^6]

[34] With the benefit of counselling and therapy, she was able to acknowledge that she was caught up in a cycle of violence in her relationship with Mr. L.. She lived with him in Montréal from 2021 until March 2023. Over that period, she returned to Ms. H.’s residence for a period of approximately one month because of Mr. L.’ assaults, after which they reconciled and she returned to him.

[35] Following the episode in which the violence perpetrated against her by Mr. L. resulted in his criminal charges, and finally resolving to leave the relationship, she contacted Ms. H. in March 2023 to inform her and to seek her assistance in leaving by asking Ms. H. to allow her and the children to move in with Ms. H..

[36] She selected Ms. H.’s residence because it was the only option that she could think of which would be immediately available to her and the children. She was also hoping that, perhaps, things would be different between her and Ms. H. when she and the children moved into her residence.

[37] Recognizing that the two had a troubled history[^7], however, Ms. B. planned to stay with the children at the home of Ms. H. for only a brief period.

[38] At first, things went reasonably well. Ms. H. was supportive and offered to assist with the children. She also told Ms. B. that she need not worry about paying for anything. All costs were to be covered by Ms. H..

[39] That is not how things turned out.

[40] Within a short period, the problematic relationship that had plagued her and Ms. H. since she had been much younger re-emerged.

[41] According to Ms. B., Ms. H. repeatedly threatened to oust her and the children from her home. Ms. H.’s moods were unpredictable and she would often speak abusively to or yell at Ms. B., criticizing her parenting of the children[^8], sometimes making such statements in the children’s presence.

[42] More than once, during arguments between the woman, Ms. H. would tell the children that their mother was “being a real bitch today.” In order to avoid Ms. H. when she was in such moods, Ms. B. and the children hid in the basement.

[43] Despite Ms. H.’s assurance that she would bear the costs of Ms. B. and the children staying with her, Ms. H. communicated to Ontario Works (OW) the fact that Ms. B. and the children were staying at her residence.[^9] As a result, the shelter allowance portion of Ms. B.’s OW cheque was, instead, paid to Ms. H.[^10] and Ms. B. was assessed with having received $3,000.00 that she ought not to have been paid. She is now indebted to OW in that amount.

[44] Ms. H. complained to Ms. B. about her conduct in the home. To avoid the possibility of Ms. B. using too much electricity, when Ms. H. left the home she would remove and take with her the fuses which were necessary for electricity reaching the lights in certain parts of the home, resulting in Ms. B. and the children not being able to use those areas.[^11]

[45] According to Ms. B., by March 2024 she had concluded that she and the children could no longer reside with Ms. H.. In the final few days preceding Ms. B. leaving the home with the children, Ms. H.’s moodiness was creating a toxic environment in the home. The altercation between them on March 25, 2024 was about the manner by which Ms. B. was attempting to address the children’s crying when put to bed. Police were summoned but no charges were laid against either party. The following day Ms. B. moved the children to the shelter in St. Thomas where they were assessed and accepted as residents.[^12]

[46] On leaving, Ms. B. had also removed some of the children’s items from Ms. H.’s residence. A short while later, Ms. B. attempted to retrieve the balance of the children’s items from Ms. H. but was denied access to them for a period of two months. Even retrieving the items involved drama between the women involving Ms. H. changing the agreed-upon retrieval date,[^13] which led to the loss of Ms. B.’s helpers for the retrieval. The children had to accompany Ms. B. when the retrieval of their items finally occurred.

[47] She called Ms. H.’s description of her relationship with the children “imagined” and indicated that she did not wish to expose the children to any more of Ms. H.’s emotional abuse.

