Court File and Parties

Court File No.: D 71132/14 Date: July 12, 2016

Ontario Court of Justice

Re: Nisha Adams – Applicant And: Caleb Adams – Respondent

Before: Justice Roselyn Zisman

Counsel:

• Sheila C. MacKinnon, for the Applicant
• Jennifer Gallagher, counsel for the children

Heard On: June 28, 2016

Endorsement

1. Introduction and Brief Background

[1] This matter proceeded before me as an uncontested trial with respect to custody and access and ancillary issues with respect to the children.

[2] The parties are the parents of the four children before the court, Kayne Alleyne-Adams born December 13, 2000 ("Kayne"), Kayesha Alleyne-Adams born October 27, 2005 ("Kayesha"), Selah Alleyne-Adams born December 21, 2008 ("Selah") and Zhyon Alleyne-Adams born October 19, 2011 ("Zhyon").

[3] The mother is a qualified teacher but she is on long term disability due to an autoimmune neuromuscular disease.

[4] The father is a personal support worker and works on shifts.

[5] The parties have been before the court since June 27, 2014 in highly contested court proceedings regarding custody, access, school placement of the children, transportation of the children and financial issues. The Office of the Children's Lawyer was appointed to represent the children.

[6] The temporary order of January 5, 2015 provides that the mother has custody of the children. The father's access has been varied several times. The most recent order of July 16, 2015 provides that he has the children in his care on alternate week-ends to coincide with his work schedule from Friday after school to Monday return to school or if there is no school then return to the mother by 9:00 a.m. Monday morning and every Wednesday dinner visit with pick up at school or if there is no school to pick up the children from the mother's home at 4:00 p.m. and drop off the children to the Club Naz/Caravan program at 7:00 p.m. or during the summer by 8:00 p.m. to the mother's home.

[7] On September 18, 2015 the parties agreed to a final order of child support in accordance with the temporary order namely, that based on the father's imputed income of $43,000 he pay $984.00 per month and 65% of any section 7 expenses.

[8] On March 21, 2016 I ordered that the father's pleadings be struck and that before he is permitted to take any further steps in the proceedings he be required to pay the outstanding orders of costs of $30,427.52, the outstanding child support arrears of $4,028.00 and that he pay into court $10,000 as security for costs. The father had failed to abide by several orders for disclosure, including not providing a letter from his employer confirming proof of his work schedule and flexibility of his work schedule. He breached court orders by discussing the court proceedings with the children and in particular the issue of where they should go to school.

[9] At the time of the separation all of the children attended at the Whitefield Christian Academy which was close to the parents' residence. The mother was locked out of the residence by the paternal grandparents who were the legal owners of the residence and on short notice was required to find new accommodations that were not close to the school. Although initially there was an order that the children remain at Whitefield, subsequently the mother was permitted to enroll Selah at the local public school near the mother's residence as her needs for special educational assistance were not being met at Whitefield. There were also temporary orders made with respect to the sharing of transportation of the children to school. The temporary orders also stipulated that the children attend Whitefield only on condition that the tuition fees are the father's responsibility. The paternal grandparents are committed to the children attending Whitefield and have been responsible for the payment of the school fees.

[10] The mother relied on her affidavit sworn June 21, 2016 and the Office of the Children's Lawyer relies on the affidavit of Marcy Urbas, a clinical investigator with the Office of the Children's Lawyer, sworn June 23, 2016. The mother was granted leave to also file a brief updating affidavit sworn June 28, 2016 and the final report cards for Kayesha and Zhyon were filed.

2. Position of the Parties

[11] The mother seeks a final order of sole custody, access to continue in accordance with the temporary order in place and an order that she be permitted to enroll Zhyon and Kayesha in the local public school. The mother is agreeable to Kayne who will be entering Grade 11 to complete high school at Whitefield.

[12] On behalf of the children, it is the position of the Office of the Children's Lawyer that there be a final custody and access order permitting the children to spend equal time with each parent and that Kayne and Kayesha be permitted to continue at Whitefield. Ms Gallagher took no position with respect to school placement of Selah or Zhyon nor a specific position with respect to custody.

[13] Prior to the father's pleadings being struck, the mother and father were able to agree on a final order with respect to some incidents of parenting and they have been able to agree to an order for summer access. An order in terms of this consent shall be made.

