Court File and Parties

COURT FILE NO.: 105/16 DATE: 2016-09-07

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Jeff Cosentino Applicant – and – Jennifer Brittney Cosentino Respondent

COUNSEL: Sean D. Heeley, for the Applicant Richard G. Startek, for the Respondent

HEARD: September 6, 2016

THE HONOURABLE MR. JUSTICE A. PAZARATZ

Reasons for Judgment

[1] Parents should think twice about trying to move a child to another city in the middle of a custody dispute. In any contest between “best interests of the child” and “fait accompli” – best interests will always prevail.

[2] This was a last-minute motion to determine in which city three-year old Christian should commence junior kindergarten (“J.K.”) When the motion was argued on September 6, 2016 Christian was scheduled to start his first day of school the very next day.

Basic Facts

[3] The basic facts are straightforward:

a. The parties started living together in 2011. b. They were married on July 13, 2012. c. They separated on July 15, 2015. d. Since separation they have shared “50-50 custody” of their only child Christian, born December 16, 2012. e. The Applicant continues to reside in the former matrimonial home on Hamilton mountain. f. Following separation the Respondent briefly went to live in Ancaster. g. In December 2015 she moved to Niagara-on-the-Lake where she now owns a house with her new partner Zenon Kanopka, who operates a number of successful businesses in the Niagara region. h. On June 13, 2016 the Respondent gave birth to a child of her new relationship. i. The Applicant is steadily employed as a high school teacher in Oakville. j. The Respondent was previously employed but is now home full-time.

Separation Agreement

[4] Within a month of separation, on August 10, 2015 the parties executed a detailed five-page handwritten separation agreement which included the following provisions:

a. An acknowledgement that full financial disclosure has been made. b. An acknowledgement each party has “consulted a second party or attorney” with respect to their rights. c. An acknowledgement that each party is signing freely. d. Mutual releases with respect to spousal support. e. No further division of household contents or chattels. f. If disagreements arise, parties to attend mediation prior to court. g. Parties to share “50/50” custody of Christian. h. Applicant to pay $20,000 to the Respondent for her interest in the former matrimonial home (the monies were paid). i. Various child-support related provisions dividing expenses equally, with each party to be responsible for the child during their 50% time.

[5] The separation agreement also included the following specific wording in relation to the schooling issue which is now the subject of this motion:

“Preference for schooling will be discuss (sic) as needed & French Immersion options as he will attend either the school beside the condo (Annunciation) or St. Peter & Paul for French immersion (Sept 2016).”

The Motions

[6] On August 25, 2016 the Respondent mother brought a motion which included the following requests:

a. That the court make no temporary order as to custody or primary residence. b. Christian to be enrolled in junior kindergarten St. Michael’s Catholic Elementary School in Niagara-on-the-Lake, commencing September 2016. c. In the alternative, Christian to commence school in Niagara-on-the-Lake commencing January 2017, pending completion of a section 112 investigation recently commenced by the Children’s Lawyer (OCL). d. If Christian attends school in Niagara-on-the-Lake, Applicant to have timesharing three weekends per month; and a mid-week visit one day per week until 7:30 p.m.; with the Respondent to transport the child for the commencement of the Applicant’s weekends, and with the Applicant to assume transportation at all other times.

[7] On August 30, 2016 the Applicant brought a cross-motion which included the following requests:

a. Respondent’s motion to be dismissed. b. Christian to be enrolled in junior kindergarten at Annunciation of Our Lord School in Hamilton commencing September 2016. c. Parties to continue to share time with Christian on a 2-2-3 rotation. d. In the alternative, Christian to reside primarily with the Applicant with the Respondent to have three weekends per month and such mid-week evening access as the Respondent can accommodate.

Analysis

[8] At first glance, a motion about junior kindergarten might appear quite straightforward. Almost innocuous. Niagara-on-the-Lake or Hamilton? Sounds simple enough.

[9] But in reality, deciding where a three year old starts school has the potential to impact – and perhaps even determine – the long-term outcome of what is rapidly turning into a bitter custody dispute.

a. Once Christian is enrolled in any school, almost inevitably he will remain there for the entire 2016-2017 school year. b. Enrollment in school in either city will mean that the child’s primary residence will shift in favour of the parent who lives in that city. Equal time – and equal parenting -- in almost any format will no longer be viable once school is in session, given the distance and travel times involved. c. After Christian becomes entrenched in any particular school, inevitable concerns will arise about disrupting the child’s routine, familiar surroundings, and relationships with teachers and schoolmates. With the Children’s Lawyer having just started a section 112 investigation pursuant to the Courts of Justice Act, a section 112 report likely won’t be ready until perhaps November. By the time the parties are realistically able to reach trial in 2017, the court will be faced with predictable and compelling concerns about not disrupting the status quo. d. After a primary residence has been established, the likelihood of reverting to equal time – let alone reversing the primary residence – will be quite remote. So long as the parties live about one hour’s driving distance apart, equal time and mid-week transitions will be problematic. With the passage of time, inconvenience will turn into impossibility.

