CITATION: Clark v. Moxley, 2017 ONSC 4971
COURT FILE NO.: FC-15-1451
DATE: 2017/08/22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HEATHER CLARK
APPLICANT
– AND –
NEIL MOXLEY
RESPONDENT
Beverley Johnston, for the Applicant
Emily Comor, for the Respondent
Yvonne Lee, for the Office of the Children’s Lawyer
HEARD: July 7, 10 and August 11, 2017
REASONS ON motion
sheard j.
[1] This matter proceeded by way of a three-day focused hearing pursuant to the Order of Doyle J., made May 29, 2017. Doyle J. ordered that the evidence be by way of affidavit with 30-minute examinations-in-chief of each of the applicant mother (“Mother”), respondent father (“Father”) and Raquel Beauvais-Godard (“RBG”), the clinician for the Office of the Children’s Lawyer (“OCL”). Those witnesses would then be subject to cross-examination. All other evidence would be by affidavit and by viva voce evidence should an opposing party choose to cross-examine an affiant.
[2] Doyle J. also set out the following issues to be determined by this Court:
What school will the parties’ son, Noah Moxley, born August 1, 2005, attend in September 2017? This decision shall be a final decision.
What interim parenting arrangements are in Noah’s best interests?
What activities should Noah be registered in for September 2017?
[3] At the opening of the third day of the hearing, the parties confirmed that I need not decide issue #3, as they had reached an agreement. The parties agree that starting in September 2017, Noah’s fall activities will be: Taekwon-Do at Black Belt Excellence in Kanata, Ontario and basketball at the Goulbourn Recreation Complex in Stittsville, Ontario. In January or March 2018, Noah will take swimming lessons at the Goulbourn Recreation Complex. In May 2018, Noah will be signed up for art class in Almonte, Ontario and in the spring/summer of 2018 Noah will participate in the horticulture programme in Pakenham, Ontario.
[4] The parties have not fully canvassed driving arrangements, but I am confident that they will be able to work out those details. In any event, transportation to and from activities was not an issue that I was asked to decide.
Background
[5] The parents married on June 18, 2004, Noah was born on August 1, 2005, and the parties began to live separate and apart under the same roof in October 2010. At that time they were living in Pakenham. In happier times, the couple had moved from Ottawa/Kanata to Pakenham, where they planned to raise Noah. Those plans changed. The parties physically separated in February 2011. The matrimonial home was later sold and Father purchased a new home, also in Pakenham.
[6] At the time of separation, Mother and Noah moved in with her parents. Mother and Noah then moved to their own place in Pakenham and finally to Almonte. In July 2011, the parties entered into an interim separation agreement, which provided for shared parenting of Noah.
[7] Father had been off work since 2009 on disability for PTSD due to a workplace incident when he was a child protection worker with the Ottawa Children’s Aid Society. In late 2011, Father was accepted into a program to become a Border Services Officer. His job training and work placements led to Father being away from Pakenham for over eight months in 2012 and a further period of over five months in 2013. During those times, Noah was left in Mother’s care. Mother had very little advance notice of Father’s planned absences.
[8] Although Father returned to Pakenham for good in late 2013, the parties did not resume an equal parenting arrangement. Rather, Noah continued to live primarily with Mother and he saw Father on alternate weekends and one mid-week overnight each week. This has been the status quo since Father’s return. Since that time, Father has been working full-time as a Canada Border Services Officer at the Ottawa International Airport, approximately 60 km from Pakenham. Father works from 10 a.m. to 9:15 p.m. on a 14-day of 2/2/3/3 shifts. When he is working, Father has been able to pick up Noah from Stittsville to take him to school in Almonte but he cannot pick Noah up after school.
[9] Since the summer of 2015, Mother has shared a home with Sean Lowell and Lowell’s two children from a prior relationship, a boy aged 13, and a girl aged 6. Lowell and his former spouse co-parent their two children on a 50/50, week-about, schedule. When Lowell’s children are with him, Noah is part of a family of five. In alternate weeks, Noah is an only child, whether with Mother and Lowell, or with Father.
[10] I accept the evidence of Mother and Lowell that they have a committed and stable relationship. I also accept that Noah gets along well with his step-siblings and Lowell. Finally, I accept that, while the rules in the two homes may be different, Noah is properly cared for and well-loved in both.
