SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FC-07-145-01
DATE: 20120921

RE: MARIA MALOTT, Applicant

AND:

CHRISTOPHER POWELL, Respondent

BEFORE: THE HON. MR. JUSTICE J.P.L. McDERMOT

COUNSEL: Applicant Self-Represented

L. Paterson-Kelly, for the Respondent/Moving Party

HEARD: September 20, 2012

ENDORSEMENT

Introduction

[ 1 ] This is a motion brought by the Respondent, Christopher Powell, by way of a 14B motion; that motion was originally brought without notice and claims an order that the child, Julia Grace Powell, who is 11 years of age, be re-enrolled in the school where she has attended for the past six years, Willow Landing Public School. When it was brought before me as a 14B motion without notice, I ordered that notice be given to the Applicant, Maria Malott as the motion did not come within the criteria necessary for a without notice matter under Rule 14(12) of the Family Law Rules . [^1] Notice has been given and both parties have filed materials in this matter.

[ 2 ] Although the only relief in the Application is the schooling issue considered in this motion, the parties agreed that the argument of this motion would not finally determine the matter; all that I was empowered to do was to make a temporary order regarding Julia’s schooling.

[ 3 ] I determined the matter to be urgent due to the fact that Julia is presently attending Terry Fox Public School and has been attending since September 4, 2012. The relief in the motion is for her to return to her former school and this must be dealt with as soon as possible on a temporary basis at least. Accordingly, this motion may proceed without a case conference having been held as per Rule 14(4.2)

[ 4 ] For the reasons given below, I am dismissing the Respondent’s motion for an order forcing the enrolment of Julia at her former school, Willow Landing Public School.

Background Facts

[ 5 ] As noted, the Respondent’s motion is for the re-enrolment of Julia in the school she has attended for six years, Willow Landing Public School. These parties signed a separation agreement on March 30, 2006; the agreement provides for joint custody of Julia, with a shared custody regime. Julia resides with the Applicant 60% of the time, and the Respondent 40% of the time. The time sharing regime is set out in paragraph 6 of the Applicant’s affidavit sworn on September 14, 2012; Julia is with her Sunday night to Tuesday morning and Wednesday after school to Friday morning as well as every second weekend. She resides with the Respondent from Tuesday after school to Wednesday morning as well as every Friday after school until Saturday morning. In a two week period, the Applicant drives Julia to school seven days out of ten; the Respondent drives her three days out of ten.

[ 6 ] Julia completed Grade Six last year and until this fall had always attended Willow Landing Public School. Both parties lived in that school district or close to that school. Approximately 18 months ago, Ms. Malott rented her home and moved in with her new partner in the north end of Barrie. This meant that she had to drive Julia to school from her new residence; she says that this is a 20 minute drive each way, which means that she has to spend 80 minutes on the road to get Julia back and forth from school on the days that she is responsible for, which is, as noted above, 70% of the time.

[ 7 ] Notwithstanding this, Ms. Malott continued to drive Julia to Willow Landing after she moved in with her new partner. However, she had a health problem; in April, 2011 (by my count around the same time that she had moved in with her new partner), she developed a painful condition described by her as an Idiopathic Peripheral Neuropathy, which limited the use of her right hand. She states that this results in her having to use her right hand as little as possible. Driving causes pain and discomfort. She stated in argument that Julia became increasingly distressed at her pain resulting from driving her to school. She outlined in her material her pain control medication, and the condition was confirmed in her material by a note from her doctor.

[ 8 ] In late March, 2012, Ms. Malott e-mailed the Respondent, stating that the driving was causing a great deal of discomfort and stating that she wished to discuss switching Julia to the school in her neighbourhood, Terry Fox Public School. Mr. Powell responded, stating that he disagreed with the suggestion that Julia change schools and asked if Julia could not take the school bus to Willow Landing. On April 10, 2012, Ms. Malott responded, stating that there is no school bus from her area to Willow Landing and that she can “no longer keep driving Julia to and from Willow Landing” and that “adding 40 min of driving a day is too much for me to sustain.”

