Court File and Parties

COURT FILE NO.: FS-15-401730 DATE: 20160928 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

JENNIFER KELLY MCDONALD Applicant – and – ROSS WADDELL MCDONALD Respondent

Counsel: Meysa Maleki for the Applicant Stephen Grant for the Respondent

HEARD: September 27, 2016

Endorsement

DIAMOND J. :

Overview

[1] The applicant and the respondent were married on September 6, 1997, and separated on October 10, 2013. They have two children: Liam (11 years of age) and Kalle (8 years of age).

[2] Pursuant to the Order dated June 30, 2015 of Justice Paisley, the applicant was awarded primary residential care of the children with the respondent having alternate weekend and mid-week access. No formal custody order was made.

[3] The applicant brings this motion seeking an order permitting her to register Kalle in the National Ballet School (“NBS”) for the 2016/2017 year. The respondent opposes the motion on the primary basis that, even with some scheduling accommodations offered by NBS, Kalle’s weekend classes would interfere with his limited access to both children.

Summary of Relevant Facts

[4] According to the respondent, prior to the separation Kalle had shown an interest in ballet from an early age. Kalle took ballet lessons from 2011-2012, and then attended the Harmony School of Dance from 2012-2013.

[5] In 2013, Kalle auditioned and was accepted into NBS. She attended NBS during the 2013-2014 year, participating in classes held on Saturdays from 10:45 am - 11:30 am. She continued to attend NBS during the 2014-2015 year, with classes then being held on Saturdays from 9:15 am -10:15 am.

[6] Of note, a dispute between the parties relating to Kalle’s NBS classes taking place on weekends began during the marriage and has continued through the separation. It is the respondent’s position that the applicant unilaterally enrolled Kalle in NBS for both the 2013/2014 and 2014/2015 years without his consent.

[7] For the 2015/2016 year, Kalle’s classes were to be held on Saturdays from 12:00 pm – 1:00 pm and Sundays from 10:00 am to 11:00 am. The respondent explicitly refused to consent to Kalle’s enrollment in NBS for the 2015/2016 year due to the weekend classes interfering with his time with his children, and in particular his time spent with the children during the winter months skiing at the family chalet in Creemore, Ontario.

[8] The respondent testified that despite his refusal to enroll Kalle’s in NBS for the 2015/2016 year, he did support and suggest alternative ballet programs for Kalle during that year, but the applicant refused to enroll Kalle in any such alternative program for that year. Accordingly, Kalle did not attend NBS for the 2015/2016 year.

[9] The applicant now wants to re-enroll Kalle in NBS for the current school year. She is not asking that she be the one to take Kalle to NBS classes during the respondent’s access weekends. With a view to minimizing the impact upon the respondent’s time with the children, the applicant approached NBS staff to discuss a potential alternative schedule for Kalle. As a result of those discussions, NBS is now willing to accommodate Kalle as follows:

(a) Even though classes commenced on September 9, 2016, NBS is willing to allow Kalle to commence her program on September 30, 2016 without compromising her enrollment; and, (b) Kalle would be permitted to miss a total of eight lessons over the course of the program (i.e. from September 30, 2016 to June 18, 2017).

[10] Accordingly, the applicant submits that the respondent can choose whether he wishes to take Kalle to NBS for her lessons on either Fridays or Sundays (subject to one mandatory evaluation day taking place on a Friday). If the respondent takes Kalle to ballet on Fridays, he can leave for Creemore afterwards with the children for the entire weekend. However, if Kalle does miss eight lessons during those winter months, the respondent would have to take Kalle to lessons on both Fridays and Sundays during all other months during the school year.

[11] It is important to note that while both parties agree that NBS is an elite school that caters to aspiring young dancers and teachers, Kalle would be participating in NBS’ “Associates Program”, which is not the same as NBS’ “Professional Ballet Program”. While Kalle may aspire to join the Professional Ballet Program, it appears that participation in the Associates Program does not lead directly to the Professional Ballet Program, nor does it guarantee a role in any ballet productions.