[11] Following her move to Stittsville, Mother wanted Noah to change schools to a public school in Stittsville, rather than stay in R. Tait McKenzie Public School in Almonte. Father would not agree. Roger J. did not grant Mother’s motion but ordered Father to help with driving Noah to and from Mother’s home Stittsville and R. Tait. Roger J. also required Father to pay Table child support for Noah and his share of Noah’s s. 7 expenses. Prior to the Roger Order of September 10, 2015 Father had neither offered nor paid Table child support.
[12] Since September 2015, Father has spent time driving Noah to and from his Stittsville home and R. Tait school. Father argues that for the purposes of determining the status quo, the Court should take into account the time Father has spent driving Noah to and from Stittsville and Almonte.
[13] Noah starts middle school in September 2017. Mother proposes that Noah he attend Sacred Heart Catholic High School, the only high school in Stittsville. While they are Christians, neither Mother nor Noah is Roman Catholic. There is a bus to Sacred Heart, which is 3.6 km from Noah’s Stittsville home.
[14] Father proposes that Noah continue his schooling at the local high school in Almonte, which is Almonte District High School (“ADHS”). There is no bus from Stittsville to Almonte. Therefore, if Noah were to attend ADHS, when in Stittsville, Noah would need to be driven to and from ADHS, a round trip of approximately 60 km. On days when Noah is with Father, Noah could take the school bus to ADHS from Father’s home in Pakenham, a distance of approximately 17 km.
[15] Mother seeks an order that Noah attend Sacred Heart. Her reasons are many and include that:
(a) Noah’s primary residence is with her and that it would be in Noah’s best interests for him to take the daily school bus 3.6 km to and from Sacred Heart than for Noah to have a daily roundtrip drive of approximately 60 km, each day except the days when he has an overnight with Father. On those days, Noah’s daily commute to and from school would be about 17 km each way;
(b) attending the local school would provide Noah with a regular daily routine – he would always return to his home in Stittsville except for the mid-week overnights and alternate weekends (Friday afterschool to Monday morning) he spends with Father. The complicated driving schedule, which has been adopted to accommodate parental work schedules, has been confusing for Noah and a challenge for all the parents to manage;
(c) the time that Noah would not spend commuting from Stittsville to ADHS (perhaps 1.5 hours daily), could be spent on homework, recreation, a part-time job, or other activities;
(d) it will also be easier for Noah to access his extracurricular activities, all of which are in the Stittsville area until the spring of 2018;
(e) Sacred Heart has very high scholastic rankings from the Fraser Institute whereas ADHS is ranked below the provincial average;
(f) attending the local school will allow Noah to develop friendships with the children he has already met in his Stittsville neighbourhood, and who will also be attending Sacred Heart;
(g) Sacred Heart lets out at 2:30 p.m. and from the time Noah arrives home from school he will only be alone until either Mother, Lowell or his step-sibling arrives home, perhaps 5:00 p.m. at the latest;
(h) Mother, Lowell, and Father work in Kanata/Ottawa, much closer to Stittsville than to Almonte, and any one of them would be closer to Sacred Heart, should there be an emergency with Noah or for non-emergencies such as afterschool sports activities or forgotten lunches or homework;
(i) Stittsville is closer to Ottawa, which would allow Noah easy access to transportation for work and other opportunities available in Ottawa, something that will become increasingly important to Noah as he gets older;
(j) Father’s plan for Noah’s afterschool activities on the days when Father is working is not in Noah’s best interests. Father’s plan for Noah from when ADHS lets out, at 2:15 p.m., and 5 to 5:30 p.m. when Mother anticipates that she or Lowell would be able to pick up Noah from Almonte, is that Noah walk approximately 1 km to the local library; attend a free afterschool centre close to the school; take the school bus to Father’s (empty) home; attend at the arts studio where he has taken classes; (which would add 17 km to the 30.2 commute already facing Noah from Almonte to Stittsville); or, possibly, go to his aunt’s house after school from time to time;
(k) even without attending ADHS, Noah will be able to maintain his Pakenham boyhood friendships when he is at Father’s home. Plus, one of Noah’s two best friends will not be even attending ADHS; and
(l) Noah has shown himself to be an adaptable boy, successful at school and one who very much enjoys his extracurricular activities. Mother is confident that Noah would adapt easily and well to Sacred Heart and that he would make new friends while also maintaining his existing Pakenham friends.
