Court File and Parties

ONTARIO COURT OF JUSTICE

Date: 2023 08 22 Court File No.: Thunder Bay FO-22-0031-01

BETWEEN:

WILLIAM JOHN DAIGLE Applicant

— AND —

CHEYNNA ROSE GARDNER Respondent

Before: Justice C.C. Belda

Heard on: August 18, 2023 Reasons for Judgment released on: August 22, 2023

Counsel: William Daigle.............................................................................................. on his own behalf Lisa Tocheri........................................................................... counsel for the respondent(s)

BELDA J.:

[1] The Applicant, William John Daigle (‘Mr. Daigle”), and the Respondent, Ms. Cheynna Rose Gardner (“Ms. Gardner”), are the parents of one child, Mahengan John Daigle, born […], 2019 (“the child”).

[2] The Applicant commenced a Motion to Change, which was dated February 27, 2023. He was seeking to amend the final Order of Madam Justice D.J. MacKinnon, dated August 31, 2022. That order granted the parties joint decision-making over the child, equal parenting time every two weeks and made Mr. Daigle responsible for transportation for exchanges, which were to occur in Thunder Bay. The Order also indicated that the parenting time schedule would be reviewed prior to the child attending school. The child is due to start school this September.

[3] Ms. Gardner filed a Response to Motion to Change, dated on April 13, 2023. She requested a change to the parenting time schedule so that the child would reside primary with her in Thunder Bay, Ontario and attend Kingsway Public School.

[4] Since then, while Mr. Daigle continues to reside in Sudbury, Ms. Gardner has now moved to Eagle Lake First Nation. Ms. Gardner now wants the child to attend school there. Eagle Lake First Nation is over 4 hours away by car from Thunder Bay and almost 11 hours away from Sudbury. Her pleadings have not been amended to reflect her request, though she did file an updated 35.1 affidavit, sworn on August 11, 2023, with respect to her intentions. Mr. Daigle was also aware of her request.

[5] With respect to this trial, Mr. Daigle is seeking the following Orders:

(1) Primary parenting time with the child during the school year; (2) Parenting for Ms. Gardner during the entire summer, long weekends, the March Break and alternating Christmas break; and (3) For the parties to share in the transportation for exchanges by meeting at a halfway point between their homes.

[6] For her part, Ms. Gardner is seeking the following Orders:

(1) Primary parenting time with the child during the school year; (2) Parenting time for Mr. Daigle as follows: a) One weekend per month to coincide with long weekends or school P.A. days; b) Every March Break; c) Alternating Easter and Thanksgiving long weekends; d) One month in the summer, consecutive or in total, though extensions can be considered; e) Shared Christmas holidays; f) Any other time the parties can agree upon; g) Virtual parenting time of two calls per week or upon the child’s request; and h) Additional parenting time should Mr. Daigle wish to travel to Eagle Lake or Thunder Bay when she travels to facilitate her other child Brody’s parenting time. (3) Exchanges to continue in Thunder Bay, unless otherwise agreed to by the parties.

[7] The parties have agreed no change is required to the decision-making clause of the Order.

[8] It also was agreed at the Trial Management Conference that both parties would provide evidence in-chief in the form of affidavit evidence. Mr. Daigle filed a 5-page affidavit, sworn on August 3, 2023. It was to include two exhibits, but the exhibits were not commissioned, and not properly before the court. Ms. Gardner filed a 7-page affidavit, sworn on August 11, 2023.

[9] As a self-represented litigant, Mr. Daigle was provided with an opportunity to adopt his affidavit evidence and he was able to clarify how the previous final order came about, as well as his current address.

[10] Counsel for the Respondent attempted to obtain additional viva voce evidence from Ms. Gardner, which should have been included in the filed affidavit. That was not permitted. However, she was able to ask a few additional questions with respect to a description of her home community, her concerns regarding her children’s relationship bond if the child were to reside in Sudbury and whether she speaks Ojibwe.

[11] Both parties were subject to cross-examination. There were no additional witnesses.

[12] While I am aware that there was a joint document binder prepared by Ms. Tocheri, its contents were not made into exhibits and are not before me as evidence for consideration.

Background

[13] By way of a brief background, the parties began their relationship at least a year prior to the birth of their child and they were separated in September 2021. With some minor periods of time when Ms. Gardner required supports, the parties have shared parenting time on an equal basis. However, now that the child is ready to commence school, and pursuant to the current final order to allow for the review of parenting time prior to the commencement of school, the time has come to determine where the child will reside primarily and what school he will attend.

