ONTARIO SUPERIOR COURT OF JUSTICE

NEWMARKET COURT FILE NO.: FC-11-37371-00
DATE: 20120829

BETWEEN:

SUSAN ANNE CARR Applicant – and – JEFFREY JAMES CAREY Respondent

K. McCalmont, for the Applicant
W.H. Abbott, for the Respondent

HEARD: August 28, 2012

REASONS FOR DECISION

MULLIGAN J.:

[ 1 ] The applicant and respondent both bring motions for a determination as to which school their daughter, Madison, should attend in September of 2012.

BACKGROUND

[ 2 ] The applicant, Susan Anne Carr (“Carr”) and the Respondent, Jeffrey James Carey (“Carey”), were married September 25, 2006. The parties separated October 6, 2010, but continued to reside in the same residence until the matrimonial home was sold and the parties relocated. Ms. Carr now resides in a large, rented home in Unionville, Mr. Carey resides in a rented home in Milton. Their daughter, Madison Anne Carey was born […], 2007, and is currently five years of age.

EXISTING TEMPORARY WITHOUT PREJUDICE ORDER

[ 3 ] Both parties reached an agreement on consent before Justice Nelson on April 18, 2011. The order provided for the appointment of the Office of the Children’s Lawyer. The order also provided a child sharing arrangement as follows:

Upon the closing of the sale of the matrimonial home on April 29, 2011, the parties shall have the child with him and her on an alternating three-day basis, with the applicant to have the child first from April 29, 2011 to May 2, 2011; the exchange of the child shall take place at McDonald’s at Warden and Highway 7 at 7:00 p.m. every three days.

[ 4 ] The parties have complied with that order and Madison has attended pre-school for the last year on a rotating basis depending on where she was residing. When she resided with mother, she attended Bright Horizons Private School and Daycare Centre in Markham. She proposes that her daughter continue to go there on a full time basis. While residing with her father, Madison attended Escarpment View Elementary School in Milton near her father’s home. He proposes that she continue to go there on a full time basis, starting September 2012.

OFFICE OF THE CHILDREN’S LAWYER

[ 5 ] In accordance with the consent of both parties, the Office of the Children’s Lawyer became involved. Karen Guthrie-Douse, M.S.W., R.S.W., conducted a clinical investigation, prepared a report dated April 20, 2012, and met with both parents. Among her recommendations are the following:

(i) The primary parent and residence needs to be decided for Madison, where she will reside during the week to attend school.

(ii) Madison to be enrolled in the kindergarten program in the local school of her primary residence.

(iii) Madison to spend three consecutive weekends (Friday after school till Sunday evening at 6:00 p.m.) in her secondary residence.

[ 6 ] Both parties agree that it is in Madison’s best interests that a decision be made now about which school she would attend, and consequently which parent she would reside with during the school week. They agree that the alternate parent should have three weekends out of four, and holidays should be divided in accordance with the recommendations of the OCL and the holiday schedule contained in the draft separation agreement prepared by counsel for Mr. Carey. However, and most importantly, they differ as to which parent should have primary custody to give effect such an arrangement. Both parents included parenting plans in their affidavits.

POSITION OF THE PARTIES

[ 7 ] It is the position of father that he is best suited to be the primary parent and that Madison should reside with him in Milton. After the marriage break-up, he returned to Milton where he had a long-time connection with family and friends. He works as a self-employed carpenter and his work is mainly in the Milton area. He has flexible work hours. He has suitable accommodation at his residence. Although he had boarders living in his house previously, he has no boarders now and indicates he would not have boarders in the future, should his daughter reside with him. He is anxious to enrol his daughter in more after school activities, but he has been unable to do so under the current three-day off, three-day on regime. He provided a detailed parenting plan in his material. He is able to walk his daughter to and from school, and if he is unable to pick her up, there is an after school YMCA program available. He has family in the vicinity and his daughter has reconnected with some of his family members. If Madison begins school this year at Escarpment View for senior kindergarten, this is the same school that she would continue to attend in grade one in 2013. Mr. Carey submits that when the property equalization is completed, he will be able to purchase a house in Milton, and that housing is much more affordable for him than it would be in the Markham/Unionville area. Mr. Carey has made provisional arrangements for a doctor and a dentist for Madison.

[ 8 ] Mr. Carey points out a number of issues which he feels would be problematic if Ms. Carr had Madison during the week. The issues of concern include her medical history, her heavy smoking, including smoking in the house and smoking in the bedroom while Madison is with her. In addition, he points out her long work hours and the potential that she would be relying on a nanny to provide some of the care for Madison while she was working. The parties had a nanny in the past, when they were living together which enabled both parties, but primarily Ms. Carr to pursue her employment opportunities.

POSITION OF THE MOTHER

[ 9 ] Mother’s position is that Madison should reside with her so that she can attend again the Bright Horizons School. This is the school that she attended off and on last year. Madison would be driven to school which is about four kilometres from her residence. Although she acknowledges having had some health problems, she points out that her adult daughter, who is now 21, resides with her while attending post-secondary education in Scarborough. Her adult daughter can assist her from time to time with Madison’s care throughout the week. Bright Horizon’s School is about four kilometres from her home and is a seven-minute drive from her house. Her plan would be to enrol Madison in Unionville Public School in September 2013, when she begins grade one. She also proposes to enrol Madison in various after school activities.

[ 10 ] She indicates in her affidavit that if she cannot pick up Madison at Bright Horizons by the official closing time of 6:30, she will make arrangements with the school to keep the school open for a short period thereafter.

