) ) Todd Harvey Geoffroy Applicant – v. –, 2013 ONSC 6210

CITATION : Geoffroy v. Houle, 2013 ONSC 6210 COURT FILE NO.: 466/11 DATE: 2013/10/04 ONTARIO SUPERIOR COURT OF JUSTICE 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. [ 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. Overview of the Facts: [ 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 11 th , 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 13 th 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. [ 31 ] Mr. Geoffroy also felt that Mr. Houle’s lack of stability played a large

part in Cassandra’s poor achievement in school. In that respect, I have little or no doubt that it contributed significantly to Cassandra’s difficulties in school. Her report cards from her school in Quebec repeat consistently that Ms. Houle needed to spend time reading with her daughter, assisting her with her writing, and generally improving her English skills. Furthermore, the report cards showed that in grade 1 and grade 2 Cassandra had an excessive number of days of absenteeism which, Ms. Houle generally ascribed to the child being ill.

I rather suspect that not all of those absences were due to Cassandra’s illness, but that some were due to a lack of supervision and discipline on the part of Ms. Houle. Ms. Houle admitted to having moved numerous times while she had Cassandra in her care, due to difficulties finding suitable and affordable housing in Quebec. She also had to move on one occasion when her ex-partner assaulted her. [ 32 ] I have reviewed in detail the report prepared by Ms. Saumur and listened carefully to her testimony.

I was impressed by the fact that she had worked in child protection work for eight years prior to being employed with the Office of the Children’s Lawyer. At the time of her preparing this report, she had been so employed by the Office of the Children’s Lawyer for approximately one and a half years. [ 33 ] Ms. Saumur conducted an interview with Cassandra at the Applicant’s residence. Of note, Cassandra, who was nine years of age, told Ms. Saumur that she would like to live with her mother because it wasn’t normal for a little girl to be living alone with her father. Despite that comment made by Cassandra, Ms.

Saumur felt that the stability that Cassandra was enjoying living with her father was essential to her long term well-being. She noted that Cassandra had her own bedroom, and she was living with her aunt Michelle and her husband, and with her father. In other words, Cassandra had good family support immediately around her. Ms. Saumur noted that Cassandra had progressed through grade 3 and was going to pass grade 4 successfully. She learned that she had actively participated in extra-curricular activities. [ 34 ] Ms. Saumur ultimately recommended that Mr.

Geoffroy be granted custody of Cassandra with liberal access to Ms. Houle three out of every four weekends. In addition, she made numerous other recommendations which are found at page 10 and 11 of her report. Evidence of Teachers [ 35 ] In this trial, two of Cassandra’s teachers testified that she was doing exceptionally well in school in St. Catharines. [ 36 ] David Watson is an elementary school teacher at Cassandra’s school in St. Catharines. She attends St. Christopher School. He noted that her report card for grade 3 showed that Cassandra was absent for 5.5 days the entire year.

He remembered that she missed a couple of days when she had suffered an injury in a bicycle accident. He noted that at the end of each day it was almost invariably Mr. Geoffroy who picked up Cassandra from school, though occasionally his sister did that task. Mr. Watson recalled that when met Cassandra in November 2011, she was an 8 year old girl and new to the school. He did not have any concerns with her and she communicated fluently in English. He found that she was a well-adjusted little girl and showed no anger or other extreme emotions.

He knew that she was living with her father and that she would visit her mother on the weekends. He had no concerns about her preparation for school and her interest in classes. He remembered that she came to class prepared and ready to learn. He noted that of the 21 students in grade 3, all passed their year. In fairness, he admitted that retention does not happen in the St. Catharines School Board any longer. He noted that she had made friends in grade 3 and virtually all the same children would be in the grade 4 class. He recalled getting to know Mr.

Geoffroy at the Christmas concert and then at the parent/teacher interview. He testified that Mr. Geoffroy was very concerned about his daughter and always checking to make sure everything was okay with respect to her school performance. At no time did he ever have any concerns about her clothes, hygiene, lunch foods, her use of language, or other behaviour. [ 37 ] Reno Berardi also testified on behalf of the Applicant. He was Cassandra’s grade 4 teacher at St. Christopher’s from September 2012 to June 2013. He testified in June 2013 when this trial commenced.

