Boyer v. Gratton, 2011 ONCJ 722

North Bay Registry No.FO 59-11& FO 399-09 DATE: 2011·XI·15 CITATION: Boyer v.

Gratton , 2011 ONCJ 722 ONTARIO COURT OF JUSTICE Before the Honourable Justice ) Tuesday, the 15 th day Louisette Duchesneau-McLachlan ) of November, 2011 BETWEEN: PAUL GASTON JOSEPH BOYER Applicant father AND: COLEEN MARGARET GRATTON Respondent mother AND: JANE GRATTON Applicant grandmother AND Third Party AND: JOSEPH MICHAEL WILLIAM WAY-WHITE Respondent father REASONS FOR ORDER Appearances: Clemens Eggert for grandmother Jane Gratton Erinn Fitzpatrick for mother Coleen Margaret Gratton Joseph Michael William Way-White non-participating Paul Gaston Joseph Boyer self-representing The children, the parties and involved collaterals: This matter was heard October 31 st , November 1 st and November 8 th of 2011.

Although we are dealing with two family files, for the most part the evidence applied to both and therefore it made sense to deal with both matters at the same time. File FO 399-09 concerns Paul Boyer and Colleen Gratton who are the parents of Paige Brooklyn Boyer-Gratton, born September 15 th , 2008. Jane Gratton is Colleen’s mother and Paige’s grandmother and she was added as a party in regards to a motion to change started by Paul. Her separate application for access to Paige was marked withdrawn.

File FO 59-11 concerns Jane and Colleen and Joe Way-White. Colleen and Joe are the parents of James and Ian Way-White, born September 2 nd , 2003 and November 4 th , 2005 respectively. Jane is the maternal grandmother. Two other children should be mentioned as they are involved in the lives of James, Ian and Paige. Riley Bell , born October 7 th , 2011 is the son of Colleen and her present partner, William Bell. He is step-brother to James, Ian and Paige. Landon Bell is William’s son from a former marriage and he knows the three children since he visits every second weekend according to William’s evidence.

James has told the assessors that he shares a bedroom with Landon. Joe has a partner, Crystal, who is involved with James and Ian and who is welcome into the Bell home. Presumably she has met Paige and Riley. Paul has a fiancée, Crystal, who is involved with Paige and has had some contact with James and Ian. Jane’s partner of some fourteen years, Dan Truchon, has acted as a step-father to Colleen and her sister Shawna and has helped parent James and Ian up to William’s arrival into Colleen’s life. Shawn or Sean Poeta is Colleen’s father and maternal grandfather to all three children.

Shawna is the children’s maternal aunt and Colleen’s only biological sibling. WHAT EACH PARTY WANTS: Jane wants access to her grandchildren. She wants specific access to James and Ian as they reside with their mother Colleen. She also wants access to Paige and would be happy to count on Paul in regards to this if he has principal or shared residence since she and Dan can make arrangements easily with Paul. Should Colleen have principal residence of Paige, then Jane would like specific access to her. Riley is not part of these proceedings.

Colleen wants principal residence of all three children subject to specific access to Paul in regards to Paige. She also wants to have sole custody as specified in the original order of January 7 th , 2010. Colleen wants any access to Jane to be subject to her discretion. Paul wants joint custody of Paige as provided in the temporary order of March 21 st , 2011 as well as principal residence of Paige when she begins school in September of 2012 subject to access by Colleen. Paul agrees that Jane and Dan should continue to have reasonable access to Paige as arranged with him. BACKGROUND: Jane and Mr.

Poeta had a common law relationship that resulted in two children Colleen and Shawna. Mr. Poeta entered into another relationship with Irene and apparently this lady was very abusive to Colleen and Shawna. Jane obtained sole custody of the girls but they still ended up at their father’s a fair bit. According to the evidence whenever Colleen got angry with her mother, she went to her dad’s and then returned to her mother’s when things didn’t go her way at her dad’s. Although Colleen describes her reason for leaving each home as “being kicked out”, it seems that changes in her residence were not one-sided.

Colleen and Joe met working at Burger King in North Bay around 2001-2002. According to Joe, their relationship was “poisonous” as a result of Colleen’s volatility and the family environment. He does agree however that Jane and Dan helped them and he admits that they were often at their place and that he did go to their place with James to give Colleen time to calm down. He left shortly after Ian’s birth. According to Colleen he lived with friends in North Bay then went to Barrie. Joe indicates that after Barrie he went to Guelph.