[ 11 ] Her position is that Mr. Carey can find employment and a residence in the vicinity of Unionville/Markham and his move to Milton and residence there now should be given little weight. She indicates she has made appropriate arrangements with doctors and dentists in the vicinity of her home.

[ 12 ] She does not deny her habit of smoking in the home and in front of Madison. Her parenting plan does not indicate how she would lessen Madison’s exposure to second-hand smoke.

[ 13 ] Ms. Carr acknowledges her medical issues which she feels are now non-issues in terms of caring for Madison. She indicates that she is on two medications, including Ratio-Oxycocet which she takes on an as-needed basis. She acknowledges that she suffers from irreversible damage to her spinal cord and is more prone to falling. After a fall, she indicates she needs to rest for a day or two. She concludes with respect to this issue in her affidavit at para. 41 as follows:

This does not mean that I am totally immobile, simply that I must spend as much time resting as possible until the swelling at the vertebrae goes down, which usually takes no more than a day.

[ 14 ] In such an event, she relies on her older daughter or friends to assist with care of Madison.

THE REPORT OF THE OCL

[ 15 ] The report of the clinical investigator indicates that the family has had some involvement with the Children’s Aid Society and York Regional Police and there has been ongoing conflict between the parties and notes:

Ms. Carr’s primary concern is the conflict that continues to exist between her and Mr. Carey, and Madison’s exposure to this conflict. ...

During the investigation, both Ms. Carr and Mr. Carey identified that they continue to have conflict during exchanges at McDonald’s with this agreement about exactly where the exchange took place (in the restaurant, on the sidewalk or in the parking lot). Both Ms. Carr and Mr. Carey confirmed to the investigator that a verbal dispute occurred between them, with Madison present, in the McDonald’s parking lot in early January 2012 regarding upcoming arrangements for Madison. Madison also described this incident to the investigator.

[ 16 ] As to child safety, the report noted:

Ms. Carr admits that she has physical limitations, but that she compensated for these limitations by employing live-in help. ...

Ms. Carr was clear that she was very aware of the addictive nature of her pain medications and she took the least amount of medication required to control her pain while still allowing her to function normally. Ms. Carr admitted to the investigator that she does smoke cigarettes in her home, and that she has smoked in bed while Madison was present.

[ 17 ] Before making her recommendations, the clinical investigator noted her observations of Madison with both parents, and her private interviews with Madison.

CONCLUSION

[ 18 ] It is evident that the parties need a clear and concise direction from the court as to where Madison would go to school, and consequently which parent she would reside with during the school week. The affidavits before me and the report of the OCL indicate that this is a high conflict situation and on occasion, this conflict is spilled over in the presence of Madison. Both parents want Madison to reside with them so that she will enjoy the stability of going to one school and being able to take advantage of extracurricular activities when she is in a stable environment throughout the week. Both parents love their daughter and are capable of providing primary residence for Madison. However, they have been unable to reach an agreement, notwithstanding the assistance of the Office of the Children’s Lawyer.

[ 19 ] On balance, I am satisfied that the father’s parenting plan, to have Madison reside with him, represents the best interests of Madison. She will attend an elementary school which she attended last year on a rotating basis, a school which she will be able to continue to attend next year when she starts grade one. This school is close to father’s residence, and with his flexible hours, he is able to walk her to school and pick her up from school. He has expressed an interest in enrolling her in additional extracurricular activities and has suitable accommodation, and is prepared to make arrangements for a doctor and a dentist. He has family members in the vicinity and his daughter has been re-introduced to his family in recent times.

[ 20 ] Mother’s plan, although adequate, gives me less comfort. Her acknowledged health issues and smoking habit at home when Madison is present, give me concern. She relies on her adult daughter who resides at home and attends university, but this reliance does not provide a long-term solution to the needs that Madison will have in the years to come, in the event that her daughter leaves home and moves on with her life. Mother works long hours during the week, reporting to her office in downtown Toronto several days per week, but has weekends off, so she would benefit by having Madison with her three weekends out of four, and on the holiday schedule as proposed.

SECOND-HAND SMOKE

[ 21 ] Mr. Carey is a former smoker. Ms. Carr continues to smoke in her home and in Madison’s presence. It is not novel science to conclude that exposure to second-hand smoke is harmful to a child’s health. Consequently, I order that Ms. Carr not smoke in the presence of Madison, in particular, in her home or in her car. In addition, neither party shall expose Madison to second-hand smoke.

EXCHANGE POINT

[ 22 ] The parties should continue to use the same exchange point for exchanging Madison to give effect to this order, however, the exchange should take place inside of the restaurant in a public space which provides safety for Madison and diminishes the opportunity for each parent to disparage the other. It is important for each parent to acknowledge to Madison the important role that the other parent plays in the life of the child, especially during this transition. Failure to do so can only be detrimental to Madison in terms of her emotional development.

HOLIDAY SCHEDULE

[ 23 ] As agreed, the parties shall maintain the holiday schedule set out in the draft separation agreement with the following exception as agreed. During the summer months, Madison shall spend two weeks about with each parent, commencing with Ms. Carr immediately at the end of the June 2013 school year.

COSTS

[ 24 ] The parties are encouraged to settle the issue of costs. If costs are sought, I will receive submissions in writing from the respondent within twenty days of this endorsement, followed by submissions from the applicant ten days thereafter. Such submissions not to exceed five pages.

MULLIGAN J.

Released: August 29, 2012