He noted at that time he expected Cassandra would pass grade 4. He noted that in language, she had a high C mark, which is on the cusp of level 3 which is the provincial standard. In

math, she was in the high two’s or low three’s. He noted she does extremely well in arts, drama, dance and music and definitely is not shy. He testified that she had no difficulty being on stage and seemed to enjoy it a lot. He noted that she had participated in the school eco-club and the school choir. She had participated in several performances, including a role in Beauty and the Beast. He commented on the fact that she had several close friends in her grade and they would all be advanced together into a grade 5/6 split class.

He had found no behavioural problems with Cassandra other than the usual issues one expects with children at that age. In January 2013, he conducted a parent interview with Mr. Geoffroy. He noted that the Respondent had never called him to speak to him or question him with respect to her daughter’s performance. Generally, he stated that Cassandra has fit in well within her class and that she is a good student. He noted she had only been absent 3 days during the school year and could never recall her being late for class. Like Mr. Watson, he had no issues about the basics of her care including food or hygiene.

In cross-examination, he acknowledged that Cassandra is an average student. He expected that Cassandra would reach the provincial norms in all her studies over the next two to three years with good teachers and good family help. [ 38 ] Michelle Geoffroy is the sister of the Applicant. Cassandra has been living in Michelle’s home with her father since 2011. Her brother Todd, the Applicant, lives in the basement of the home and Cassandra has a bedroom on the main floor. Michelle noted that Cassandra loves her room and considers it to be her room.

She keeps it clean and likes to decorate her room and hang things on the wall. [ 39 ] Michelle was quite candid with respect to the relationship between the Applicant and the Respondent. She noted that it was a rocky relationship and that they drank to excess on occasions. She also knew that there were drugs involved, as she saw them ingesting drugs, mainly painkillers. [ 40 ] After Cassandra came to live with them in June 2011, she did not recall Ms. Houle calling very often during the summer. Her recollection is that Ms. Houle had called just four times up to and including the middle of August.

After the month of August 2011, Ms. Houle called very irregularly. She testified that she had spoken personally with the Respondent on some of those calls and had concerns about her sobriety. She was able to recognize when Ms. Houle was drinking because Ms. Houle was very talkative when she was under the influence of alcohol, and otherwise she was not so talkative. [ 41 ] Michelle testified that Cassandra has friends in the neighbourhood where she now lives. She noted that Mr. Geoffroy takes care of Cassandra’s needs and the only time she has to assist is when Mr. Geoffroy goes out. She testified that Me.

Geoffroy stays on the main floor until Cassandra is done her homework and goes to bed, and then he goes down to his room in the basement. She feels that Cassandra is doing very well, looks healthy, and is happy and content. She expressed no significant concerns about Cassandra’s development. She is happy with respect to the results she is getting in school and notes that Cassandra is excited about school and feels that she has done well. She noted that it was the Applicant who does her homework with her on virtually all occasions.

Evidence of Marie Jeanne Droun [ 42 ] The Respondent called her mother, Marie Jeanne Droun, as a witness. Ms. Droun testified that she lives in Kitchener, about 10 to 15 minutes from the Respondent’s present residence. [ 43 ] Ms. Droun has lived in Kitchener since 2003, when she entered into a commonlaw relationship with Larry DuPlessis. She testified that her daughter, Peggy Houle, moved into her residence in January 2012. She stayed in her residence until March 2012, when she moved to her own apartment. It was in this period of time that Vanessa was born. [ 44 ] Ms.

Droun testified that she regularly visited with her daughter, three to four times per week to help her as she was still recovering from the birth of Vanessa. [ 45 ] She testified that when the Respondent had access visits with Cassandra while they were living at her residence, they had a wonderful time together. They participated in all sorts of activities. She emphasized that the visits were great and her grandson, Douglas, the son of her other daughter, Nancy Houle, regularly played with Cassandra.

He is 12 years of age. [ 46 ] She noted that the Respondent takes very good care of her children when she has them in her care, and she sees little or no discipline problems with the children. [ 47 ] At present she sees her daughter one or two times per week and in busier weeks, three times per week. [ 48 ] She has three other grandchildren in Kitchener aside from Vanessa and Cassandra. Ms. Droun testified that the family has regular get-togethers at least one time per month. She noted that Cassandra and Vanessa are happy to be together. [ 49 ] Of greatest importance to this court is that Ms.