[48] In responding to some of Ms. H.’s specific allegations, Ms. B.:

a. denied that Ms. H. was off work until December 2022 to help care for the children, reporting that the cause was, instead, a previous motor vehicle accident in which she had been involved and for which she ultimately received a financial settlement; b. denied that she and Ms. H. ever equally parented the children[^14]. Ms. B. indicated that she was always the children’s primary caregiver, noting that her mother was away during the day at work or school, so she was often unavailable when she claims to have been parenting the children; c. denied drinking alcohol at Ms. H.’s residence or using any other substance while caring for the children, although she did acknowledge smoking marijuana approximately 10 years ago. More specifically, she denied Ms. H.’s allegations that she: i. neglected the children; ii. is an alcoholic; and iii. uses drugs. d. agreed that she did go out with friends and leave the children with Ms. H. over the period between March 2023 and March 2024, but indicated that it occurred on 3 occasions[^15] and that, on each occasion, the children were in bed before she left Ms. H.’s premises; e. denied that Ms. H. assisted her to get into Fanshawe College; and f. deposed that the children do not appear to feel abandoned by Ms. H.. She asserted that they have not mentioned or asked for Ms. H. since March 2024, including the time when they accompanied Ms. B. back to Ms. H.’s residence to retrieve some of their personal effects. She said they were, instead, happy to see their toys and other belongings.

[49] She is concerned that, were the children to have contact with Ms. H. “at this time,” they might be exposed to hostile comments about her against which she would be unable to insulate them.

[50] She also expressed concern about the safety of the children were they to have contact with Ms. H. at present because of an event that occurred at the home of Ms. H. in May 2024. Ms. H.’s car was set on fire in the driveway. The perpetrator is unidentified, his or her motives are unknown, and the crime remains unsolved.

Submissions on behalf of Ms. H.

[51] Ms. Coyne submitted that while the degree to which Ms. H. was involved with the children was in dispute, the fact of her involvement was not. She submitted that the evidence of Ms. H. clearly established that she had a substantial and meaningful relationship with the children which long predated Ms. B.’s termination of contact between them in March 2024.

[52] As evidence of that, she cited the many things that Ms. H. indicated that she did for the children while they lived with her, and before. She further noted that Ms. B. was comfortable leaving the children with Ms. H.. Accordingly, Ms. B. must have considered Ms. H. to be a safe person to care for the children.

[53] Ms. Coyne also acknowledged the occasional acrimony between the parties which, she said, clouded their relationship. She cited there being a cycle of verbal conflict and resolution between the parties.

[54] Ms. Coyne differentiated the cycle of verbal conflict and resolution that existed between Ms. H. and Ms. B. from a cycle of violence, which did not exist between them. She pointed to the frequent visits to Quebec by Ms. H. to visit with Ms. B. and the children, something that she submitted would not have occurred if violence had existed in the relationship between Ms. H. and Ms. B.. She suggested that Ms. B. would have avoided her mother if she was really as abusive as she now claims her mother to be.

[55] She said that the main objection raised by Ms. B. to continued contact between Ms. H. and the children was Ms. H.’s alleged denigration of Ms. B..

[56] She characterized Ms. B.’s evidence as being full of anger. Her anger, according to Ms. Coyne, caused Ms. B. to minimize Ms. H.’s role in the lives of the children and her relationships with them, all contrary to the evidence up to March 2024, which established that Ms. B. had no real concerns about Ms. H.’s care of the children.

[57] Ms. Coyne lastly noted that the parties had managed to get along with minimal conflict for a year prior to Ms. B. moving out with the children in March 2024. This reasonably peaceful coexistence lends itself, in the submission of Ms. Coyne, to an order for contact between Ms. H. and the children.

Submissions on behalf of Ms. B.

[58] Ms. Veenstra submitted that the evidence of Ms. B., and her history with her mother, establish that Ms. H.’s residence was not the safe haven for the children or Ms. B. that Ms. H. attempts to portray.

[59] She pointed to the evidence of Ms. B. about there being a honeymoon period after she and the children moved in with Ms. H. in March 2023, but that it did not last long before Ms. H. began to criticize Ms. B.’s care of the children.