[16] Father wishes to have Noah attend ADHS. His reasons include that:
(a) it would allow Noah to remain in the school community that he has been in since kindergarten;
(b) Noah’s closest friends and his cousins will be at ADHS;
(c) Noah has had to adjust to many changes since his parents separated and staying in his educational community would be less disruptive to Noah and would provide him with stability;
(d) Noah wants to attend ADHS and does not want to change school communities;
(e) it would be a big change for Noah to enroll in a Catholic school and to move to an urban school from a rural environment;
(f) Noah will not know anyone at Sacred Heart;
(g) Noah can take a bus from Father’s home to ADHS; and
(h) Father expects that when the issue of a permanent parental schedule is determined at trial, parenting time will be equal between Mother and Father, which will discount Mother’s arguments on the commuting issues.
Noah
[17] Noah turned 12 on August 1, 2017. By all accounts, Noah is a bright, happy, likable and well-adjusted child. He gets along well with both his parents. He does well at school, has friends, does not have behavioural issues and is active in many sports activities. According to Mother and Lowell, Noah gets along well with Lowell’s children.
[18] The OCL presented Noah’s views and preferences and advocated on his behalf at the hearing. According to the OCL, Noah has expressed a strong and consistent view that he wants to go to ADHS, where most of his friends would be going in the fall. The position taken by the OCL was unequivocal: Noah does not want to switch schools but wants to remain in his current educational community. Noah also wants an equal parental timesharing arrangement. It is very important to Noah that his parents are treated fairly, which, in his view, means that parenting time is equal.
Historic Parenting Schedule
[19] The evidence is unequivocal that Noah has a close and loving relationship with his parents. The evidence is also undisputed that except for a very brief time following separation, Noah has had his primary residence with Mother. In fact, Mother assumed full responsibility for Noah while Father was away for long periods in 2012 and 2013. It was not until Father returned to Pakenham in November 2013 that Noah began the access schedule that Mother asserts is now the status quo: alternate weekends with Father plus one mid-week overnight each week. In part, the current access schedule is driven by Father’s 2/2/3/3 work schedule. Although he seeks a 50/50 parenting schedule, Father proposes that it be on a 2/2/3/3 basis rather than a week-about basis.
[20] Father asserts that the time he has spent driving Noah to and from Stittsville and Almonte since September 2015 should be considered as additional access time and taken into account when determining the status quo. The status quo is important because all parties recognize that on an interim order, the starting point is that the status quo be maintained. While that may not be an absolute rule, it is certainly viewed as the “golden rule” by many courts. In this case, the parties anticipate that a trial will be required to determine the issue of custody and to set a permanent parenting schedule.
[21] Mother notes that until she commenced this court application in July 2015, Father never sought an increase in his access time, and only did so in his Answer. Mother asserts that one of the reasons behind Father’s desire for an equal parenting schedule is his desire to reduce or terminate payment of child support. Mother points out that until the Roger Order, Father had never paid Table child support, even though Father had been working full-time since, at least, his return to Pakenham in November 2013. Father defends his actions by explaining that he was paying for other things for Noah and believed that he was thereby providing for Noah’s support.
[22] There is some basis for Mother’s assertion that child support plays a role in the position taken by Father. In more than one email to Mother, Father has asserted that he has Noah for 40% of the time and that the trial outcome will result in an order that Mother repay child support paid by Father. In June 2016, Father asserted that he had Noah over 50% of the time in the summer and asked Mother to forego child support for July and August.
[23] Father has also complained to Mother that she has claimed Noah on her taxes and that it was his turn to do so. In emails to Mother, Father stated that he had contacted the CRA and intimated that he has suggested that the CRA look at Mother’s tax returns. The CRA did look at Mother’s tax returns: she received a letter from the CRA on January 17, 2017 regarding child and family benefits. The letter stated the CRA had reviewed information provided about Noah and determined that Noah lived with Mother and that she was eligible for the Canada Child Benefit.
[24] Mother argues that, aside from the need to maintain the status quo, it is not in Noah’s best interests to change the parenting schedule or to increase the time Noah resides with Father. Mother points out that since separation, she has been the one who has taken primary responsibility for Noah’s education, extracurricular planning, health and dental care and has been Noah’s primary parent. Mother’s affidavit contains many examples of her involvement in those parental duties to support that assertion.
