Superior Court of Justice - Ontario

COURT FILE NO.: FC-21-1464

DATE: 2022-10-06

RE: ADAM JONATHAN SHELDON HICKS, Applicant

AND:

JESSIE ALYSSA GEIST, Respondent

BEFORE: THE HON. MADAM JUSTICE M.P. EBERHARD

COUNSEL: Lynn Burgess, for the Applicant John Craig, for the Respondent

HEARD: August 4, 2022

ENDORSEMENT

[1] This is the motion brought by the Applicant seeking contact, a graduated expansion of parenting time and a restriction on the Respondent Mother’s mobility to prevent reduction of those opportunities, with 5 year old Jackie, for whom he demonstrated a settled intention to assume the role of parent since she was 18 months old and from whom he has been prevented from any contact since October 16, 2021, some 9 months ago.

[2] The Respondent Mother who asks that the motion be dismissed, noting the onus on a non-parent, asserts that there is no demonstrated benefit to the resumption of contact to the child whom she says is doing well, that there is risk and no plan to remedy if the resumed contact goes badly and that resumed contact with the Applicant would have a negative effect on her own mental health and ability to parent.

[3] I recognize of course that 9 months is a significant hiatus for a young child. There is likely an inherent loss of the child’s perception of the Applicant and her relationship with him due to that passage of time which could be said to raise a risk in resumption. However, I find that the risk was one taken by the Respondent Mother when she abruptly and unilaterally terminated an ongoing, committed, step-parent/child relationship.

[4] I recognize that the greatest risk to the best interests of the child is that she will be exposed to potential conflict between persons participating in her life providing care for periods of time, and having a stake in major decisions concerning her well-being. That sort of conflict is commonplace in family law whether the persons are biological parents or others who are in the parental role. We know it is harmful but one parent cannot merely say I will be in conflict with the other so there should be no contact. A child should not be thus deprived of the love of a committed step-parent who has, prior to separation and unilateral restriction on contact, been authentically involved in the parenting of the child.

[5] For reasons that follow, I am ordering the resumption of contact between the Applicant step father and the child. The challenge is how to minimize the potential for conflict and harm while maximizing the benefits available to the child that should flow from contact and resumed relationship.

EVIDENCE GOING TO CLRA S 24 FACTORS

[6] The Applicant Step Father was residing with and participating in the parenting care of the child during a period, from 18 months to almost 5, when the child would be developing attachments and be capable of remembering when the parental figure was removed from her daily life. Although he was hospitalized for three periods of a month, contact was retained virtually while he was in hospital. It is disingenuous to assert that the length of his parenting role was insignificant by reason of brevity.

[7] The evidence demonstrates active involvement in the various aspect of parental life for a child of that age, arranging for and transporting her to daycare, medical appointments and frequently caring for her at meal times and other routines.

[8] The written and photographic evidence show a family happily anticipating the marriage and adoption they planned. Even when the Applicant Step Father’s serious illness intervened, the Respondent Mother demonstrated her enthusiasm for those plans.

[9] The written record is voluminous showing conversation and discussion of various parenting, health and financial issues without the slightest hint of abuse or control that the Respondent Mother now asserts.

[10] At a certain point, the Respondent Mother lost her enthusiasm for the family life they were, until then, enjoying together. So be it. She does not respond to the suggestion that this arose from her express interest in polyamorous relationships, but why she lost enthusiasm doesn’t really matter unless it was due to conduct by the other falling within CLRA 24(3) or (4). The Respondent Mother began to frame her complaints about abuse and family violence well after this litigation started. Although I certainly recognize that delayed insight or disclosure of abuse is quite usual, in the present case it is entirely inconsistent with the evidence she herself provided by her many contemporary communications.

[11] The examples of controlling conduct by the Applicant Step Father, even if proven, do not rise to the conduct described in CLRA 24(4).

[12] I observe that a subjective experience of an interaction with another might feel like being “controlled” by the other. I observe that in many relationships, whether family or other relationships requiring frequent interaction, when one is dissatisfied that things are not going as one prefers it is normal to feel resentment towards the other. Many relationships break down by the resentment that builds, and looking back, it feels like the other was controlling. But, objectively, there is no element of control, just disagreement. I do not find that the Respondent Mother invented these sensibilities. But objectively, there is no evidence that the Applicant Step Father was controlling to a fault, nor that any of it amounted to family violence.

