Contact orders and extended family: when will the court intervene?

September 14, 2023 • by Christina Hinds

Originally published in the OFLM 2023-9 edition

Overview

This article will focus on extended family contact orders and the recent decision of M.M. v. K.M. (2023 ONCJ 314). In M.M., the maternal aunt, maternal uncle, and maternal grandmother (“the applicants”) sought an order for regular in-person contact with a 9-year-old child. The child’s father and the paternal grandparents (“the respondents”) opposed the application.

Justice Paull granted the extended family access, reaffirmed the leading decision of Chapman v. Chapman (2001 ONCA) and reviewed the most recent and applicable case law including with Giansante v. DiChiara (2005 ONSC), Torabi v. Patterson (2016 ONSC), McLaughlin v. Huehn (2018 ONCA) and Simmons v. Simmons, (2016 NSCA). Paull J. also summarized a helpful list of ten factors that have been articulated in the case law as basic principles with respect to the best interests test.

Introduction

M.M. v. K.M. was an interesting decision where a father seemed to have unreasonably taken advantage of his parental right to determine who gets contact with his daughter. The father also did not use his best judgment when he had an opportunity to put the breaks on his own parent’s animosity towards the deceased mother’s family members.

To better understand the basis of the court’s ultimate decision, we start with section 21(3) of the Children’s Law Reform Act (“CLRA”) that states the following:

any person other than the parent of a child, including a grandparent, may apply to a court for a parenting order respecting decision-making responsibility with respect to the child.

While grandparents are specifically referenced in the CLRA, there is no special standing afforded to grandparents. In Hinrichsen v. Regimbald et al. (2021 ONSC 7503), Justice Fraser clarified that while “…the love, affection and emotional ties between the child and grandparent is a factor to be taken into account in considering the child's best interests, the amendments have been found to simply further articulate the class of persons who may seek an order for contact. It does not extend their rights or give them any special standing.“ (at para. 21)

Facts of M.M. v. K.M.

The salient facts of M.M. v. K.M. are as follows:

The child was born in 2014.
In 2015, the mother and father moved from Kingston to Vaughan to live with the maternal grandparents. The grandmother assisted in providing primary care for the child, and the
maternal aunt and uncle lived close by, seeing the child on a regular basis.
At the end of 2015, the mother was diagnosed with terminal cancer. After the mother’s diagnosis, the father was largely unavailable to care for the child.
The mother passed away in 2017. After the mother’s death, the father moved to Toronto, leaving the child with the maternal grandparents. About a month later, the father moved with the child to Napanee (more than 200 kilometers away) to live with his parents.
In 2019, the father ended all contact between the child and the maternal aunt and uncle. In 2021, the father ended all in-person contact between the child and the maternal grandparents but permitted weekly video calls, albeit short and tightly controlled.
The maternal family issued an application seeking regular in-person contact.

The parties’ positions can be summarized as follows:

The applicants claimed that they shared a close and loving relationship with the child prior to the mother’s death and that relationship had been “unreasonably curtailed” by the decisions of the father and paternal grandparents.
The respondents argued that the father, as the sole-decision-making parent, was entitled to deference with respect to such decisions and that he had acted reasonably in terminating/restricting contact. The respondents alleged that (i) the applicants had not properly supervised the child while she was in their care and that she had been sexually abused by her cousins and (ii) the aunt was seeking to alienate the father from the child. The concerns with respect to the child being sexually abused by her cousins were not verified by the Children’s Aid Society.

The Test for Extended Family Contact Orders

In M.M. v. K.M. Justice Paull reviewed the prominent decisions relating to grandparent access as outlined below.

Paull J. started off his legal summary by reaffirming that the leading case on contact with extended family members is Champman v. Chapman (2001 CanLII 24015 (ON CA)). At paragraph 19, Justice Abella, writing for the Ontario Court of Appeal, stated that relationships with grandparents and extended family can enhance the emotional well being of a child and when those relationships are “imperiled arbitrarily”, the court may “intervene to protect the continuations of the benefit of the relationship”.

In Giansante v. Di Chiara ([2005] O.J. No. 3184), Justice Nelson set out a three-part test based on the Chapman decision (with specific reference to grandparents):

Does a positive grandparent-grandchild relationship already exist?
Does the parent’s decision imperil this relationship?
Has the parent acted arbitrarily? Deference to parents may not be as strong when one of the parents has died and that parent’s family seeks contact.

In Torabi v. Patterson (2016 ONCJ 210) Justice Kurz considered what constitutes a “positive relationship” (at para. 74):

There must generally be a substantial pre-existing relationship between the relative and child. Strong loving and nurturing ties must exist between them based on time spent together that enhances the emotional well-being of the child.
That relationship must be a constructive one for the child in the sense that it is worth preserving. If relations between the parties are too poisoned, a previously positive relationship may not be capable of preservation.
The determination must include consideration of the age of the child and the time since the child last saw the relative.
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.

