Court File and Parties

Court File No.: 533-10 Date: 2017-08-28

Ontario Court of Justice

Re: Mathew Ryan Williams, Applicant And: Keri Lee Williams, Respondent

Before: Justice S. O'Connell

Counsel:

• Applicant acting in person
• Respondent acting in person

Motion heard: August 22, 2017

Endorsement

[1] Background and Motion

This motion concerns the choice of the children's school for September of 2017. The motion was argued before me on August 22, 2017. The applicant father seeks an order that the children remain at Lambton Park Community School Park which is approximately a fifteen minute walk from his home with the children. The respondent mother seeks an order that the children be registered at Riverside Public School, which is approximately a five to ten minute walk from her home.

[2] The Children

The two children who are subject to this application are Jack Carter Williams, born August 13, 2007 and Aurora Jane Williams, born June 11, 2009. Jack is 10 years old and entering into grade 5. Aurora is eight years old and entering into grade 3.

[3] Marital History and Separation

The parties were married on March 1, 2003. The parties separated on or about November 12, 2016. They continue to live separate and apart under the same roof until the mother left the family home with the two children on January 24, 2017 and moved into a shelter. The mother registered the children in a new school after she moved into a shelter.

[4] Custody Application and Emergency Motion

The father commenced this application for custody of the children on December 23, 2016. The mother was served with the father's application for custody on December 23, 2016. The father brought an emergency motion without notice to the mother on January 25, 2017 after the mother left the home with the children. The father sought sole custody of the children and an order that the police locate, apprehend and deliver the children to his care, among other relief.

[5] Adjournment and Service

The motion was adjourned so that the mother and her counsel could be served with the motion materials. At the time that the father brought the motion without notice, both parties had lawyers who had been communicating and corresponding with each other and in fact the mother's lawyer had communicated with the father's lawyer on January 24, 2017 advising that the mother and children had left the home due to safety concerns.

[6] February 6, 2017 Order

Once the mother and her lawyer were served with the father's urgent motion, the motion was argued before me on February 6, 2017. At that time, for oral reasons delivered after argument, on a without prejudice basis only, the court made the following order:

1. The children's primary residence shall be with the mother from Monday after school until Friday morning, to be delivered to school;

2. The children shall be with the father from Friday after school until Monday morning, to be delivered to school;

3. The children shall return to their original school, Lambton Park Community School public school, forthwith;

4. The matter is referred to the Office of the Children's Lawyer for an immediate clinical investigation of the issues of custody and access.

[7] March 2, 2017 Adjournment

The motion was adjourned to March 2, 2017 to monitor the appointment of the Office of the Children's Lawyer ("OCL"). At that time, both parties reported that the children were doing well under the parenting arrangements ordered. The court requested that the OCL to expedite its referral process and involvement. The matter was then adjourned to May 10, 2017.

[8] May 10, 2017 Hearing

On May 10, 2017, the court heard that the OCL regrettably declined to become involved or provide assistance in this matter. Motions were then scheduled on a number of issues. The father renewed his claim for sole custody and a revision of the parenting schedule so that the children's primary residence during the school week remain with him. The mother renewed her claims including a claim that the children be permitted to transfer to Riverside Public School which is a school in her catchment area. The parties also were not able to resolve the issue of summer access or holidays or the children's extra-curricular activities.

[9] June 30, 2017 Order

On June 30, 2017, after hearing argument and for oral reasons delivered, the court adjourned the parties' motions regarding custody and residential arrangements pending a further request for assistance from the Office of the Children's Lawyer. However the court also suspended the ordinary residential schedule during the summer holidays and ordered that the parties alternate weeks over the summer, following the end of the school year, from Friday at 6 PM to Friday at 6 PM for the duration of the summer. The court made a number of other orders at that time regarding extracurricular activities, other incidents of custody and temporary spousal support.

[10] OCL Focused Report

The OCL agreed to provide a focused report on the issue of the children's school for September 2017, however regrettably declined again to provide a more fulsome section 112 investigation and report on the issues of custody. On July 6, 2017 the matter was assigned to Ms. Tracy Griffiths, the clinical investigator. Given the timing of the assignment and the return court date of August 22, 2017, independent information from the school was not available however the mother provided Ms. Griffith with copies of the children's final report cards dated June 30, 2017.

[11] OCL Report Completion

The OCL completed its focussed report on August 18, 2017 and the report was served and filed as evidence with the Court.

The Mother's Position

[12] Mother's Arguments

It is the mother's position that it is in the children's best interest to be registered at Riverside Public School in the catchment area where she currently resides for the following reasons:

1. Jack has not done well at Lambton Park Community School Park community school. He has been the victim of physical and verbal bullying over a number of years. There is one child in particular who has bullied Jack as well as some other students.

2. Jack appears to have little or no friends at the school and he gets picked on and ostracized. The mother believes the change in school for Jack will provide him with a fresh start.

