CITATION: Laird v. Laird, 2015 ONSC 1005
COURT FILE NO.: FS 12-502 (Brt)
DATE: 2015-Feb-23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Shelley Laird
Applicant
– and –
Ian Laird
Respondent
B. Culp, for the Applicant
K. Davis, for the Respondent
HEARD: February 6, 2015
Justice Harper
Reasons for judgment
ISSUES
[1] This is a motion brought by the mother, Shelly Laird. She seeks an order that would allow her to change the schooling of her twin children, Eric and Evan, born February 3, 2004. They are presently 11 years old.
BACKGROUND
[2] The mother and the father, Ian Laird, separated on March 3, 2012. They entered into interim minutes of settlement on February 20, 2013. That agreement set out terms of a joint custody, shared parenting arrangement. It is clear from the agreement that both parents were committed to share the decision making relating to their children. They also created a residency schedule that provided equal time sharing with each parent.
[3] The agreement also provided that the children would continue to attend school at the Berean Baptist Church. The children had attended school at that church since they started school in junior kindergarten at age 4. The school is run by the church and has approximately 29 students. It operates according to an ACG program that is approved by The Ministry of Education of Ontario.
[4] The mother was previously married and has been a member of this same church for many years. She and her former husband were also members of the church and she sent her three children of that marriage to the same church school. Her former husband died. She subsequently married Ian Laird on June 8, 2002. The mother’s former children attended that church school until they completed their grade 12 education.
[5] Approximately one year prior to the separation of Ian Laird and Shelly Laird, Shelly started to withdraw from her involvement with the church. At a meeting that took place at the church, the mother was advised by the pastor of the church that she could no longer be a member of the church as she admitted that she had committed adultery. By the time the parties separated, she was not attending the church or participating in the schooling as she had before.
Volunteer or Home Schooling
[6] The mother claims that her involvement with the church school was one in which she was home schooling the children in the basement of the church. Her submission is that the principle of the church school is the pastor’s wife and she does not have a teaching certificate. Mrs. Laird also claims that some of the other mothers who were involved in the school were also home schooling the children in the church basement and that there was no teacher with a recognized teaching certificate.
[7] The mother submits that she has been “shunned” by the church and not allowed to home school her children anymore as a result of her admitted adultery. She states that the Pastor wrote a letter advising that she could no longer attend at the school as she was no longer a member of the church. She was informed that she was able to attend to get information and attend talk to the teachers and otherwise participate in some the children’s church activities. The core of her complaint is that her children are not only deprived of her home schooling but they are in a schooling environment that excludes their mother who is shunned by the church.
[8] The father claims that the mother was never a “home schooler”. She was a parent volunteer or parent monitor who attended at the school to assist the teachers in the normal course of their school. He contends that her involvement has been no greater or less than any parent volunteer of any school regardless or the school being private or public.
[9] The father also asserts that the mother is now complaining about the fact that the teachers and the principal do not have teaching certificates, however she completely ignored the fact that the program of the church school has been recognized by the School Board as an Accelerated Christian Education (ACE) program. I find that her recent complaints about the quality of education is completely inconsistent with the fact that she and all of her children have been involved with the very same school and schooling program for over 2 decades.
[10] With respect to the allegation of shunning, the father submits that this is completely unfounded. The only limitation on the mother is that she is not allowed to attend and participate as a volunteer at the school as a result of her admitted adultery. He argues that this is not shunning, it is simply consistent with the teachings and beliefs of the former religion that the mother practised and the children have known all of their lives. The church does not allow someone who has committed adultery to be a member of their church and a non-member of their church cannot participate in the church’s school.
The Law and Analysis
[11] The court must make any decision relating to incidents of custody only on the basis of the best interests of the children. As stated in Perron v, Perron (2012) ONCA 881 at para 49:
It is also important to emphasize that it is quite exceptional to include in a custody order a condition concerning the choice of school. As already mentioned above, educational decisions and other decisions relating to the incidents of custody are almost always left to the custodial parent (or parents). In general, it is desirable to leave the day-to-day decision-making about parenting to the custodial parent(s): [page611] MacGyver, at paras. 30-31; Sawatsky v. Sherris, 2002 MBCA 143, [2002] M.J. No. 429, 170 Man. R. (2d) 51 (C.A.), at para. 5.
