PETERBOROUGH COURT FILE NO.: FC-06-424

DATE: 20140830

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Dana Doherty, Applicant

AND:

Matthew Leaver, Respondent

BEFORE: THE HON. MR. JUSTICE P.H. HOWDEN

COUNSEL:
R. Terrion, Duty Counsel for the Applicant/Responding Party

C. Jamieson, Counsel for the Respondent/Moving Party

HEARD: August 29, 2014

ENDORSEMENT

[1] The respondent brought a motion to prohibit the applicant from changing the school of the three children, Casselyn, Maddison, and Andrew, aged 11, 9 and 8 respectively from Otonabee Valley P.S. to James Strath P.S., and to change the access provisions for the father regarding Casselyn to coincide with the access provisions regarding the other two children. The second request is rather differently phrased in the notice of motion: instead of “to change”, the father puts the request as “enforcing access”. The effect, however, if allowed, would be to alter his access conditions as stated in the order of Scott J. on June 4, 2014, paras. 7 and 9.

[2] The applicant mother was not served with this motion until Friday August 22, only four business days before the return before me on a general motions day August 29, 2014 in Peterborough. She wishes further time to file and serve responding material so that the court would have a complete record before it before deciding to interfere or not with her decision as the primary custodial parent to change schools due to an alleged bullying issue that arose for one of them. Counsel requests that this matter be adjourned to September 26, 2014 to allow the mother time to file material in response which she now has put together on the basis that there is no urgency and that in fact, though the motion appears as one to preserve the status quo, it is being brought to change the special pick-up, drop-off arrangements and the child’s wishes provision.

[3] For the father, Ms. Jamieson stated that the bullying was really just one isolated incident, according to the father, and the attempted reconciliation counselling regarding Casselyn is not working and the access for her should be no different than for the younger children. She submitted that the most recent information requires that the children be allowed continuity in their education and that the primary custodial parent’s decision would be a serious change in their lives and a ruling should be made now.

[4] I have reviewed all the material filed by Mr. Leaver. It consists of: (i) a CAS report dated May 29, 2008 prompted by concerns for the mother’s mental health which caused the CAS to put the children in the custody of the father; the report indicated the severe difficulties for her caused by the inadequate support of Mr. Leaver and the change of custody (pp.18 and 22) and split care between them with the primary custodial time with Ms. Doherty with medical decisions to be the father’s and educational, the mother’s responsibility; (ii) report of the OCL dated February 27, 2013, leaving the primary custodial role to the mother and generous time with the father; email messages between the reconciliation counsellor and the parties; a recent letter from the counsellor in which he concluded that it would be in everyone’s interest to resolve and settle the custody/access situation so that the children could enjoy their time with both parents; and correspondence to Ms. Doherty by M.s Jamieson, unanswered, a school report, and the recent order of Scott J.

[5] In my view, the primary caregiver, the mother, has made a decision about the children’s school which would bring the school closer to the father’s residence but would mean a change for the children. She has been found by every assessor so far to be the one to provide the primary custodial care for these children. She wishes time to provide a response to a motion served on her within the minimum time allowed by the rules. In fact, in the 2008 assessment done by the person who later was the reconciliation counsellor without success for Casselyn, it was recommended that if the mother should elect to change the children’s school, it should be to a school closer to the father’s residence, which it is. There is no evidence to indicate that the new school would provide a lower level of education.

[6] As well, it has been held by the Ontario Court of Appeal and the Supreme Court of Canada that while there is no presumption in favour of the primary custodial parent’s decisions, the decisions of the parent who is primarily responsible for raising the children should be given “great respect”. Gordon v. Goertz (1996) 1996 191 (SCC), 19 RFL (4th) 177 (SCC); MacGyver v. Richards (1995), 1995 8886 (ON CA), 11 RFL (4th) 432 (Ont. C.A.) Young v. Young (1993), 1993 34 (SCC), 49 RFL (3d) 117 (SCC). I do not see how the court can do that without adjourning this case to allow the applicant mother to file responding material.

[7] I have reviewed all of the material filed by the father. Scott J.’s order did not mandate which school the children were to attend. It only referred to the school regarding the pick-up, drop-off provisions for the respondent regarding Casselyn.

[8] The respondent’s motion is adjourned to September 26, 2014 in Peterborough at 9:30 a.m. or as soon thereafter as it can be heard. I will not micro-manage the schooling decisions for these children which Ms. Doherty is within her rights to make and prima facie are entitled to some respect by the court at least for the four weeks involved here. There is no evidence that these children cannot do well or will be detrimentally affected by the change involved, whether the final decision is to leave them where the mother has decided or to return them to Otonabee Valley. The adjournment is granted as above, on terms that the mother must file all responding material and serve it on counsel for the father within 2 weeks hereof, and the father shall have 0ne week thereafter to deliver any reply material. So Ordered.

HOWDEN J.

Date: August 30, 2014