3. Riverside Public School is a bigger school with greater resources and educational tools and a better TDSB evaluation than Lambton Park Community School Park community school.

4. Riverside Public School is only a five to ten minute walk from her home with the children. As the children reside with her during the week and reside with the father on weekends, it takes or approximately 1.5 hours each way to drive the children back and forth to school which is exhausting and difficult for the children.

5. Aurora and Jack are closely bonded and Aurora relies on Jack to look after her. Further it is more practical in terms of the commute to school if both children attend the same school.

The Father's Position

[13] Father's Arguments – School Continuity

The father would like both children to remain at Lambton Park Community School Park, where they both have attended for approximately five years. He also wants both children to reside with him during the week so that he can walk them to and from school and so they are not subjected to the long drive and the commute from the mother's home.

[14] Father's Position on Bullying

Although the father acknowledges that Jack has had difficulties at Lambton Park Community School Park with bullying and with one child in particular, it is his position that he and the mother have addressed the bullying issue with the school. According to the father, the bullying issue was addressed in September 2015 and there has not been any incidents since that time except for one incident in May of 2017 when Jack was involved in what he describes as "a schoolyard scuffle" with different children. This involved three other children at the school who were physical with Jack.

[15] Father's Concerns About Mother's Motives

It is the father's position that Jack should remain at Lambton Park Community School so that they can continue to work on and address these issues. He also believes that the mother has exaggerated these issues and is using the bullying issue as an excuse because she does not want to continue the long commute back and forth from her home to the children's school during the week.

[16] Father's Concerns About Parental Influence

The father also believes that mother is influencing Jack inappropriately regarding this issue and he believes that the mother is attempting to undermine and sabotage his relationship with the children and to remove herself and the children from his life. The father also had some serious difficulties with the OCL report and objected to much of the information contained in the report.

[17] Father's Position on ADHD

The father believes that Jack appears to have Attention Deficit Hyperactivity Disorder (ADHD) although he has not been formally identified or diagnosed. It is the father's position that some of Jack's issues may be addressed if that were the case. The father would like to have Jack seen and assessed for ADHD.

[18] Father's Position on Aurora

The father also submits that Aurora has a number of friends at her school, including one of her best friends and it would not be in Aurora's best interest to change schools at this time.

The OCL Focused Investigation

[19] Initial Observations

Ms. Tracy Griffith interviewed both children privately on two separate occasions. The children were interviewed privately at the home of the mother and the home of the father. Prior to interviewing the children a period of observation took place with each parent. Ms. Griffith observed that the interactions between the children and the mother appeared to be comfortable and casual and the interactions between the children and the father appeared to be playful and high energy.

[20] Jack's First Interview

Jack was interviewed privately on July 21 and August 4, 2017. According to Ms. Griffith, Jack presented as quite friendly and open to talking to her. Jack knew immediately what the clinical investigator wanted to talk about and said: "I want to stay at Lambton Park Community School". When asked to say more, Jack described having three friends at the school, but he thinks one of them moved over the summer. Jack advised the OCL clinical investigator that he spends most recesses sitting alone because the other kids are all playing soccer. Lunch recess is the same. When asked why Jack thought three boys were his friends, he responded that they let him play with them but only after school while the children are waiting to be picked up. Jack advised the clinical investigator that he knows that his mother wants him to attend a school near her home but he is worried that the school will have a portable classrooms which will be hot in the summer and cold in the winter. Jack said he did not mind the extra commute to school because he enjoyed looking at things on the way to school on the train or the bus.

[21] Jack's Second Interview

During the second interview at his father's home, Jack repeated that he wanted to stay at Lambton Park Community School Park. When asked about "the bullying stuff", Jack identified the bully that was mean to him. Jack stated that this child was "really really mean" and not just to Jack. The child who was identified as the bully is the same age and in the same grade as Jack. Jack described incidents with this bully to Ms. Griffiths. Jack also advised that his mother and father and he had a meeting with this particular child and his parents as well as a meeting with the principal, however nothing changed from Jack's perspective. Jack then advised the clinical investigator that if he went to Lambton school on the first day and this particular child was in his class again, then he would like to change schools.

[22] Aurora's Interviews

With respect to Aurora, Aurora was interviewed privately on July 21 and August 4, 2017 at her mother's home and her father's home respectively. Aurora advised the clinical investigator that she likes school and that she has many friends at Lambton Park Community School Park including her best friend. Aurora had no complaints and her main worry was that she wanted to be in the same school as Jack. According to the clinical investigator, Aurora appeared "wise beyond her years" of eight years old and Aurora stated that she and Jack look after each other.

[23] Aurora's Preference for Sibling Proximity

Aurora also described to Ms. Griffiths that children are mean to Jack and that she helps Jack and tells the other children who are being mean to him to stop it. In both interviews Aurora advised the clinical investigator that even though she would like to stay at Lambton Park Community School Park, she wants to be in the same school as Jack more than wanting to stay at Lambton Park Community School Park.

