Grandparent’s right in child custody matter

CITATION: R.A. v. D.P. 2017 ONSC 4622
OSHAWA COURT FILE NO.: 17-1177-00
DATE: 20170731
SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE:  R.A., Applicant

and

D.P., Respondent

BEFORE:  The Honourable Madam Justice S. J. Woodley

COUNSEL: Andreina Minicozzi, for Applicant

Barry Nussbaum, for Respondent

HEARD:  July 28, 2017

ENDORSEMENT

Overview

[1] The Applicant, R.A. (“R.A”), has brought an urgent motion on an interim and without prejudice basis for an Order that the child B.S.D. (“B.S.D.”), born […], 2011, be returned to her care. Alternatively, the Applicant seeks an order that the child shall reside with the Applicant and the Respondent on a week-on week-off basis.

[2] The Respondent, D.P. (“D.P.”), has brought a cross motion for sole custody and primary residence of the child with access to the Applicant at his sole discretion. The Respondent further seeks an Order that the Respondent can obtain, maintain, and renew the child’s passports and other government documents without any other signature or consent and seeks production and delivery of all of the child’s original documents from the Applicant.

[3] Both parties seek costs.

Issues

[4] Is the matter sufficiently urgent such that the motion should be heard before the case conference?

[5] In the circumstances of this case what custody, residency and access arrangements are in the best interests of the child B.S.D.?

[6] Is either party entitled to costs and if so, in what amount?

Facts

[7] The child, B.S.D., was born on […], 2011 to the Applicant’s (now) deceased daughter, N.D. (“N.D.”), and the Respondent D.P. (“D.P.”).

[8] N.D. is a Canadian citizen and D.P. is a landed immigrant from Chile. The child B.S.D. is a Canadian citizen.

[9] The child B.S.D. resided with her parents from her birth on […], 2011 until October 24, 2012, when both parents were arrested for weapons and drug offences (possession for the purpose of trafficking MDMA, heroin and cocaine).

[10] Upon the arrest of both parents the Children’s Aid Society contacted the Applicant R.A. and placed the child in the temporary care of the Applicant R.A..

[11] The mother, N.D., was granted bail the day following her arrest (October 25, 2012) and by her bail conditions resided at the Applicant’s home subject to conditions, including a condition that she not communicate with the Respondent D.P. except through counsel to prepare a defence.

[12] The Respondent father remained incarcerated for 15 months until bail was granted. By the Respondent’s bail conditions he was required to reside with his parents in Richmond Hill subject to conditions, including a condition that he not communicate with N.D. except through counsel to prepare a defence.

[13] During the period of the Respondent’s incarceration the relationship between the Respondent and N.D. ended.

[14] While the Respondent was incarcerated the Applicant arranged for the Respondent’s parents to enjoy access. When the Respondent was released on bail the Applicant arranged for the Respondent to have access every other weekend and increased access to every weekend when requested.

[15] The Applicant’s daughter, N.D., died in April of 2017 from a drug overdose prior to resolution of the criminal proceedings.

[16] Following N.D.’s death, the child B.S.D. continued to reside with the Applicant and the Respondent continued to enjoy weekend access visits.

[17] The Respondent’s criminal charges are scheduled to proceed to trial commencing March 19, 2018. In the interim, the Respondent continues to reside with his parents pursuant to bail conditions.

[18] On June 30, 2017, the Respondent advised the Applicant that he believed that he would have a better chance of not being deported if B.S.D. were to reside with him.

[19] On July 3, 2017, when it was time for B.S.D. to return to the Applicant, the Respondent refused to return the child.

[20] The Applicant attempted to negotiate the return of B.S.D. but the Respondent refused and further refused to allow the Applicant to have any access or contact with the child.

[21] On July 11, 2017, the Applicant commenced an application and brought a motion on an urgent basis set for July 17, 2017, for return of the child.

[22] Following issuance of the application and service of the motion the Respondent permitted the Applicant to have a five minute telephone conversation with the child on July 14, 15 and 16, 2017.