[ 9 ] In her affidavit, Ms. Malott states that she registered Julia at Terry Fox in May, 2012. Apparently in response to this, Mr. Powell retained counsel; his lawyer Michelle Gordon wrote to Ms. Malott on June 19, 2012 which referred to the separation agreement, and stated that Ms. Malott was not entitled to unilaterally register Julia at Terry Fox. The letter stated that Mr. Powell was willing to go to mediation; it also stated that if Ms. Malott refused to “remove [her] application with the Simcoe County District School Board requesting Julia’s transfer from Willow Landing to Terry Fox”, she would advise the school board that there was a joint custody regime and that Mr. Powell was disputing the change in schools. She also threatened court proceedings, although, as noted above, she also said that Mr. Powell would be willing to go to mediation.

[ 10 ] Ms. Malott responded the next day; she stated that she was willing to discuss the matter and was willing to go to mediation.

[ 11 ] There was no response to Ms. Malott’s letter dated June 20, 2012. Neither party registered for mediation, and Ms. Malott did not withdraw her registration of Julia with Terry Fox Public School. No court proceedings were begun. On August 20, 2012, she wrote to Michelle Gordon stating that her position had not changed, and requesting that if she was planning to bring this matter to court, “kindly serve me within the next 3 days, so that we will have time to resolve this.”

[ 12 ] Ms. Gordon wrote back the next day; she stated in her letter that she had been advised by the school board that no application had been made to change schools and that the school board would not entertain an application without joint signatures. She stated in her letter as there was no application on record to change schools, she had not commenced court proceedings on behalf of Mr. Powell.

[ 13 ] Unfortunately, she was mistaken in the assumption that Ms. Malott had made an Application through the superintendent of the school board to change schools. As outlined in e-mail correspondence between Ms. Malott and the same representative of the school board that Michelle Gordon spoke with, where the change is a “within jurisdiction” change, there was no need to make an application to change schools through the superintendent’s office. As Ms. Malott resided within the catchment area of Terry Fox, all that she had to do was to register Julia at Terry Fox Public School, which she had presumably already done in May, 2012. Julia began at Terry Fox on September 4, 2012 and has continued to attend at that school for the past three weeks. There is some evidence that Julia has now been drawn into the dispute between the parties, and each party is relying upon Julia’s views and preferences in this particular school issue.

Analysis

[ 14 ] It is obvious that I must determine whether it is in Julia’s best interests to remain at Terry Fox or to be returned to her previous school, Willow Landing. In determining Julia’s best interests, however, I need to examine the course of negotiation between the parties in light of the fact that Julia is now attending Terry Fox Public School and has been for the last three weeks. It will obviously be disruptive to return Julia to her old school, especially in light of the fact that I am not dealing with this issue on a final basis, and there is a risk that there may be a different result upon the resolution of Mr. Powell’s application. The reasons for the delay in resolving this matter prior to September 4, 2012, when Julia started school, become crucial, especially when, as noted above, Julia appears to have been drawn into this dispute by the parties.

[ 15 ] In argument, Ms. Paterson-Kelly said that Ms. Malott had “blind-sided” Mr. Powell and his lawyer. She states that this is a unilateral decision that was made without notice to Mr. Powell and implied that Ms. Malott had, in some way, surreptitiously changed schools without notice to the Respondent. She stated that Ms. Gordon was not aware in June that Ms. Malott had actually changed schools and that, based upon the separation agreement, it was up to Ms. Malott to do something, and she did not.

[ 16 ] In fact, the correspondence between the parties outlined above make it apparent that nothing could be further from the truth. The correspondence from Ms. Gordon makes it apparent that she was aware that Ms. Malott had already changed schools; she says in her initial letter to Ms. Malott that she had been approached by Mr. Powell “to address the issue of your unilateral decision to remove your child, Julia, from ... Willow Landing” and later she demands that Ms. Malott “remove your Application with the Simcoe County District School Board requesting Julia’s transfer from Willow Landing to Terry Fox” failing which she inter alia , would commence proceedings. The correspondence makes it apparent that she was well aware by June 19, 2012 that the Applicant had taken steps to enrol Julia in her new school and she only later came to a mistaken assumption that Ms. Malott could not change schools without the Respondent’s consent. This may explain the reason why Mr. Powell refused to respond to the correspondence of Ms. Malott dated June 20, 2012 wherein she agrees to go to mediation about the issue with Mr. Powell. Certainly, Ms. Malott understood from Ms. Gordon’s correspondence dated June 19 that Mr. Powell intended to go to court about the schooling issue, and the fact that Mr. Powell later concluded that the onus to commence those proceedings now lay with Ms. Malott was never communicated to her.