[12] This case is made more difficult in that there is no one custodial parent. When the parties have entered into a shared custodial agreement, leaving the day to day decision making to the custodial parent is not an option. In these circumstances, the court must isolate education as an incident of custody and make a decision that is solely based on what is in the best interest of the children.
[13] In considering the best interests of the child, I do take into consideration all of the factors set out in the Children’s Law Reform Act s. 24:
Best interests of the child
(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.
Past conduct
(3) A person’s past conduct shall be considered only,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1).
Violence and abuse
(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person’s household; or
(d) any child. 2006, c. 1, s. 3 (1).
[14] There is no question that both of these parents love their children and that their children love them. In this case, the more significant factors, I must consider are s.24(2)(d)(e):
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
[15] These children have had a stable and consistent involvement with each parent to this point in time. This stability was grounded in their commitment to share the parenting of these children. As a starting point, I go back to the parents’ agreement that was entered into in 2013. This agreement established that, in the parents’ view, it was in the children’s best interest to have a shared and equal involvement with each parent into the lives of these children after separation. I find it extremely significant that the agreement was entered into almost 2 years after the mother had already withdrawn from her involvement with the church school. Despite her withdrawal and her being on notice that she could no longer be a member of the church, the mother included in the 2013 agreement with the father that the children would “continue” to be educated at the church school that they had always attended. In my view, the mother has put forward no evidence that would demonstrate a change in the circumstances that would require a change in the children’s schooling.
[16] I reject the assertion that the mother is “shunned” by this church and that “shunning” has a deleterious impact on the relationship of the mother and her children. I find that the mother was not a home schooler. She was a volunteer. Her most significant complaint is that it is not in the best interest of the children for them to lose the home schooling of their mother. This may have had some merit if she was advancing that she wanted to continue with home schooling in some manner in order to be consistent for the children. However, she wants the children to be placed in a public school in order for them to get a broader education. Her position, in this regard, is not consistent with what she claims to be the main source of interruption in the children’s lives; that is the interruption of the involvement in their home schooling by her in the church basement.
[17] The mother files affidavits of her oldest children from a previous marriage. This child completed grade 12 at the church school and went on to compete grade 13, as it was a requirement for post-secondary at that time. That child completed post-secondary and went on to finish post graduate work. I do not give any weight to this child’s statements in his affidavit that his step-siblings would get a broader and more open education in the public system. I am not comparing the school programs and systems.
[18] I find that all of the new found complaints the mother has brought about the church school are without merit. She had a long standing history of involvement with all of her children in this school over many years. She also made a commitment, as evidenced by her agreement with the father, to continue the children in the school after she had withdrawn from attending at the school at least one year prior to the parities separation.
[19] The Office of the Children’s Lawyer was involved and assigned social worker, Brian Darcy, to assist. He filed an affidavit as part of this motion. He stated, at paragraph 34, of that affidavit:
“Eric and Evan were both unequivocal in the interviews that they had a strong preference to continue at Berean Baptist Academy. It has been a difficult time for them, experiencing their parents’ breakup. The school has been an important and stable part of their lives. I believe they would both be very emotionally upset to change schools.”
[20] I agree with the position of the OCL. The children strongly prefer to remain at their present school with the friends they have known all of their lives. These children have been through many difficult changes. They were emotionally struggling with their parents’ separation. Their mother’s boyfriend moved in with their mother and now he has recently separated from her. A change in the only school they have known since they were 4 years old would have a significant impact on their emotional wellbeing.
[21] I find that it is not in the children’s best interest for them to be moved from their present school arrangements. The mother’s motion is dismissed.
[22] Counsel may submit a brief costs submission outline within 30 days.
Harper, J.
Released: February 23, 2015
CITATION: Laird v. Laird, 2015 ONSC 1005
COURT FILE NO.: FS 12-502 (Brt)
DATE: 2015-Feb-23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Shelley Laird
Applicant
– and –
Ian Laird
Respondent
REASONS FOR JUDGMENT
Harper, J.
Released: February 23, 2015