minicounsel

Newmarket Court File No.: FC-08-029284-00
Date: 2012-08-31

Between:
N. S. Applicant – and – C. N. Respondent

Counsel:
D. Cohen, for the Applicant
D. Wald, for the Respondent
G. van Hoogenhuize, for the Office of the Children’s Lawyer

Heard: August 30, 2012

MULLIGAN J.:

1The respondent, C.N. (“the father”) brings a motion requesting an order enabling him to change the schools that the children of the marriage are attending. The applicant, N.S. (“the mother”) opposes the motion. The children of the marriage are A.S.N., born[…], 1998 and A.V.N, born[…], 2001.

BACKGROUND FACTS

2The parties married July 10, 1994 and separated February 23, 2008. Mother is employed as an elementary school teacher and father is employed as a high school teacher. During the course of their marriage, the parties agreed that their children would attend W.C.S, a private Christian school in Richmond Hill. The children have been enrolled there ever since. A.S.N., who will soon turn 14, is going into grade 10. A.V.N., who will soon turn 11, will be entering grade 7. There is no doubt that this is a high conflict situation. The parties have been involved in litigation since March of 2008. Although they have not as yet had a trial, there have been numerous motions and changes to the custodial arrangements. In addition, there has been involvement by the Children’s Aid Society, the police, a court-appointed assessor, other therapists, and more recently, the Office of the Children’s Lawyer. Both parties acknowledge that their son A.S.N. is in crisis and has recently begun a therapeutic arrangement with Dr. Hallway.

TRIAL DATE

3This matter is scheduled to be tried at the November 2012 sittings and a trial management conference has been set for October 2012.

CUSTODIAL ARRANGEMENTS

4The parties have attended in court on motions on previous occasions regarding issues of care and control of the children. On April 8, 2008, Justice Wildman determined that the two children ought to be in care and control of their mother. Justice Wildman found that the father’s conduct was concerning. In her endorsement, she made a number of comments, including the following:

This father has unilaterally removed the children from the home and other than when she saw them at their school or church for a few brief moments, their mother had almost no opportunity to see or speak to them for over a month.

5After reviewing some inappropriate behaviour by father with respect to taping interactions between the mother and the children, Justice Wildman ordered that the children remain with their mother. Father was to have no access for six weeks.

6In July of 2008, Gilmore J. dealt with a motion by the father to gain unsupervised access. As Justice Gilmore noted in her endorsement, “There is in the case, compelling evidence that the father has used bad judgment when handling family conflict in the past.” Justice Gilmore noted that both counsel agreed that the children should continue to be enrolled at W.C.S., as she stated, “I agree that this is important for the stability to be maintained in the children’s interest.”

7The next major attendance in court was an urgent motion on September 23, 2011. Justice Olah found that the children had been removed from the mother’s home, as a result of allegations of physical altercations between the mother and A.S.N. Justice Olah noted that there were investigations being conducted by the CAS and the police, and ordered that the father have care and control of the two children. Justice Olah noted the issue about schooling and indicated, “This matter needs to be finalized by way of trial or otherwise because the children appear to be hurting.”

8Justice McGee dealt with the matter on October 17, 2011. She requested the involvement of the Office of the Children’s Lawyer and noted in her endorsement, “Four justices to-date have struggled with this litigation profile. The time to be persuaded by the parents and their allies' claim has come to an end today. I propose to shift the focus to A.S.N. and A.V.N’s needs.”

9Justice McGee dealt with the matter again on May 3, 2012, at a trial management conference. On that attendance, she noted, “Meanwhile, time is marching on for A.S.N., 13 and A.V.N., 10. This issue of their schooling is outstanding and must be determined before this September, irrespective of a determination of custody.”

COURT APPOINTED ASSESSOR

10Dr. Horowitz, a court-appointed assessor, prepared an assessment report dated March 14, 2009. His report was updated March 19, 2010. In his initial report, Dr. Horowitz stated in his summary:

The question that remains unanswered is why C.N. would attempt to alienate the children from their mother, and seek to remove them from her jurisdiction. The answer is simply control and autonomy, both of which he felt were threatened by N.S.

In noting behaviour issues of the children, he commented:

The negative behaviour demonstrated by A.S.N. and A.V.N. toward their mother is so atypical of children embroiled in their parents’ high conflict separation and divorce as to be considered a bizarre reaction. It is not a behaviour which can be explained as the anticipated, likely, or understandable reaction to emotional, verbal, and/or physical abuse by a parent. The behaviour and attitudes of A.S.N. and A.V.N., however, does fit the profile of alienation quite comfortably.

11In his updated report, Dr. Horowitz concluded:

The parents continue to blame each other and the children continue the conflict with their mother.

The assessor concludes that:

The alienation is primarily a result of the actions and behaviours initiated by C.N. since the time he started recording family events. The forces put in motion by C.N. have taken on a life of their own and with minimal “refuelling” serve to maintain the alienation of the children from their mother.

CURRENT SITUATION

12C.N. has day-to-day care and control of the children. N.S. and A.V.N. have begun counselling sessions with Dr. Collins. In addition, she has some limited contact with her daughter by telephone and e-mail. A.S.N. has begun individual counselling sessions with Dr. Hallway. He does not see his mother. The parties acknowledge that A.S.N. is suffering from depression and has expressed suicidal thoughts in the past. He has expressed a desire, through the Office of the Children’s Lawyer, to change high schools and get a fresh start. The children have been residing with their father, who has had care and control of the children since the order of Justice Olah on the 23 day of September, 2011. For over a year, he has been attempting to have the children transferred to public schools in the Region of Durham where he resides. N.S. has been unwilling to agree to such a change.

