Gelman & Associate's statement regarding COVID-19 - Read More

As the COVID-19 pandemic continues to impact the lives of Canadians in significant ways, the courts are not left untouched. In-person hearings had always been the norm before March 2020. However, the need to no longer gather in large groups has changed the ways that trials can be held or how quickly they can be held. In a matter before the courts in Ontario, a court recently heard a motion application to determine whether a child’s aunt could be included in an application to have access to the child. Citing the best interests of the child, the court ruled on that question but also decided to take things a step further and issue an order on the access question.

Tragedy and litigation cut child off from half of family

The facts behind this trial are tragic in nature. The mother and father were in a relationship when the was child was born. The father died tragically in April 2015. The child was just three years old at that time.   In the immediate time after the father’s death, his sister (“the aunt”) and his mother (“the grandmother”) maintained a close relationship with the mother.

Complications relating to the father’s estate drove a wedge through the family. The father did not update his will after the birth of the daughter, and his last will named the aunt as his sole beneficiary. This resulted in litigation and a loss of close contact between the child and her aunt & grandmother. The mother and child moved quite far away in 2020, and the child has not seen the extended family on her father’s side in over two years.

The issue came before the court when the grandmother requested four virtual meetings/phone calls with the child each month. The motion was heard because the aunt wanted to be included in that matter.

Court expands motion hearing to rule on main issue

The court began its analysis by stating that s. 21(1) of the Children’s Law Reform Act allows “a parent of a child or any other person, including a grandparent” to seek an order respecting custody or access to the child.

In determining whether to grant access to someone other than the parent, the court has to consider three questions:

a. Is there a positive relationship between the Applicant and the child?

b. If there is a positive relationship, has the parents’ decision imperiled that relationship?

c.  Has the parent acted arbitrarily?

The court noted that in the past, decisions requiring such questions to be asked, should be held at trial, especially when there is a likelihood of contradictory evidence. However, the court noted that in cases where waiting for a full trial might not be in the best interests of the child, a motion could be heard to determine the issue.

In this case, the court found that COVID-19 has created a long queue in the courts, and that the child would be better served by determining the issue now.

The court found that there was indeed a positive relationship between the grandmother, the aunt, and the child. The aunt and grandmother were allowed to babysit the child, and the child often visited overnight and on weekends. It was not until the estate litigation began that the relationship took a turn.

The court also found that the mother’s decision to cut her child off from visiting (even over the phone) with the aunt and grandmother did significantly impair those relationships. The court also found that access was cut off due to the estate litigation, which led to a finding that the mother had acted arbitrarily.

The court held that not only could the mother be a party to the motion, but also stated that the aunt and grandmother should be allowed to communicate with the child via video or telephone.

At Gelman & Associates, our lawyers can provide you with the necessary expert counsel so that you fully understand the nature of your family law matter and ensure that your rights are protected. With six offices throughout Aurora, Barrie, Downtown Toronto, Mississauga North York and Scarborough, we are just a short distance away in any direction. Call us at (416) 736-0200 or  1-844-736-0200 or contact us online for a confidential initial consultation.