[60] She asked me to note, when considering the text messages produced by Ms. H., that she produced no text message demonstrating a positive relationship between her and Ms. B. which was dated after October 1, 2023. Pointing out that Ms. H. could have produced more recent text messages indicative of a positive relationship between her and Ms. B. if she had wanted to, Ms. Veenstra submitted that I can reasonably infer that none were produced because those which came into existence after October 2023 were more likely indicative of the deteriorating and belittling relationship described by Ms. B. than the loving relationship claimed by Ms. H..

[61] By sometime in the latter months of 2023, the children were witnesses to the hostility of their grandmother towards their mother and living in a toxic environment created by Ms. H., in the submission of Ms. Veenstra.

[62] She suggested that, while issues of credibility between the parties cannot be resolved on a motion, I could reasonably infer that Ms. H. was attempting to mislead the court when, in her initial affidavit, she claimed that she allowed Ms. B. and the children to live with her at virtually no cost. This was because Ms. H. was later compelled to admit, only after Ms. B. disclosed it, that she was charging Ms. B. rent of $500.00 per month. She suggested that, in light of Ms. H.’s failure to disclose the payments, I should carefully scrutinize her evidence on key contentious points.

Credibility

[63] Since this is a motion, I ought not to make definitive findings of credibility.

[64] As an example, Ms. B.’s assertion that the children were in the hospital for a period of one month after their birth was contradicted by her text message to Ms. H.. However, while that text message appears to have undercut Ms. B.’s evidence about the total length of the children’s stay in the hospital, it did not contradict her assertion that they were in the neo-natal intensive care unit for two weeks, nor her assertion that she did not stay with Ms. H. during the middle two weeks of July 2022. Ms. B., of course, had neither an opportunity to respond to the text evidence, or to explain it.

[65] By way of further example, Ms. Veenstra’s submission that I should carefully scrutinize the evidence of Ms. H. because of the contradiction between her assertion that she allowed Ms. B. and the children to live with her free of charge and the fact that she charged Ms. B. rent of $500.00 per month could equally allow for other conclusions to be drawn, aside from Ms. H. attempting to mislead the court. While she failed to explain how she came to be discussing Ms. B.’s residential arrangements with OW, that discussion appears to have occurred at some point after Ms. B. had been residing with her for six months. The fact that Ms. B. now owes OW $3,000.00 suggests that she may have been collecting the shelter allowance portion of an OW payment from the beginning of her stay with Ms. H.. If so, an argument could be made that Ms. B. was not being forthright with OW, which could impact how one views her evidence. I do not know because these issues are really tangential to the key issue on the motion. Assuming that this evidence is relevant, however, the conclusions to be drawn from it are better left to trial.

Law and Analysis

[66] Ms. H.’s request for a contact order must be decided under s. 24 of the Children's Law Reform Act, R.S.O. 1990, c. C. 12, the most relevant subsections of which provide as follows:

24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. (2) In determining the best interests of a child, 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. (3) Factors related to the circumstances of a child include, (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.

Current Test for Analysing Contact Claims

[67] Before I analyze the facts in this case, it is appropriate to set out that process by referring to the cases through which it was developed.

[68] In Ninkovic v. Utjesinovic, [2019] O.J. No. 656, at para. 57, Justice L. Madsen wrote:

57 Chapman v. Chapman, [2001] O.J. No. 705 remains the leading case on grandparent access in Ontario. In Chapman, the Ontario Court of Appeal held that in cases such as these, the question is not what is good for the grandparent, but what is in the best interests of the child. Further, the question is not what is theoretically in children's best interests, but what is in the best interests of the particular child in the case at hand.

[69] In Chapman, at para. 21, Justice Abella had written, on behalf of the panel which heard the appeal in the case:

21 …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.

[70] Subsequently, in Giansante v. DiChiara, [2005] O.J. No. 3184, Justice C.S. Nelson, after referring to Chapman and its resolution in favour of parental autonomy, held that a court “can step in when a parent has acted in a way that arbitrarily imperils a positive grandparent-grandchild relationship.” As a result, Justice Nelson reformulated the Chapman principle to account for such cases, writing at paragraph 18:

18 In summary, Chapman provides that courts should generally defer to a parent's decisions about grandparent access unless all three of the following 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?