[10] Temporary orders can have a huge impact on final orders. Effectively, they can have a forever impact on children. As a result, motions judges must be mindful of both short-term and long-term dynamics, to ensure that the maximum contact principle is not undermined by the unilateral action of either party.

[11] And yet, as often happens, these weighty temporary decisions have to be made based on hastily prepared, incomplete, contradictory, and untested affidavit materials.

[12] Both parties hope the recently commenced OCL section 112 investigation will provide additional, helpful evidence and recommendations for the court.

a. But both parties ask that I make at least some decisions before the section 112 report becomes available. b. And as the Applicant correctly points out, the mere arrival of an OCL report – tentatively in November 2016 – will not necessarily settle this bitter dispute. There can be no presumption that an untested social worker’s report can or should automatically settle this case. Any such report will likely simply provide additional evidence to be considered by the trial judge. c. I find little merit in the Respondent’s suggestion that we simply keep Christian out of school until January 2017 while we await the OCL’s report. Nothing will necessarily change just because the parties receive the section 112 report. Deferring school enrollment while we wait for a final determination will likely mean Christian misses the whole school year. And that’s certainly not a child-focussed result.

[13] Christian’s parents agree on only a few things.

a. They are both good parents. b. For more than a year they have been sharing equal time, primarily on a 2-2-3 day rotating schedule (during this past summer they switched to alternating weeks). c. Christian is closely attached to both of them. d. The child has been thriving in the existing equal-timesharing arrangement. e. Equal time is best for Christian and should be promoted – to the extent that it is possible, given the geographic complications.

[14] But in their lengthy sworn affidavits, the parties disagree on many other issues:

a. Each party claims they were the child’s primary caregiver during cohabitation. b. Each party claims they are more experienced and knowledgeable dealing with the child’s day to day issues. c. They each claim that if a primary residence is necessary, they are the one who should be granted primary residence and day to day decision making authority. d. The Applicant admits his teaching position in Oakville requires that he leave for work early, before Christian wakes up. He proposes that his parents care for Christian on the mornings before school. He says he can be home by 3 p.m., and he’s always home for school holidays, so he’ll mostly be available to care for Christian. The Respondent claims he won’t be home nearly as much as he says. She says he’ll need after school childcare, and he won’t be home to be with Christian during the summer break because the Applicant teaches summer school. e. The Respondent says it is inappropriate for Christian to spend time with caregivers when she is available on a full-time basis (her new relationship is financially secure enough that she won’t have to work outside the home). The Applicant says the paternal grandparents are not mere babysitters – they have always had a close, familial relationship with Christian, and it’s quality time. f. The Applicant relies on their separation agreement which specifies Christian will attend school in Hamilton. The Respondent wants the agreement set aside. The Applicant says there is no basis to set the agreement aside. He notes that the Respondent has been complying with the “equal time” provisions of the separation agreement and Christian has benefitted. g. The Applicant says the parties thoroughly discussed all aspects of parenting arrangements. Their separation agreement went so far as acknowledging that they still needed to determine whether Christian would attend a French Immersion school or an English speaking school. But either way, the agreement specified Christian would attend school in September 2016 in the Applicant’s school district, near the former matrimonial home. In contrast, the Respondent says she never really thought about school when she signed the “school in Hamilton” provision. She says Christian was more than a year away from commencing school when the agreement was signed, and both parties anticipated that circumstances might change with the passage of time. h. The Respondent says she retained a lawyer who sent the Applicant a letter on August 27, 2015 – 17 days after signing the separation agreement – advising that she wanted to negotiate a new separation agreement. The letter proposed that in the meantime the equal timesharing arrangement would continue. The letter didn’t mention reopening the school issue. In any event, the Applicant says he never received the letter and had no idea the Respondent wanted to change their deal. i. The Respondent says even though she agreed in writing that Christian would attend school in Hamilton, circumstances changed and both parties have to face the new reality. The Applicant counters that the Respondent’s decision to relocate to another city to live with her rich boyfriend shows that she was more interested in her own well-being than Christian’s. She says she made a good decision and Christian will benefit. He says she made a selfish decision and their son will suffer as a result of the distance the mother unilaterally created between Christian’s two homes. j. The Respondent says she is now in a stable, loving relationship with a new partner. Christian’s relationship with his new half-sibling is important and should be promoted. The Applicant counters that the Respondent shouldn’t be allowed to use various changes in her life to erode Christian’s important and beneficial relationship with the father. k. The Respondent says the Applicant has acted in a unilateral and heavy handed manner by registering Christian in a Hamilton school, and preventing the child being registered in Niagara. The Applicant counters that the Respondent’s unilateral decision to relocate to Niagara-on-the-Lake created this mess. He says if she doesn’t like the consequences of her ill-advised relocation, she should move back to Hamilton. The Respondent says moving back is not an option (although, nowhere in her materials does she explain why living in Niagara-on-the-Lake is a necessity, as opposed to a preference).

[15] It is impossible for a motions judge to make the necessary factual and credibility determinations based on the materials before the court.