Joe and Colleen agreed to a court order that provide for joint custody, principal residence with Colleen and reasonable access to Joe. Colleen originally asked for sole custody but she did not pursue this at court. It seems Joe didn’t see the children much and that he eventually had trouble contacting them by phone. He blames all this on Jane because she was the one providing care for the boys most of the time.

Dan testified that he tried to help Joe and actually befriended him but that one Christmas after the separation Joe had just dropped in and sat there drinking his drinks and eating his food without any recognition of Dan and Jane’s presence or help and that this angered him. He told Colleen to make sure Joe phoned ahead next time he wanted to visit. Indeed, such was Jane’s understanding that Joe was no longer involved with the boys, that she initially didn’t serve him as a party in her application for access started in February of 2011.

It wasn’t until a court appearance in March of 2011 that everyone realized that Joe should be made a party and included in the subsection 30 assessment pursuant to the Children’s Law Reform Act R.S.O. 1990 c. C 12 as amended. Joe had not been presented as a collateral and the assessors were under the impression that he hadn’t seen the boys since December of 2009. No one knew that he was exercising access to the boys except for Colleen and William. As it turned out, Joe did not qualify for Legal Aid and said that he could not afford to participate either in the assessment or in the matter.

It also seems that Joe was in arrears with his child support but that now he is paying ongoing support and catching up on the $ 10,000 initially owing on arrears. It is clear from the evidence that Jane and Dan were very involved in the upbringing of both boys. Jane was present at the birth of all three children. She and Dan helped Joe and Colleen with moves, groceries, clothes, toys, furniture. She babysat when called upon. She received Joe and James when they left Colleen at home to calm down. Dan drove the boys around and picked them up at school.

He taught them practical things and also helped them with reading and math. He especially taught James computer skills. Apparently the boys were hard to handle at school and the teachers appreciated Dan’s help. Colleen started dating Paul and eventually got pregnant with Paige. She moved in with Jane during her pregnancy. It’s clear that Jane helped take care of the boys for the three and one-half years that Colleen attended college. James and then Ian became attached to Jane and Dan. Paul and Jane never lived together. They dated on and off for about two years.

Paul testified that he had considered living with Colleen before Paige’s birth but was mortified by her volatility which he witnessed on a bus trip to Florida. Paul is not quite twice Colleen’s age. He stated that he was at the hospital for Paige’s birth and couldn’t see her overnight or for lengthy periods of time while Colleen was breastfeeding. Paul states that he never had problems seeing Paige until Colleen started a relationship with William Bell. He then brought a court application for access late in 2009.

Eventually, with the assistance of duty counsel, Paul and Colleen agreed to a court order that gave Colleen custody and provided to Paul the two days per week he had off work as well as two hours on Wednesday and as much other access as the parties agreed should happen. This final order was made January 7 th , 2010. In the meantime Colleen and William had started dating in the fall of 2009. William went through a divorce and a bankruptcy.

He and Colleen lived together and got along fairly well with Jane and Dan until William got his back up when Jane expressed her vocal discontent at Ian being put on medication to quieten him down and lessen his bad behaviours. Jane and Dan went without seeing the boys for about six months till September of 2010 and thereafter till it was necessary for them to see the boys in the assessor’s presence. In the summer of 2010 Colleen and Will decided to move to Hanover. William came from there and his mother, grandmother and the couple who had raised him all lived in that area.

They tried to get Paul’s consent to the move and for some reason accepted his “yea sure as if you’d leave Jane” as an affirmative. However, when they presented Paul with a written consent, some 19 days before the move, he refused to sign and immediately brought a motion on an ex parte basis to have Paige’s residence remain in North Bay. This order was granted with the usual quick return date. William and the boys moved to Hanover and Colleen was required to

maintain a residence for Paige in North Bay. The assessors didn’t seem to really believe that she did. Eventually Paige was permitted to live in both locations as long as Paul maintained his access. Colleen was basically very good in ascertaining that Paul didn’t miss any access. It was felt, however, that she travelled back and forth just for Paul’s access and that she didn’t really reside in North Bay. Although in his evidence William seems to support Colleen’s assurances, the best evidence would have come from Colleen’s father and his new partner. They did not give evidence.

Starting in March of 2011 Paige resided with her father Paul from Thursdays at 6 p.m. to Tuesdays at 6 p.m. This is ongoing except for some specific holiday time. Jane and Dan were granted three weekends during the summer school holidays. REASON FOR JANE’S APPLICATION AND PAUL’S MOTION TO CHANGE: The move to Hanover precipitated Paul’s motion to change. He or his father advised Jane and Dan of the move. Thinking of Hanover, Colleen tried to get the Children’s Aid Society to give her a letter stating that Jane should not have contact with the boys.