[13] The evidence is beyond challenge that, while the Applicant Step Father and Respondent Mother resided together, they both participated fully in parenting the child. Not only was no distinction drawn by reason of the Applicant not being the biological father, the Respondent Mother herself proclaimed and encouraged his excellence in being a parent and she help the child express her feelings toward the Applicant Step Father in a variety of sweet and endearing tokens, much as one hopes to see in a loving intact family.

LEGAL CRITERIA

[14] The question of the Respondent Mother’s autonomy to raise her child as she sees fit is the crux of the present case. The Respondent Mother has emphatically and publicly expressed her disagreement that the law should give the Applicant Step Father a right to seek parenting time and she has asserted that her own parenting would be negatively effected by having to interact with her former co-parent.

[15] The Applicant cites the wise and prolific Justice S. B. Sherr in Agmon v. James, 2018 ONCJ 4 who identifies the distinction between others who have pre-existing relationship with a child, such as grandparents, and step parents.

Part Five -- Parental autonomy

55 The mother and father submit that they should have parental autonomy to determine if the child sees the stepmother.

56 The case law regarding parental autonomy is commonly cited in grandparent access cases where a child's parents oppose grandparent access. This line of cases, starting with Chapman v. Chapman, 2001 CanLII 24015 (ONCA), state that considerable weight should be given to the wishes of the custodial parents in determining access. This line of case law examines any positive pre-existing relationship between the child and the person seeking access, whether that relationship will be imperiled by the custodial parent's decision and whether the custodial parent is acting arbitrarily. See: Giansante v. DiChiara, 2005 CanLII 26446 (ON SC), [2005] O.J. No. 3184 (SCJ).

57 It would be in the child's best interests to have temporary access with the stepmother even if this more stringent test was applicable in this case since:

a) The stepmother had a very important pre-existing relationship with the child;

b) The decision of the parents to deny her access imperils that relationship; and

c) The parents are acting arbitrarily and unreasonably.

58 However, the court finds that this line of case law is not applicable to a person who has formed a settled intention to treat a child as a child of his or her own family. Their status is different than family or community members who have not formed the requisite settled intention.

59 This higher status is reflected in subsection 62 (3) of the Act. This subsection requires that a person who has formed a settled intention to treat the child as a child of his or her own family shall be named as a party in any custody or access case involving the child. This is not a right afforded to a family or community member who has not formed the requisite settled intention.3 Subsections 62 (1) -- (3) of the Act read as follows:

62 (1) An application under this Part may be made in the same proceeding and in the same manner as an application under the Family Law Act, or in another proceeding.

[16] It must be emphasized that not all step parents, or more generally persons living in conjugal relationship with a child’s parent, are the same. It takes no imagination to think of cohabitants who are involved only a short time, or uninvolved in the parenting beyond the curtesy of a shared household, or distant or cruel to the child, or toxic to the child’s relationship with the biological parent or even vindictive enough to insist on contact with the child only to spite the parent.

[17] The cases cited by the Respondent Mother, underscoring that a non-parent does not have a presumptive right to access or to maintain an ongoing relationship, help define the continuum of involvement and settled intention that will be in the child’s best interests to preserve. Factors may include length of the relationship, the age and developmental stage of the child during the relationship and when contact ceased, the length of time since contact ceased, and the extent of the step parents participation in usual parenting imperatives.

[18] I find that a child 18 months to 5 years is in the sweet spot for developing attachments, in a time frame that takes up most of the child’s sentient life, able to remember the person who has gone, and as indicated before, a dad who was authentically involved in her life.

[19] The biological parent who has created, facilitated and encouraged the development of this close attachment cannot be legitimately outraged that her parental autonomy is limited. She must recognise that by cutting off all contact because of her own sensibilities, she has deprived the child of one of the two principal relationships of her young life.

[20] Accordingly, opportunity for resumption of that important relationship must be restored despite the 9 month hiatus imposed by the Respondent Mother and prolonged by inherent systemic delay in getting the matter before the court for adjudication.

[21] Having announced this decision I asked both counsel: respected, experienced and insightful, to assist in crafting the best circumstances for helping the child through the renewal of contact. I look forward to the results of their efforts on August 10, 2022.

EBERHARD J.

Date: October 6, 2022