[16] On a temporary choice-of-school motion – particularly one with mobility overtones – a cautious approach is necessary to safeguard the best interests of the child, and avoid manipulation of the process.

[17] The status quo – and avoiding reckless creation of a new status quo – are important considerations.

a. In this case, it is not disputed that the parties have shared equal time since separation, and this has worked out extremely well for Christian. b. The reason this status quo is now in jeopardy is because the Respondent elected to relocate one hour away. Despite assurances from the Respondent’s counsel that the Applicant can be given make-up time on weekends and holidays to “almost” give him 50% of the time, granting either parent 100% of weekends is obviously not a sustainable or desirable arrangement. It’s a short-term offer solely to secure a favourable status quo. c. Beyond percentages of time, depriving the Applicant of any involvement in Christian’s schooling represents a fundamental departure from both fairness and the agreement the parties specifically entered into. d. Christian was born and raised in Hamilton. He has extensive family supports in Hamilton, and all of his medical/dental/professional connections are in Hamilton. e. While the Respondent correctly notes that the Applicant will not be present to see Christian off to school in the mornings, her concern about the paternal grandparents’ involvement on weekday mornings is overblown. They are not strangers. The uncontroverted evidence is that they are close extended family and that Christian has a comfortable and loving bond with them. In any event, the need for brief pre-school child-care assistance should rarely be determinative in these types of cases. The Respondent is fortunate that her current relationship allows her to stay home. But parents with work schedules should not be penalized; they should be commended. f. The child Christian was Hamilton-based before separation, and he has been Hamilton-based since. Through unilateral action, the Respondent is now trying to make the child Niagara-based. As stated, this is not just a school issue. The Respondent’s proposal will necessarily entail many changes for Christian – including a fundamental diminution of the child’s relationship with the Applicant, both quantitatively and qualitatively. Changes of such magnitude should not be hastily imposed, based on untested materials. g. The school issue is inextricably intertwined with the more general custody and mobility issues. Major changes with mobility implications should not be made on a temporary basis, except in the most compelling of circumstances. In those rare cases where a new arrangement or a new city are inevitable, major changes are sometimes permitted on a temporary basis, to avoid family members experiencing unnecessary delay. But in this case the Respondent’s success at trial is by no means inevitable. h. The onus is on the party seeking to impose a change to a child’s situation or plan. And while I make no determination as to whether the Respondent will be successful in setting aside all or even relevant parts of the August 2015 separation agreement, there is nothing on the face of the agreement that suggests any irregularity with respect to either the equal time or “school in Hamilton” issues. Even after she says she disavowed the separation agreement, the Respondent continued to promote equal timesharing for a full year. She doesn’t deny specifically agreeing that Christian would attend school in Hamilton. She doesn’t allege she was tricked on this topic. At most, she says she never really thought about the issue, and never contemplated changes she might make in her life. i. The Respondent has always been in control of this issue and she remains in control. She elected to relocate to Niagara-on-the-Lake. She has no employment commitments and has more flexibility to assume responsibility for transporting Christian as may be required for equal time-sharing or school in Hamilton. She has presented no evidence that she had to relocate to such a distant community, and no evidence that she and her partner couldn’t relocate to Hamilton (or at least closer).

[18] For clarity:

a. The issue is not whether a parent should ever be allowed to relocate a child’s residence an hour away. The abundant caselaw on mobility makes it clear that in appropriate circumstances – after thorough consideration of all of the evidence -- much greater moves have been approved as being in the best interests of the child. b. The issue is whether a parent should be allowed to unilaterally impose a change to a child’s routine which will subvert a successful status quo, and create an entirely self-serving new status quo in the middle of a custody dispute and in the middle of a section 112 investigation.

Temporary Order

[19] The temporary order:

a. The Applicant shall be entitled to enroll the child Christian in junior kindergarten in Annunciation of Our Lord School in Hamilton. b. There shall be a presumption that the parties shall share equal time with the child, including alternating weekends with each parent. c. The Respondent shall be responsible for transportation of the child to and from her residence in Niagara-on-the-Lake. d. The Respondent shall ensure that the child does not miss any school during times when the child is in her care. e. If the Respondent is unable to maintain an equal time sharing arrangement including alternate weekends and some weekdays, the Respondent shall have the option of having Christian three out of four weekends (Friday after school until Monday delivery to school) and one non-overnight mid-week visit. The Respondent shall notify the Applicant in writing of her preference in this respect by the beginning of each month (and by September 12 in relation to the balance of this month).

Costs

[20] If counsel need to address any issue other than costs, they should arrange a time to appear before me.

[21] If only costs need to be addressed, written submissions shall be filed on the following timelines:

a. Applicant’s submissions to be served and filed by September 23, 2016. b. Respondent’s submissions to be served and filed by October 14, 2016. c. Any reply submissions to be served and filed by October 24, 2016.

Pazaratz, A. Released: September 7, 2016

COURT FILE NO.: 105/16 DATE: 2016-09-07 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Jeff Cosentino Applicant – and – Jennifer Brittney Cosentino Respondent REASONS FOR JUDGMENT Pazaratz, J. Released: September 7, 2016