Summary of the Evidence

1. Mr. William Daigle

[14] Mr. Daigle is a member of Garden River First Nation, located close to Sault Ste. Marie. Though he has not resided on reserve, he lived in Sault Ste. Marie until he was approximately 15 years of age. At that time, he moved to Sudbury. He remained there until he moved to Dryden to commence a relationship with Ms. Gardner. He has family in Sault Ste. Marie and in Sudbury. He was only able to visit his family in Sudbury on a couple of occasions during the length of their relationship.

[15] At some point the parties moved to Eagle Lake First Nation. The child was born there and the family resided in Eagle Lake until their move to Thunder Bay in September 2021, which coincided with their separation. Mr. Daigle moved back to Sudbury to be close to family and supports. He did not have a job in Thunder Bay, despite searching for employment, and he was able to find employment in Sudbury.

[16] It appears that the parties shared parenting of their child following separation. He commenced an Application, which resulted in the August 31, 2022 Order of Madam Justice MacKinnon in August, 2022. Mr. Daigle indicated the order was a result of a default judgement, though I suspect it was an uncontested hearing as he deposed that Ms. Gardner did not respond to his Application. He was the only person present in court.

[17] Since the Order was made almost 1 year ago, and informally since separation, the child has spent alternating two-week periods with each parent, with exceptions when Ms. Gardner has requested that Mr. Daigle care for the child for extended periods of time to address her mental health or other personal issues.

[18] Since the child has been spending time in Sudbury, he has built strong connections with his paternal family, including his grandparents and cousins.

[19] Mr. Daigle is currently residing in a home he shares with his sister-in-law and her 3 children. The child has forged connections with his cousins, and he is particularly close to one of them. They are the same age, share a room and the child refers to this cousin as his best friend. This home is close to the child’s proposed school and Mr. Daigle’s work.

[20] Mr. Daigle’s employer is supportive of his care of the child and is able to ensure that Mr. Daigle is available for the child in case of emergencies.

[21] The child also attends daycare with his cousin. Mr. Daigle is able to pick up and drop the child off at daycare. This daycare is attached to the school that Mr. Daigle is proposing the child attends, Princess Anne Public School. Because of this tie between the daycare and the school, Mr. Daigle deposed that the child is familiar with his kindergarten teachers, school staff and has made several friends.

[22] Mr. Daigle deposed that the school has an Aboriginal focus and strives to provide their Aboriginal students with a culturally rich environment. They offer classes in Ojibwe, host annual pow wows and have a cultural adviser to teach drumming and traditional craft making. The school, however, is open to children from any culture or parentage.

[23] Mr. Daigle does not speak Ojibwe, he only knows a few words but he has a plan to expose the child to the language. He believes that Aboriginal traditions and the Seven Grandfather Teachings are important and he will install the same passion for his culture to the child through pow wows and community events. While he does not reside in his First Nation and he is not very familiar with it, despite stopping there with the child after some travel exchanges to explore, there are many other First Nations communities in the surrounding Sudbury area which provide cultural diversity and to which they have already developed a connection.

[24] Moreover, the child has established ties with the community as he has a YMCA membership and they enjoy attending programming and the swimming facilities there, as well as other family activities in the community.

[25] Mr. Daigle acknowledges that there was some discussion about the child attending school in Thunder Bay, though he disputes the parties had an agreement. They did not discuss the child attending school anywhere else.

[26] Mr. Daigle also acknowledged that a sibling bond between the child and Ms. Gardner’s other son, Brody, is important and that it may be hard for the children to be separated from each other for lengthy periods of time, but he also believed all of the child’s relationships are important.

[27] Lastly Mr. Daigle has concerns with respect to the child being exposed to unreported domestic violence between Ms. Gardner and her partner. This prompted moves between Eagle Lake First Nation and Thunder Bay. While he was supportive of her returning to Eagle Lake First Nation to escape an unhealthy relationship, he claims to have been unaware of moves back to Thunder Bay. In addition, he expressed concerns that as a result of both her toxic relationship and her mental health, that she was unable to provide stability for the child.

2. Ms. Cheynna Gardner

[28] Ms. Gardner is a member of Eagle Lake First Nation. She was born there. Her family resides there, where they are very involved in the community. She remained there even following the commencement of her relationship to Mr. Daigle. He moved to Eagle Lake First Nation to be with her.