[25] Mother also asserts that she has always acted in Noah’s best interests. She points to her decision to move Noah to a new Taekwon-Do studio, where Noah has thrived and been recognized for his leadership potential; and her decision to encourage Noah to strive to improve his soccer skills by enrolling him in a league where he is challenged. Although Noah was initially reluctant, Mother reports that Noah enjoyed this new, more competitive league. Mother has enrolled Noah in basketball, and in swimming lessons, which both parents agree he enjoys.
[26] A particularly telling example of how Mother has acted in a selfless way and in Noah’s best interests can be found in her having enrolled Noah in an art class in Almonte. Although it was Father who mentioned the art class to Mother and suggested that Noah had artistic talent and would enjoy enrolling in art classes, Father did not take any steps to make that happen. Rather, it was Mother who investigated the class, enrolled Noah, paid for the classes and took Noah to them when it was her parenting night. By contrast, Father acknowledged that he did not always take Noah to his soccer practices if they fell on Father’s parenting night and Father had other plans. Mother views that as an example of Father not supporting Mother or Noah in that extracurricular activity.
[27] Mother has also raised concerns about inappropriate communications between Father and Noah. For example, Mother pointed to a number of email communications in which Father has spoken negatively about Mother and about Lowell. In some emails, when Noah has told Father about an activity he has done with Lowell, Father has responded by accusing Lowell of taking Father’s father and son time and activities. He has made similar comments to Noah about Mother. For example, in one text to Noah, Father accused Mother of “robbing” Father of his driving time with Noah. Mother asserts that those and similar emails or texts sent by Father to Noah are intended to undermine Noah’s relationships with Mother and with Lowell and Noah’s ability to enjoy and settle-in at his Stittsville home.
[28] At the hearing, Father was confronted with his inappropriate communications to Noah. A particularly egregious example of inappropriate communications occurred following the parental disclosure meeting with the OCL of April 11, 2016. After that meeting, Father telephoned Noah and led Noah to believe that a decision had been made at the meeting that Noah would go to ADHS and that the OCL would support him. When Noah told Mother about what Father had told him, she corrected him that no decision had been made and that the decision was for the parents to make, not Noah. Noah was upset by what Mother told him. She believes it shook Noah’s trust in her. When RBG and OCL counsel learned what Father had said to Noah, they had to speak directly to Noah to correct Father’s misinformation.
[29] I do not accept Father’s explanation that he did not understand what he was doing or appreciate, except in hindsight, that what he did was inappropriate or wrong. Father had been a child protection worker and is an educated and informed person. Given Father’s educational and professional background, it is reasonable to conclude that he knew better than to involve Noah in these discussions and decisions. I conclude that on April 11, 2016, Father misinformed Noah about the discussions at the confidential disclosure meeting either knowingly, or recklessly, because he thought it was what Noah wanted to hear and he wanted to be the person to tell him and to show that Father was on Noah’s side. Based on his evidence on cross-examination, I also conclude that Father still fails to appreciate how unkind his call was to Noah and how unfair it was to Mother.
[30] There are other examples of inappropriate communications between Father and Noah: in one, Father has suggested that he “has Noah’s back” and hopes that “Noah has his back”; in another, Father shared his financial woes with Noah by telling him that he did not get paid so he did not have much money for food or that his friend is giving him a car that is really good on gas because the friend “knows about our struggles and all the driving I’m doing to support you in school.”
[31] Father has inappropriately texted Noah while Noah was in class at school, distracting Noah from his classes, and in some instances voicing complaints about Mother not letting Father pick up Noah from school. Both the timing of those texts and their content are inappropriate between a father and his 12-year-old son.
[32] When confronted at the hearing with these emails and texts, Father acknowledged that he had made some mistakes; that he could do better; and that he has learned his lesson. However, those statements ring hollow when one sees the Father’s recent email of June 23, 2017, to his family with a copy to Mother. Mother had sent an email to Father’s family, copying Father, to let them know about Noah’s graduation ceremony at R. Tait. In reply to his family, Father criticizes Mother and urges his family to ignore her email and avoid having any communication with any of Mother’s family members at Noah’s graduation. This email makes it difficult for the Court to believe that Father has recognized his mistakes and has changed his ways.