She also organized it so that her counsellor, doctor and the children’s doctors would support her move to Hanover and denial of access to the grandmother. When Colleen told Dan that the children could see him at work but that Jane would not be able to see them ever Dan supported Jane’s belief that she should bring an application for access. He was particularly unhappy to hear James say that the doctor said they couldn’t see grandma anymore.To be clear, Dan was not an official party to the request. As he put it, he takes cares of all the bills except for groceries and it was up to Jane to pay for the lawyer.

It’s just the way they handle their finances. Jane and Dan had been through many incidents when the boys were withheld from them depending on Colleen’s moods. They just realized that this situation was worse when they heard about the move. Colleen had always told them that she wouldn’t do anything major in the boys’ lives without consulting with them. It was hard for them to accept that she was moving so far away without at least discussing it with them.

They testified that they thought Paul was the only one who could keep Colleen and William from moving with the children but when William moved with the boys, they realized they had to do something to be able to see the boys.

DECISION: Paul and Colleen should continue to share joint custody of Paige in accordance with the temporary order and the assessors’ recommendation. Paige’s primary residence should be with her father as of August 26 th , 2012 so that Paul has a chance to settle Paige in his home a week prior to the beginning of school. Colleen shall have access every second weekend starting Friday September 14 th , 2012 so that she will have Paige on her birthday that year. In other years, the birthday shall be in accordance with the weekend rotation.

Indeed, Paul will have Paige the week before school starts as well as the first week of school. There is no reason that Colleen could not attend the first day of school if she so wishes. No matter the weekend access rotation, Colleen shall have Paige for Thanksgiving and Easter weekends in each and every year. Paul shall have Paige with him every Labour Day weekend. As for spring school breaks, the father shall have Paige with him, including the sandwich weekends in odd years and the mother in even years.

Starting in 2013, Paige shall spend the month of July with her mother and the month of August with her father. For the Christmas school holidays, starting December 2012 the mother will have Paige with her for the first half in even years and the father shall have the first half of the school Christmas holidays in odd years. Until August 26 th , 2012 the parties shall continue the present shared residence regime. However, the father shall have the first half of Christmas holidays in 2011, based on the school holiday

schedule and the Mother the second half. Furthermore, the mother shall have Paige with her for Easter and May long weekends . The father shall have Paige for one week in July of 2012 and he is to advise the mother of this week prior to April 1 st , 2012. We already know that he will have two consecutive weeks with Paige end of August, beginning of September. It is understood that Colleen shall have Paige with her for two weeks, one in July of 2012 and one in August of 2012 without access by Paul. She is to advise Paul of her chosen weeks by April 1 st , 2012.

Exchanges shall be in Orillia in the yard of the OPP Station or in such other place as Paul may direct in Orillia at 6 p.m.. Jane and Dan shall have reasonable access to Paige when she is with Paul

and as arranged with him. As to James and Ian, Jane and Dan shall have access to them one weekend every second month, starting this December 2011. The weekends should always be the second full weekend of the month. That way there is no room for error. Both Dan and William work Monday through Friday. Since Dan works for himself and William is employed by Manitoulin Transport it is easy for them to exchange the boys on the Sundays in Orillia in the yard at the OPP station at 6 p.m.. The Friday

schedule is harder to organize but not impossible. The exchanges will be at 7:00 p.m. in the yard at the OPP station in Orillia. They will also have the boys one week the summer of 2012 to coincide with Paul’s summer access in July of 2012. Since Jane does not drive, the boys will be able to travel with Paul and Paige for that week. Starting in 2013, Jane and Dan’s summer week holiday with the boys should start when Colleen and Paul exchange Paige at the end of July. They will then have the boys for seven nights and return the boys to Colleen’s care in Orillia at the usual place and usual time on the eighth day.

All parents as well as Jane and Dan should have any other access as agreed between the parties from time to time. None of the adults should discuss adult issues with or in front of the children. RATIONALE: As indicated by Abella, J.A. in Chapman v. Chapman (ON CA), 15 R.FL. (5th) 46 when it comes to grandparent access, every case must stand on its own facts. In Ontario, the grandparents do not have a presumptive right of access They do, however, have the same rights as any other person who is close to a child to request custody or access.