[29] She is the mother of Brody, age 12, who resides in her primary care.

[30] The parties moved away from Eagle Lake First Nation, with the child, September 1, 2021. As a result of traumatic events. It was a joint decision, though her intention was to travel back to Eagle Lake to visit family. There was no discussion of the parties or Mr. Daigle moving to Sudbury.

[31] Despite the Order being issued without her being present, Ms. Gardner indicated the parties agreed with the current parenting order upon discussion, as being what was best for the child due to the distance between the parties.

[32] In October 2022, Ms. Gardner sought assistance with respect to her mental health and remained in the hospital for two weeks. She was diagnosed for CPTSD. She made arrangements with Mr. Daigle to care for the child and was able to seek the assistance she required. She is now doing well and her symptoms are being managed through medication and the involvement of a medical team. She appreciated Mr. Daigle’s support throughout.

[33] She denied any allegations of unreported domestic violence. She did contact Mr. Daigle after having a fight with her partner but she denies it was a physical fight. In any event, the child was not in her care and she claimed to have kept the child shielded from arguments.

[34] The child remained in Thunder Bay for a year and half before moving back to Eagle Lake with Ms. Daigle, following the end of her relationship to her partner, Mr. Murray. She moved because she had no place to reside in Thunder Bay and no supports, whereas she has her entire family in Eagle Lake. Mr. Daigle was aware of this move and supported it.

[35] She now resides with her grandmother in a spacious home. Eagle Lake is a small community of about 250 people. Her family is involved in the community. The band and the community are able to organize various events for the members and the children. Because of the events and the community being small, it would provide the child with an opportunity to learn about his culture and to meet people and make friends. They also have financial support for sporting events and trips for children.

[36] Everything is close by. She works at the family’s store, which is just steps from her home and the school. She has a flexible schedule to ensure she is available for the child. Dryden is only 20 minutes away and that is where the child can address any medical needs. The child has travelled there often. The child has a nurse practitioner in Eagle Lake First Nation.

[37] It was her understanding that the parties had agreed to the child attending school in Thunder Bay, prior to Mr. Daigle commencing his Motion to Change. He had proposed moving to Thunder Bay full-time when the child started school. Now that she has moved, she proposes that the child attend Migisi Sahgaigan School.

[38] The child’s brother, Brody, attends the school, and the siblings will attend together. The school focuses on Indigenous culture, has afterschool programs and a Jordan’s Principle Land Based Therapy and Education Program that would teach the child his culture more extensively than a school in Sudbury. It has a food and nutrition program and the possibility of additional services through the advertisement of careers such as occupational therapists, speech language pathologist, and more. Should the child attend school At Migisi Sahgaigan School, he would also receive priority funding for post-secondary education, which makes it financially beneficiary to both parties.

[39] When it comes to Brody and the child, Ms. Daigle maintains that they have a close bond despite their 8-year difference. She believes he can assist with his transition into school and that the child would be sad if he saw his sibling less. She also worries about the impact this would have on Brody.

[40] Ms. Gardner also indicates that they do may activities together, cultural and otherwise in the area, but none were specified.

[41] Ms. Gardner understands more Ojibwe than she speaks but claims to know quite a bit.

Position of the Parties

[42] Mr. Daigle’s position is that he has been able to provide more stability and structure for the child in Sudbury. The child has bonded with his paternal family including his cousin and best friend. Not only that but he has been attending daycare and has made strides in his behaviour and made many friends with his peers and educators, so the child has ties to the community and to his proposed school. He is also able to provide the child with exposure to his culture and traditions. He has concerns with respect to Ms. Gardner’s ability to provide stability to the child due to her moves, exposure of the child to domestic violence and many moves between Thunder Bay and Eagle Lake First Nation.

[43] Ms. Gardner denies that she is unable to provide stability to the child. Ms. Gardner’s position is that it would be in the child’s best interest for the child to reside with her. This is due to the bond that the child has with his sibling who is in her primary care. She is afraid their bond will suffer if the child is away from her care for extended periods of time. She would also want the child to live on reserve in order to have access to extended family and more access to band benefits that include financial supports for education. In addition, he would be able to participate in cultural events and programming while residing in the First Nation, which will prevent the child from being alienated from his culture in a predominantly English-speaking city.

[44] Both parties would continue to facilitate time with the other parent on holidays and summers.

The Law

[45] Despite this being a Motion to Change, there is no need to meet a variation test as a review mechanism was built in to the 2022 Order.