[33] In expressing his views and preferences, Noah has consistently stated that the thing he wants most is for his parents to get along and to begin speaking again. Noah’s view on that issue is known by both parents. While it may be that both parents share responsibility for their inability to speak politely to each other, or at all, Father’s communications put before the Court in this hearing reflect particularly poorly on him.
Noah’s Views and Preferences
[34] RBG gave evidence at the hearing and stated that she and OCL counsel met with Noah on six occasions. Noah has consistently expressed his desire to spend equal time with each parent. In her view, Noah was not influenced by Father in his views and preferences for equal parenting time and to remain at ADHS.
[35] In cross-examination, RBG agreed that there were a number of inappropriate communications between Father and Noah but maintained that Noah’s views and preferences were independent of Father.
[36] Mother takes issue with RBG’s conclusion that Noah’s views and preferences are independent of or uninfluenced by the views of Father. Mother submits that on this motion, the OCL was a forceful advocate in favour of the position taken by Noah respecting school choice and parenting time. She asked the Court to consider the OCL’s open-ended questions of Father on cross-examination, compared to the cross-examination style used on Mother, as evidence of that adversarial position.
[37] The OCL confirmed that its mandate includes advocating for Noah.
[38] Notwithstanding, the evidence and submissions of the Father and the OCL, that Noah’s views and preferences were uninfluenced by Father, the Court notes the various emails exchanged between Father and Noah, which both Father and RBG acknowledged to be “inappropriate”. It is therefore difficult to accept that Noah’s views and preferences were not influenced by Father.
[39] Similar to the conclusion reached by Zisman J. in Adams v. Adams, 2016 ONCJ 431, here, a finding that Noah’s views have not been influenced by Father is not consistent with the evidence and the overall context of this litigation. I therefore conclude that, to some extent, Noah’s views and preferences about equal parenting time, and his insistence that he can only be happy at ADHS, are informed by Father and by Father’s views and preferences. The weight that ought to be given to those views is tempered accordingly.
[40] Further, I accept the argument put forth by Mother, also accepted by RBG, that Noah is at a developmental age at which “fairness” is a big focus and that Noah and Father equate fairness with equal parenting time. Based on the evidence before me, I conclude that “fairness” in this case can and will be achieved without a 50/50 parenting schedule. In any event, even if I were to accept Noah’s views and preferences without qualification, all the parties acknowledge that his views are not determinative.
Analysis
Interim Parenting Schedule
[41] The law is clear that the guiding principle in deciding a parenting schedule and school is the best interests of the child. The best interests of the child are determined by reference to the conditions, means, needs and other circumstances of the child (Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 16(8)). Section 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 also provides a framework to evaluate the best interests of the child.
[42] In this case, many of the s. 24 factors apply equally to Mother and Father. Both have demonstrated love, affection and emotional ties with Noah; subject to my comments above regarding Father’s inappropriate influence over Noah’s views, Noah clearly wishes to spend time with both parents; both parents are able to provide Noah with the necessaries of life and to assist him with his education; both are involved in his extracurricular activities; and, as concluded above, both Mother and Father have permanent and stable family units in which Noah would live.
[43] Respecting the remaining factors under s. 24, I note that Noah has had his primary residence with Mother since late 2011 and that the parenting schedule has been in place since late 2013.
[44] Mother has also shown that she is willing and able to provide Noah with guidance and to parent him in an appropriate way. I accept that, at times, Mother may have made decisions over Noah’s objections, but conclude that she did so not only with Noah’s best interests in mind but also with the expectation that he would benefit from the decision. In the case of the soccer, Mother was right – Noah did come to enjoy it. I also accept that, at times, Mother has monitored private communications between Noah and Father. However, given the content of the communications that were produced at the hearing, Mother’s actions were justified. Moreover, in this day and age, it would be difficult to criticize any parent for monitoring a child’s internet access.
[45] Some of Father’s communications with Noah undermine Father’s assertion that he is able to guide and parent Noah, putting Noah’s best interest ahead of Father’s needs and wishes. Father’s “inappropriate” communications with Noah shake Noah’s stability in his Stittsville home and inflame conflict with Mother. Moreover, they have undermined Father’s arguments that this Court should change the existing interim parenting schedule. Father’s conduct has also been taken into consideration in my decision regarding which school Noah should attend in September 2017 (Williams v. Lamoureux, 2011 ONSC 4939).
