CITATION: Geisler v. Georgeoff, 2017 ONSC 5746

COURT FILE NO.: FC-17-171

DATE: 20170928

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CHARLES GEISLER, Applicant

-and-

SOPHIE GEORGEOFF, Respondent

BEFORE: The Honourable Justice Robert N. Beaudoin

COUNSEL: Duncan A.R. Crosby, for the Applicant

Karen Leef, for the Respondent

HEARD: September 26, 2017

ENDORSEMENT

beaudoin j.

Introduction

1In this motion, the Applicant seeks reasonable and generous access to Quinten Timothy Georgeoff, born February 5, 2015, including, at a minimum, the following:

• One week of each four week rotation to coincide with his time at his home in Douglas Ontario;

• In the alternative, four days each month to coincide with that time;

• One half of all holidays and special days including Christmas, Easter and Thanksgiving

Background

Background

2The Applicant is not the biological father of Quinten and he has not had any access with Quinten since November, 2016. Quinten was 20 months old when he last saw the Applicant.

3The Applicant and Respondent met online in February 2015. They began living together in May 2015 in Renfrew, Ontario and separated six months later in November 2015. While the Applicant alleges the parties were in a common-law relationship, the Respondent swears that while they were residing together, the Applicant had her sign a lease saying she was renting his place so that Ontario Works would pay money for the rent. The Applicant was then using his parents’ home as his address. This evidence is not contradicted nor is there any evidence to refute her claim that she provided for Quinten and herself with the money she received from Ontario Works and the Child Tax Benefit.

4There is no evidence that the Applicant provided any financial support for Quinten after separation although he maintains that it was offered and refused. He is prepared to pay child support at this time.

5After separation, the Respondent agreed that the Applicant could see Quinten one week per month. After about six months, the schedule was reduced to five days per month. According to the Respondent, she was still hopeful that she and the Applicant would reconcile. Accordingly, she wanted to maintain a relationship between Quinten and the Applicant. When she realized that reconciliation was not possible, she continued to permit access so that the Applicant could be a positive male role model for her son.

6She quickly came to the view that the contact is having a serious negative impact on Quinten’s behaviour. Quinten continued to have repeated meltdowns after returning home after spending time with the Applicant and she ended the contact in November 2016. She identified numerous problems with the Applicant’s parenting skills. She came to realize that the Applicant was not having a parental relationship with Quinten, but was rather treating Quinten as a “buddy.”

7Since the separation, the Respondent is now involved in a new relationship here in Ottawa and she has had another child by that partner, a baby boy who was born on June 29, 2017. She is a stay-at-home mother to both children. She states that Quinten regards her new partner as his father, and their son as his brother. She claims that Quinten has no memory of the Applicant. She opposes any resumption of contact between Quinten and the Applicant.

8She reports that Quinten has been doing extremely well since his visits with the Applicant stopped. He is no longer having tantrums around his bedtime routine and his health issues (asthma and eczema) have improved.

Analysis

9I have carefully read the affidavits provided by the Applicant, and while those affidavits speak to his interest in maintaining a relationship with Quinten and of their time together, there is very little evidence to support a finding that a continued relationship between them is in the best interests of the child in accordance with s. 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12.

10In Gibson v. Emmons, 2015 ONSC 4458, Justice Belch said this in the context of the motion for interim access to an eight-year-old child by the father’s former partner who had not had any access to the child for 20 months:

In examining the Annual Review of Family Law, 2014, McLeod and Mamo, Carswell and particularly, page 210 the court notes from previous court decisions: a non-parent does not have a presumptive right to access or to maintain an ongoing relationship with the child. The onus is on a non-parent seeking access to prove that it is in the child’s best interest to have such a relationship. A court will not usually grant access to a non-parent if the custodial parent objects and there is no obvious benefit to the child from ongoing contact… The court further observes that in a Saskatchewan case, the court granted stepmother access to the children who were in the care of their mother after the death of their father. The court held that the stepmother had a close relationship with the children and that in addition, it was in the best interest of the children to continue to be in touch with their step siblings.

Further, courts are reluctant to allow a relationship to develop between a child and a legal stranger that might put undue stress on a custodial parent; anything that interferes with the custodial parent’s day-to-day life may adversely affect his or her ability to meet a child’s needs….. From page 211, an application by a mother’s former live-in boyfriend for access to the child was denied on the basis that the dysfunctional relationship which existed during cohabitation would make such access not in the child’s best interests.

11In J.D.M. v. L.M., 2012 NSFC 2, 314 N.S.R. (2d) 123, the court concluded at para 14:

14 The court does not doubt that the applicant has experienced a loss as a result of the breakdown in his relationship with the applicant and the child. There is however no evidence that the child has suffered any corresponding loss or that it is necessary to re-establish a relationship to meet some needs of the child. The applicant’s evidence focussed almost entirely on what the relationship meant to him, not how it benefited the child. Given the complicated failed relationship between the parties, the current no contact orders, the age of the child, and all other factors, this does not appear to be an appropriate case to grant leave to apply for access. The granting of leave contrary to the wishes of the natural mother is likely to generate future litigation, and risk creating further disruption in the life of the child.

12I have no doubt that the Applicant is disappointed to have lost his relationship with Quinten. The material he has put before the Court demonstrates his lack of insight as to how his proposals would work in Quinten’s best interests. Although this motion seeks interim access, he seeks joint custody in his application. There is no acknowledgment that he lives over 100 km away; he does not address the impact of removing Quinten from his new family; other than to dispute her allegations, he is silent on the effect of his conflict with the Respondent; he does anticipate the anxiety or confusion that this renewed contact would create for a child who has, at best, little memory of him. There is no plan other than a desire to resume the status quo prior to the termination of access.

13In dismissing the appeal of a non-biological father claim for custody and access , the Court of Appeal in Elliott v. Mumford, 2004 NSCA 22, 1 R.F.L. (6th) 193 approved of the reasoning of the trial judge and cited this comment at para: 7

7 Judge White referred to s. 18(5) of the Act, stating that the paramount consideration was the welfare of the child. Judge White considered that "turmoil could develop over major issues if the parties continue to disagree upon matters related to the child" and found:

I do not find that there is anything sinister in the motives of the applicant and may very well be for noble purposes. However, the potential that his continued involvement with the child to become a disruptive force in the current household in which the child resides is too great.

Conclusion

14I similarly conclude that the Applicant’s continued involvement with Quinten would not be in the child’s best interests and I dismiss the Applicant’s motion. The parties may make brief submissions as to costs within 20 days of the release of this Endorsement.