[46] As such, any proceeding with respect to children is determined with respect to the best interests of the particular child before the court, and in accordance with the considerations set out in section 24 of the Children's Law Reform Act (“CLRA”). The court has considered these factors, where relevant.

[47] Subsection 24(2) of the CLRA provides that the court must give primary consideration to the child's physical, emotional and psychological safety, security and well-being in determining best interests.

[48] Subsection 24(3) of the Act sets out a list of factors for the court to consider related to the circumstances of the child. It reads as follows:

Factors

(3) Factors related to the circumstances of a child include;

(a) the child's needs, given the child's age and stage of development, such as the child's need for stability; (b) the nature and strength of the child's relationship with each parent, each of the child's siblings and grandparents and any other person who plays an important role in the child's life; (c) each parent's willingness to support the development and maintenance of the child's relationship with the other parent; (d) the history of care of the child; (e) the child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained; (f) the child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; (g) any plans for the child's care; (h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; (i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child; (j) any family violence and its impact on, among other things, (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require person in respect of whom the order would apply to cooperate on issues affecting the child; and (k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

[49] Subsection 24(6) of the CLRA states that in allocating parenting time, the court shall give effect to the principle that the child should have as much time with each parent as is consistent with the best interests of the child.

[50] Subsection 28(1)(b) of the CLRA also grants the court the power to determine any matter incidental to the right of decision-making responsibility and parenting time. The child’s school placement is incidental to or ancillary to those rights.

[51] I am also guided by the following principles recognized in the caselaw:

1. The court must ascertain a child’s best interests from the perspective of the child rather than the parents: Gordon v. Goertz, [1996] 2 S.C.R. 27.
2. No one factor in the statutory definition of “bests interests” has greater weight than the others: Libbus v. Libbus, [2008] O.J. No. 4148 (Ont. S.C.J.), Wilson v. Wilson, 2015 ONSC 479.
3. Children should have maximum contact with both parents that is consistent with their best interests: Gordon v. Goertz, Supra.
4. But “Maximum contact” does not mean equal parenting time, although it may end up being equal parenting time. Each family is different and the principle of maximum contact is to benefit the children” Knap v. Knapp, 2021 ONCA 305.
5. Long absences in seeing a child can be emotionally damaging to a child. A young child with attachments to both parents need sufficient contact with both, without prolonged separations to maintain meaningful, secure, and close relationships with both parents: Van Den Dressche v. Van Den Dressche, 2011 Carswell Man 255, Wilson v. Wilson, 2015 ONSC 479.
6. Frequency of contact is particularly important for young children. In resolving parenting time disputes emphasis must be placed on the critical importance of bonding, attachment and instability in the lives of young children: Barnes v. Parks.

[52] In addition to that, I refer to the principles found in the caselaw provided by Ms. Gardner’s counsel as it specifically addresses cases dealing with the determination of a child’s school enrollment, as well as additional cases that assist me in determining this matter. In Thomas v. Osika, 2018 ONSC 2712 (S.C.J.) (“Thomas”), para. 37, the court stated that the decision as to the choice of school that a child should attend, when the parents disagree, is ultimately a matter of judicial discretion. The court summarized several general principles to take into consideration as follows:

a. Sub-section 28(1)(b) of the Children's Law Reform Act specifically empowers the court to determine any matter incidental to custody rights. The issue of a child's enrollment in a school program must be considered as being incidental to or ancillary to the rights of custody (Deschenes v. Medwayosh, 2016 ONCJ 567); b. It is implicit that a parent's plan for the child's education, and his or her capacity and commitment to carry out the plan are important elements affecting a child's best interests. In developing a child's educational plan, the unique needs, circumstances, aptitudes and attributes of the child, must be taken into account (Bandas v. Demirdache, 2013 ONCJ 679 (Ont. C.J.)); c. When considering school placement, one factor to be considered is the ability of the parent to assist the child with homework and the degree to which the parent can participate in the child's educational program (Deschenes v. Medwayosh, 2016 ONCJ 567); d. The emphasis must be placed on the interests of the child, and not on the interests or rights of the parents (Gordon v. Goertz, [1996] S.C.J. No. 52 (S.C.C.)); e. The importance of a school placement or educational program will promote and maintain a child's cultural and linguistic heritage (Perron v. Perron, 2012 ONCA 811 (Ont. C.A.)); f. 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 examining whether there is any prospect of one of the parties moving in the near future; where the child was born and raised; whether a move will mean new child care providers or other unsettling features (Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.)); g. The court will also look to any decisions that were made by the parents prior to the separation or at the time of separation with respect to schooling (Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.)); h. Any problems with the proposed schools will be considered (Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.)); i. A decision as to the choice of school should be made on its own merits and based, in part, on the resources that each school offered in relation to a child's needs, rather than on their proximity to the residence of one parent or the other, or the convenience that his attendance at the nearest school would entail (Wilson v. Wilson, 2015 ONSC 479); j. Third party ranking systems, such as the Fraser Institute’s, should not factor into a Court’s decision. These systems of ranking do not take into consideration the best interest of the particular child in a family law context (Wilson v. Wilson, 2015 ONSC 479); k. If an aspect of a child's life, such as school placement, is to be disrupted by an order of the court, there must be good reason for the court to do so. Thus, before a court will order a child to transfer schools, there must be convincing evidence that a change of schools is in the child's best interests (Perron v. Perron, 2012 ONCA 811 (Ont. C.A.)); l. Custodial parents should be entrusted with making the decision as to which school children should attend. When a sole custodial parent has always acted in the best interest of a child, there should be no reason to doubt that this parent will act in the best interest of the child when deciding on a school (Adams v. Adams, 2016 ONCJ 431); m. Those cases are very fact-driven. The courts are not pronouncing on what is best for all children in a general sense but rather deciding what is in the best interests of this child before the court (Deschenes v. Medwayosh, 2016 ONCJ 567).

[53] In addition to the above, of paramount consideration is the school that will give the child the best competitive advantage, or provide the greatest confidence and motivation, or that will facilitate the child's relationship with others, including his parents and classmates, or best promote his all-around development. See: Schloegel v. McCroary, [2012] BCSC 1606.

[54] The language of children's education is important in considering their best interests. However, language and cultural considerations, while very important, do not dictate the result. See: Perron v. Perron, 2012 ONCA 811.

[55] Lastly, it is not the task of the court to determine the best school by any measure, standards, or comparison. The issue for this Court is solely to determine which school is in the best interests of the child. See Schloegl v. McCroary, 2012 BCSC 1606, para. 37.

Analysis

The Best Interest Test

[56] There are two parents before who obviously love their child and want what is best for him. They are faced with a difficult position as a result of the distance between their residences. Because of that distance, the decision made here will inevitably impact one parent and their relationship with the child negatively, which is unfortunate consider that the parties have been able to do such a good job of coparenting, communicating and supporting each other until now.

[57] I have to make a decision based on my discretion in consideration of the principles enumerated above. It is not an easy decision for me either.

[58] Considering that both parties provide similar plans, it puts me in the role of King Solomon, having to split a baby in half. If I were to decide based on “fairness”, I would order the child to be in each parties’ care on alternating years. And while the parties are free to consider that option at any time, it would not be in the best interest of the child as per the factors I need to consider. To allow the child to set roots in a school, only to have that stability taken away year after year is not in his best interests.

[59] This is further complicated as I have some concerns in terms of the evidence that was put before me. For a trial, it seems incomplete and quite short. I understand that there was possibly more evidence that both parties may have wanted to put before me in terms of the programing and the schools proposed. Unfortunately, that is not before me, which leaves me with the evidence I do have in the affidavits before me.

[60] I can begin by considering the best interest factors. The child is currently 4 years of age. His wishes are not before the court due to his age. There is no evidence that the child has any education or medical needs, much less needs that cannot be addressed by either parent. In the past two years, the child has been spending significant time away from each parent, a minimum of 2 weeks at a time and, on occasions, a longer period of time when Ms. Gardner required support from Mr. Daigle to address her own personal needs. Normally a child at his stage of development would need a primary parent so he can develop a home base. The child has not been afforded that.

[61] The reality is that he has two loving and caring parents who have cared for the child equally, over long distances, and made decisions together. Both have presented plans for the child’s care that are sound. Despite some concerns from both parents, it appears they both have cared for the child appropriately and can continue to do so. They are both committed to ensuring the child has a relationship with the other parent regardless of the outcome.

[62] While I have been asked by Mr. Daigle to consider the impact of family violence in my decision. On the basis of the evidence before me, it does not appear the child was exposed to domestic violence and if he were exposed to it, any concerns have been mitigated as Ms. Gardner’s is no longer with her then partner.