3. Issues to be Determined

1. Should there be a sole or joint custody order?
2. What access arrangements are in the children's best interests?
3. Where should the children attend school?
4. Related to the issues of access and school placement, how much weight should be placed on the wishes of the children?

4. The Law

[14] The legal test for custody is found in section 24 of the Children's Law Reform Act that provides that issues with respect to custody are determined solely based on the best interests of the children in accordance with the specific needs and circumstances of the children that include the criteria in subsections (2), (3) and (4). Section 28 (1) of the Children's Law Reform Act also permits a court to determine any aspect of the incidents of the right to custody or access and make any additional orders that the court considers to be necessary and proper in the circumstances. I have considered these principles and factors in making my decisions with respect to the issues before the court.

5. Findings and Analysis

5.1 Weight to be Placed on the Children's Wishes

[15] Before considering each of the issues before the court I intend to determine how much weight the court should place on the children's wishes as this is a pivotal issue with respect to the substantive issues that need to be determined on this hearing.

[16] Counsel for the children submits that the children's wishes are clear, consistent and there is nothing to suggest that those wishes have been unduly influenced and are not independent.

[17] It is submitted that the children's wishes meet the criteria set out by the Ontario Court of Appeal in the case of Decaen v. Decaen wherein the court held that in assessing the significance of a child's wishes the following were relevant factors:

(i) Whether both parents are able to provide adequate care;

(ii) How clear and unambivalent the wishes are;

(iii) How informed the expression is;

(iv) The age of the child;

(v) The maturity level;

(vi) The strength of the wish;

(vii) The length of time the preference has been expressed for;

(viii) The overall context; and

(ix) The circumstances of the preferences from the child's point of view.

[18] The affidavit of Ms Urbas indicates that she met with the children in October 2015 with Ms Pohani, the former counsel for the children and then again with Ms Gallagher on two occasions in April and May 2016. No information was provided with respect to the interviews in October 2015. The conclusion that the children's views have not been influenced by the father is not consistent with the evidence before the court and does not consider the overall context of this litigation. The father has persistently advocated for "equal" time, he has told the children that he would quit his job to spend half of the time with them, he manipulated and deceived the court with respect to his work schedule and Kayne's schedule in order to spend more time with the children. He has actively engaged the children and in particular Kayne into spending more time with him in contravention of the court order. He has insulted the mother and questioned her decisions in the presence of the children.

[19] Kayne in his interview advised that his mother gets angry and that he thinks this is a result of her medications. He reported that Selah is very attached to the father and cries when she sees him, that all 3 of his siblings sleep with the father at his home, that Zhyon is confused about the parents' separation and he does not listen to his mother and has tantrums but listens to his father. Many of these comments echo statements and concerns expressed made by the father. Kayne advised that an alternate week schedule would not work for him and proposed a schedule that would permit all 4 children to spend equal time with their parents and also attend their extra-curricular activities on Monday, Wednesday and Thursday. He acknowledged that this could be difficult for the younger children as Zhyon and Selah have trouble transitioning between homes and agreed that a week about schedule might be preferable for them. One could view this as the thoughts of a mature young adult or another way the father is attempting to have his views about an appropriate schedule expressed through Kayne. In the overall context of this case, I find that latter to be more likely.

[20] Kayne is 15 ½ years old and his wishes should be seriously considered and respected. However, Kayesha is only 10 ½, Selah is 7 ½ and Zhyon is 4 ½ and their wishes have less weight. The importance of the children spending time together in both homes is an important consideration.

5.2 Joint or Sole Custody

[21] The father was interviewed in the course of the Office of the Children's Lawyer investigation and indicated that he wished an order for joint custody whereas the mother seeks an order for sole custody.

[22] Based on the interviews with the parents, children, observation of the parents and information from collaterals, it is the position of the Office of the Children's Lawyer that both parents are capable of caring for the children and demonstrate various strengths.

[23] The mother's strengths are outlined as:

1. Her focus and attention to the children's homework;
2. She is a strong advocate related to the children's academic needs;
3. She has strong organizational skills and attends well to the daily physical needs of the children;
4. She has a network of friends and family to assist her as needed; and
5. She has a loving connection with her children.