[71] Justice Nelson’s formulation of the test in Giansante was further refined by Justice M. Kurz in Torabi v. Patterson, [2016] O.J. No. 1972 (O.C.J.), where he wrote:

61 Following Giansante, the analysis of grandparent or extended family access can be summarized as having two parts:

1. 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 …

2. 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).

[72] The trial judge’s utilization of this formulation of the test in analysing a claim for contact was noted without adverse comment by the Court of Appeal in B.F. v. A.N., 2024 ONCA 94, [2024] O.J. No. 656 at footnote 3. Accordingly, I now turn to consider its application.

Does a positive grandparent-grandchild relationship already exist between Ms. H. and her grandchildren?

[73] The onus is on Ms. H. to establish that the answer to this question, like the others, is “yes.”

[74] In F.S. v. N.J., 2024 ONCJ 199, [2024] O.J. No. 1792 (O.C.J.), Justice Sherr found that the appropriate time to determine whether a positive grandparent-grandchild relationship exists is when the parents terminated the grandparent/child contact. In this case, that was March 2024, when Ms. B. removed the children from Ms. H.’s home.

[75] The evidence establishes to my satisfaction that, at that time, Ms. H. did have a relationship with her grandchildren. They had resided with Ms. H. for a year, and had been there on prior occasions, the number being a matter of dispute between Ms. H. and Ms. B..

[76] The real question to be answered is whether that relationship was positive.

[77] In Torabi v. Patterson, at para. 72, Justice Kurz wrote, citing Sproule v. Sproule, [2012] O.J. No. 6423 (O.C.J.), that

a. “a positive relationship requires both time and depth;” b. “there must exist something more than an occasional pleasant experience with the children;” and c. “…[F]or the court to impose an access order in favour of a grandparent against an unwilling and unmoving parent, [the court must find that] the child had either lived with or spent considerable time with the grandparent over a significant period leading up to the matter's coming before the courts….”

[78] Justice Kurz concluded, at para. 88, that “the legal threshold of a "positive" relationship with the child as defined above, one that would allow the court to consider superseding its normal deference to a parent or parents, is necessarily a high one.”

[79] In F.S. v. N.J., Justice Sherr wrote:

82 The court finds that the paternal grandmother had a positive pre-existing relationship with the child for the first 16 months of the child's life (until July 2019[^16]), despite the paternal grandmother having overstated the level of her involvement with the child.[^17]

83 The paternal grandmother was present daily in the child's life until February 2019 and was an important part of the child's world. She obtained supplies and clothes for the child after her birth. The paternal grandmother played with the child, took her for walks and proudly showed her off in the community.[^18]

[80] I found much of the evidence of Ms. Hill about her relationship with the children to be difficult to follow.

[81] Firstly, she was often unclear about when she engaged in some of the activities with the children. For example, her reference to the activities that she was engaging in with the children around the time of her delayed return to work in December 2022 clearly related to a time before Ms. B. and the children were living with her. Other examples of activities in which she participated with the children did not indicate when they occurred.

[82] To that point, she deposed that after December 2022 she returned to work and resumed her attendance in an educational program. These activities were said to have consumed as much as 12 to 14 hours of her time per day. Given that evidence, I am left to wonder, when she also described days during which she seemed to have spent the entire day with the children, and was apparently the only person providing care for them, when these days occurred? Were they before or after December 2022? If after, did they occur on weekends? Were they after March 2023? If before, did they occur in London or Montreal?

[83] These questions are relevant because the focus of the inquiry is on the quality of the Ms. H.’s relationship with her grandchildren, and that focus must be from the perspective of the grandchildren, objectively assessed.