Droun has noticed a big change in her daughter, Peggy, since she moved to Kitchener. She stated she does not drink excessively now. She noted that Peggy speaks both French and English to Cassandra, but at family get-togethers everyone speaks French. [ 50 ] In the summer of 2013 she regularly saw her daughter, Peggy, with Cassandra and noted that there is a good relationship between them and she has no concerns about her daughter’s ability to be a good mother to Cassandra. Evidence of Fanny Houle-Poirier [ 51 ] Ms. Houle-Poirier is 26 years of age.

She is the niece of the Respondent, Peggy Houle. [ 52 ] She has a son who is 22 months of age. Previously, she had lived in the same apartment building as the Respondent. When they were living in the apartment building they saw each other regularly and Vanessa and her son Blay enjoyed playing together and love each other very much. [ 53 ] She testified that she and the Respondent do all sorts of activities together with their children in the community. She also testified that she sometimes sees her aunt with Cassandra and they do family activities with her. She noted that Cassandra particularly

enjoys going to the beach. [ 54 ] Ms. Houle-Poirier testified that there are family functions once every second week at her mother’s house or her grandmother’s house (Ms. Droun’s house). She has stated that they are a really strong a close family. [ 55 ] She noted that her younger brother Douglas resides with her mother, Nancy (who is the sister of the Respondent). She commented that he is 12 years of age and Cassandra loves to play with her cousin. [ 56 ] Ms. Houle-Poirier testified that Ms. Houle is a good mother to Vanessa and she has absolutely no concerns about the care she provides for her daughter.

She echoed the same sentiments with respect to the care provided to Casssandra. She noted that at this time, Ms. Houle does not appear to have a boyfriend or a man involved in her life. Plan of the Father [ 57 ] Ms. Geoffroy’s plan is to continue to reside with his sister Michelle, until he is financially able to move to a separate residence for him and Cassandra. At the present time he is on ODSP, so his income is somewhat limited (as is Ms. Houle’s).

He does some work for cash for his brother from time to time in an excavating business, according to his sister Michelle. [ 58 ] He plans to continue to assist Cassandra with her school work and he would essentially be a stay-at-home full-time father. In due course, he hopes to move to his own residence with Cassandra but there is no evidence of when that might occur or his financial capability to make that work. [ 59 ] He contends that with the presence of his sister and her husband he has good family support to maintain stability in Cassandra’s life.

He noted that she is doing well in school, has remained in the same residence for over two years, and most importantly, he has totally changed his way of living to make certain he is a good role model for his daughter. He stopped consuming alcoholic beverages and abstains from the use of non-medically prescribed drugs. Plan of the Mother [ 60 ] Ms.

Houle urges the court to grant her custody so that Cassandra can enjoy a warm relationship with her mother and her younger sister, Vanessa. [ 61 ] She has a two bedroom residence which is suitable for the children and she testified that a subsidized larger apartment might become available if Cassandra is able to move with her. [ 62 ] She clearly relies on the fact that she has strong family support with her mother, sister, and nephews and nieces located in the Kitchener area. She wishes her daughter to be educated in the French language so that she can fluently bilingual. The Law: [ 63 ]

Section 24.1 of the Child and Family Services Act clearly states that the issue of custody or access to a child must be determined on the basis of the best interests of the child. [ 64 ] Section 24(2) requires the court to consider all the child’s needs and circumstances, and includes a lengthy list of factors the court may take into account. [ 65 ] Section 24(3) requires the court to only take a person’s past conduct into consideration if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent, or if that person’s conduct in the past has been violent and abusive. [ 66 ] Section 24(4) requires the court to consider whether the person seeking custody has at any time committed violence or abuse against

a) his or her spouse; or

b) a parent of the child to whom the application relates. Analysis: Material Change in Circumstances [ 67 ] Under

section 29 of the Children’s Law Reform Act , the court may not make an order which varies an order with respect to custody or access made by a Court in Ontario unless there has been a change in circumstances that affects or is likely to affect the best interests of the child. [ 68 ] Originally, custody of Cassandra was governed by a consent order of the Quebec Superior Court, as stated in paragraph 6 above.

The Respondent did not seek to enforce her rights with respect to that order and her counsel agreed that she attorned to the jurisdiction of this court when she moved to Kitchener on a permanent basis in January 2012. [ 69 ] Mr. Leduc, counsel for the Respondent, assured the court in his able submissions that the jurisdiction of this court to make an order relating to the custody of Cassandra was not in issue. [ 70 ] If I had been required to determine if there had been a material change in circumstances warranting a variation of the Quebec order, I would have had no hesitation in so ordering.