[24] The father's strengths are outlined as:

1. He has a strong ability to support Kayne's career aspirations;
2. He engages in the children's school and extracurricular activities;
3. He has a supportive extended family;
4. He tries to instill positive values and strives to be a positive role model for the children; and
5. He has fun, loving and affectionate relationships with the children.

[25] The obvious flaw in the Office of the Children's Lawyer formulation of the ability of both parents being able to meet the needs of the children is that the mother was observed with the children after school and that the father was observed on a Saturday morning. It is difficult to understand how a conclusion could be reached that he could meet the needs of the children during the week when he would need to organize meals, school work and so on when he was not observed doing these tasks and these were not seen as his strengths as outlined by the Office of the Children's Lawyer.

[26] With respect to being a positive role model, the father advised the Office of the Children's Lawyer that he understands why the mother would have been angry in the past as a result of his behaviour and he has apologized. Various incidents of the parties being able to get along were outlined.

[27] However, as recently as June 27, 2016 the mother deposes in her affidavit that she attended at his home to drop off some things for Kayne. The father screamed and yelled at her in front of Kayne, Kayesha and Kayne's friend that she should be ashamed of herself for trying to take the children out of Whitefield and that he did not know what kind of person or mother she was. When she asked for a copy of Zhyon's report card he continued to yell at her saying that it is Zhyon's report and that he did not want to give it to her and she should have gone to the school to get it herself. He continued to berate her saying that Zhyon is doing well at school and she is horrible for trying to remove him from Whitefield. He went on to say that God would punish her for what she was doing. All of this in front of the children which was very disturbing. Later the father sent a text message apologizing that he found her copy of Zhyon's report card but I note that he did not apologize for his outburst in front of the children.

[28] The temporary order of January 5, 2015 required the parties to communicate by using Our Family Wizard unless there was an emergency. The mother finds this method of communication is effective, the father states that he prefers not to use Our Family Wizard and but will communicate by email. However, the court order is still in force. The mother deposes that the father typically turns off his cell phone and or refuses to answer any text message from her while the children are in his care.

[29] The mother has attached to her affidavit a sample of the father's recent texts to her dealing with his failure to return the children to her after his Wednesday and weekend visits, his late arrival at the drop off location in the morning and his failure to make the children's lunches during the Wednesday night visit, contrary to their agreement, and returning the children late on Wednesdays. The father also advises the mother that he will now be taking 2 or 3 vacations a year to Disneyland in November, Bahamas next February and likely California in the summer. He says these trips are for work and that his good friend is the manager for "Vac" (which I assume is the new company he is working for) and that he will also be going to Niagara or the 1000 Islands this summer. It may be that the father is telling the mother this so she can be aware that she will need to make arrangements to care for the children or that he is just taunting her in view of the large amount of costs and child support arrears that he owes the mother. It is hard to understand why the father would be travelling for his work given the nature of that work.

[30] Contrary to the submissions of the Office of the Children's Lawyer I find that the parties are not able to effectively communicate on a regular and consistent basis.

[31] Although the parties agree on some parenting issues such as the importance of the church, the children attending for church related activities and extra-curricular activities, they do not agree on where the children should attend school. The father and his family members have not encouraged the children's relationship with the mother especially in the period after the separation and in general the father has been critical and disrespectful of the role of the mother in the children's lives.

[32] I agree that at times the parties have been able to get along and even attended event together in the community and at each other's home. But there are just as many incidents throughout this litigation and as recent as the incident on June 27th when they clearly do not get along. However, the hope that when this litigation is over, they will be able to put their conflict aside and communicate more appropriately in the future is not the basis for an order of joint custody.

[33] I find that the mother has consistently been the parent that has made decisions in the children's best interests and is the parent best able to meet their ongoing needs. The mother has accommodated and agreed to access arrangements to accord with the father's work schedule and ensured that he had a meaningful role in the children's lives. As opposed to the father, she has not been critical of the father to the children or attempted to involve them in this dispute.

5.3 Access

[34] It is the mother's position that the children have adjusted well to the current access schedule and that it allows the children to spend time with the father when he is not working.