[63] I have also been asked to consider Ms. Gardner’s mental health as it related to her ability to provide stability to the child. Ms. Gardner is to be commended for seeking assistance for her mental health. She also ensured that the child was properly cared for and her situation has improved. There is no evidence her mental health has impacted her ability to parent the child or that it was seen as a concern for Mr. Daigle until now.

[64] Lastly, there were submissions from both parties that each of the parties moved quite a bit which showed instability and counsel for Ms. Gardner submitted that Mr. Daigle has moved to Sudbury for his own reasons rather than in consideration of the child’s best interests. I find that both parties have moved an equal number of times since the child was born and for the similar reasons, at times due to their relationships and in others in search of family supports and lack of housing or employment in Thunder Bay. All those reasons have the potential to affect the child.

[65] Despite having been born in Eagle Lake First Nation and residing there for the first two and bit years of his life, it is unlikely he remembers his time there. He most recently resided in Thunder Bay for one and half years until May 2023. His attachments to Thunder Bay were likely stronger than his attachments to Eagle Lake First Nation, up until the last 3 months. Conversely, he has been splitting his time with Sudbury for almost two years. I cannot accept the submissions from counsel that aside from his father and a few other people that the child does not have ties to Sudbury. In fact, there is little evidence of his current ties to Eagle Lake First Nation though there is a possibility of ties he could establish in the future.

[66] Indeed, from the evidence before me the child has strong ties to his parents. He has strong ties with the paternal extended family, which he has been developing for a year and a half. During that same time, he was residing in Thunder Bay and not in Eagle Lake First Nation. It was unclear how often he visited Eagle Lake First Nation in the over a year and half period he resided in Thunder Bay, so I am unable to determine how strong his ties are to his maternal family members, though we now know he has been living with his great grandmother for the past 3 months. The mother indicates that the child has a close bond with his brother, who is 8 years older. A sibling connection is to be given deference and should be maintained, same as relationships with parents. In this case, however, the child also seems to have a strong relationship with his cousin, who is the same age and with whom he resides with. It would seem akin to a sibling relationship as well and one that seems to be of value to the child. Indeed, as counsel for Ms. Gardner indicates, this decision would affect more than one child, but my concern is for the subject child, despite the repercussions to the other children. At the end of the day, a child 8 years older will inevitably be at a different stage of development, have different interests and will leave school sooner than a peer.

[67] Moreover, there is evidence that the child has established ties to the community of Sudbury, including his membership at the YMCA where he has attended programing. There is no evidence from the mother about extracurricular activities the child is attending in Eagle Lake First Nation or what is available. I am aware of both parties spending quality time with the child in their respective communities and enjoying time outdoors.

[68] In this case, Ms. Gardner’s primary focus for submissions were based on the child's “Indigenous cultural and linguistic upbringing”. In a nutshell, Ms. Gardner is concerned that should the child reside in Sudbury he may not be as involved or interested in his community and culture. Despite Mr. Daigle having put forward a plan that addressed the child’s culture and language, because his plan is not tied to an on-reserve community, his plan is better suited to an average child but not this child and his cultural needs. By being able to reside within a First Nation and attend a school on site, the benefit would benefit much more and would be in his best interest. This is tied to the principles enunciated in the Thomas case.

The Thomas Principles

[69] Submissions from Ms. Gardner’s counsel indicate that only some of the principles found in the Thomas case apply here. I agree and will address only those principles relevant to this case.

Parent's plan for the child's education, and his or her capacity and commitment to carry out the plan

[70] As submitted, we do not yet know the child’s needs and aptitudes, but I find that both parties have put forward culturally appropriate plans and have the ability to carry them out to his benefit.

The ability of the parent to assist the child with homework and the degree to which the parent can participate in the child's educational program

[71] Ms. Garner submits that because she has another child that she has proven she is able to do this, whereas Mr. Daigle does not have any experience with this. Mr. Daigle claimed in cross-examination to have acted as parent to that other child. Details were non-existent as to what role they played on that child’s education. There was no evidence to support her position nor to refute Mr. Daigle’s ability to do so in the future. This is more of an assumption if anything.

The emphasis must be placed on the interests of the child, and not on the interests or rights of the parents

[72] My analysis addresses this point and a consideration of the child’s best interests are weaved throughout my analysis.

The importance of a school placement or educational program will promote and maintain a child's cultural and linguistic heritage

[73] Ms. Garner’s submissions are that the child should reside and attend in Eagle Lake First Nation because it will offer more concrete opportunities for cultural activity through membership and participation in his community. There are also financial incentives for post-secondary education. I don’t believe funding is restricted to on-reserve students.