[ 71 ] When the Respondent was given custody in 2006, it was on the assumption that she would provide a stable and responsible upbringing for her daughter. However, her drug and alcohol addictions made that almost impossible. She was unable to keep a regular job and largely lived on social assistance. She went from relationship to relationship and found herself in abusive relationships. She was assaulted by one of her partners in the presence of Cassandra. She changed her residence approximately 11 times between October 2005 and April 2011.

She ultimately ended up living in a women’s shelter with her daughter due to lack of funds and necessity to be protected from Mr. Marcoux. When it became evident that Cassandra was going to fail grade 2, she finally called the Applicant to come take Cassandra to St. Catharines.

She acknowledged in her candid testimony that she moved to Kitchener in January 2012 to see more of Cassandra, but also to get away from the people in Rouyn-Noranda who were influencing her to act in ways detrimental to her ability to care for Cassandra. [ 72 ] The report of the Centre Jeunesse de Abitibi-Temiscamingue (the Quebec CAS) is found at Tab 18 of Exhibit 1. That report, dated July 18, 2011, contains alarming findings with respect to the care of Cassandra. The DPJ had intervened to get Cassandra out of the situation created by her mother’s lifestyle.

When the police came to her apartment in December 2010 to investigate a breakin, they found that Cassandra had been left alone in the apartment at night. Ms. Houle explained that the babysitter had fallen asleep across the hall in her apartment, but I have some doubt about that explanation. The notes also indicate that there was a lack of food in the apartment and Ms. Houle stated that the robber had taken food from her fridge. I have some doubt about that explanation as well. The notes indicate that there was consideration of putting Cassandra into a foster home. [ 73 ] In my view, had Mr.

Geoffroy not acted he would have badly let his daughter down, and quite possibly would have left her to suffer irreparable emotional harm and to fall behind in her educational progress. The situation simply had to change.

Section 24 Consideration [ 74 ] I am satisfied that Cassandra has much love and affection, and strong emotional ties with both her mother and her father. She is a fortunate young girl because she also has close ties with other members of her father’s family (her aunt and uncle with whom she resides) and with her grandmother (Ms. Drouin), her aunt (Ms. Nancy Houle), and her cousin (Ms. Houle-Poirier). [ 75 ] I have taken into consideration the fact that Cassandra has expressed a preference to reside with her mother, but I concur with Ms. Samaur that Cassandra’s preference is not determinative of the issue.

I am satisfied that her preference is based upon an understandable misunderstanding that it is “normal” for a child to live with her mother. [ 76 ] It is a significant factor that Cassandra has lived in a stable home environment with her father for 24 months at the time of the commencement of this trial. It was suggested by the Respondent that it was the Applicant’s sister Michelle who was really the caregiver to Cassandra. I do not find that to be the case.

It is clear from the evidence of her teachers that the Applicant is very actively involved in her life and education. [ 77 ] Upon review of the record, Cassandra had, prior to that time, lived in a very unstable home situation. As noted above, the Respondent had moved frequently from residence to residence in the Rouyn area. She had lived intermittently with two or three men, including Mr. LeClerc, Mr. Marcoux, and later she had a relationship with someone named Eric (whose surname she was reluctant or unable to divulge) who was the father of Vanessa.

During the course of residing with Ms.Houle, Cassandra was exposed to the arrival of the police at her residence when her babysitter fell asleep and did not remain in the apartment with her. Furthermore, she was present on at least one occasion when Ms. Houle was assaulted by Mr. Marcoux. She ultimately ended up living in a women’s shelter with Ms.

Houle and the situation became so untenable that the Respondent ultimately requested the Applicant come and bring her to Ontario. [ 78 ] I further find that the instability of the home environment with her mother was accentuated by her mother’s admitted regular use of marijuana and over consumption of alcohol, until she stopped those habits in June 2011. [ 79 ] I am satisfied that Mr. Geoffroy is able to provide Cassandra with the guidance, education, the necessaries of life, and any special needs of Cassandra at this time.

