COURT FILE NO.: FC-12-1499

DATE: 2014/09/04

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JULIANNA LOUISE CODERRE, Applicant

AND

JULUS ANDREAS FRAGNITO, Respondent

BEFORE: Mr. Justice Marc R. Labrosse

COUNSEL: Karen Leef, Counsel for the Applicant

Edith M. Holly Counsel for the Respondent

HEARD: August 25, 2014 at Ottawa

ENDORSEMENT

Overview

[1] In February 2014, the parties reached an agreement on all the issues with the exception of the choice of school for Kaylee Alena Fragnito (born April 12, 2010), starting in September 2014. The impact of this decision is significant for both parties as it is not in Kaylee’s best interests to travel 50% of the time during the school week from the residence of the parent who does not live in proximity to the chosen school. As such, that parent will see their access with Kaylee reduced to three weekends per month.

[2] This motion is brought by the Appliant Mother for an order that Kaylee attend Broadview Public School commencing September 2014 and an Order that during the school week, Kaylee shall have her primary residence with the Mother and have access with the Respondent Father three out of every four weekends. The Mother also seeks to have Kaylee’s health card and her immunization records.

[3] The Respondent Father requests the same relief but for Kaylee to attend George Vanier Catholic School in Kanata, that primary residence during the school week be with him in a shared residence with his parents and that the Applicant Mother shall have access with Kaylee three out of every four weekends. As this is the only remaining issue to be decided in the parties’ dispute, the parties have agreed to proceed by way of long motion rather than incurring the expense of a trial.

[4] Although no cross‑motion has been filed by the Father seeking his requested relief, the Applicant consents to the matter proceeding as a decision between the two schools and a determination of access for the parent who does not reside in proximity to the school.

Report of the Office of the Children’s Lawyer

[5] The evidence before the Court includes the recommendations of Barbara Mitchell, Clinical Investigator engaged by the Office of the Children’s Lawyer (“OCL”). The OCL Report identifies both parents as being good parents who love Kaylee. Both their residences are suitable for Kaylee and she is well cared for in both homes.

[6] The OCL does not recommend a shared parenting schedule where the Father resides in Kanata and the Mother in Westboro. There is a history of lateness by the Father for pick‑up and drop‑off and it would involve a number of transitions for Kaylee, which are not in her best interests as she becomes used to a new school routine.

[7] The OCL recommendations side with the Applicant Mother on the basis of the need for Kaylee to reside in proximity to her school during the school week and the benefit of residing with her half‑sister, Savannah, who is in the Mother’s care on a shared parenting schedule with Savannah’s father.

[8] The OCL Report notes that there is evidence that the Respondent Father has challenges when it comes to organization of his affairs and that he has been unwilling to deal with outside agencies in the past. In 2013, he refused to participate in the first OCL investigation. Further, he has a history of being late for pick‑up and drop‑off although I note that he has been responsible for more of the travelling for access visits. Concern is raised about his ability to deal with and collaborate with the school and the demands of parenting a child during the school week.

[9] By contrast, the Applicant Mother presents as organized. She was clear on her schedule and had shown herself able to parent Kaylee’s older half‑sister, Savannah, on a part‑time basis.

[10] The OCL Report concludes with a recommendation that Kaylee reside with her Mother during the school week and that she be with the Father three weekends out of four in order to maintain their relationship.

Position of the Parties

[11] The Applicant Mother states that she is in the best position to meet Kaylee’s needs during the school week. She is a stay‑at‑home mother as she does not work. She is currently receiving ODSP benefits and has secured rental accommodations, which she plans on keeping long‑term to provide a stable home environment for both Kaylee and Savannah.

[12] The Mother is diagnosed as being bipolar and the OCL Report indicates that there are no concerns raised within her support network as to her ability to care for Kaylee during the school week. The Mother has had Kaylee with her since February 2014 on a shared parenting schedule and both parties acknowledge that this has gone reportedly well. While the Respondent Father raises issues as to her stability, these issues were investigated by the OCL and have not been found to be of concern.

[13] The Mother supports the finding of the OCL Report and particularly, the fact that it is not in Kaylee’s best interests to have shared parenting while the Respondent continues to reside in Kanata. The travel arrangements would not be practical. Further, the Mother would be limited in her ability to facilitate Kaylee’s travel from Kanata. In the past, she did take the bus part of the way to meet the Father for pick‑up and drop‑off, however, there were ongoing problems with the Father being late and the Mother having to wait with Kaylee for him to arrive. The Father has since done the bulk of the travel for pick‑up and drop‑off.

[14] The Father presents as being the parent who has principally cared for Kaylee since her birth. He refers to himself as a single parent for Kaylee during the first four years of her life. The Father sets out his desire to have Kaylee attend a Catholic school and to be baptized at some point when she is able to make her own decision on the choice of being baptized.

[15] Much of the Respondent’s affidavit in support of his position focuses on the fact that the mother abandoned Kaylee and that he raised Kaylee from her birth until January 2014 when the shared parenting regime was put in place.

[16] The Father seeks to have Kaylee raised in the Catholic faith and believes that it is in her best interest to attend a Catholic school in Kanata. The Father feels that it would be difficult for Kaylee to transition from her home in Kanata to living with her Mother during the school week. He is concerned that the Mother’s mental health may cause her to be overwhelmed with Kaylee and Savannah under her care.