[35] The father advised the Office of the Children's Lawyer that he wished access every week-end and overnight on Wednesday. He said that the children love the freedom they have at his co-op and that they can spend more time with friends they have known their entire lives. The father also stated that he could change his schedule as needed to accommodate his childcare responsibilities. He was asked to obtain a letter from his employer Christian Horizons to confirm this. The father advised that he is currently working night shifts from 11:00 p.m. to 7:00 a.m. and his shifts change alternate weeks. One week he works Saturday, Sunday and Thursdays and the other week Monday, Tuesday and Thursdays. He is also now working as a rehabilitation support worker for Wright Rehab and can establish his own schedule. Recently he has been working 10:00 a.m. to 2:00 p.m. and said he is doing this to make up for "lost wages". Although the father provided a copy of his employment contract for his new job he did not provide a letter from his employer.

[36] The father has always maintained that he has flexibility in his employment and can change his work schedule to accommodate caring for the children but despite previous orders he has never provided any proof; rather he said he would quit his job so he could care for children for half of the time. When given yet another opportunity to provide such proof to the Office of the Children's Lawyer he again did not do so.

[37] The father continues to breach the outstanding court order of January 5, 2015 that required him to disclose any new employment and provide the details. Prior to and at the March 21, 2016 court attendance the father in the affidavit he filed did not disclose his new employment with Wright Rehab. The mother only became aware of this employment when the father disclosed it to the Office of the Children's Lawyer. The documents provided indicate that the Consulting Agreement with Wright Rehab is dated February 16, 2016, signed by the father on March 10th and that he provided service as of February 22, 2016.

[38] As a result, I find that the father's assertion that he can rearrange his work schedule to accommodate an equal shared residential schedule for the children is not credible.

[39] It was submitted on behalf of the children that even if the father was working that he would be working when the children were sleeping and that he has a supportive family that could assist him. There is no evidence before me that the father's family could assist him and to leave the children overnight without an adult present would mean that any responsibility should something happen during the night would be on Kayne which I find is not appropriate. Nor do I see how it is in the children's best interests to be cared for by a third party when their mother is available.

[40] In view of the fact that I find that the father's work schedule would not be conducive to a shared parenting schedule, it is not strictly necessary to outline the children's wishes. But I wish the children to know that I have considered their wishes in coming to my decision.

[41] I agree that Kayne has been clear that he wishes to spend equal time with both of his parents. Even though I have concerns that his views have been influenced by his father, nevertheless from a practical point of view it would be easier for him to spend more time at his father's home as it is very close to his school. He is involved in extra-curricular activities at the school and his church which is also closer to his father's home. He travels by bus and now has to leave his mother's home at 6:00 a.m. In view of his age and his activities, there should be some flexibility in the time he spends with both parents. However, I wish to be clear that this is not part of the court order but simply a practical observation that at times the mother may agree for Kayne to stay with his father an extra night or come home later as may be necessary due to his school or extracurricular activities. The mother as the custodial parent should discuss this issue as it may arise from time to time with her son directly. This is not an invitation for the father to interfere with the schedule in place.

[42] It is the Office of the Children's Lawyer position that Kayesha's wish to spend one week with each parent has also been clear and consistent. However, she is reported to have said that she likes how things are but "to be fair" to her parents she wants to spend more time with each parent. She said that she wants her siblings with her as it would be boring if they were not and she had no concern about missing Girl Guides or swimming so she could be with her father.

[43] Selah is reported to have told the Office of the Children's Lawyer that she lives mostly with her mother and this is good because she can play with her brother and her neighbour who is her age. She reported that when she stays overnight with her father she sleeps in his bed with Kayesha and Zhyon as there are toys on her bunk bed. She reported that she doesn't do anything with her father and likes to go outside when she is there or to play with her grandparents. However, during her second interview, she then said that she would like to sleep at her mother's house during school nights and that she would like it if she did not have to go back and forth. She then said it would be "OK" to stay overnight with either parent on week nights and that she told her father she wanted to say half time with him. She then repeated firmly, "I want half time with mommy and half time with daddy".