He is fortunate to be able to live in a residence with his sister because of the limited income he has from ODSP. He is 46 years of age and has a formal grade 9 education. However, when testifying he expressed himself clearly and exhibited a capacity to have attained a much higher level of education. At this stage, he does not have another partner in his life, nor does Ms. Houle. [ 80 ] Ms. Houle also has a limited annual income of approximately $12,500 from social assistance.

Her financial statement clearly shows that she is literally living “hand to mouth”, and while she is able to provide for Vanessa, I have serious concerns whether or not she would be able to provide the necessaries of life for both Vanessa and Cassandra. She has finished her high school education. She is French speaking and functionally capable in English.

She expressed a desire in the future to return to school to upgrade her English skills so that she could apply for one of the many jobs her sister testified were available in the Kitchener-Waterloo area for bilingual people. [ 81 ] I am satisfied that the permanence and stability of the family unit which is provided by Mr. Geoffroy is probably greater at this time than that offered by Ms. Houle. Ms. Houle acknowledged in her cross-examination that she is a reformed drug user and alcohol abuser.

She acknowledged that she is still in the early stages of that drug recovery and that from time to time she is tempted to participate in smoking marijuana but she has not done so. [ 82 ] Mr. Geoffroy clearly had a problem with alcohol and was the subject matter of police investigations relating to inappropriate alcohol use as late as 2010. However, from the evidence before the court he has apparently reduced or eliminated his use of alcohol and has acted as a stabilizing force in young Cassandra’s life. [ 83 ] I am deeply concerned about Mr. Geoffroy’s past.

Not only does he have an extensive criminal record with eight registered convictions, but he has physically abused Ms. Houle. This related to an incident in 1998 and he ultimately signed a peace bond. The parties continued to reside together for about another 6 years and there is no further recorded evidence of physical abuse of the Respondent. There is no suggestion that he has been physically abusive to the Respondent after the birth of Cassandra. If the Respondent was concerned she might be the object of further abuse, it is difficult to believe that when Mr. Geoffroy did make the long

trip to Rouyn-Noranda to see his daughter that Ms. Houle would have permitted him to stay in her residence. [84] Mr. Geoffroy’s criminal record was reviewed in detail in his examination in chief. Seven of his eight criminal convictionspre-date 2006, and the eighth was registered in 2010 for obstructing police when he used a false name. Since his care of Cassandrastarted in June 2011, he has had no convictions, he does not use any non-medically prescribed drugs, and his alcohol consumption, ifany, is not a problem. [85] I must also state that I am impressed with the efforts of Ms.

Houle to reduce her drinking and to stop all use of all non-medically prescribed drugs. I am also impressed by many of the actions taken by her to encourage the father-daughter relationshipbetween Cassandra and the Applicant. For example, she asked Mr. Geoffroy to come help by taking Cassandra away from the women’sshelter at the end of May 2011. She allowed the Applicant to come and pass time in her house to see his daughter. There are not a lot ofwomen who would do that. She always gave him proper access under the Quebec court order and even more time with Cassandra onseveral occasions.

Ultimately, she left her birth place and friends in Quebec so she could be closer to her daughter. Once in Ontario, sheundertook all the travel arrangements and associated expenses once she moved to Kitchener to effect her access visits with Cassandra. Mr. Geoffroy refused to do it on a regular basis and he admitted in his cross examination that had not even asked his sister Michelle tohelp. Michelle testified that she would have done it, if asked. [86] Ms. Houle’s mother testified that her daughter is like a new person.

Nancy Houle has also commented on the significantpositive changes she has seen in her sister since she moved to Kitchener. In a nutshell, she described Ms. Houle as a wonderful mother toVanessa and Cassandra who now uses no non-medically prescribed drugs and drinks responsibly at social and/or family functions. I wasimpressed by the candour of Nancy Houle as she testified, and found that her evidence corroborated much of what the Respondent hadstated. [87] In Gordon v.

Goertz, (SCC), [1996] 2 S.C.R. 27 at para. 121, the court is directed in assessing the child’sbest interests to consider the particular role and emotional bonding the child enjoys with his or her primary caregiver. The court heardevidence that Cassandra enjoys doing what her aunt Nancy described as “girly-girly’ things, including having her hair combed andstyled, her nails done, and being held close by her mother. [88] I have taken that into consideration in this matter.

The court has carefully considered the fact that Cassandra is a young girlwho was raised in the first years of her life solely by her mother, with little or no support from her father. However, as generally outlinedabove, those were tumultuous years in Cassandra’s young life.

