Maternal Family Seeks Access after Death of Mother

Torabi v Patterson, 2016 ONCJ 210

This case deals with an application from the maternal family (consisting of the maternal grandmother, two uncles, two aunts, and two first cousins) of a 4-year old child who recently lost his mother to cancer – the family moves for a temporary order granting them consistent, unsupervised access and argues that access is in the child’s best interests. The respondent father resists the motion for access, but is willing to continue the ongoing supervised access – he wishes to choose and have control over who sees his child and under which circumstances.

BACKGROUND

The child’s mother came from a large and close-knit family of Iranian heritage. She was diagnosed with stage four colon and liver cancer in June 2013. Before her death in July 2014, the child spent time with various members of the mother’s extended family.

Leading up to and immediately following the mother’s death, there was conflict and great animosity between the mother’s extended family and the father.

Soon after her diagnosis, the mother’s family sent the father a letter that accusatorily lectured him about his husbandly duties. The family further alleged that he was abusive towards the mother during their relationship.

Days before her death, the mother’s family barred the father from her hospital room. The father was not notified about the mother’s passing, and her family later held a funeral without his knowing.

Since the mother’s death, the father has been the child’s sole caregiver and parent (and has been assisted by a nanny that was hired whilst the mother was still alive). During this time, the mother’s family has attempted to mend their relationship with the father, in an effort to maintain their relations with the child.

Having been contacted by the family’s lawyer, the father agreed to grandparent access with the child’s maternal grandmother, at his home and under his supervision. The access visits were eventually moved to a more neutral location and began to take place on a bi-weekly basis, for two and a half hours at a time. During some of these supervised visits, other members of the extended family visited with the child. For the most part, the supervised access went well, but all the parties were dissatisfied with the arrangements.

The maternal family asserts that it is in the child’s best interests that they have consistent access with him; that a relationship with the family will best connect him with his mother’s culture and history. The father however, resists court-ordered access because, as the father, he asserts he is best able to determine his child’s best interests.

LEGAL PRINCIPLES

Grandparents and extended family members can apply to a court for a custody or access order pursuant to section 21(1) of the Children’s Reform Act (CLRA).

Pursuant to section 24(1) and (2) of the CLRA, the merits of a custody or access application will be determined based on the best interests of the child.

The parties to this motion agree that the leading case on matters regarding extended family access is Chapman v. Chapman, 2001 CanLII 24015 (O.C.A). This case highlights that although access with extended family may theoretically be beneficial for children, courts must specifically and subjectively determine the best interests of the particular child that is before them. The case further stands in strong support of judicial deference to the rights of parents in making decisions about what is best for their children, free from the interference of meddling relatives.

The legal principles from Chapman – for determining whether a court ought to defer to the decision of the parents – have been summarized (in Giansante v Dichiara, [2005] O.J. No. 3184 (S.C.J.)) into the following three-part test:

  1. Does a positive relative-child relationship already exist?
  2. Has the parent’s decision imperiled the positive relative-child relationship?
  3. Has the parent acted arbitrarily?

In Giansante, the court notes that the Chapman rule of deference (to the parents’ decision) may not be as strong in cases where one of the parents has died and the deceased parent’s relatives are seeking access.

ANALYSIS

I. Should the Court Defer to the Father’s Decision?

a. Do the Relatives have Positive Relationships with the Child?

When determining whether or not to defer to the father’s decision, the court must first find a positive relationship between the child and each of the relatives that have applied for access. In doing so, a court must look for the following elements: a substantial pre-existing relationship, with strong loving and nurturing ties, between the relative and child; the relationship must be constructive and worth preserving; and, consider the child’s age and the time that has passed since the child last saw or interacted with the relative.

Although it appears that the extended maternal family is very involved in raising the family’s children, in applying the relevant factors, the court finds that only the maternal grandmother and one aunt meet the high threshold of a “positive relationship”.

The court further notes that the Giansante caveat (that a positive relationship may not be necessary in a case where a young child has lost one of their parents) is not necessarily applicable to this case because the other members of the maternal family can arguably develop and maintain a relationship with the child through the grandmother and one aunt.

b. Has the Father’s Decision Imperiled a Positive Relative-Child Relationship?

The court recognizes that the father tried his very best to accommodate and maintain the child’s relationship with his maternal grandmother. The court further notes that although the father refused to allow access to other relatives, he was not the only one to be blamed.

c. Has the Father Acted Arbitrarily?

The court notes that an “arbitrary act” is usually one that is not in the child’s best interests. The court highlights that the father’s decisions in this case involved both arbitrary and non-arbitrary criteria; that although he acted based on the pain and difficulties that the mother’s family caused him, he did have good reason to suspect them and their intentions. Furthermore, the court notes that if the father’s decisions regarding the child were arbitrary, so were those of the maternal relatives.

The court concludes that the father’s decisions were arbitrary enough to warrant judicial interference – particularly because the case involves a child whose main contact with his deceased mother and her culture would be lost if he were to lose contact with his elderly grandmother (and the extended family – because if the grandmother were the child’s only contact, and she were to pass, the risk of losing his entire culture would be higher).

II.   If the Court Refuses to Defer to the Father’s Decision, Is Access in the Best Interests of the Child?

Having determined that the father’s decision in this case is not entitled to deference, the court then goes on to consider and asses the child’s best interests.

The court highlights that access is often ordered in high conflict cases; and notes (importantly so), that the child has not been affected or impacted by the conflict between his father and extended maternal family.

Where the parties’ love for the child is more than their dislike for one another, the court finds that it is in the child’s best interests to temporarily order a minimal level of unsupervised access (so that the family is able to maintain a relationship with the child, whilst the father retains some control over the situation).

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

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