[44] It is natural for children to wish to be "fair" to both of their parents and therefore not have to make a choice as to where they should live. Other than being fair, Kayesha did not identify any specific benefit to spending more time with her father. A child should not have to give up extra-curricular activities that she enjoys to spend time with a parent. Selah's views similarly do not identify any specific benefits to spending a few more days with her father. I do not find that the views of either Kayesha or Selah are informed. Nor given their young ages are their wishes for equal time practical. Any schedule to increase the time the children spend with their father would also involve more transitions as a simple alternate week schedule is not practical. The younger children in particular are already having difficulties with transitions so that adding even more transitions is not in their best interests.

[45] Selah and Zhyon need a parent that can work closely with them on their school work, monitor their progress and advocate for special assistance for them. The mother is a trained teacher and has proven abilities to ensure that the educational needs of the children are met. The father has not shown that he is able to do this. His strengths as outlined by the Office of the Children's Lawyer are more of a fun loving parent and it is natural that the children would want to spend more time with him. But during the school week the children need the structure and routine in their mother's home.

[46] Currently the children spend alternate Fridays to Monday mornings with the father and see him every Wednesday evening, they have adjusted to this schedule. I find there is no benefit or need for any changes. The children can also spend significant time with the father during the holidays and special occasions as long as he is not working.

5.4 School Placement

[47] The issue of the children continuing to attend Whitefield has been a contentious issue since the commencement of this litigation. It is unfortunate that the paternal grandparents found it necessary to evict the mother and children from the home they had resided in which was close to their school and forced her to find accommodations on very short notice. As a result she was forced to accept the first suitable accommodations available that was not close to the children's old neighbourhood. I have previously found that the father if not actively involved in this decision certainly acquiesced and did nothing to prevent the eviction. I have no doubt that if she had an opportunity to either stay in the home or been given time to move she would have attempted to find accommodations closer to the children's neighbourhood, school and church.

[48] The initial temporary orders in this case required that the children continue to attend Whitefield as the children had just had many upheavals in their lives after the separation and that continuing in their school would provide them with some stability during this difficult time. However, subsequently there was evidence that Selah had failed her school year. A fact that the father had previously misled the court about. The mother was permitted to change her school to the public school close in her neighbourhood.

[49] All of the children, except Zhyon expressed their views about their school placement.

[50] Kayne will be entering Grade 11 in the Fall and wishes to complete high school at Whitefield and his mother is content with this arrangement as long as the father and his family are responsible for all tuition and related fees. He has indicated that he wishes to become a pastor and has identified universities that he will be applying to.

[51] Kayesha advised that she wishes to remain at Whitefield but in a second interview clarified that she would like to stay there until Grade 8. She will be going into Grade 6 next year. She is an excellent student, involved in all of the sports offered by the school. She is also involved in tournaments and runs outside of school. She said that she would be disappointed if the Judge said she had to go to a different school as she would miss her friends and teachers.

[52] Selah has just completed Grade 2 at Gateway Public School and reported that she left Whitefield because they could not teach her how to read. She said that at first it was hard but now she has made new friends and she is learning to read and wants to stay. On the second interview, she then said that she remembers her friends at Whitefield and would be happy to go there as she would see her old friends. She then said that she would be happy at either school but if she went to Whitefield she would want her friends from Gateway to come with her.

[53] Selah has an individual educational plan at Gateway and is doing well and is receiving more support than would be available at Whitefield.

[54] Zhyon has just completed Junior Kindergarten at Whitefield. According to his report card and the information collected by the Office of the Children's Lawyer he is not progressing with his reading and writing skills and has trouble staying focused. The mother reported that he has speech and language issues that include stuttering and he is struggling academically. He is receiving treatment from Adventure Place once a week but he may no longer be eligible for this funding in the Fall. The mother is concerned that he will not receive the supports he needs at Whitefield and would like him to attend Gateway Public School.

[55] It is the position of the father that all of the children should attend Whitefield. In his view it is a very positive educational environment which is in line with his family's Christian values. He noted that the children are attached to their friends at Whitefield and are happy there.

[56] It is the position of the mother that the educational needs of both Selah and Zhyon will be better met in the public school system as there are more resources available for them than at Whitefield. With respect to Kayesha it is the mother's position that although she is aware Kayesha wishes to remain at Whitefield she wishes to move her to Gateway that is only 5 minutes from her home. The mother indicates that Kayesha would have more opportunities in the public school system to develop her athletic abilities and that as she has remained close to many of the families of Kayesha's friends she would facilitate those friendships and ensure that she has opportunities to spend time with her friends from Whitefield.