[84] In that regard, much of Ms. H.’s evidence, but not all, seemed to focus not on the quality of her relationship with her grandchildren but on the quantity of time that she spent with them. Her recitation of the many things that she claimed to have done with the children read as if she were listing the items on a to-do list. In many cases, no reference was made to how the children reacted to her providing such services, or engaging with them.

[85] However, Ms. H. also provided evidence which suggested to me that there were occasions when she and the children engaged in activities during which the children displayed affection towards her. I find that, at least on those occasions, the children viewed positively their relationship with her. I am referring to such uncontradicted evidence as the children racing into her bedroom in the morning and jumping on her bed ready to play with her, singing songs with her, cuddling with or asking to be picked up by her, waiting for her to return from work, then running up to her for a hug and a kiss. As to this latter example, Ms. H. did produce a text message from Ms. B. with a photo of one of the children standing by a window. The text from Ms. B. read, “[child’s name] says hurry.”

[86] I also cannot overlook the fact that the children did live with their mother and Ms. H. in her home for a continuous one-year period.

[87] Having regard to all of the factors that I have noted, I find for the purposes of this motion that Ms. H. has established that, in March 2024, a positive grandparent-grandchild relationship already existed between her and her grandchildren.

Has Ms. B.’s decision imperilled the positive grandparent-grandchild relationship?

[88] The answer to this question is ”yes,” as Ms. Veenstra conceded would be the case if I were to have found that there was a positive grandparent-grandchild relationship.

[89] The evidence is clear that, since she left Ms. H.’s residence in March 2024, Ms. B. has not permitted any contact between Ms. H. and the children. Clearly, her action has imperilled the positive grandparent-grandchild relationship that I have found to have existed in March 2024.

Has Ms. B. acted arbitrarily in terminating Ms. H.’s positive relationship with her grandchildren?

[90] In Giansante v. DiChiara, Justice Nelson held, at para. 27, that a parent acts arbitrarily when the evidence shows that his or her decisions about access are based on considerations other than the best interests of the child.

[91] Ms. B. claims that, while things did go well between her and Ms. H. when she and the children first moved in with her in March 2023, over time the relationship between the two women deteriorated to the point that the atmosphere in Ms. H. home became too toxic for the children to continue to be exposed to it. The toxicity arose from the constant arguments between the adults, and Ms. H.’s variable moods and constant belittling comments about Ms. B.’s parenting of the children.

[92] Ms. H. claims that Ms. B. constructed the false narrative that her home is a toxic environment in order to secure speedy acceptance into the domestic violence shelter.

[93] This was a motion brought by a party seeking to resume what I have found to be a positive relationship with her grandchildren. One might think that the bulk of her evidence would speak to that issue.

[94] Instead, I find that Ms. H., through her lengthy recitation of the weaknesses and alleged historical negative behaviours of Ms. B. as a teenager, actually provided evidence which inferentially supported the claim of Ms. B. that Ms. H. belittled her about her parenting of the children, and often in their presence.

[95] I take as a prime example, the evidence of Ms. H. that “someone” suggested that the teenaged Ms. B. had Borderline Personality Disorder. Such a clause should never have been asserted in her affidavit. It is unattributed, it violates Rule 14(19(a), and it could only have been offered to cast Ms. B. in a negative light.

[96] Worse than that, however, by deposing that Ms. B. “immediately escalates if even the possibility of her having Borderline Personality Disorder is mentioned to her ‘calmly and compassionately’” because her “mental health has deteriorated,” Ms. H. has left it wide open for me to infer, as I do, that the person who mentions (present tense) to Ms. B. “calmly and compassionately” that she has Borderline Personality Disorder is Ms. H.. I ask: why would she do so? What is its relevance to this motion? I conclude that it is an epithet which Ms. H. has used as a weapon against Ms. B. as a person.

[97] Relatedly, I note, again, the use of the present tense when Ms. H. described Ms. B. as subjecting Ms. H. and her estranged spouse “to years of verbal and mental abuse since she was 12,” suggesting that such behaviour continues, at least as Ms. H. sees it and would want the court to conclude.

