ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: D603/13
DATE: 2013-08-30
BETWEEN:
Oric Grey
Applicant
– and –
Sherri Grey
Respondent
Mr. Geoffrey Carpenter
Counsel for the Applicant
Mr. Henry Szpiech
Counsel for the Defendant
HEARD: August 30, 2013
THE HONOURABLE MR. JUSTICE PAZARATZ
This urgent motion has been brought on the Friday before Labor Day weekend. The parents cannot agree on where their two sons Avery (who just turned six) and Jacob (age 5) should start grade one on Tuesday.
The Applicant father is 39. The Respondent mother is 41. The parties started living together in 2003. They were married on March 22, 2005. They separated on March 26, 2013. They have these two children between them. The Applicant father also has children ages 17 and 12 from other relationships. The 17-year-old is living with him. He visits the 12-year-old.
Upon separation the Respondent mother moved out of the jointly owned matrimonial home with their two sons, relocating to her mother’s home in Grimsby, Ontario. The parties had differing characterizations as to the circumstances under which she moved out of the home.
The matter came before Justice Mazza as an emergency motion on April 12, 2013. Justice Mazza’s endorsement included the following:
a. He was satisfied that the matter was urgent and that the court should make an order.
b. He concluded that it would not be in the best interests of the children to require that they be returned to the matrimonial home.
c. He stated “the Respondent appears to be the primary caregiver.”
d. He stated “I am also satisfied that the Applicant should have substantial access to the children within the context of his work requirements.”
e. He made no order for custody.
f. He ordered that the children would reside with the Respondent but the Applicant would have access to the children each weekend from Friday 5 PM until Sunday 7 PM until further order of the court.
On separation both children were attending full-day senior kindergarten at Helen Detwiler school in Hamilton, the school closest to the matrimonial home where they had been residing. They had also attended Helen Detwiler on a half-day basis for the 2011/2012 school year.
For the balance of the 2012/2013 school year they continued to attend Helen Detwiler school, with the maternal grandmother driving them back and forth between Grimsby and Hamilton. Both parents have daytime employment commitments, and the maternal grandmother had previously been extensively involved in assisting them with caregiving.
On July 26, 2013, Justice T. Lofchik granted a temporary order based upon interim minutes of settlement negotiated when the parties were represented by their current counsel. That temporary order included the following provisions:
a. The children would continue to reside with the Respondent mother and the Applicant “shall have access to the children” each weekend from Friday 5 PM to Sunday 7 PM, as per the order of Justice Mazza dated April 12, 2013.
b. Lourdes Geraldo is appointed to conduct a custody/access assessment, the cost to be borne equally between the parties.
c. There were specific provisions for 2013 summer vacation sharing.
d. The children’s passports are to remain in the possession of the Respondent mother.
e. The Applicant father is to pay child support in the sum of $1,051.00 per month based upon his represented income of $71,300.00 per year commencing August 1, 2013.
f. If the parties are unable to reach agreement with respect to either party buying out the interest of the other in the matrimonial home by July 31, 2013, the matrimonial home shall then be immediately listed for sale at a specified price.
g. There were provisions in relation to disclosure.
Notably, neither order included any determination as to which school the children should attend.
The Respondent mother argues that the affidavit materials she filed prior to the July 26, 2013 motion [which resulted in a negotiated settlement] clearly identified that while she had agreed that the children would finish off the 2012/2013 school year at Helen Detwiler school in Hamilton, she was proposing that in September 2013 the children would commence grade one in Grimsby, where she and the children have been residing primarily since the date of separation. She says she plans to remain in Grimsby.
The Applicant father protests that he was never consulted about a proposed change in the children’s school, and in his view there is nothing in Justice Lofchik’s July 26, 2013 order which authorizes the Respondent mother to unilaterally take the children out of the school they attended last year, and enroll them in school in a different city this year.