[23] On July 17, 2017, the parties attended before the Honourable Justice Timms at which time the Respondent served and filed his responding materials in the form of a counter motion.

[24] The Applicant obtained a brief adjournment to file a response and the motion and counter-motion were adjourned to July 27, 2017.

[25] Justice Timms granted a without prejudice order requiring the Respondent to return the child to the Applicant by 4:30 p.m. on July 17, 2017, until Tuesday July 25, 2017 at 4:30 p.m.  A case conference was set for August 8, 2017. Costs were reserved.

[26] The motion and counter-motion returned to me on July 27, 2017.

The Law

“Best Interests” Test: Children’s Law Reform Act

[27] The test for determining an application for interim custody or access is always: “What is in the best interests of the child?”

[28] The court is required to take into consideration only the best interests of the child as determined by reference to the “condition, means, needs and other circumstances of the child.”

[29] Under section 24(2) of the CLRA, in determining what is in the best interests of a child, the court, must consider all the needs and circumstances of the child, including:

1.   the love, affection and emotional ties between the child and,
2.                                                                 each person entitled to or claiming custody of or access to the child,
3.                                                               other members of the child’s family who reside with the child, and

iii.      persons involved in the care and upbringing of the child;

1.   the child’s views and preferences, if they can reasonably be ascertained;
2.   the length of time the child has lived in a stable home environment;
3.   the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
4.   any plans proposed for the child’s care and upbringing;
5.   the permanence and stability of the family unit with which it is proposed that the child will live;
6.   the ability of each person applying for custody of or access to the child to act as a parent; and
7.   the relationship by blood or through an adoption order between the child and each person who is a party to the application.

[30] Parental conduct, no matter how meritorious or how reprehensible, does not enter into the analysis unless it relates to the ability of the parent to meet the needs of the child. (See s. 24(4) of the CLRA; and Gordon v. Gordon (1980), 23 R.F.L. (2d) 266 (Ont. C.A.)).

Child’s Blood Ties vs. Importance of Psychological Parent

[31] Although courts have determined that “absence any evidence that parents are behaving in a way that demonstrates an inability to act in accordance with the best interests of their children, a parents’ 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” – such considerations apply only where the parents are custodial parents and a non-custodial party seeks access. Courts routinely deny that a biological parent has a prima facie right to custody. (See Chapman v. Chapman, 2001 CanLII 24015 (ON CA); Parkins v. Parkins, 2006 CanLII 24450 (ON SC), 2006 CanLII 24450 (ONSC); Giansante v. Di Chiara, 2005 CanLII 26446 (ON SC); and Branconnier v. Branconnier, 2006 BCSC 2020 (CanLII); Z. (F.) v. Catholic Children’s Aid Society of Hamilton-Wentworth, [2000] O.J. No. 1452 (ON SC).

[32] Although a child’s relationship by blood is a relevant consideration – there is no “parental right” to custody. Biological connection is only one factor to be considered. (See Z. (F.) v. Catholic Children’s Aid Society of Hamilton-Wentworth, [2000] O.J. No. 1452 (ON SC); Jones v. Smith, [1995] O.J. No. 4088 (Ont. Gen. Div.); Law v. Siu, 2009 ONCA 61 (CanLII), [2009] O.J. No. 245, 2009 ONCA (Ont. C.A.); Rochon v. Jacco, 2003 CanLII 2226 (ON SC), [2003] O.J. No. 2797, 42 R.F.L. (5^th) 143 (Ont. S.C.J.).

[33] The court must consider the best interests of the child including the psychological needs of the child and the child’s attachment to each party. (SeeMoores v. Feldstein, 1973 CanLII 535 (ON CA), [1973] 3 O.R. 921 (C.A.)).

Status Quo

[34] Our courts have traditionally given a great deal of weight to the arrangements that are actually in place at the time of the court’s determination of the issue, be it at the interim stage or the final stage.

[35] Generally, courts are reluctant to change existing child care arrangements that are working to a child’s benefit. (See N.(M.) v. B.(M.) (2000), 2000 CanLII 22543 (ON SC), 9 R.F.L. (5th) 359 (Ont. Sup. Ct. J.).