Application of the Facts

Justice Paull applied the three-part test in Giansante as follows:

A positive relationship existed between the applicants and the child. The applicants played a significant role in the child’s life – the aunt and uncle saw the child on an almost daily basis and the grandmother provided primary care for a period of time. There were several photographs illustrating that the applicants were a “loving and close-knit family” and that the child “enjoys a comfortable and happy place in the family”.
Justice Paull then considered militating factors.
With respect to the passage of time, Justice Paull considered the OCL [Office of the Children’s Lawyer] clinician’s observations that the child identified with her connections to the applicants and ultimately found that “the significant nature of the pre-existing relationship” although diminished by the passage of time“, is nonetheless significant and one worth preserving” (at para. 122).
With respect to acrimony, it is not in a child’s best interests to be placed in circumstances of real conflict. Justice Paull considered that the applicants merely sought contact with the child – they have never sough primary residence of involvement in decision-making and “it is possible that contact arrangements for the applicants can proceed without conflict.” (at para. 126)
Justice Paull held that even if he was wrong with respect to the finding that there was a strong relationship, this was a case where such a finding is unnecessary, as the mother passed away when the child was three years old, the child has no siblings, and the applicants represent her only connection that she will have to her mother (at paras. 128 & 129).
The father’s decisions imperilled the relationship between the child and the applicants. There was no question that the father had imperilled the relationship. The aunt and uncle went from seeing the child on a daily basis to not seeing the child at all. The grandmother went from living with and providing primary care to the child to having only short, tightly controlled video calls with the child once a week (at para. 131).
The father acted arbitrarily. A finding that a strong relationship has been imperilled does not necessarily lead to a finding that that it has been done so arbitrarily. However, as the court did not accept the father’s stated concerns as discussed above, Justice Paull determined that the father acted arbitrarily (at paras. 135, 136 – 139).

As Always, Best Interests

Once the above test was satisfied, the court determined whether an order for contact was in the best interests of the child. Justice Paull determined that contact between the applicants and the child was in the best interests of the child, including that (at para. 141):

The child enjoys a strong and stable bond with her father and an order for contact with the applicants would not jeopardize that.
The child shares emotional ties with the applicants, despite the passage of time.
The applicants have a close knit and loving family and offer the child love, support and a stable place within it.
The child has lost her mother and the applicants can offer the child a connection to her mother.
The applicants can provide the child with a connection to her roots and history, and her Albanian culture that is reflected in the maternal side of the family.

Conclusion

Justice Paull granted the extended family access and also reviewed the most recent and applicable case law and reaffirmed the leading decision of Chapman v. Chapman (2001 ONCA) along with Giansante v. DiChiara (2005 ONSC), Torabi v. Patterson (2016 ONSC), McLaughlin v. Huehn (2018 ONCA) and Simmons v. Simmons , (2016 NSCA). Paull J. also summarized a helpful list of ten factors that have been articulated in the case law as basic principles with respect to the best interest test.

Relationships between a child and extended family have the potential to bring great benefit into a child’s life. If a parent’s decisions have imperilled a positive relationship without good reason, the court may intervene to protect such relationships.

However, as confirmed by Justice Paull in M.M., grandparents do not have a legal right to access to grandkids. The test is always “best interests”, and the court will not interfere with a parent’s decisions on extended family contact unless it is satisfied that there has been a willful disregard to those interests (at paras. 102 & 114). The onus is on the extended family seeking contact to demonstrate that deference should not be given to the parents and that a contact order is in the child’s best interests (at paras. 102 & 115).

Nonetheless, if one analyzes the facts of the case a bit closer, it appears that the nine-day trial in M.M. and total legal fees likely north of $100,000 could have been avoided.

The father in the case made improper sexual advances towards his deceased wife’s sister before and after she died. After the sister reported these advances to her husband and the police, his approach towards the sister soured. This led to the start of him limiting her access to his daughter.

What made things worse were the father’s own parents. In their apparent blind devotion to their son and granddaughter, they added fuel to the fire. They made baseless accusations against the maternal family and supported their son’s misguided agenda.

What we can learn from this is that whatever role one plays in a family dynamic (parent, grandparent, aunt, cousin, etc.), that individual can either be a helpful or harmful factor in the ultimate outcome. The level of conflict may be avoided if family members can identify the injustice occurring and standup to it, rather than enabling it.

When the paternal grandparents saw their son acting unreasonably and harming the child’s relationship with her extended family, they should have prioritized their grandchild’s wellbeing instead of adding fuel to the fire. For example, they could have had a talk with their son and let him know that they do not support his actions.

If it was the the paternal grandparents that initiated the harmful behaviour, the father should have filtered out their accusations and critically analysed them rather than accepting them blindly.

Overall, the lesson here is that each family member can play an important role in a child’s life. And for a parent to diminish that role, they need good reasons and clean hands.