Both parties seem to acknowledge that it would have been better if this schooling issue had been specifically addressed when they entered into their minutes of settlement on July 26, 2013. As well, both parties appear to be keenly aware of the potential implications with respect to this custody litigation, depending on whether the children are enrolled in school in the city where the mother lives or where the father lives.
The mothers position:
a. She has always been the primary caregiver for the children.
b. Since separation on March 26, 2013 – and certainly since Justice Mazza’s temporary temporary order of April 12, 2013 – the children have been residing primarily with the mother, with the father having “access” each weekend.
c. Justice Lofchik’s consent order of July 26, 2013 sets out that the children’s Monday to Friday routine shall be based in the Respondent mother’s home. Their weekend routine shall be with the father in the former matrimonial home.
d. It makes sense for the children to attend at the school closest to the residence where they will be residing on school days. Indeed, she says that’s one of the reasons she agreed the Applicant father could have the children each weekend – because she wanted them to have a stable Monday to Friday routine with her in Grimsby.
e. She proposes that the children attend Grand Avenue public school in Grimsby, which is closer to their current residence than Helen Detwiler school was to the former matrimonial home.
f. The mother has to leave for work very early every morning, so the maternal grandmother would see the children off to school in the morning and then meet them after school and care for them until the mother returns at the end of the day.
g. If the children attend school in Grimsby, they will only have to travel a short distance between the maternal grandmother’s home and Grand Avenue public school.
h. In contrast, if the children attend Helen Detwiler school in Hamilton, this will entail a 36 km drive each way, including highway travel. The trip takes approximately 30 minutes each way, meaning that the children would have to travel by car 60 minutes per day, and the maternal grandmother would have to travel by car twice that amount each day [i.e. to drive them to school in the morning and then to drive back to pick them up in the afternoon]. This extensive daily commute would not only be needlessly onerous and fatiguing for young children, but it would also require that they wake up earlier in the morning to allow for extra travel time to school.
i. The Applicant father acknowledges that because of his own employment commitments he is not in a position to assist with any of the travel.
- The father’s position:
a. He is seriously advancing a custody claim. There should be no presumption the mother’s claim is more likely to succeed.
b. The children were previously enrolled in Helen Detwiler school. This school represents stability for them.
c. The maternal grandmother was able to drive the children to and from Helen Detwiler school in Hamilton for the balance of the 2012/2013 school year. This should continue. [The mother says she allowed the children to finish off the school year at their former school, but on a long-term basis such extensive travel is no longer viable or appropriate].
d. The children are well settled in Helen Detwiler school and the status quo shouldn’t be disrupted. [The mother says given their ages and the fact that they are only starting grade one in September, there is no significant academic history in the Hamilton school; they have few friends attending grade one in Hamilton; and the transition to a new school in their new neighborhood in Grimsby would be uneventful for them].
e. He hopes to purchase the Respondent’s interest in the matrimonial home, although he has missed the July 31, 2013 buyout deadline set out in Justice Lofchik’s order. Both parties acknowledge that the matrimonial home is going to be listed for sale. Even if the father is unable to purchase the matrimonial home, he plans to find alternate accommodation in the same neighborhood, and his custody proposal would entail both children attending Helen Detwiler school which would be close to wherever he is living.
f. The custody/access assessment process is soon to be underway, with a report hopefully ready within a couple of months. It would be less disruptive to leave the children in Helen Detwiler school at least for the fall term. If the Applicant is successful in obtaining custody they won’t have to change schools. If the Respondent obtains custody, the children can be transferred to school in Grimsby in January 2014. [This of course presumes that even if the custody/access assessment is completed within a few months, that this would lead to a resolution of the entire custody issue within the next four months. The arrival of a custody/access assessment will not necessarily be determinative of the issue, and if the matter has to proceed to trial, it is questionable whether a final judicial determination of custody would even be available within the 2013/2014 school year.]
g. Sending the children to school in Grimsby might be more convenient for the mother, but it is not in the best interests of the children.
h. The mother should not be allowed to create a new status quo favorable to her custody claim, by enrolling the children in a school in her district.