[36] The preference for maintaining the status quo emphasizes the primary caregiver’s importance to a child. Where a child lived in the de facto custodial care of her grandparents for two years and all of her needs were met including stability and consistency, it was appropriate to maintain the status quo and grant the grandparents temporary custody. (See D.(S.) v. D.(M.P.), [2001] W.D.F.L. 78 (Q.B.); Perchaluk v. Perchaluk, [2012] O.J. No. 3988, 27 R.F.L. (7^th) 479 (Ont. C. J.).

[37] A judge is unlikely to change ongoing child-care arrangements that meet a child’s needs simply because the other parent claims that he or she can also care for that child. (See Longergan v. Longergan, [1998] W.D.F.L. 332 (B.C.S.C.).

[38] However, if the ongoing arrangements do not meet a child’s needs, a court will change custody. (See Boyko v. Purdue, [2001] B.C.D. Civ. 360.35.10.90-04 (S.C.); A.A. v. S.N.A., 2007 BCCA 363 (CanLII), [2007] B.C.J. No. 1474, A.A. v. S.N.A., [2007] B.C.J. No. 1475 (B.C.C.A.).

[39] In deciding the weight to be accorded to the status quo, a court may take into account that the current child-care arrangements were wrongfully acquired or were only intended to be temporary. While doing so may discourage wrongful removal of children or prevent a parent benefiting from wrongdoing, it is difficult to see how such considerations are relevant to the best interests of an individual child. (See Brooks v. Brooks, supra).

Proposed Change in One Parent’s Home

[40] The onus is on the parent who seeks a change existing child care arrangements to prove that it is in the best interests of a child to do so. (SeeTubello v. Tubello (2000), 2000 SKQB 276 (CanLII), 8 R.F.L. (5th) 451 (Sask. Q.B.).

Possibility of Deportation

[41] In situations where there is a possibility of one parent being deported, the parties are not entitled to obtain Orders for custody and access that may have the effect of frustrating the deportation process without notice to the Minister of Immigration as this would allow an unacceptable use of the family law system to frustrate the deportation process and would be contrary to public policy.  (See Patterson v. Osazuma, [2005] O.J. No. 4370, 2015 ONCJ 454 (Ont. C.J.) (CanLII).

Analysis

Urgency

[42] Pursuant to the Family Law Rules a person who wants to bring a motion is not entitled to have the motion heard prior to a case conference unless the court is of the opinion that there is a situation of urgency or hardship or that a case conference is not required for some other reason in the interest of justice.

[43] An urgent motion contemplates issues such as abduction, threats of harm, and dire financial circumstances. Prior to bringing an urgent motion the parties should enquire into the availability of a case conference and engage in settlement discussions. (See Rosen v. Rosen, 2005 CanLII 480 (ON SC), [2005] O.J. No. 62 (Ont. S.C.J.); Hood v. Hood, 2001 CanLII 28129 (ON SC), [2001] O.J. No. 2918 (Ont. S.C.J.)).

[44] The child had been withheld from her usual place of residence on June 30, 2017. The Applicant attempted to resolve the matter before coming to court without success and although a case conference date was obtained it is not scheduled until August 8, 2017. While the withholding of the child may not constitute an abduction, given the withholding and the failure to provide any access to the Applicant, the circumstances warrant that an urgent motion be brought and heard by the court.

Was the Applicant the Caregiver to the Child – Determination of Status Quo

[45] The Respondent argues that the Applicant was not the primary caregiver to the child – that N.D., prior to her death, was the primary caregiver, and the Applicant provided a home as surety for N.D.. The Respondent argues that upon the death of N.D., that he as the surviving parent had a prima facie right to custody of the child.

[46] The Respondent submits that his decision to allow the child to remain in the Applicant’s care for two months following N.D.’s death did not establish any status quo in favour of the Applicant but was reflective of responsible parenting by allowing the child to finish the school year at her then current school.