I acknowledge the importance of preserving a child’s relationship withhis or her psychological parent but in this particular case it is my view that stability in her young life is the most important factor forCassandra. [89] In this particular case, I have no doubt that Cassandra has a close emotional bond with her mother, but I find, on the evidence,she also has a close emotional bond with her father and with her aunt and uncle with whom she lives. She has undergone multipledislocations of her residence and traumatic intervention by the police at her residence.

She has observed excessive drinking and drugconsumption on the part of her mother, which undoubtedly affected the ability of her mother to care for her. After more than two years, Iam satisfied Cassandra has adjusted to living with her father and her father’s family.

In my view, removing her from her school, from herfather and her father’s family with whom she has enjoyed a stable and loving relationship for over two years, and from her school andneighbourhood friends with whom she has bonded, would significantly disrupt the stability which has finally been established in her life. [90] Cassandra’s report cards from Quebec indicate that she was a rather withdrawn student who was suffering from self-esteemissues. Her teachers and family members now describe her as a very happy and outgoing little girl.

She has enjoyed the lead role inschool productions, has joined the choir, and is well liked. Her mother explained that she is almost always happy and telling jokes. Thatchange in demeanour and appearance is a significant improvement over the tone expressed in the Quebec report cards and it should notbe threatened by dislocating her from an environment which so clearly has benefited her. [91] I am further concerned that to remove her from her present environment would undermine the progress that she has made inschool and put at risk the expectation that with good teachers and stability (as expressed by Mr.

Watson) she should be able to attainprovincial standards in her studies in the next two to three years. [92] I concur with the report of the OCL that this is not a proper case to order joint custody. The parents have had a volatilerelationship, fuelled by alcohol and drugs. I am not satisfied that they would be able to communicate in a constructive manner for thewell-being of Cassandra.

In her testimony, the Respondent made it very clear that she did not want any type of relationship with theApplicant and simply wanted to get on with her life. [93] In my view, Cassandra needs certainty in knowing who her custodial parent is and where her residence is located. [94] On the totality of the evidence, I find that it is in the best interests of Cassandra that the Applicant be granted sole custody. Conclusion: [95] It is ordered that Mr. Geoffroy be granted custody of Cassandra Louise Geoffroy. [96] It is ordered that Mr. Geoffroy consult with Ms.

Houle regarding decisions to be made about Cassandra’s health,extracurricular activities, or academic wellbeing, while the final decisions remain with Mr. Geoffroy. This is to be done by email or acommunication book. [97] It is ordered that Cassandra receive counselling with respect to her family situation as soon as possible; these counsellingarrangements are to be made by Mr. Geoffroy. [98] It is ordered that both Mr. Geoffroy and Ms.

Houle individually attend counselling sessions in their respective communities inwhich the impact of seeing domestic violence and/or the effects of domestic violence upon children are discussed. They are to provide

evidence to the other of completion of such counselling within six months of the date of this judgment. [ 99 ] It is ordered that Cassandra remain at St. Christopher School in St. Catharines, regardless of the community in which Mr. Geoffroy finds new accommodations. [ 100 ] It is ordered that Ms.

Houle receive counselling regarding her experience being in relationships of domestic violence. [ 101 ] It is ordered that both parties refrain absolutely from the use of alcohol in their respective residences and/or at any event when Cassandra is in their care, whether she is at the event or not. [ 102 ] It is ordered that if either Mr. Geoffroy or Ms. Houle becomes involved with a child protection agency, they shall immediately notify the other in writing of the nature of the investigation and notify one another in writing once that investigation has been completed.

It is also ordered that the individual subject to the investigation shall sign consent forms to allow the child protection worker to share the alleged concerns and outcome of the investigation with the other parent. [ 103 ] It is ordered that Ms.

Houle receive a copy of all report cards, assessments and correspondence related to Cassandra’s school, extracurricular activities, wellbeing or medical and dental needs. [ 104 ] It is ordered that neither party take Cassandra out of the province for extended periods of time without prior written pre- approval from the other. [ 105 ] It is ordered that each of the parties shall keep the other fully informed, in advance, of all matters regarding Cassandra.