Jane has shown that both she and her partner Dan have a much closer relationship to James and Ian than most grandparents have with their children The boys love them and love to be with them. The scene witnessed by the assessor was devastating. How terrible for children to be told that grandmother is bad and must see a doctor to get better before they can see her. No evidence, not even the psychological assessment of the grandmother validated Colleen’s concerns. The assessor also had the opportunity of speaking to Mr. Poeta, the maternal grandfather.

He told the assessor that Jane wasn’t exactly as described by Colleen. Indeed, he did indicate that Colleen was prone to exaggeration. He also stated that Jane and Colleen were very similar in terms of moodiness, “ups and downs”. One was left with the impression that Colleen is a chip off the old block. It is of note that no

one close to Dan, including Paul, verifies the claims of Colleen, Joe and Willliam that he’s an alcoholic. The main complaint about Dan apart of the alleged addiction to alcohol is that he once slapped Ian. No one saw this but Dan admitted it to Jane. It happened when Ian bit him on the leg close to the genital area. As Dan explained under oath, it hurt him more than it did Ian. It was simply an automatic reaction that he still regrets. This incident is barely worth mentioning, especially since Ian had a reputation as a biter.

That the assessors recommended that the boys spend one weekend per month with Dan and Jane as well as holiday time certainly goes a long way in permitting me to consider giving them their access. I agree with Turnbull, J. In Boyle v. Gale (ON SC) that we must look to the best interests of the children and in my view the best interest of James and Ian demand regular access to these grandparents. From Colleen’s evidence and her demeanour while giving evidence I am quite uncertain that the boys would ever get to see Jane and Dan without a very specific court order.

It was also quite apparent from both William’s and Joe’s testimony that they would not encourage her give access to Jane and Dan. I realize however that since the move to the Hanover area the boys have been granted access to their biological father, Joe. Although I question her motivation in that I am wondering if access to Joe arose to thwart visits with the grandmother I prefer to hope that access to Joe resulted from Colleen’s stated wish that the boys have a good relationship with their father.

It seems probable that William’s intent to maintain a good relationship with his own son has influenced Colleen to allow a relationship to exist between Joe and his sons. Joe is incorrect in blaming Jane for difficulties in seeing or talking to the boys. It’s clear from Colleen’s evidence that she didn’t appreciate the difference in Joe’s treatment of his sons and his lack of financial support. In any event, as stated by both Joe and Colleen in their testimony, it would be difficult for Joe to enjoy access every second weekend with his boys if Jane had a weekend once a month.

On the other hand, Joe also testified that in the hospitality industry it is difficult to always have time off on weekends so that sometimes he sees the boys for a day or an evening. He lives in Guelph and can get to Chesley where Colleen now resides quite quickly. Joe should receive a copy of this decision so that he can properly plan for the weekend, holiday and other access that he and Colleen may consider.

I have also taken into account the fact that at some point in time all of the children should be given an opportunity of spending time together at Colleen’s. It is important for the children James, Ian and Paige to have some time with Landon and Riley. In MacDonald v. MacDonald, (ON SC), 68 R.F.L.(6th) 363 Pazaratz, J. starts off his decision saying: “In a perfect world it would be great if family could be there to help each other out and they could resolve their issues together”. I can’t agree more. In the case at hand, this did happen for quite a while.

With the recent communication between Colleen and Jane and Colleen’s invitation, duly accepted, for Jane to visit at her home, I am hopeful that the prognosis for the future is good. The facts in the case at hand are much different than in the MacDonald case. The grandmother here only phoned the Children’s Aid Society early on because her grandchildren were being mistreated by the mother. Since the Society could not validate her concerns or observations and therefore chose not to intervene, Jane and Dan decided to try and resolve future incidents within the family.

We must remember Dan’s evidence of literally pulling Colleen off the boys. We must also remember Jane’ s evidence that Colleen herself phoned her to come and get the boys before she treated them as badly as she had been treated by her stepmother. I agree with Pazarat, J. that the test is whether it is in the best interests of these children to have contact with Jane and Dan. When one looks at the case of M.C.1 v. T.R. (ON SC), we see again that that case can be distinguished on its facts from the case at hand.

Although Dan and Jane didn’t agree with giving young Ian mind- altering drugs to control his behaviour, they felt confident that Colleen would do her research and make the best decision. They were venting their views and if William had not intervened in the way he did, everything would have blown over. There was no need to punish Dan and Jane for their views by stopping access with the boys. There was no need to punish the boys by ceasing access with their “grandparents”.