[98] The same comment can be made about many of Ms. H.’s negative revelations about Ms. B. as a youth. If she was prepared to put them in an affidavit, it is not too difficult to conceive that she might also have hurled them at Ms. B. during arguments between the two – arguments which both acknowledged occurred on a regular basis.

[99] Beyond this, however, I also ask why I would have been told about an old Youth Criminal Justice Act charge which may not have resulted in a conviction? It is not relevant to any issue on the motion.

[100] Moreover, I find that Ms. H. clearly exaggerated what she sees as negative parenting by Ms. B.. It is difficult to conceive that she seriously expected that a court would not conclude that she was being hyperbolic when she deposed that Ms. B. “avoided the children, laying around on her phone for 10-16 hours a day, neglecting” them; or that she “did not know how to comfort the children or distract them;” or that she did not socialize with the girls at mealtimes, being on her telephone instead; or that she left the children unbathed for days, or left them in their urine-soaked pyjamas for 12-14 hours.

[101] If all of this is ultimately found to be true then, surely, Ms. B. is a poor parent. If so, I would ask why Ms. H. did not do more to protect her grandchildren from such awful parenting by Ms. B.. Why seek only a contact order instead of placement of the children in her care? These are questions that will need to be answered at trial.

[102] While I have little doubt that Ms. B.’s children are loved by Ms. H., her low opinion of her daughter leapt off the pages of her affidavits. That low opinion was undoubtedly given voice during arguments between them. As a result, the children were probably exposed to extremely negative comments by Ms. H. about their mother, including that she is “a bitch.”

[103] When that occurred, the love that Ms. H. feels for her grandchildren was clearly overwhelmed by her anger towards Ms. B.. It is not in the children’s best interests to be exposed to such an environment.

[104] Moreover, merely removing Ms. B. from the contact equation would not suffice because Ms. H. has shown herself to be unable to isolate the children from her feelings about their mother. Ms. B.’s absence would be no guarantee that Ms. H. would not find some parenting deficiency about which to comment to the children.

[105] In Chapman, the Court of Appeal allowed an appeal from a ruling that permitted a grandmother to have continued contact with her grandchildren. Among the findings by the trial court were that there was an element of “unfortunate” conflict between the parents and the paternal grandmother, described by the trial judge as a "strong-willed woman who is used to having her own way." There was also evidence that the grandmother constantly interfered in the lives of the parents.

[106] In Nichols v. Herdman, 2015 CarswellOnt 9262, Justice Suzanne Stevenson found that a parental decision to end grandparent contact was not arbitrary in circumstances where there were “longstanding problems in the relationship” between the grandmother and her daughter, the child’s mother. Justice Stevenson found that the grandparents had regularly raised questions about how their granddaughter was being parented by the parents. When the parents announced that they were moving, the grandparents overreacted and a large argument ensued.

[107] As Justice Stevenson wrote, at para. 62, about the parents’ right to make the decision to move:

62 …That decision was theirs to make and the ensuing challenges to their decision and resulting argument were unwarranted. I accept that this was [the parents’] breaking point as they endured constant challenges to their decision-making.

[108] Is this much different than Ms. B.’s decision as a parent to try to address the children’s crying at bedtime in a manner not approved of by Ms. H., who clearly thought that she knew better than Ms. B.? It is not.

[109] Justice Stevenson questioned whether whatever the parents in the case before her decided about matters concerning their daughter would ever be acceptable to the grandparents. Again, I do not see a difference from the facts of this case, given Ms. H.’s obviously low opinion of her daughter.

[110] As Justice Nelson wrote at para. 30 of Giansante, “There will, of course, be circumstances in which a conflict between grandparents and parents is such that it will inevitably have an adverse impact on the children.”

[111] This is one of those cases. I find, for the purposes of this motion that, on the totality of the evidence, Ms. B. did not act arbitrarily in terminating Ms. H.’s contact with her grandchildren.