[ 17 ] Ms. Paterson-Kelly states that Ms. Malott did not comply with the provisions of the separation agreement when she changed schools in this matter. She states that the Applicant should have commenced these proceedings, as she was changing the status quo.

[ 18 ] I agree with counsel when she characterizes this to be a joint custody relationship between the parties; this is apparent from paragraph 6 of the agreement. However, as I mentioned during argument, the parties are apparently unable to engage in decision making concerning Julia; they certainly were not able to make this decision together and that has resulted in this application. The agreement further provides in paragraph 22 that the parties shall resolve any differences between them under the agreement “by negotiation between themselves”, failing which they “may obtain the assistance of a mediator.” The agreement does not state which party should bring the application, and certainly, considering the threat to bring court proceedings made by Ms. Gordon in her letter of June 19, 2012, Ms. Malott was entitled to expect Mr. Powell to bring those proceedings. Moreover, although Ms. Gordon made inquiries which satisfied her that she did not have to bring those proceedings because she thought that Ms. Malott could not change schools without consent, she never communicated that to Ms. Malott until receiving her correspondence dated August 20, 2012 asking when those proceedings would commence.

[ 19 ] In that letter, Ms. Malott expresses the concern that she wishes to “resolve this” prior to the beginning of the school year. Under the circumstances, that might have made a difference to the result, as Julia would have started school at the school that the court ordered she attend at prior to September 4, 2012. Now Julia has been in her new school for three weeks, and I am being asked on a temporary basis to move her back to Willow Landing. As I am determining this on a temporary basis only, the ultimate result may be a decision that it is in Julia’s best interests to go to Terry Fox creating further instability. The failure of Mr. Powell to act after June 20, 2012 is the reason why we are dealing with this issue only after Julia commenced school at Terry Fox; I do not hold Ms. Malott responsible for the fact that Julia may have to undergo further instability by another move should I order Julia be returned to Willow Landing. It is also not the responsibility of Ms. Malott that Michelle Gordon was mistaken in her later assumption that she could not transfer schools without the consent of Mr. Powell and therefore took no steps without communicating that to Ms. Malott.

[ 20 ] Ms. Malott initially raised the schooling issue in March, 2012. She was told in June, 2012 by Mr. Powell’s solicitor that he would be bringing court proceedings if she did not withdraw her registration at Terry Fox. She offered to go to mediation without response. In my view, Ms. Malott did everything she could have reasonably been expected to do to have this matter resolved on a timely basis, and I find that the responsibility for the delay in proceeding lies with Mr. Powell.

[ 21 ] I also have concerns as to whether Mr. Powell has negotiated in good faith as required by the separation agreement. Although there was a flurry of offers of assistance in transportation of Julia to school made by both Mr. Powell and his parents during argument of the motion, this is, as noted by Ms. Malott, late breaking news to her. She filed as part of her evidence a letter from her father, Allan Malott, which is attached to her affidavit. He recounts in that letter a conversation which took place between him and Mr. Powell on September 4, 2012. He states that “Chris [Powell] stated that Maria [Malott] moved away so it is Maria’s responsibility to drive her [Julia]”. This indicates to me that there was little negotiation on that point until the motion was underway; at least as of September 4, 2012, Mr. Powell was stating that he would not assist Ms. Malott in the driving. I find it self serving that he does so now at the hearing of the motion when he realized that an order for the return of Julia to Willow Landing is not necessarily a foregone conclusion.

[ 22 ] Ms. Paterson-Kelly argued that there was no change in circumstances which would warrant a variation in the separation agreement. I firstly note that this is not a Motion to Change, and changing custody provisions in a separation agreement do not require variation proceedings or a change in circumstances (as would be the case with support where a separation agreement, when filed in court, has the force and effect of a court order). In any event, I find that there appears to be a change in circumstances in this case because of the disability described by Ms. Malott and as confirmed by her doctor’s note. That occurred around the time she moved, and the fact that it was not foreseeable that it would impair her ability to drive is confirmed by the fact that Ms. Malott did drive Julia to Willow Landing since moving to the north of Barrie during the spring of 2011. The extent of the illness, and the resulting pain issues are, in my view, a material change in circumstances which would, if necessary, warrant a variation of the agreement.