[47] The Respondent submits that he cannot prove that the Applicant did not act as primary caregiver as this would put him in the impossible position of proving a negative. However, the Respondent submits that the Applicant did not provide sufficient evidence to establish on the balance of probabilities that she (the Applicant) was the primary caregiver and/or co-parent of the child from October 24, 2012 to June 30, 2017.

[48] The Respondent submits that as the Applicant was not the caregiver for the child no status quo was established. In the circumstances the Respondent submits that he is prima facie entitled to custody and primary residence and any access to the Applicant is at his discretion.

[49] In furtherance of his position the Respondent relies upon the Court of Appeal decision of Chapman v. Chapman, 2001 CanLII 24015 (ON CA) as well as the following decisions Parkins v. Parkins, 2006 CanLII 24450 (ON SC), 2006 CanLII 24450 (ONSC); Giansante v. Di Chiara, 2005 CanLII 26446 (ON SC); and Branconnier v. Branconnier, 2006 BCSC 2020 (CanLII).

[50] The Applicant submits that she has been the primary or joint caregiver for the child since October 24, 2012 and that the status quo is that she has had de facto custody and primary residence of the child since that date.

[51] The Applicant states that the test for determination of access and custody on a temporary basis is the best interests of the child as set out at s. 24(2)of the Children’s Law Reform Act.

[52] The Applicant argues that when considering the best interests of the child the fact that the Respondent is the biological father is only one consideration. The court is required to consider all factors and reach a determination on the basis of the overall best interests of the child keeping in mind the considerations noted at s. 24(2) of the CLRA.

[53] As a starting point, the Applicant submits that she has been the primary and/or joint caregiver for the child since October 24, 2012, and the status quo is that she has had de facto custody with the Respondent having weekend access. The Applicant argues that the case law favours continuation of the status quo pending trial.

Review of Evidence Establishing Caregiving Roles and Status Quo

[54] I have had an opportunity to thoroughly review the affidavits filed by the Applicant and note the following evidence was provided regarding the care and custody of the child B.S.D.:

1.   The Applicant has been in the child’s life since her birth and has “been her primary caregiver” since October 24, 2012;
2.   CAS called the Applicant to care for B.S.D.. Ever since that happened, the Applicant has  had custody and been the primary caregiver of B.S.D.;
3.   From October 24, 2012 to June 30, 2017, the Respondent was prohibited from communicating with N.D. and despite his assertions the Respondent had no discussions with N.D. concerning any custody or access issues;
4.   The Applicant and N.D. made the decision to send the child to a French Immersion School;
5.   The Applicant has made ongoing custodial decisions for the child such as: getting her baptized, enrolling her in daycare, enrolling her in Catholic school for junior kindergarten, choosing her dentist, and family doctor;
6.   The Applicant enrolled the child in summer camp, St. James Catholic School, and the Rainbows programs as she “always had the ability to make such decisions without the need for the Respondent to consent”;
7.   the Applicant has fully cared for the child since she was 16 months old and shared parenting responsibilities with N.D. with her sole concern being B.S.D.’s  best interests;
8.   Since October 24, 2012 the primary caregiver of B.S.D., for the most part, has been the Applicant’s sole responsibility;
9.     On a regular school day, N.D. would drop B.S.D. off to school, and the Applicant would pick B.S.D. up (as she had to be at work at 7:30 a.m.). After school the Applicant was responsible for feeding, bathing, and putting the child to bed. The Applicant was also responsible for taking B.S.D. to her doctor and dentist appointments, and to all school events;
10.     The Applicant never denied access to the Respondent. When the Respondent requested increased access to every weekend the Applicant did not oppose the increase as she wanted what was in the best interests of the child; and
11.   Since N.D.’s death, the Applicant has taken sick leave from work until September 2017. Additionally the Applicant has made arrangements to work from home commencing in September 2017 to properly care for the child on a full-time basis.

[55] The Respondent has denied the Applicant’s claims and stated that he, together with N.D., made important decisions for B.S.D. together, including the decision to enroll B.S.D. in a French Immersion school. Despite the Respondent’s claim in this regard I note that the Respondent was subject to bail conditions that prohibited such communication. I have difficulty accepting this evidence.

