Family lawyers in Ontario are no doubt familiar with the seminal case of Chapman v. Chapman, 201 DLR (4th) 443, regarding grandparent access. The recent decision of M.M. v. K.M., 2023 ONCJ 314, provides important lessons and analysis when arguing these sensitive cases where grief and loss underlie bitter family conflict.
Factual Background
In M.M. v. K.M., the applicants were the maternal grandmother, aunt, and uncle of the child S.M., whose mother had passed away in 2017 after a battle with cancer. S.M. was their last living connection to the deceased mother. Prior to the mother’s death, S.M. resided with her maternal grandmother for an extensive period, during which time the maternal aunt provided daily care. S.M. also subsequently lived with the maternal aunt and uncle for around 3 months.
The respondents were S.M.’s father and paternal grandparents. They opposed contact, alleging incidents of inappropriate sexualized behavior by S.M., which they speculated meant she was sexually abused by the applicants’ children while under their care. However, “Despite how adamant their belief was presented at trial that S.M. had been sexually assaulted, the respondents took no reasonable steps to address the concerns or have them investigated until they were served with the application herein, which was three years after they first became concerned.” (Paragraph 82, Point a)
Allegations Against Maternal Family Not Substantiated
The investigations by police and child services uncovered no evidence to verify the allegations of abuse made against the maternal family. “S.M. made no disclosures of any sexual incidents or any harm or inappropriate interactions with the applicants or her cousins to the police, CAS, or the OCL. K.M. acknowledged that S.M. has not made any disclosures to anyone, including to him and his parents.” (Paragraph 82, Point c)
Court Moved by Child’s Loss and Need for Continuity
The Court made clear through its analysis that the loss and disruption suffered by S.M. weighed heavily in its determination. “S.M. lost her mother before she turned three years old. It is no doubt something that has and will continue to impact her life significantly. She has no siblings, and the applicants represent the only connection she will have to her mother.” (Paragraph 129)
Court Balances Parental Rights and Child’s Needs
In conducting its best interests analysis, the Court explicitly balanced the father’s presumptive right to make decisions regarding contact against the child’s need for continuity of care and connection with her deceased mother’s family. “There is no basis whatsoever to conclude that S.M. was harmed or was at risk of sexual harm in the care of the applicants. Rather I find the applicants to be a loving and close-knit family who care deeply for S.M. and always provided her with an appropriate level of supervision and care.” (Paragraph 83)
Crafting Relief Focused on Gentle Reintegration
In crafting relief aimed at preserving S.M.’s relationship with her maternal family, the Court paid special attention to minimizing disruption and conflict. “I am satisfied that given the significant nature of the pre-existing relationship, and that S.M. lived with the applicants for over two years and visited them regularly after that, the relationship, although diminished by the passage of time, is nonetheless significant and one worth preserving.” (Paragraph 122)
Reconciling Legal Precedent
This case also demonstrates the Court’s willingness to order access despite years without contact, reconciling the prevailing legal presumption under Chapman v. Chapman favoring parental autonomy.
Takeaways for Family Lawyers
While acknowledgment of parental rights remains imperative, family lawyers must give equal voice to the child’s urgent need for continuity of care and connection to family in crafting our best interests arguments. We owe our child clients no less. This case provides strong rationale to persuade the court where that compelling situation exists.
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