[74] In any event, the crux of her argument is based on the similarities between this situation and cases that address the difference between French Immersion Programs vs. French Language schooling. As previously indicated, it is her view that by residing in a predominantly English-speaking city that the child may lose the ability to become bilingual, and forfeit future opportunities, resulting in cultural and linguistic alienation.

[75] Ms. Gardner’s counsel directed me to paragraphs 43 and 44 of Perron v. Perron, 2012 ONCA 811 (Ont. C.A.) (“Perron”), which reads as follows;

[43] It is true that, in this case, the children would have some exposure to French in the French immersion program. But since French immersion instruction largely reflects the majority culture, the risk of cultural and linguistic alienation of the children from their father and their father's family is increased.

[44] In a linguistic minority environment, homogeneous French-language schools are generally preferable to French immersion programs for ensuring that both languages, namely, French and English, are maintained at the highest level. In a region with a large English-speaking majority, homogeneous instruction in French does not result in losing the language and culture of the linguistic majority. This does not therefore imply a choice of preferring the culture and language of the minority over those of the majority. In a minority setting, homogeneous French-language schools in fact make it possible to maintain cultural and linguistic links with both the French- speaking and English-speaking parents. In accordance with s. 24(2)(d) of the Children's Law Reform Act, the children's language of education should therefore be taken into account when determining their best interests.

[76] In my view Perron is distinguishable from the facts before me for several reasons. In this case neither parent is fluent in Ojibwe. Both parties share the same culture, even if Ms. Gardner has closer ties to her community. In Perron, the trial judge failed to consider homogeneous French language schooling and Ms. Gardner’s position was that homogenous Ojibwe language instruction would be provided at Migisi Sahgaigan School, as opposed to Princess Anne School, where it was unclear of the level of Ojibwe instruction they could provide.

[77] While the choice of schooling is the issue for determination before me. This where the lack of evidence was most glaring. Neither party had any evidence with respect to the amount of Ojibwe language instruction the child would receive in each school. However, counsel for the Respondent did acknowledge that at most, Migisi Sahgaigan School could provide an immersion type program. Based on what is before me, both schools have the ability to provide Ojibwe language instruction. I cannot determine which one would be more beneficial or frequent without further evidence.

[78] When it comes to the choice of school, another thing to consider is that if the child were to attend school in Eagle Lake Fist Nation, he would be attending school with his older brother. This is significant as the child could assist with the transition. But based on the child’s age and my understanding that the school is an elementary school only, the older brother will soon move on. Meanwhile, if the child were to attend school in Sudbury, he would be attending school with his three live-in cousins, one of which is in the same grade. He is also familiar with the school, as he has been attending daycare on site.

[79] While not limited to attendance at school, the issue of culture is also at the forefront. Ms. Gardner submitted that the child would stand to lose or have diminished interest in his culture if he were to reside in Sudbury and that he would be in a less advantageous position because his father does not reside nor has ties to his reserve. Because Sudbury is a bigger city, and predominately English speaking, it leaves little room for cultural development and activities, whereas her tight knit community would have frequent activities and the child would reside on the land.

[80] I have no doubt that the child would be more immersed in his cultural heritage if he were to reside at the First Nation. However, this is not a case where the parents have different cultural backgrounds. Both parties have made a commitment to ensure the child grows within his culture. I accept Mr. Daigle’s evidence that Sudbury is culturally diverse, with a substantial Indigenous population and that he has developed a connection to neighbouring reserves. They are likely to provide similar cultural activities with similar frequency as Eagle Lake First Nation.

Assessing any impact on the stability of the child.

[81] As already noted, both parents are able to provide the child with stability. Both parties now seem settled in their respective homes.

[82] While it is true that the child was born in Eagle Lake First Nation and has primarily resided in Northwestern Ontario, the child was too young to remember his life there. He is more likely to remember his most recent habitual residence which was Thunder Bay, with an equal time spent in Sudbury. Unfortunately, since Thunder Bay is no longer an option, in my view his most settled and developed ties thus far are in Sudbury as opposed to Eagle Lake First Nation.

Decisions that were made by the parents prior to the separation or at the time of separation with respect to schooling

[83] There is a dispute about whether or not the parents agreed with respect to the child’s schooling. Ms. Gardner alleged that the parties discussed and agreed that the child would attend Kingsway Public School in Thunder Bay and that Mr. Daigle would move to Thunder Bay on a full-time basis when that came to pass. Mr. Daigle acknowledges that was discussed but alleges he did not agree.