Conclusion

[112] As Justice Sherr wrote at para. 119 in F.S. v. N.J., a decision to not allow grandparent contact by means of an order “does not necessarily mean the…grandmother…will never have a relationship with the [children].”

[113] Because of this decision, Ms. H. is not granted a specific right to contact with her granddaughters. That is up to Ms. B., as their mother. As she deposed, she does not want the children to have contact with Ms. H. at this time.

[114] As I noted during submissions, these women have a love/hate relationship. For all I know, by this time they may have reconciled. If they have not, I suggest that they both take the time to reflect on their relationship and try to address their issues before the children have further contact with Ms. H..

[115] Given the state of affairs between the parties, I find that to order costs against Ms. H. would likely only exacerbate the currently negative relationship between them. I decline to do so.

Order:

1. Ms. H.’s motion for a contact order is dismissed.
2. There shall be no order as to costs.

Justice T. Price Date: November 13, 2024

Footnotes

[^1]: The names of the parties have been initialized because publication of the full name of Ms. B. could constitute a violation of s. 110(1) of the Youth Criminal Justice Act, S.C. 2002, c. 1 (hereinafter the YCJA) [^2]: Ms. H. deposed that the charges occurred under the Young Offenders Act, R.S.C. 1985, c. Y-1, but that statute was repealed in 2003. [^3]: The replies of Ms. H. are found in footnotes 4-6; 8; and 10-15. [^4]: To support her reply evidence, Ms. H. appended a number of text exchanges with Ms. B. to her Reply affidavit. In one, Ms. B. indicated that the children were to be discharged from hospital on a date that was 12 days after their birth. [^5]: Ms. H. appended a text message from Ms. B. dated September 3, 2022 in which Ms. B. indicated that she would be visiting Ms. H. for the 2022 Thanksgiving weekend. Ms. H. claimed that she did so. Thanksgiving weekend in 2022 was October 8-10, 2022. When Ms. B. arrived is not clear, but her attendance in October would contradict her claim that she did not stay with Ms. H. that month. [^6]: While Ms. H. denied being asked to leave the hospital, an assertion not made by Ms. B., she did not deny being escorted out by security. She asserted that she visited Ms. B. in the hospital daily until she was discharged. [^7]: Ms. B. deposed that Ms. H. had been “abusive to [her] for years.” [^8]: Ms. H. deposed that parenting discussions consisted of Ms. B. asking for her help and her offering advice to Ms. B.. She also produced some text messages in which both parties acknowledged, at various times, the difficulties in their relationship, with each taking responsibility for conflictual situations. [^9]: Ms. H. did not explain why or how she came to have been communicating with OW about her daughter’s residential arrangements. [^10]: Ms. H. deposed that she and Ms. B. had discussed her paying rent when Ms. B. applied for OW because Ms. H. was struggling financially with Ms. B. not contributing to costs in the home. [^11]: Ms. H. labelled as “absurd” the allegation that she required Ms. B. and the children to remain in the dark, which was not the allegation that was made. She did not deny removing the fuses or taking them with her. [^12]: Ms. H. claimed that the allegations made against her by Ms. B. were fabricated in order to advance Ms. B.’s request for immediate housing. [^13]: Ms. H. disputed Ms. B.’s characterization of the reason that it took 2 months for her to be able to retrieve the children’s items, placing primary responsibility for the delay on Ms. B. blocking communications between them. [^14]: In some of the text messages produced by Ms. H., Ms. B. thanked her for her assistance with the children. [^15]: Ms. H. denied that Ms. B. only went out with friends on three occasions. She also felt that this was evidence that Ms. B. “was starting to drink a lot more.” [^16]: According to Justice Sherr, this was “ when the mother left the paternal grandmother's home for the last time.” [^17]: A view I also hold based on Ms. H.’s somewhat self-aggrandizing descriptions of her involvement with the children. [^18]: See also Ninkovic v. Utjesinovic, at para. 76(a)