KINGSTON COURT FILE NO.: 76/12
DATE: 20150918
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Christopher Holowach, Applicant
AND
Brianna Jeffrey, Respondent
BEFORE: Mr. Justice Timothy Minnema
COUNSEL: Theresa Van Luven, for the Applicant
Elizabeth French, for the Respondent
HEARD: September 15, 2015
ENDORSEMENT
MINNEMA, J.
Nature of the Motion/Issue
[1] The child Austin Holowach Jeffrey will soon turn four, and the parties who are his mother and father agree that he should be enrolled in full-time Junior Kindergarten for the current year starting September 8, 2015. They have shared custody. The father lives in Kingston, the mother in a small community a half hour north of Kingston called Hartington. Both parents are young, in their mid-twenties. The mother lives with her mother and wants the child to go to school near her home. The father lives independently, and wants the child to go to school near his home. The consent order that gives them joint custody and shared parenting is dated March 4, 2014. It says that they must mutually agree to major education decisions, failing which they shall engage in mediation, failing which they may submit the matter to the court. Mediation has been tried without a resolution. This is a motion to fix the child’s school.
Law
[2] This motion took longer than an hour to argue. Counsel did not do the required factums. When I asked them about the applicable law, they had no submissions other than to indicate that this was just a factual issue requiring a quick judgment call (the child has already missed over a week of school) based on the child’s best interests. However, in my view, as with any court decision, the applicable law must be considered.
[3] The legal test for custody is found in the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended (“CLRA”). Consistent with the March 4, 2014 court order, Section 20(7) allows me to determine specific incidents of custody. Section 24(1) directs me to determine custody, and by implication incidents of custody, on the basis of the child’s best interest in accordance with subsections 24(2), (3) and (4). Subsection 24(2) directs the court to consider all the child’s needs and circumstances with specific items mentioned, but that list is not exhaustive and many do not apply to the case before me. Although dealing with a request to change schools, I am aware of the decision in Askalan v. Taleb, 2012 ONSC 4746, which says at para. 32(c):
While each instance is very fact specific, factors which may be taken into account by the court in determining the best interests of the child include assessing any impact on the stability of the child. This may include examining … whether there is any prospect of one of the parties moving in the near future; where the child was born and raised; whether a move will mean new child care providers or other unsettling features. The court will also look to any decisions that were made by the parents prior to the separation or at the time of separation with respect to schooling. Any problems with the present school will be considered.
[4] The parties have their own lists of circumstances that they consider important. The mother cites family supports near her school of choice, and the father cites continuity with the child’s friends in his day-care. Travel is an issue between them. They both made submissions on the quality of the respective schools and on French Immersion.
Analysis: Child’s Needs and Circumstances
(a) Plans
[5] The mother’s plan is that Austin will go to Harrowsmith Public School. It is close to where she lives, again about a half hour north of where the father resides. The evidence is that it does not have a before and after school program, but the mother indicates that is immaterial as she has numerous family in the area who are willing to care for the child if ever she or the father are not available.
[6] The mother has indicated to the father that she plans to go to St. Lawrence College, which is in Kingston. She asserts that, regardless, her plan is to live in Hartington and never leave. She is currently has a part-time job running a day-care out of her mother’s home with three children, although this is new and there were no details about the arrangement in the sense of whether it is informal or an actual licensed business.
[7] The father’s plan is that Austin will go to school at Polson Park Public School. It is close to his home in Kingston, and has a before and after school program that is run by the local Y.M.C.A. which is also the child’s current day-care.
[8] It was indicated in submissions that the father works part-time for a drug store and is in a training program for a full-time position there. In his materials he says that he plans to return to school at either St. Lawrence College or Queen’s University, both of which are in Kingston and not too far from his home and the Polson Park school.
[9] As to the prospects of either party moving, there is no crystal ball. While the mother’s commitment to never leave Hartington seems somewhat unrealistic given her young age, there is nothing before me to suggest that either party will be moving in the near future.
[10] The father suggests that the child’s extracurricular activities, such as organized sports, will be in Kingston, and it is therefore important that he go to school with the other children in those programs. The mother notes that similar programs are offered in her area, and she makes the same argument that Austin should therefore go to school in Harrowsmith for the same reason.
(b) Emotional Ties and Relationships
(i) Parents
[11] There is no issue regarding the child’s close relationship to his parents, who he sees an equal amount of time. After finishing college in Kingston where the parties met, the father lived with his parents for about two years and worked in Orleans, Ontario, however the parties had joint custody since 2012. The father’s time with the child expanded before he moved to Kingston around November of 2014, at which time the equal time parenting arrangement began.
(ii) Family Members and Others
[12] The mother indicates that she has many cousins that attend the Harrowsmith school, and that more will be attending in future years. The father’s response, which went unanswered in the mother’s reply affidavit, was that these are all second or more distant cousins to Austin and none will be in his grade.
[13] The father has some family in Kingston. It is not disputed that the mother has many family members living near Hartington. The mother refers to them as supports, but other than supporting her in her plan for before and after school care for Austin, and care on days when the school is closed, it is not clear what supports the mother requires. Austin has ample opportunity to see these relatives within the shared custody arrangement. I fail to see this as a major factor in the choice of school, other than as already noted.
[14] The father notes that Austin has been going to the YMCA day-care, and suggests that other children who are graduating from that program and going to Junior Kindergarten will also be going to Polson Park because it is the nearest school, and that this will provide Austin with a level of comfort and familiarity. However, there is no actual evidence in the nature of specific friends or examples of children Austin’s age moving on mass to Polson Park. I am not prepared to make that inference.