[12] Once again, the respondent proposed a series of other ballet programs which, in his view, would better accommodate the current residence and access schedule between the parties. In response, the applicant visited most of those ballet school operations, and takes the position that the respondent is out of touch with Kalle and her needs as those alternative ballet programs are not “elite level programs”, and may require weekend class attendance in any event.

Decision

[13] Both parties agree that I have jurisdiction to make the order sought. The applicant submits that Kalle’s attendance at NBS has ramifications with respect to her future education pursuits, and therefore impacts her best interest. The respondent submits that I should not exercise my discretion in favour of the applicant as the record is not sufficient to displace the Court’s insistence upon the principle that a child should have as much contact with each spouse as consistent with that child’s best interest (the “maximum contact principle”).

[14] The Order of Justice Paisley effectively renders the applicant as Kalle’s primary parent with day to day care. That said, no order as to custody has been made to date. The case law relied upon by the applicant in support of the principle that deference ought to be given to decisions of a custodial parent is, in my view, of little significance on the facts of this motion.

[15] I agree with the applicant that Kalle’s best interests ought to guide the exercise of my discretion. However, in order to override the maximum contact principle, I would expect there to be clear and cogent evidence in the record before me that Kalle’s re-enrollment in NBS is in her best interests.

[16] The applicant relies upon the decision of Justice Graham in Kennedy v. Kristine, 2014 ONSC 5522. In Kennedy Justice Graham reinforced the principle that, absent written consent from the other parent, no parent should enroll a child in any extra-circular actives during the other parent’s time with the child. Justice Graham made an exception for that child’s interest in ice hockey, and ordered each parent to take the child to all ice hockey tryouts, practices, games and tournaments. I note that in Kennedy, both parents agreed that the child enjoyed ice hockey and wanted to take the child to all events when he was in their respective care.

[17] There is no doubt that the NBS class schedule interferes with the respondent’s time with both children and if the respondent is forced to take Kalle to NBS weekend classes, his time with Liam is also impacted.

[18] The respondent submits that the effect of the order sought by the applicant would be to reduce and restrict his recreational time with the children, which is already limited by the terms of Justice Paisley’s Order. On the record before me, I agree with the respondent that there is insufficient evidence to support the applicant’s position that Kalle’s participation in the NBS Associates Program should trump the respondent’s ability to control and enjoy his weekend access with the children. While I commend the applicant for attempting to seek out an alternative schedule from NBS, I am not convinced that Kalle will suffer in the event she is not re-enrolled in NBS. While she did pass the audition and obviously has talent, her (or for that matter, the applicant’s) aspirations of joining the Professional Ballet Program are simply too speculative at this stage. Kalle is only eight years of age, and has already missed one year of NBS classes.

[19] In Legien v. Legien, 2012 SKQB 326, Justice Sandomirsky held that even the maximum contact principle must be applied in a manner that is consonant and compatible with a child’s best interest. However, unlike the case before me, there was clear evidence before Justice Sandomirsky that the high-school aged child was already playing hockey at an elite level (my emphasis in bold):

“Upon the preponderance of evidence, I find that Jared’s academic and atheltic needs can best be attained for the next year at either institution, Notre Dame or Greenall High School and, that each of the Notre Dame hockey program and Prairie Storm bantam league will allow Jared to hone his hockey skills and be exposed to scouts. The two teams play in different leagues. The second year of bantam is often referred to as the “draft year” and I take judicial notice of the importance of the draft year to an inspiring elite bantam hockey player, such as Jared”.

[20] On the record before me, I do not have the necessary evidentiary foundation to conclude that Kalle’s elite ballet aspirations are no more than conjecture at this point. As a result, the applicant’s motion is dismissed.

Costs

[21] If the parties cannot agree upon the costs of this motion, the respondent may serve and file written costs submissions (totaling no more than four pages including a Costs Outline) within 10 business days of the release of this Endorsement.

[22] The applicant shall thereafter serve and file her responding costs submissions (also totaling no more than four pages including a Costs Outline) within 10 business days of the receipt of the respondent’s costs submissions.

Diamond J. Released: September 28, 2016