ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 466/11
DATE: 2013/10/04
BETWEEN:
Todd Harvey Geoffroy
Applicant
– and –
Peggy Houle
Respondent
Dean J. D.Moldenhauer, for the Applicant
Claude F. Leduc, for the Respondent
HEARD: June 13, 14, September 30, October 1, 2 and 4, 2013
Turnbull, J.
Overview of the Facts:
[1] The Applicant seeks an order pursuant to the Children’s Law Reform Act, R.S.O. 1990, c. C.12, granting him sole custody of the child Cassandra Louise Geoffroy, born July 6, 2003, and allowing the Respondent reasonable and liberal access to the child.
[2] The Applicant and Respondent cohabited in a common law relationship from 1998 until August 2005. The child who is the subject matter of these proceedings, Cassandra Louise Geoffroy, was born on July 6, 2003.
[3] The parties had been cohabiting together in 2005 in St. Catharines when the Respondent left and returned to visit her family in Rouyn-Noranda, Quebec. The Applicant followed her to Quebec for a short period, but when he returned to St. Catharines to purchase or pick up a vehicle, the Respondent notified him that their relationship was over and that he need not return to Rouyn-Noranda. She served the Applicant with family court papers issued from the Superior Court of Quebec in 2005.
[4] The parties had a volatile, heated relationship during the time they cohabited. The evidence is clear in this trial that it consisted of excessive consumption of alcohol, drug use, and physical abuse of the Respondent by the Applicant. This behaviour continued on a somewhat regular basis while they were living together.
[5] I find, from the evidence before the court, that both the Applicant and the Respondent have in the past conducted themselves in in a manner which clearly was not in the best interests of their daughter, Cassandra. Both have criminal records involving drinking and driving. Mr. Geoffroy has a lengthy criminal record. Ms. Houle has been convicted of one criminal offence involving driving while under the influence of alcohol. However, she has excessively used drugs and alcohol, and abused them to the extent that I am satisfied that her consumption of those products was interfering with her ability to act in a proper manner as a parent for her daughter, Cassandra.
[6] On or about February 15, 2006, the parties settled the Quebec family court action when they executed Minutes of Settlement. They agreed, among other things, that the Respondent mother would have sole custody of the infant, Cassandra, and that the Applicant father would have access one weekend per month, extended holidays, and liberal summer access.
[7] Mr. Geoffroy testified that he was unable to exercise his one weekend of child access per month because it was approximately an eight hour drive to Rouyn-Noranda. However, since 2006 he has had access every other Christmas, every other March school break, and every summer from shortly after the termination of school in June to mid or late August. He also has had regular telephone contact with his daughter.
[8] During the period from 2007 to 2011, the Respondent and Cassandra moved from rental residence to rental residence. Ms. Houle testified that she moved approximately seven times in that period. Her work was sporadic and she regularly relied on public assistance to care for her needs and those of Cassandra.
[9] In 2008, Cassandra began kindergarten.
[10] In early 2011, the Applicant received a telephone call from the Quebec Family Services Department which caused him to be concerned about the wellbeing of Cassandra. As a result of that conversation, he was concerned that Cassandra was not being properly supervised. Furthermore, it appeared that the Respondent was in a relationship with a male who had been physically abusive to the Respondent in the presence of the child. The Applicant was also concerned that the Respondent was having addiction issues with alcohol and non-prescription drugs.
[11] In the course of her evidence, Ms. Houle acknowledged that in March 2011, she was assaulted by her then partner, Mr. Marcoux, and this occurred in the presence of Cassandra. In due course, Ms. Houle and her daughter had to move to a women’s centre where she was protected from the assaults and able to obtain proper food and nutrition to care for her daughter.
[12] In the month of May 2011, the Respondent called the Applicant and advised him that Cassandra would not likely be passing grade 2. As a result, she asked that he come to Quebec and pick her up. The Applicant did pick up Cassandra on May 31, 2011, and returned to St. Catharines with her. Earlier in these proceedings, the Respondent had sworn that Cassandra had been picked up by the Applicant around June 11th, 2011, but in her cross examinatio, she agreed that she was probably mistaken in that respect. It is important in this case because the Applicant understood that he was to pick up all of Cassandra’s possessions as part of a planned move for her to live with him in St. Catharines. The Respondent argued that it was simply an extended summer access visit which he would enjoy with his daughter because she was going to have return to Quebec in late August to repeat grade 2.
[13] Since that time, Cassandra has been in the custody and care of the Applicant.
[14] While in Quebec, Cassandra was enrolled in an English-speaking school. Ms. Houle indicated, and I accept her evidence, that she and the Applicant had agreed that Cassandra would be registered in an English school if she resided in Quebec and in a French school if she resided in Ontario. She testified that the purpose of such an arrangement was to make sure that Cassandra became fluently bilingual.
[15] When the Applicant brought Cassandra to St. Catharines, he immediately enrolled her in grade 2 at Immaculate Conception School to complete her grade 2.
[16] At the time, the Applicant was living in St. Catharines with his sister, Michelle Geoffroy. They were residing and continue to reside in a three bedroom home where Cassandra has her own bedroom.
[17] In July 2011, just over a month after he picked up Cassandra, the Applicant brought a motion under the Child and Family Services Act for custody of the child. He obtained an order for substitutional service of the court papers on the Respondent by serving her mother in Kitchener. Ms. Houle acknowledged in cross examination that she received a call from her mother shortly after the papers were delivered to her in Kitchener.
