Barber v. Mangal, 2009 ONCJ 631, [2010] W.D.F.L. 1968, 78 R.F.L. (6th) 234

When will a court award access to a grandparent? What factors will a judge consider? These questions and many more were answered in a well-written judgment by Justice Brownstone.

In this case, the paternal grandmother of the child (aged 5 years old) applied to the court for an order granting access to her grandson. However, the opposing parties, namely her son and his ex-partner, disapproved of her application and were vehemently against an order for access in her favor. They did everything in their power to keep the child away from his grandmother during the proceedings and also, prior to the proceedings, they greatly reduced the number of times the applicant visited with her grandson.

The opposing parties claimed that access should not be granted for the following two reasons:

  • The applicant rarely saw her grandson. She has always either lived in North Bay or Barrie whereas he has always lived in Toronto. The only period during which visitation was frequent and lengthy with the child was for approximately 6 months when her son was residing with her. When the child visited his father, he necessarily visited with his grandmother as well.
  • Secondly, they claim that the quality of the relationship shared by the child and his grandmother was poor due to alleged bad parenting skills. They stated that she was abusive and neglectful as a parent; qualities that definitely continued when she became a grandparent.

Justice Brownstone, however, was not persuaded by the arguments and dismissed their allegations. Instead, he deduced from the evidence provided that the true reason motivating the parents' desire to cut ties between the applicant and her grandson was due to the feelings of spite and vindictiveness they harbored against her rather than a true, genuine concern for the child's best interests.

The law regarding access to a child by a grandparent is derived from the leading case in Ontario of Chapman v. Chapman (2001), 141 O.A.C. 389 (Ont.C.A.). This case established that generally judges will defer to the decisions made by parents regarding access to their children since they are endowed with final and ultimate decision-making authority. However, if the following questions are answered in the affirmative then the potential to grant access to a grandparent is possible. The questions are:

  1. Does a positive grandparent and grandchild relationship already exist?
  2. Has the parent's decision imperiled the positive grandparent and grandchild relationship?
  3. Has the parent acted arbitrarily?

Justice Brownstone clarified that question #1 requires something more than an occasional pleasant experience for the child. Rather, it must consist of a close bond with strong emotional ties deserving of preservation. So, under what circumstances will these requirements be met? Justice Brownstone identified two situations which will almost always satisfy question #1:

  • where the child has either lived with or spent significant time with the grandparent over a significant period of time prior to litigation, or
  • where a parent is deceased and the access order is necessary to ensure that the child maintains a connection to the deceased parent's side of the family.

Based on the law and the evidence provided, it was concluded that the relationship shared by the child and the applicant was not strong enough to justify interfering with the parents' decision-making rights. Justice Brownstone also determined that granting access to the applicant would result in increased stress for the parents which could very well affect the child. He was hesitant to interfere with the arrangements arrived at by the parents because, despite a previously tumultuous relationship, they were finally able to effectively communicate with one another and were working together to meet the child’s needs and ensure his continued progress and success. Forcing them to disrupt the schedule they had devised to incorporate trips to Barrie to visit with his grandmother would only add unnecessary stress to an already fragile situation. A court, in cases such as this, is required to balance the benefit to be gained by the child in having occasional visits with a grandparent, against the risk of being exposed to the very predictable and emotional manifestations of the parents as they act out their anger and stress over the access. Following a decision from Douglas v. Hoar, 2001 NBQB 260, 23 R.F.L. (5th) 141 (N.B.Q.B.) Justice Brownstone concluded that the intensity of the parent-and-grandparent conflict militated against an access order because of the risk of harm to the child.

Justice Brownstone's final remarks suggest that this case is illustrative of the assertion that litigation between family members can intensify and escalate a conflict rather than assist those involved achieve peace and a reasonable compromise. He suggested that attempting to coordinate access on their own and without court interference would have been the better route to take as perhaps the parties may have been able to eventually repair their relationship. Even though the relationship between the applicant and her son was already tenuous, by bringing the issue to court to litigate she only further severed any remaining ties with her son and cemented the fact that she would probably not see her grandson for a very long time.

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