[57] It is the father's position supported by the Office of the Children's Lawyer that the current arrangements for transportation are working well. Although the report indicates that the mother also stated that those arrangements are working, this is clearly not the mother's position as set out in her affidavit.

[58] The current arrangements require the father to meet the mother at the Don Valley Parkway and Lawrence at 8:15 a.m. each morning to drive the children to school, except for Kayne that goes to and from school using public transportation. If the father is not available he must designate a third party known to the children to pick them up. The mother picks the children up from school every day except Wednesdays.

[59] The mother deposes that despite this order, she sometimes has had to wait up to 30 minutes for the father to arrive due to heavy traffic and as a result many times the children are late for school which is disruptive to them. Further, if the father is late picking up the children, then she is late driving Selah to school. Due to the traffic she is also sometimes late and the father has to wait for her.

[60] With respect to the pick-ups from school, the mother first must pick up Selah at 3:10 p.m. when her school day ends and then drive during rush hour to pick up the other 3 children at Whitefield and drive them to her home. They arrive home anywhere between 5:00 to 5:30 p.m. depending on traffic. It is the mother's position that if all of the 3 younger children attended Gateway they would not have to get up so early and would be home earlier and have more time to focus on their school work and not be so tired.

[61] In view of the mother's lengthy commute to pick up the children from Whitefield, the children are required to attend after school care which the father has refused to pay for. The mother attached to her affidavit an invoice for $492.10 representing the cost up to April 2016. As the father agreed to be responsible for the costs associated with Whitefield any after care costs should also entirely be his responsibility.

[62] Neither counsel provided any case law with respect to the factors a court should consider when determining the issue of a school change which is a pivotal issue on this hearing.

[63] The case of Ashalan v. Taleb is a helpful review of the caselaw when a court is asked to consider a child changing schools as follows:

1. In situations of joint custody the court is most reluctant to dictate where a child should go to school and the parents should be encouraged to resolve this matter among themselves; If they cannot agree the best interests of the child will govern;

2. In the event a parent suggests changing schools, it must be demonstrated that the change will be in the best interests of the child;

3. While each instance is very fact specific, factors which may be taken into account by the court in determining the best interests of the child include assessing any impact on the stability of the child. This may include:

   (i) Examining how many years the child has attended his or her current school;

   (ii) Whether or not there is any prospect of one of the parties moving in the near future;

   (iii) Where the child was born and raised;

   (iv) Whether a move will mean new child care providers or other unsettling features;

   (v) Any decisions made by the parents prior to the separation or at the time of the separation with respect to schooling; and

   (vi) Any problems with the present school.

[64] I find that the reasons for the children remaining at Whitefield after the separation that is, for their immediate stability and continuity, are not as relevant at this time when a final and long lasting decision must be made.

[65] Nevertheless, the onus is on the mother to prove that changing the children's school is in their best interests. When the parents residing together, they agreed that the children should attend Whitefield although this seems to have been much more significant to the father than the mother.

[66] In this case, there are other relevant considerations namely, the mother has already relocated and there are serious issues regarding the transportation for all of the children to and from Whitefield. Although it could be argued that the issue of transportation relates more to the convenience of the mother than any hardship on the children, the health and well-being of the mother who is the children's custodial parent is a valid consideration. Despite the temporary order for the father to share the transportation in the mornings there are still issues with getting the children to school on time. The burden of picking up the children from school is only on the mother and the father will not even pay for the cost of after-school care even though he wishes the children to attend Whitefield and was to be responsible for the cost. In my view, the added cost of after-care is a cost that is associated with attending Whitefield and a cost the father should have paid.

[67] With respect to Selah, I find that there is ample evidence that it is in her interests to continue to attend Gateway public school. Her educational needs were not being met at Whitefield and to now require that she return to Whitefield is counter-intuitive.

[68] With respect to Zhyon, he is struggling academically at Whitefield. Based on the school's inability to meet the special educational needs of Selah I find that there is a similar concern that his needs would not be met. He is only entering Senior Kindergarten and he has not established a sufficient connection with Whitefield that a move now would be against his best interests. I find that the mother has met the onus on her to demonstrate that changing Zhyon's school would be in his best interests.