[17] In the alternative, the Father is open the continuation of the joint parenting schedule and that his work schedule would allow him to make the necessary travel arrangements for pick‑up and drop‑off at the school of choice.

Analysis

[18] The criteria for the Court to consider, when deciding a dispute related to schooling, is the best interests of the child. Section 24 of the Children’s Law Reform Act sets out the criteria that the court is to consider.

[19] I conclude that it is in Kaylee’s best interests to reside with her Mother during most of the school week and be enrolled in Broadview Public School. My findings as to Kaylee’s best interests are based on the following:

a. Kaylee is 4 years old and starting school. I agree with the OCL Report that it is important to provide stability at this time and limit her travel and resulting transitions.

b. The challenges of having the Respondent solely responsible for travel arrangements to and from school are not feasible with a shared parenting schedule.

c. Kaylee would benefit in being at the same school as her half‑sister, Savannah, with whom she has a close relationship. They would be sharing a room with bunk beds at the Mother’s home and this does not pose any concerns to the parties or the OCL.

d. Although the parties agree that a Catholic upbringing would be beneficial for Kaylee, the importance of attending a Catholic school can be mitigated by having additional weekend time with the Father to attend religious functions and church with the Father’s extended family.

e. While Kaylee may be more comfortable at her Father’s house in Kanata as she has spent more time in that house, she appears to be a very well‑adjusted child who has been able to make the transition to the shared parenting schedule and residing half‑time with her Mother.

[20] I note that the Father has made several references to the Mother’s ability to cope with having Kaylee with her during the school week and her need for support. This could possibly be more important on weeks that she has Savannah with her. This issue was investigated by the OCL and those concerns are not shared. The information provided in both OCL reports from Dr. Christine Dickson, the mother’s psychiatrist and Lynn Sherwood, her counsellor, suggest that the Mother’s Bipolar Disorder should not prevent the Mother from having Kaylee reside with her during the school week. I find that the Mother is an organized person who is capable of parenting Kaylee and her sister, Savannah, during the school week.

[21] With respect to access for the Father, it should be maximized where possible. The Mother confirmed at the hearing of this motion that she would consent to the Father’s weekend access commencing on Thursday after school and ending on Monday morning when the Father would drop Kaylee off at school. However, this requires that the Father ensure that he is able to meet the pick‑up and drop‑off needs at school along with his work schedule. If the current work schedule does not allow for the extended weekends, the Mother should make efforts to accommodate the Father’s work schedule such as drop‑off taking place on Sunday evening. Further, the access schedule should attempt to maximize the time Kaylee spends with both her half‑sisters. If the parties are unable to reach a consensus on the evolution of the extended weekend access, I may be contacted to decide the issue.

[22] Finally, I am of the view that the original Health Cards and immunization records should be given to the Mother with copies provided to the Father.

Conclusion

[23] In closing, it is important to state that I believe that the parties should have an equal shared parenting schedule where possible. As set out in the OCL Report, spending equal time with both parents is in the best interest of Kaylee, however it is impractical given the travel requirements and the fact that only the Father has a vehicle. Should the parties be able to simplify the travel arrangements or both reside within reasonable proximity of Broadview Public School, the parenting schedule should be revisited.

[24] For the reasons set out above, I hereby order:

a. That the child, Kaylee Alena Fragnito (born April 12, 2010), shall attend Broadview Public School commencing September 2014.

b. That during the months of September to June of each year, the parenting schedule for Kaylee shall be as follows:

i. Kalyee shall reside primarily with the Applicant during the school year;

ii. Kaylee shall be in the care of the Respondent from Thursday after school until Monday morning before school for three out of four weekends. If there is no school on the Monday, then access shall extend until Tuesday before school;

iii. At all other times, Kaylee shall be in the care of the Applicant;

iv. Where possible, weekend access shall be coordinated so that Kaylee is with the Respondent on the two weekends that her half‑sister, Krista, visits the Respondent and if possible, the one weekend Kaylee is with the Applicant is when her half‑sister, Savannah, resides with the Applicant.

c. During the months of July and August, the parties will have an equal parenting schedule for Kaylee to be agreed upon between the parties, failing which the matter can be brought back to the court.

d. The original Health Card and immunization records shall be retained by the Mother and made available to the Father were required.

[25] The Applicant has been substantially successful on this motion. If the parties cannot agree on the costs of this motion, the parties may write to me. The Applicant shall provide written costs submissions within 14 days of the date of release of this Endorsement. Thereafter, the Respondent shall provide written costs submissions within 14 days. Thereafter, the Applicant shall have a right of reply within 7 days. Each costs submission shall be no longer than two pages in length, excluding the Costs Outline. The parties shall comply with Rule 4.01 of the Rules of Civil Procedure.

Mr. Justice Marc R. Labrosse

Date: September 4, 2014

COURT FILE NO.: FC-12-1499

DATE: 2014/09/04

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Party, Plaintiff(s)/Applicant(s)

AND

Party, Defendant(s)/ Respondent(s)

BEFORE: Judge

COUNSEL: Counsel, for the Plaintiff(s)/Applicant(s)

Counsel, for the Defendant(s)/ Respondent(s)

ENDORSEMENT

Labrosse J.

Released: September 4, 2014