POSITION OF C.N.

13C.N.’s position is the status quo as to the children’s school arrangements should be changed, notwithstanding the current regime and the scheduled trial at the November sittings. His reasons for the change can be summarized as follows.

(i) Cost

14The cost for attendance at the school is $5,500 per pupil and C.N. can no longer afford his contribution to this cost.

(ii) Logistics

15C.N. teaches school and the logistics of driving the children to their school in Richmond Hill from his home in the Durham Region is problematic, given his own school schedule. Although he has coped with this arrangement for the last year, he submits it is no longer possible.

(iii) School Issues

16C.N. alleges that he has a number of problems with the staff at school, that they are aligned with N.S., and do not provide him with sufficient information as to the educational issues regarding his children.

(iv) Bullying at School

17C.N. alleges that his son, A.S.N., has been subject to bullying at school and the school has not taken appropriate steps to deal with the issue. A change in schools would give A.S.N. a fresh start.

POSITION OF N.S.

18N.S. opposes the motion to change the children’s schools. She points out that this is a high conflict situation which has been in litigation for four years. There have been two assessment reports pointing negatively toward father’s behaviour. The issue of school attendance is bound up with the custody issue, which is to be determined at trial at the fall sittings. She points out that she had care and control of the children until 2011. The children were removed from her based on A.S.N.’s running away. Although charges were laid against her, those charges were later stayed. She submits that the parties made a joint decision during the marriage that the children would attend this school, and there has been no material change in circumstances requiring a change before the custody issue is determined at trial. The children are doing well academically at the school. They are in small classes and there is no evidence that they will do better academically in a large public school environment. She submits that cost is not a factor because the school is committed to continuing to educate their children, even if C.N. defaults on his contribution. The children’s education is heavily subsidized by their church. Finally, N.S. submits that throughout this long and protracted litigation, the only stability that the children have enjoyed is attendance at W.C.S.

OFFICE OF THE CHILDREN’S LAWYER

19The Office of the Children’s Lawyer was appointed and the children were interviewed by counsel, who was assisted by a social worker. Although the investigation has been completed, he has not as yet had a chance to meet with both parents with his conclusions. He submits that there has been a material change in circumstances, which justify a change in the status quo as to the schooling prior to trial. A.S.N. is in crisis and has expressed a desire to change schools. A change in schools may well give him a fresh start and alleviate the concerns he has about bullying at his current school. However, counsel for the Office of the Children’s Lawyer notes the assessment reports of Dr. Horowitz and his conclusions about the alienating behaviour of C.N.

ANALYSIS

20I remind myself that this motion is not about custody, it is about changing the schools that the children have attended for many years. A school which both parents, during the currency of the marriage, agreed to. In considering this matter, my focus is on the best interests of the children. In V.A.W. v. R.C.L., 2004 , 7043 , Himel J. stated at para. 30:

In appropriate circumstances, the court must intervene to change arrangements when they no longer reflect what is best. However, changes to custody/access on a regular and ongoing basis can be highly detrimental and can result in children lacking security and stability in their lives. The words of former Chief Justice Dubin in the case of Niel v. Niel (1976), 1976 1925 (ON CA) , 28 R.F.L., 257 (Ont. C.A.) are still appropriate when he said at p.258:

... It is not in the interests of the children to be tossed back and forth, pending the determination of an application for interim custody.

The status quo arrangement factors predominantly in the assessment of best interests. As an interim custody order is a temporary order pending trial, it should not be varied in the short-term unless there are compelling reasons. ... Where a custodial arrangement has been in place for a significant period of time on an interim basis, the court will be reluctant to vary the terms if a trial of the issues is scheduled imminently.

21In Pape and Pape (1970), 1969 219 (ON CA) , 1 O.R., 331, Laskin J.A. spoke to the issue of the status quo and stated at para. 34:

It may be taken as a working rule that evidence to warrant an order for interim custody must more cogently support disturbance of the de facto situation than evidence to support an order for custody after trial on the merits.

22As to disruptions to the status quo part of custody prior to trial, McSorley J. stated in Kennedy v. Hull (2005), ONCJ 275 at para. 13:

A move at this time would significantly alter the status quo and to a large extent, predetermine the issue of custody and access. In these circumstances, the court should be reluctant to disrupt the status quo pending trial.

23In my view, this is not a case where the status quo as to the children’s school enrolment ought to be changed virtually on the eve of a trial, which will determine the custody issue. The children have enjoyed the stability of attending this school throughout a period of significant disruption in their lives. Care and control has shifted from mother to father. The father’s request for the change appears more to be rooted in his own convenience than the best interests of the children. The children’s best interests ought to be determined on a full evidentiary record after trial. Although A.S.N. has expressed a desire to change his school, I am reluctant to accept that he has an independent voice on this issue, given the findings in the reports of Dr. Horowitz. In another context, in Combined Air Mechanical Inc v. Flesch, 2011 ONCA 764 the Court of Appeal has stressed the importance of a motions judge needing to have a full appreciation of the evidence when there are competing affidavits and a voluminous record. Often a trial judge will be in a much better position to assess credibility with the benefit of the full machinery of a trial, including the examination and cross-examination of the witnesses and experts.

24The respondent’s motion to change the children’s schools is dismissed.

COSTS

25The parties are encouraged to resolve the issue of costs. If the issue is not resolved, I will receive submissions from the responding party to the motion within twenty days, and the moving party ten days thereafter. The Office of the Children’s Lawyer can also make costs submissions if sought.

MULLIGAN J.

Released: August 31, 2012

BACKGROUND FACTS