[84] Neither party discussed the child attending school in Eagle Lake First Nation or Sudbury. However, what is clear is that until quite recently, recently enough that Ms. Gardner did not amend her pleadings, is that the parties were in agreement with the child attending school in a city with a diverse cultural population, which is English speaking. No indication was provided as to whether the child would be enrolled in Ojibwe classes, whether it was offered in at Kingsway Public School or whether it was even a consideration. There is no indication, should Ms. Gardner have been successful in her original claim, that she was concerned with cultural or linguistic alienation.

[85] While worth mentioning, I am not placing much weight, if any, as there was no agreement and a parent can change their mind as to what educational program might best suit their child.

Disruption of School Placement

[86] The child has not yet commenced school. Ms. Gardner submitted that if the decision is made now for the child’s school enrollment, there is no need for the child to transfer schools and disrupt the child’s attachment to his school. As such, Ms. Gardner’s counsel did not believe this principle applies.

[87] I have to disagree. The child may not be attending school but in the spirit of this principle, and based on the evidence before me, the child has established ties to the school as a result of his attendance at the onsite daycare since the date of separation almost two years ago. He is familiar with the building. He is familiar with the staff and he is familiar with the kindergarten teachers. His father claims that the child is excited for his upcoming graduation and attendance at kindergarten. He has friends in the program. His cousin is both at the daycare and transitioning into school with him. Those ties would certainly make the transition easier for him and build on the familiarity and stability he has had the opportunity to develop there. I cannot ignore that when considering the best interests of this child.

Disposition

[88] Overall, there is no easy solution to the predicament that these parents find themselves in. Inevitable, this decision will be incredibly difficult one parent and difficult for the child, who will have to deal with major changes in his life regardless of the outcome. The parties should be commended for their parenting of the child thus far and for their degree of cooperation with each other thus far. I am hopeful both parents can continue to co-parent and support each other and their child, as they face this transition together. It will certainly be beneficial for their child.

[89] Based on the evidence before me, it would be in the child’s best interests to attend school in Sudbury and have as much meaningful contact with Ms. Garner as possible to maintain that parental bond, as well as his bond with his sibling.

[90] A final Order shall go as follows:

(1) The child, Mahengan John Daigle, born […], 2019, shall reside in the primary care of the Applicant, William Daigle. (2) The child shall be enrolled in Princess Anne Public School forthwith for the 2023/2024 school year. (3) If possible, the child shall be enrolled in the Ojibwe as a second language program, or at minimum in Ojibwe classes at school. (4) Both parents may attend all of the child’s school events, outings, and parent-educator/teacher interviews. If so desired, each parent may schedule individual parent-teacher interviews. (5) Both parents shall provide their e-mail and contact information to the school so that they may both receive copies of the child's report cards and important notices/school events directly, failing which the Applicant shall provide those to the Respondent upon receipt via text or e-mail. (6) The parties shall each ensure that the school has their up-to-date e-mails, phone numbers and addresses so that they may be kept informed by the school. (7) Each parent shall ensure they have access to and regularly check any learning management system used by the school. (8) The Respondent, Cheynna Gardner, shall have parenting time with the child as follows: a) Six weeks during the summer school break, which can be consecutive or cumulative. The parties shall advise each other of their summer vacation plans for the child, including the weeks they propose to have the child reside with them, on or before June 1st of each year. In the event of a disagreement, the Applicant’s shall have first choice in odd numbered years and the Respondent in even numbered years; b) One weekend per month, to be a long weekend if possible to coincide with the school P.A. days or holidays; c) Every March Break; d) Shared Christmas holidays with exchanges to take place at the halfway point of the school break. The Applicant shall have the first half of the holiday in even numbered years and the Respondent is to have the first half of the holiday in odd numbered years; e) Additional reasonable parenting time upon reasonable notice as agreed to by the parties, including any time that either of the parties travel to each other’s communities or Thunder Bay, Ontario. f) Virtual parenting time a minimum of three times per week and additional virtual parenting time upon the child’s request.

[91] Exchanges of the child will continue to be take place as per the order of Madam Justice MacKinnon, dated August 31, 2022.

[92] Lastly, neither party requested costs. Because this trial dealt with a very important issue that required determination and the parties’ plans were quite similar, I am not inclined to award costs in any event.

Released: August 22, 2023 Signed: Justice Claudia C. Belda