Both parties shall have the right to receive all information with respect to the child’s education, medical care, dental care, religious upbringing and other pertinent information, including the right to receive school report cards and hold interviews with the child’s teachers and healthcare workers, and to obtain the child’s medical records. [ 106 ] It is ordered that the Applicant and Respondent both have the right to attend any extracurricular activities involving Cassandra. Mr. Geoffroy is to advise Ms.

Houle in writing of school related events within two days of becoming aware of them. [ 107 ] It is ordered that neither party shall make demeaning or disparaging remarks about the other to or in the presence of Cassandra. [ 108 ] It is ordered that Cassandra will continue to live in the Regional Municipality of Niagara, Province of Ontario. The Applicant will therefore not change the residence of the child to one outside of the said Regional Municipality without first giving the Respondent sixty days notice.

Notice shall include the proposed address, phone number and reasons for the move. [ 109 ] It is ordered that Cassandra shall use her present surname during her minority. Neither party shall take any action to change the name of the child without the written consent of the other. [ 110 ] It is ordered that neither the applicant and respondent shall not consume alcohol when Cassandra is in their respective care or for 24 hours before she is returned to their respective care. Access: [ 111 ] The parties have consented to the following access regime.

It is therefore ordered that the Respondent shall have the following access to the child Cassandra Geoffroy, born July 6 th , 2003, as follows and on the following terms:

(1) Every second weekend from Friday at 5:00 pm to Sunday at 5 pm, subject to the other provisions of this access order.

(2) Should the access weekend be a long weekend except for Easter, Thanksgiving and Christmas, Cassandra shall remain in her mother’s care for the extra day of that long weekend.

(3) Every other Easter and every other Thanksgiving, such that the Respondent mother does not have both in the same year. Cassandra shall spend Thanksgiving weekend in 2013 in the care of her mother.

(4) March school break each alternate year. In 2014, Cassandra shall spend her March school break in the care of her father.

(5) Cassandra’s school Christmas break shall be shared such that Cassandra shall spend the school break until December 28 th at noon hour with one parent and she shall spend the balance of her vacation in the care of her other parent from December 28 th at noon hour until 7:00 pm on the day two days before school commences, unless that parent is the Applicant in which case she shall simply complete her vacation with her father. This

schedule shall alternate from year to year, and in 2013 Cassandra shall spend the first part of her Christmas vacation with her mother.

(6) Each summer school vacation, Cassandra shall spend equal time in the care of each of her parents, with each to have the same number of weeks and days with her. In any event, she is to spend a minimum of four weeks each summer with each of her parents according to a

schedule arranged between the parties before May 15 th in each year.

(7) Cassandra shall spend each Mothers’ Day weekend in the care of her mother and this shall supersede the alternate weekend access provision in paragraph 1 of this access order.

(8) Cassandra shall spend each Fathers’ Day weekend in the care of her father and this shall supersede the alternate weekend provision in paragraph 1 of this access order.

(9) The party who does not have Cassandra in his/her care may have reasonable daily telephone contact with her and the parent

who has her in his/her care shall facilitate that telephone contact.

(10) The child shall always remain in Ontario unless agreed to in advance in writing by both parents.

(11) The Applicant shall not change the address of the child outside of St. Catharines Ontario unless the he has given the Respondent 60 days notice of the location to which he plans to move, the reason for the move and secured the Respondent’s written consent or obtained a court order permitting the move.

(12) The Respondent shall keep the Applicant apprised of her address and telephone number in writing.

(13) The Applicant and Respondent shall share the transportation to effect the access visits under this order and, absent any other written agreement between them,the Applicant and Respondent, or the person(

s) effecting the pick up or drop off on their behalf, shall meet half way between Kitchener and St. Catharines at an agreed location in Hamilton, Ontario for access exchange.

(14) Cassandra’s Ontario Health Card shall accompany her at all times during access visits and shall be returned with her when she returns to the Applicant’s home. Costs: [ 112 ] The Applicant has been successful in this trial. He is entitled to his costs on a partial indemnity basis, if demanded. If counsel cannot agree on costs, I will receive short written submissions with a costs outline and any Offers to Settle from Mr. Moldenhauer on or before October 15 th , 2013. Mr. Leduc may reply on or before November 1, 2013 and Mr. Moldenhauer may provide a brief reply, if necessary, on or before November 10, 2013.

The Honourable Mr. Justice J. R. Turnbull Released: October 4, 2013 CITATION : Geoffroy v. Houle, 2013 ONSC 6210 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