Counsel have referred me to a number of cases, including Kimpton v. Kimpton [2002] O.J. No 5367; N.S. v. C.N. 2012 ONSC 4993; Perchaluk v. Perchaluk 2012 ONCJ 525; Sznajder v. Sznajder 2009 ONCJ 4; Ransome v. Coulter 2012 CarswellNWT 73; and Malott v. Powell 2012 ONSC 5344. All of these “selection of school” cases are fact-specific.
I believe the relevant considerations include the following:
a. Ordinarily, the selection of a school for children would be incidental to the rights of the custodial parent. In this case, neither party has custody.
b. However, it is clear that the Respondent mother has primary residence of the children, and more notably she has complete residential responsibility for the children on all school days.
c. On an interim basis, particularly in the face of a custody dispute, the status quo should be maintained as much as possible. Children should be exposed to as little disruption as possible.
d. There should also be maximum contact with both parents. Here, that has already been accomplished through the July 26, 2013 consent order.
e. In this case, for the most part the status quo was that the children lived in the matrimonial home in Hamilton with both parents and they were able to quite conveniently attend nearby Helen Detwiler school, with little disruption or travel.
f. That status quo is no longer an option. They can either attend a new school very near to their Monday to Friday residence in Grimsby – again with very little disruption or travel – or in the alternative that they can attend their former school in Hamilton, but with a huge amount of disruption to their daily routine.
g. I agree with the father that the court should not sanction or facilitate efforts by either parent to gain a strategic advantage in a custody case. The reality, of course, is that children’s lives cannot be placed on hold while parents investigate options and traverse the complex and time-consuming litigation process. Temporary arrangements quite commonly have to be determined, and almost inevitably those temporary arrangements might have some strategic implications with respect to the overall litigation. The court should minimize this as much as possible – but ultimately decisions have to be made based on the best interests of the children – and not based on the best interests of any litigant.
- There are many unknowns:
a. We don’t know for sure where the mother will end up living, but she says she plans to stay near Grand Avenue public school in Grimsby.
b. We don’t know for sure where the father will end up living, but similarly he says he plans to stay in the Helen Detwiler school district in Hamilton.
c. We don’t know what the ultimate custody/access arrangements are going to look like.
d. We certainly don’t know how long it’s going to take before those issues are going to be decided on a final basis.
- In focusing on the best interests of the children, I have to focus on the impact that each parent’s proposal would have on each child’s daily experience – particularly in the immediate future:
a. It would be preferable that the children not have to change schools, but given the fact that they are only entering grade one, I do not believe changing schools at this stage would be a major adjustment.
b. There is no reason to believe one school is “better” than the other.
c. I commend the mother’s decision to allow the children to complete the 2012/2013 school year at Helen Detwiler. School transitions are best made between academic years.
d. I do not regard having the children wake up early each morning and commute one hour each day to and from school as a realistic, preferred, sustainable or beneficial option for them.
e. The temporary order of July 26, 2013 brings structure and stability to the children’s lives. It places both parents in a strong position to advance their respective custody claims.
f. With the parties having agreed that the children will always reside with the Respondent mother on weekdays, it is more convenient and less disruptive for the children to attend school near their Monday to Friday home.
g. Ultimately, the selection of a school must be determined purely on the basis of which of the two proposals is better for the children.
The order: The children Avery and Jacob shall commence grade one at Grand Avenue School in Grimsby.
Counsel may speak to me about any residual issues. If only costs needs to be addressed, counsel may file written submissions (with the completion of submissions to be within 60 days).
Pazaratz, J.
Released: August 30, 2013
COURT FILE NO.: D603/13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Oric Grey Applicant
And
Sherri Grey Respondent
REASONS FOR JUDGMENT
The Honourable Justice A. Pazaratz
Released: August 30, 2013