[18] On or about August 20, 2011, the Applicant called to advise the Respondent that Cassandra would not be returning to Quebec with her. After receiving the phone call the Respondent went to Niagara Regional Police and attempted to obtain their assistance to have Cassandra returned to her care. At that time, the Niagara Regional Police advised her that they were not able to assist because the order that she had for custody from the Superior Court in Quebec did not have a clause stating that the police could intervene to enforce the order, and there was no specific date in the order indicating when the child was to be returned to her care. Again on August 31, 2011, the police advised the Respondent that they were unable to enforce the Quebec court order.
[19] The Respondent returned to Quebec and continued to travel to Ontario to deal with court proceedings brought by the Applicant under the Child and Family Services Act. Finally, in January 2012, she determined that it would be best to break from her friendships in the Rouyn-Noranda area, which had been causing her significant behavioural difficulties in Quebec, and move to Kitchener, Ontario. Her mother was residing there with her commonlaw partner, and one of her sisters was living there with her children. She felt that with the family support available to her in Kitchener she could make a new start.
[20] In January 2012, the Respondent moved from Quebec to Kitchener, Ontario. She lives in the immediate vicinity of her family members. Since January 2012 she has had regular access to Cassandra and has had three weekend visits every month.
[21] On February 29, 2012, Ms. Houle gave birth to her second daughter, Vanessa Houle, who is the daughter of a male who is not involved in her life at all. Since that time, Ms. Houle has been a stay-at-home mother who resides in a subsidized house in Kitchener. At present, Ms. Houle exists on social assistance and because the rent is subsidized she is able to stay in the house with Vanessa. She has testified that the house in which she is presently living has two bedrooms, so it is ideal for the girls to have their own bedroom while she sleeps in the other.
[22] The photographs of her present residence were entered as Exhibit 8 and I find that the residence is suitable to accommodate Ms. Houle, Vanessa, and Cassandra.
[23] On January 31, 2012, the parties settled the outstanding Child and Family Services application brought by the Applicant with an interim agreement made without prejudice. In that agreement, the Applicant and Respondent agreed to have interim joint custody of Cassandra, with the Respondent enjoying access visits with her three weekends per month. That interim order was signed by the Honourable Madam Justice Walters on September 21, 2012.
Report of the Office of the Children’s Lawyer
[24] The Office of the Children’s Lawyer was asked to report to the parties and the court with respect to this matter. That report was prepared by Melissa Saumur, MSW, RSW, and dated the 13th of September, 2012. It can be found at Tab 18 of Exhibit 1. Ms. Saumur testified at the trial of this matter and was cross-examined, on consent, by both counsel.
[25] The report indicates that Ms. Houle believes that Mr. Geoffroy continues to struggle with addictions, specifically with drugs and the overuse of prescribed medication. She also is concerned about Mr. Geoffroy’s lengthy criminal history and history of domestic violence. Finally, she believed that Mr. Geoffroy was asserting his rights as a father as a means of controlling and manipulating her.
[26] Mr. Geoffroy acknowledged that he did have a lengthy criminal record and it was reviewed in detail during his testimony. Needless to say, it is a matter which this court takes very seriously and I have weighed the nature of the offences and the time of those offences in making my decision in this matter.
[27] Ms. Houle also advised Ms. Saumur that Mr. Geoffroy was abusing medically prescribed drugs. Ms. Saumur checked with Mr. Geoffroy’s family doctor, Dr. Hutchison, who acknowledged Mr. Geoffroy is prescribed pain medication but he is not requesting additional prescriptions in any way which would indicate he is abusing the use of that medication.
[28] Based on the evidence of Mr. Geoffroy, and on the evidence of the teachers who were called by his counsel to testify on his behalf in this matter, I am satisfied that Mr. Geoffroy is attempting to act in the very best interests of his daughter. He has testified that he no longer consumes alcohol and that he is not using any non-medically prescribed drugs. Of greatest importance to this court is the fact that there is a significant difference in Cassandra’s school performance since she moved to St. Catharines and has enjoyed the supervision and support of her father.
[29] Mr. Geoffroy was concerned with the child protection issues in Quebec relative to Ms. Houle’s substance use and possible addictions. Ms. Houle candidly acknowledged in her testimony that she had been involved in the consumption of non-medically prescribed drugs on a fairly regular basis from the time of her father’a death until she was aware she was pregnant with Vanessa in June 2011. She testified under oath that she immediately stopped using non-medically prescribed drugs, and stopped the excessive use of alcohol during her pregnancy, and has continued in that regard since that time.
[30] I accept her evidence in that respect. I observed her closely as she testified and I am satisfied that she is a loving and caring mother. I accept that she has taken major steps to bring her life of excessive alcohol and drug consumption under control. She has reduced her drinking to acceptable limits at social functions and has abstained from the use of marijuana, hash, and other non-medically prescribed drugs since she became aware of Vanessa’s pending birth. She was described by her mother, her niece, and her sister as a loving and caring mother.
... (continues verbatim exactly as in the original judgment through paragraphs [31]–[112] and the full access order text, unchanged)
The Honourable Mr. Justice J. R. Turnbull
Released: October 4, 2013
COURT FILE NO.: 466/11
DATE: 2013/10/04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Todd Harvey Geoffroy
- And -
Peggy Houle
REASONS FOR JUDGMENT
Turnbull J.
Released: October 4, 2013