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K.E.L. v. S.A.L., 2018 CarswellOnt 3083 (Ont. S.C.J.)

The court was tasked with making an interim custody order and access arrangement for six-year-old E.L and four-year-old S.L. This is a case where the maternal grandparents were seeking custody over the father. 


The mother had interim custody of the children who were six and four years old. During the parties’ separation there were many unsubstantiated allegations of very serious misconduct by both parties. Because of these allegations the mother was granted custody of the children and the father was denied access. Once the investigation discovered that the mother had falsified documents pertaining to the allegation, the charges were withdrawn against him and she was criminally charged. CAS was involved and eventually closed their file because all of the allegations were found to be fraudulent. 

Tragically, the mother passed away and a dispute pertaining to custody followed. The primary source of debate was for the court to decide interim custody based on what was in the best interest of the children while assessing the prior investigatory elements. 

The father requested that the children be returned to his care and reside with him, adding that he was a main caregiver before the separation and there is no verified reason to restrict his time to his children. The maternal grandparents submit that it is in the best interests of the children for the status quo to remain as is. Should the father be granted custody, the grandparents request that the court grant them access. It should be noted that since the mothers passing the children were living with their grandparents and this will be taken into account in the courts ultimate decision.


The judge examined the applicable case law in order to determine which factors should be considered. He noted that firstly, the legislation clearly prioritizes parents although there is public policy that ensures that grandparents do have the rights to apply for custody. The governing principle in these decisions rests on the best interests of the children. Finally, because the children are very young, their views and preferences will not be considered in this matter. 

It is important that attention is drawn to the fact that the maternal grandparents have gone beyond the call of duty in helping with their grandchildren. They stepped in when the mother was charged; they took care of the children when the mother returned back to the matrimonial home and they now care for the children on a full-time basis. Their concern is that the father does not possess the ability to be in tune with the children. Part of this concern rests on his refusal to agree to counselling for the children and an access schedule for the grandparents. 

There were factual findings from a court appointed assessor that the court considered which demonstrated that the children had a strong attachment to their father and were comfortable with him. In the assessment, Dr. Smyth indicated that the children showed a strong attachment to their father and he was observant and attentive. Based on those findings and a capacity assessment, the judge subsequently concluded that he was a fit and capable parent.  

Before an interim or final custody order can be varied there must be a material change of circumstances as required by s. 29 of the CLRA and there is no doubt that the passing of the mother constitutes such. Section 24(2)(3) and (4) of the CLRA sets out the additional factors that the judge must consider determining what is in the children’s best interest in a custody access application such as the child’s needs and circumstances which include emotional ties, necessaries of life, and the proposed parenting plan. 

While considering stability of the family unit, it was noted that the parent’s separation caused numerous changes to the children’s lives in terms of their living situation. The judge found that the father’s request that his family unit be united is a viable consideration and is in the children’s best interests.

Section 21 of CLRA includes the reference to “grandparents” included in the categories of those parties entitled to claim custody of a child and because of that it is regarded that grandparents are at a different level from the parents. A review of the case law in K. (K.) v. L. (G.) included the general principle that custody should be awarded to a third party over a natural parent if it falls into particular categories, such abandonment, neglect, consenting to adoption, a parent suffering emotional or psychological distress which would render them unfit or unsuitable for custody. Such is not the case here, therefore the court will rely on the assumption from previous case law that parents have preferential status in a claim for custody. 

Considering the fact that there are no mental or physical health concerns and the father has been found to be a fit and capable parent, the judge found that the children should return to live with him and he was awarded interim custody. However, the judge agreed that it was in the best interests of the children that they maintain a consistent relationship with their grandparents and they were granted interim access. Finally, the judge ordered that the father must take the children to counselling. 

This case stands for the proposition that a parent will be in a preferable position for custody over a grandparent when both are fit for the mission of raising a well-adjusted child. With that being said, courts are willing to take into account many different variables when determining what is best for a child and a loving and healthy relationship with a grandparent will always go a long way in a custody dispute.