[ 23 ] Finally, it was argued that this is only a move to accommodate the disability that Ms. Malott suffers from. Ms. Paterson-Kelly stated that this had little to do with Julia’s best interests and was only to “convenience” Ms. Malott. She noted that it was acknowledged during argument that Julia was upset by the physical pain her mother was undergoing from the drive to Willow Landing, and that this affected the child’s views and preferences, and was not something that should be taken into account.

[ 24 ] It is common ground that Ms. Malott is, at present, responsible to drive the child to school at least 70% of the time. She has a much greater responsibility to drive Julia to school because the time sharing arrangement provides that she has the child during most of the school week. The pain which she says is suffered by her would be apparent to an intelligent and observant 11 year old child, which I assume Julia to be. Children who live with and love a parent may adjust their views and preferences in accordance with that parent’s needs because they live with and identify with that individual. The fact that Julia observed her mother’s physical pain, and wished to change schools as a result does not, in my view, invalidate those views and preferences. It also indicates to me, that to some extent, the child’s best interests are similar to her mother’s, especially where her mother suffers a painful disability obvious to the child. Finally, if the mother is correct that her disability is painful, I do not describe it as an issue of “convenience;” it may very well be proven to be an issue of necessity.

[ 25 ] All of this is apart from the fact that due to Ms. Malott’s move to North Barrie in 2011, Julia now drives 40 minutes a day to school on seven out of ten days in a two week period. She can walk to and from school were she to attend Terry Fox. That alone may very well be a determinative factor in regard to Julia’s best interests.

[ 26 ] In sum, I am being asked to sanction a change in a long standing status quo wherein the Applicant proposes that Julia change schools after six years at Willow Landing. I understand the consequences of changing schools and I understand that Mr. Powell legitimately feels that it is not in Julia’s best interests to do so. However, I do not believe that he attempted to engage in negotiating a solution to this issue in good faith when the matter was originally raised in March, 2012, and I also find that Ms. Malott did her best to engage him in that negotiation. She was justified in assuming that Mr. Powell would bring this matter before the court in view of the correspondence from Michelle Gordon dated June 19, 2012. Because of Mr. Powell’s lack of action, Julia is now three weeks into her school year, and it may be found that she wishes to and should remain at Terry Fox Public School. Moreover, as noted by Ms. Malott’s father in his note appended to her affidavit, Mr. Powell agreed that Julia would thrive “where ever (sic.) she was.” There is no evidence that Julia is suffering to any great extent as a result of the move, although Mr. Powell states that she does not like the portable classroom in which she is in.

[ 27 ] Accordingly, it is my determination that it is in Julia’s best interests not to disturb her present schooling. She will remain at Terry Fox Public School. The Respondent’s motion is dismissed.

[ 28 ] Finally, by way of comment, I note that there appears to be an issue of whether the joint custody regime is appropriate between the parties at this time, considering the fact that it is common ground that these parties cannot communicate on the telephone and were unable to even engage in making this major decision together concerning Julia. Neither the Application nor the Answer raised that issue and it may be something that the parties wish to avoid dealing with because of the costs, both emotional and financial, of further litigation. Ms. Malott did ask in her Answer for an order appointing the Office of the Children’s Lawyer; there was no motion before me and I decline to make that appointment unless it is on consent; the parties have leave to deal with that matter prior to the case conference by way of a 14B motion on consent (although I have doubts that the Children’s Lawyer will appoint a lawyer for Julia on the schooling issue alone). The next step in this proceeding is a case conference on a date to be set by the trial coordinator.

[ 29 ] I am assuming that there is no issue as to the costs of this motion. If I am wrong, and if the parties cannot agree as to costs, they may make an appointment through the trial coordinator before me to speak to the issue of costs.

McDERMOT J.

Date: September 21, 2012

[^1]: O. Reg. 114/99