[69] The more problematic issue is where Kayesha should attend school. She is doing well academically at Whitefield and has established friendships at that school and it is the only school she has ever attended. Despite her young age, she wishes to remain at that school at least until Grade 8. However, what would then happen? Undoubtedly further litigation with the father attempting to convince the court that it would not be in her best interests to change schools or with the father putting pressure on her to convince her mother that she should stay at Whitefield for high school. I find that more important than which school she attends is that the conflict between these parents ends.

[70] I have determined that the mother should be the custodial parent and accordingly this is not a situation for joint decision making. I find it difficult to justify why the mother should not be entrusted with making the decision as to which school Kayesha should attend. To impose the court's determination would be in this case, be interfering with her rights as a custodial parent to make that decision. I find that there are no compelling reasons for Kayesha to remain at Whitefield. She is certainly familiar with the school and likes her teachers and friends. But many children change schools and this has no long lasting effect on them. Kayesha is bright and sociable and there is no reason to assume she will not adjust to a new school and make new friends. I also find that a transition at this time, a few years before high school would be easier than when she is entering high school.

[71] I have considered the caselaw that requires the onus to be on the parent who wishes to change a child's school to prove that such a change is in the child's best interests. The cases are all trial or motion decisions that are not binding and are fact specific. But there is logic to the parent wishing to change a status quo having the burden of convincing a court that to do so is in a child's best interests.

[72] In this case, I find that the mother has met that onus. The mother has raised some practical problems with transportation. If Kayesha, who is not old enough to take public transportation, is the only child attending Whitefield, this will again impact on her being late for school, on the younger children being late and for all of the children being in the car for an unnecessary length of time.

[73] I find that the mother has always acted in the best interests of her children and I have no reason to doubt that she will do so in considering whether or not it is in Kayesha's best interests to continue at Whitefield or a transfer to public school. If the mother feels it is in Kayesha's best interests to continue to attend Whitefield and the only impediment is the transportation issue, then the father should be responsible for arranging all transportation to and from school for her at his expense such as by a private bus service.

6. Conclusion

[74] In summary, there will be an order for the mother to have sole custody and that the present access arrangements for the father continue. The mother shall make all decisions as to where the children shall attend school.

[75] Ms MacKinnon prepared a detailed draft order with respect to custody, access and ancillary orders with respect to communication and the sharing of holidays. The parties also agree to a summer schedule that should be incorporated into that order. I would add to the order that if the mother determines that Kayesha, in addition to Kayne, should also attend Whitefield that the father will be solely responsible for all tuition and associated costs associated with their attendance including any costs for after school care and he shall be responsible for arranging and paying for all transportation costs.

[76] The draft order also continues the requirement that the parties set up and pay their respective costs for Our Family Wizard. I would add that the parties are to communicate using Our Family Wizard except for an emergency or very time sensitive issues where text messages are necessary. This is a court order not a suggestion as the father seems to think.

[77] Ms McKinnon should prepare the order and once it is reviewed by counsel for the Office of the Children's Lawyer submit the order directly to my attention to be issued and entered. The father's approval is not necessary as his pleadings were struck.

[78] Despite the fact that I have not followed the wishes of the children in this decision, I found the involvement of the Office of the Children's Lawyer extremely helpful in this case. It is important for the children to be aware that their voices were heard but that their views and wishes are only one factor that the court must consider.

[79] There will be an order in the terms of the Draft order attached with the additional clarifications as outlined above.

[80] I wish to thank counsel for their thorough and helpful written materials and oral presentations.

[81] If there is a request for costs, written cost submissions are to be forwarded to the trial co-ordinator's office within 30 days.

Justice Roselyn Zisman

Date: July 12, 2016

Footnotes

[1] As a result of a subsequent cost order the father now owes costs of about $40,000 and his child support arrears are still outstanding.

[2] There is outstanding civil litigation with respect to the mother's equitable interest in the premises.

[3] Decaen v. Decaen, 2013 ONCA 218

[4] In my previous decisions in the matter the specifics of the father's criticisms and allegations against the mother have been outlined.

[5] See Kaplanis v. Kaplanis, [2005] O.J. No. 275

[6] Ashalan v. Taleb, 2012 ONSC 4746, para. 32