[24] OCL Report Scope

As this was a focussed report, to report to the Court on the children's views and preferences, the OCL clinical investigator did not make any recommendations regarding the issue of the choice of school in her Report.

Analysis and Conclusions

[25] Best Interests Test

The only criteria in determining which school the children should attend in September 2017 is what is in the children's best interests. The court must consider all of the factors set out under section 24(2) of the Children's Law Reform Act which are as follows:

Best Interests of Child

(2) The court shall consider all the child's needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

• (i) each person entitled to or claiming custody of or access to the child,
• (ii) other members of the child's family who reside with the child, and
• (iii) persons involved in the child's care and upbringing;

(b) the child's views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

[26] Weight of Children's Preferences

In considering the children's views and preferences, I am mindful of the children's ages, ages 10 and 8 respectively, and that this is only one factor in the best interests analysis. It is not a determinative factor when considering the totality of the evidence and all of the other factors set out in the legislation.

[27] Court's Conclusion

In considering the totality of the evidence, in my view, it is in the children's best interest to be registered at Riverside Public School for the following reasons:

1. Commute and Proximity to Primary Residence

The children's primary residence is with their mother during the week and with their father on weekends, pursuant to my Order dated February 6, 2017, for detailed oral reasons given at that time. The children must travel to and from the mother's home from Port Credit to school every day. At the time of my order, it was hoped that the mother would find housing close to the children's school. The mother was living in a shelter with the children and looking for housing. She did not find appropriate and affordable housing in the children's area. It is not disputed that it takes approximately 1 to 1.5 hours each way to drop off and pick up the children from school each day (a total of three hours). Riverside Public School is less than a 10 minute walk from the mother's home with the children in Port Credit.

2. Bullying and Social Isolation

Both parents have acknowledged in evidence filed and in the report of the clinical investigator, that Jack has experienced bullying for a number of years at Lambton Park Community School public school. This is not disputed. Both parents attempted to address this issue with the school principal. Both children in their private interviews with the OCL clinical investigator also described the bullying. Jack does not appear to have a lot of friends at Lambton Park Community School and he appears to be socially isolated as evidenced by his description of his school day to the clinical investigator. In particular, Jack stated in his second interview with the clinical investigator that if one particular child was in his class again next year, then he would like to change schools. When asked in court, both parents confirmed that it was their understanding that this particular child would be at the school in September. Furthermore, it is not only that particular child, there was evidence of other children being mean to Jack and physically beating him up (the incident in May of 2017).

3. Aurora's Preferences and Social Adaptability

Although Aurora likes Lambton Park Community School, she stated in both interviews that even though she would like to stay at Lambton Park Community School, she wants to be in the same school as Jack more. Aurora is going into grade 4 and will have many opportunities to make friends at Riverside Public School. She has been described by everyone as a very outgoing and friendly child who easily make friends. Furthermore, her mother has arranged play dates with one of her best friends at Lambton and will continue to do so after Aurora transfers to Riverside Public School.

4. Fresh Start and Sibling Continuity

It is in Jack's best interests to have a fresh start at a new school. It is in both children's best interest to remain together at the same school. It is further in both children's best interests to be able to walk to school and to avoid a three-hour commute each day to school which can only be very tiring for them.

[28] ADHD Assessment

The father expressed that some of Jack's academic and social difficulties may be the result of ADHD. The father stated that he has ADHD and that this runs in his family. The mother disagrees. However, Jack should be assessed to determine if this is an issue for him as it will impact on his educational and social needs in the future.

[29] Father's Involvement in Education

Finally, the father should be fully involved in the children's education and be permitted to have full access to all information regarding the children's teachers, extracurricular activities at the school and school of dance. He should clearly be named as an emergency contact in the school registration form. He should be fully involved in the children's education at Riverside Public School.

Order

[30] Court's Order

Accordingly, for the above reasons I make the following order:

1. Both children should be registered at Riverside Public School for the 2017 to 2018 school year;

2. The father shall have full access to all information regarding the child's school and shall be entitled to meet with and obtain information directly from the children's teachers and school principal. He shall be entitled to attend all school events and be given duplicate copies of all important school information and events. The father shall be listed as an emergency contact and his contact information shall be provided to the school. Although neither party should rely on the other parent to provide information about the children's school events, they should use their best efforts to keep the other party informed of all matters relating to the well-being of the children and they should not deliberately withhold information.

3. The child Jack should be assessed to determine if he has Attention Deficit Hyperactive Disorder (ADHD) by an approved specialist referred by his family doctor.

4. There shall be no costs of this motion.

[31] Closing Remarks

I thank the parties for their very helpful submissions.

Date: August 28, 2017

Justice Sheilagh O'Connell

1The child who bullied him.