I have concluded from the evidence that it is definitely in these boys’ best interests, from a child-centered perspective, to have contact with Jane and Dan. I need not worry about their contact with Paige as it is clear that Paul is one of those people who will always respect his daughter’s best interests in continuing a relationship with her immediate and extended family.

As to Paige, it is clear from most of the evidence that Paul is a very good father and that he has seen Paige pretty well since birth. Initially he relied on Colleen’s good will. When he saw that she could be difficult he went to court. When she told him she was moving away he returned to court. The only people with bad things to say about his access are Colleen and her best friend. I don’t find them credible on this issue. Colleen’s friend Kim complained that Paul sometimes just saw Paige for two hours or that sometimes he didn’t seem interested in seeing Paige.

She probably didn’t realize that Colleen expected Paul to be at her beck and call and that sometimes her proposed access time just was not convenient for Paul. Even Colleen describes him as a good father for Paige. When he has Paige with him, he makes sure that she sees all of her grandparents: his parents, the snowbirds, when they are in Canada; Jane and Dan; Mr. Poeta. He makes sure that she sees her aunt Shawna. Paul is able to care for Paige, guide her, make sure that she has stability. He is able and willing to ascertain that she gets a good education.

He has a reputation as a very easy​going friendly sort who can entertain children and give them a good life. Although Paige is his only biological child, he has acted in loco parentis for his ex-wife’s three children and his present fiancee’s children, without infringing on the rights of their biological fathers. James and Ian like him. The move to Hanover and the resulting proposed changes to his access definitely qualify as a material change affecting the best interests of his child. As Paul testified, the specific access contained in his January 2010 order was not his only access.

He also enjoyed additional access and he claims that he pretty well saw Paige on a daily basis. As Dan indicated, he and Jane saw Paige much less than her brothers as Paul was around. The main reason the assessors failed to recommend that Paul have primary residence of Paige was her attachment to her brothers. I am mindful of Paige’s attachment to her brothers. However, as I have heard psychologists and psychosocial assessors say, a good attachment is not affected greatly by some absence. In this case, one must look at Paige’s best interests.

Must one sacrifice her best interests so that she sees her brothers on a daily basis? I think not. Even if she resides primarily with her father, she will have the continued opportunity to have a relationship with her brothers on weekends and holidays. During his evidence William suggested that if Paul were granted primary residence of Paige he and Colleen may well return to this area.

With this in mind, I should hasten to add that such a move should not change Paige’s primary residence unless William and Colleen find a home in Paige’s school’s catchment area. Only then should the parties consider shared residence on a week about basis. Such a decision however would no doubt not be in the best interests of James and Ian. It would mean that they would no longer be able to spend as much time with their father. Likewise, such a move would prove difficult for Landon since he would be farther away from his father. The case of Gordon v.

Gertz (SCC), [1996] 2 S.C.R. 27 was referred to in regards to a custodial parent’s right to change a child’s residence. In this case decided under the Divorce Act R.S.C. 1990 as amended, the majority held that once a material change of circumstances was established then one only had to look to the best interests of the child. Even Justice Claire L’Heureux-Dube, who felt custodial rights included the right to change a child’s residence, held that the child’s best interests must be assessed from a child-centered perspective. In the case at hand we are not dealing with the Divorce Act.

We are dealing with the Children’s Law Reform Act. There are different reasons in the latter statute to change an original order. There is certainly the ground of material change in circumstances affecting the best interests of the child. There is also the ground of new evidence being provided that was not available at the time of the original order. In this case, the father Paul relied on Colleen’s assurance that she would never change the child’s residence from the North Bay area.

As Paul testified, he may have been “naive”, but nevertheless he believed the mother and did not even discuss other possibilities with duty counsel. He felt that his right of access outlined in his agreement with Colleen would be sufficient. The fact in this case of her wish to move Paige’s residence was therefore sufficient to establish a material change of circumstances affecting Paige’s best interests. From the child-centered perspective it is clear to me from the evidence as a whole that a change of residence outside the North Bay immediate area would not be in Paige’s best interests.

In coming to this decision in regards to joint custody and principal residence with the father I have not ignored the mother’s love for her child and the ties that bind her to Paige. I am just persuaded by all of the evidence that Paul is the better parent in terms of placing Paige’s interests ahead of his own. It goes without saying that Paul’s child support payments shall cease

as of August 26 th , 2012. A support deduction order shall be filed to this effect. Since there has been divided success, each party is to bear his or her own costs. DATED at North Bay this 15 th day of November, 2011. The Honourable Justice Louisette Duchesneau-McLachlan