(c) Status Quo and Stability
[15] The child has been living equally between Kingston and Hartington for about ten months. As noted, the child’s current daycare is the Y.M.C.A. near the father’s home and the Polson Park school. It was chosen by the parties together because the father had no transportation options while the mother did. The mother says both parties used it “sporadically”, and it was not utilized it when they were available during the day to care for the child. However, the father indicates he used it consistently when he was working, as did the mother although in recent months (the summer) she elected not to take the child on her days. There was no evidence from the day-care. A recent cancellation by the mother of the daycare and its subsequent reinstatement by the father was an issue between them, but in my view is a past event and not relevant.
(d) Travel Between Homes and Daycare
[16] The parties are of limited means, including having limited access to economical and reliable transportation. Travel is a rather complicated aspect of the dispute between them. In a August 6, 2014 consent order the mother accommodated the father by agreeing to do the driving unless the father obtained access to a vehicle. It is suggested that he has taken advantage of that goodwill by making no effort to secure a car. I suspect this issue might be addressed in the main proceeding. However, with respect to the motion before me, it is not significant factor. The mother has said she will make the travel work for the child regardless of which school I choose. More importantly, the sole consideration in this analysis is the best interest of the child, and not the best interests of the parents: see Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27 at para. 49. That principle is echoed in the March 4, 2014 consent order where, at paragraph 2(i), they agreed that the child’s needs will be paramount and trump their own convenience, needs, and interests.
(e) Quality of the Respective Schools
[17] Both parties made submission on the quality and services available at the respective schools, suggesting it was important. The mother has a concern about continuity, noting that Polson Park only goes to Grade 6 while Harrowsmith goes to Grade 8. The father claims that Polson Park has better programs. They both relied on the Education Quality and Accountability Office’s school and school board profiles, and in particular the reports on Provincial testing on reading, writing, and mathematics that take place at Grade 3.
[18] Interestingly, the courts are generally averse to relying on such rating information: for example see Justice Price’s recent review of decisions that excluded admission of the Fraser Institute’s school rankings: D.W. v. G.N.W., 2015 ONSC 479, [2015] O.J. No. 325 (Ont. S.C.). However, this case is somewhat different as both parties have relied on the EQAO report. This was inadvertent on the part of the mother, as she misinterpreted the numbers. Contrary to her position, the report shows that Polson Park has higher standard test results in each of the three categories. However, it is still not sufficiently clear to me what those results mean. As an example, the data indicates that Harrowsmith has a significantly higher number of children with special education needs, and I do not know what impact if any that would have on the overall test results.
[19] I have no intention of pronouncing which of the two schools is better based on just one consideration. What I will say, however, is that the father has provided much more detailed information on the programs available at Polson Park and on that school’s achievements, making it evident it can meet the child’s needs. While I am confident the Harrowsmith could also meet the child’s needs, there is less evidence before me on what the school has to offer.
(f) French Immersion
[20] Polson Park P.S. has a French Immersion program that starts in Junior Kindergarten. The mother indicates that Harrowsmith also has a French Immersion program, but, oddly, it does not start until Grade 7. She has not provided any information directly from the school.
[21] Both parties view schooling in French as positive. The father feels it is important given that his parents and extended family are largely bilingual. While having some abilities in that language, he is not. The mother is not opposed to French Immersion. In fact she supports it, and believes that it will lead to greater employment opportunities for the child. The Court of Appeal in Perron v. Perron, 2012 ONCA 811, [2012] O.J. No. 5502 at para. 20, also noted that bilingualism provides a number of advantages in terms of employment.
[22] While the mother supports French immersion, she implies that no decision should be made on a program until Austin is old enough to convey his own wishes. In my view, this is not a decision that needs to wait on the child, and the parents or court are able to make it in the child’s best interests. The mother also feels that French immersion should wait until after it has been ascertained whether or not Austin has learning disabilities. However, there is no suggestion anywhere in the materials that Austin has or might have a learning disability. These arguments by the mother seem to be tailored to dovetail with the French program offered only after eight years by the school that she prefers, suggesting that her convenience and wish for a school close to her might be clouding what program is best for the child.
Decision
[23] I am disappointed that the time the child has missed school already has been added to somewhat by the few days it took me to review the matter and render this decision. However, without the required factums, a decision immediately from the bench, rather than on reserve, was precluded.
[24] In my view there is little to choose from between these two schools related to the child’s needs and circumstances. However, given the importance both parties place on of French immersion, I find that the most reliable evidence tips the scale in favour of Polson Park. The evidence also more directly establishes that school’s programs and achievements, such that I have full confidence in what it has to offer Austin. I therefore find that attending Polson Park Public School is in the best interests of this particular child, and so order.
[25] The parties both came to court in good faith and with good arguments rooted in their sincere and not unreasonably held beliefs about what school is best for Austin. They followed the path set out by the March 4, 2014 order in arriving here. In all the circumstances, in my view this is not an appropriate case for costs.
Mr. Justice Timothy Minnema
Date: September 18, 2015
KINGSTON COURT FILE NO.: 76/12
DATE: 20150918
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Christopher Holowach
Applicant
– and –
Brianna Jeffrey
Respondent
BEFORE: Mr. Justice Timothy Minnema
COUNSEL: Theresa Van Luven, for the Applicant
Elizabeth French, for the Respondent
ENDORSEMENT
Mr. Justice Timothy Minnema
Released: September 18, 2015