[56] The Respondent stated that since B.S.D. has been in his primary care (June 30, 2017) he has continued to make important custodial decisions such as enrolling her in a summer day camp program. The enrollment is dated July 10, 2017, after the date that the child was withheld from the Applicant and after the Respondent had been contacted by the Applicant’s lawyer.

[57] The Respondent states that he is B.S.D.’s primary caregiver. However, the Respondent works on a full-time basis and provided no examples of any caregiving provided by him to the child.

[58] The Respondent stated that he attempted to discuss a parenting regime with the Applicant after N.D.’s death but the Applicant refused to participate in the discussion. Upon review of the messages I note that it was the Respondent’s mother who was communicating with the Applicant. There is no attempt by the Respondent to communicate with the Applicant.

[59] Having reviewed the evidence I accept that the Applicant has acted in a caregiving role as the primary or joint caregiver of the child since October 24, 2012. I further accept that the status quo has been that the Applicant has had de facto custody of the child either solely or jointly with N.D. since October of 2012 and the Respondent has exercised regular access.

Best Interests of the Child

[60] Having reviewed and considered the provisions of s. 24(2) of the CLRA I find that it is in the best interest of the child to remain in the de facto custody of the Applicant pending determination of the Respondent father’s criminal proceedings that are set to occur in March of 2018.

[61] My decision regarding the best interest of the child took into account the considerations noted above which establish the status quo and also include:

1.   The Applicant has cared for the child since October 24, 2012;
2.   The Applicant has provided security and stability for the child amidst the uncertainty of her parents’ criminal proceedings;
3.   The Applicant took a leave of absence to care for the child following the death of her mother, arranged for grief counselling, arranged for special schooling and summer camp – and made all such arrangements PRIOR to the commencement of any legal proceedings in the ordinary course of caring for the child;
4.   The Applicant arranged with her employer that she could work from her home and placed the child’s interests before her own;
5.   The Applicant has a certain future while the Respondent’s future remains unsettled and uncertain pending determination of his criminal proceedings;
6.   The Applicant has never denied the Respondent access to the child and has encouraged the relationship so that the child may know her father – thus evidencing concern for the best interest of the child;
7.   The Respondent withheld the child on July 3, 2017, denied the Applicant access, and only agreed to telephone access after the Applicant’s lawyer became involved thus evidencing concern for his own legal position over the needs of the child; and
8.   There is a real possibility that the Respondent may be incarcerated and/or deported following his criminal trial in March of 2018. It is unduly disruptive to disrupt the status quo until the Respondent’s future and his ability to care for the child on a full-time basis has been determined.

 

 

Determination of Motion

[62] As noted above in all of the circumstances of this case I find that it is in the best interests of the child to remain with the Applicant pending determination of the Respondent’s criminal proceedings which are scheduled to be commenced on March 19, 2018.

[63] In the circumstances I hereby order on a temporary without prejudice basis as follows:

1.   The Applicant R.A. shall have primary residence of the child B.S.D., born […], 2011, pending determination of the Respondent’s criminal proceedings scheduled to commence on March 19, 2018;
2.   The Applicant R.A. shall make all decisions concerning the health, welfare, education, and leisure activities (including schooling, camps and counselling services) for the child B.S.D.. The Applicant shall keep the Respondent D.P. advised of any activities that the child is enrolled and shall consult with the Respondent on all major educational and medical decisions provided that in the event of a disagreement the Applicant shall have the final decision making ability;
3.   Subject to the provisions of the temporary interim Order dated July 27, 2017, the Respondent D.P. shall have access to the child each weekend from Friday at 4:30 p.m. to Sunday at 4:30 p.m.;
4.   The Respondent D.P. shall have further generous access to the child for holidays, special events, birthdays, as agreed upon between the Applicant and the Respondent, acting reasonably, such access to be agreed upon in writing; and
5.   The Costs of the motion are hereby fixed at $3,000.00 payable by the Respondent to Applicant within 60 days of the date herein.

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Justice Susan J. Woodley

Released: July 31, 2017