Status Quo
[46] On a motion to change the interim parenting schedule, whether de facto or de jure, the general or “golden rule” is that the status quo will be maintained in the absence of compelling reasons that show it is necessary to make a change to meet the child’s best interests (Grant v. Turgeon, 2000 CanLII 22565 (ON SC), 5 R.F.L. (5th) 326; Kimpton v. Kimpton 122 A.C.W.S. (3d) 711). No such compelling reason exists in this case.
[47] I fully understand the arguments put forth by Father and the OCL that when determining the status quo, the Court should look beyond the alternate weekends and weekly mid-week overnight access and consider the commuting time Noah spent with Father. In consideration of those submissions, I have considered Father’s evidence that he and Noah chatted during those drives and that Noah was not very awake in the morning, that Noah sometimes read during the trip. In all of the circumstances, I conclude that it is not appropriate to treat the driving time as parental access time. In many instances, the argument made to the court is that access time is eroded by the time spent commuting to and from a parent’s home. I conclude that were this Court to treat the time spent chauffeuring Noah to and from school as access time, it would only encourage the parties to track and tally every minute each spends in the car with Noah, taking him to activities, medical or dental appointments or elsewhere, but would not provide a fair and accurate assessment of their parenting time.
[48] Father and the OCL further submit that this is a case in which the status quo should not be maintained. I conclude otherwise. The evidence shows that when Father left Pakenham in 2012 and 2013, Mother assumed full responsibility for Noah’s care and upbringing. There is no doubt that in those years, and in the years that followed, Mother assumed the lion’s share of the decision-making, scheduling, organizing, parenting and care for Noah. She did so with the explicit and implicit consent of Father. It was not until Mother brought this application in which she sought support for Noah that Father asserted a desire for a 50/50 parenting schedule.
[49] The happy, successful, accomplished, delightful young man that is Noah, as described to the Court by all parties, is due in large measure to the energy and efforts of Mother. There is no compelling reason to upset the status quo and the stable parenting arrangements that have been in place for so many years on an interim basis.
[50] I fully expect that Father and, perhaps, Noah may be disappointed in the outcome of this motion. However, it is the duty of this Court to determine Noah’s best interests, even if to do so may not align with his stated views and preferences. I accept the submissions of Mother, with which RBG agreed, that a child of 12 may not fully appreciate the future consequences of a decision about schooling and primary residence.
Interim Parenting Schedule: Decision
[51] For the above reasons, I have determined that the interim parenting schedule should remain unchanged: Noah to be with Father on alternate weekends from Friday after school to Monday morning drop-off at school, with one mid-week overnight each week. I understand that Father’s work schedule is: Week 1: Off on Wednesday and Thursday; and Week 2: Off on Monday and Tuesday, and Friday to Sunday. On that basis, I understand that on Week 1, Noah’s mid-week overnight at Father’s home is on Wednesday and on Week 2, it is on Monday.
[52] As the parties have agreed on Noah’s extracurriculars, the Court sees as “fair” and in Noah’s best interests that Father also have additional afterschool access on Week 1 on a day other than Noah’s overnight access. For that access, Father is to pick up Noah after school, help him with his homework, have dinner with him, take him to his activity if applicable and then return Noah to his home in Stittsville no later than 30 minutes before his usual bedtime. As Father did not seek this type of additional access, I will incorporate this term in my Order only if Father consents.
[53] This additional mid-week access time is intended to recognize the time Father and Noah have spent in the car commuting between Stittsville and Almonte over the last two years and to provide the opportunity to substitute that commuting time with activities that will expand and enrich the opportunities for Father and Noah to take part in meaningful and enjoyable activities.
High School in September 2017
[54] With respect to the new school that Noah will attend in September 2017, I have determined that it is in his best interests that he attends Sacred Heart in Stittsville.
[55] By all accounts, Noah is a bright, adaptable, cheerful, successful and loving child. There is every reason to expect that Noah will be successful in school at Sacred Heart and will make new friends to add to his existing group of friends, whom he will continue to see when he is at his Father’s home in Pakenham.
[56] As will be more fully explained below, in reaching this decision, I have given due consideration to the wishes that Noah has expressed and the position advocated for him by the OCL.
[57] The factors that I have considered in determining that Sacred Heart is the better choice and in Noah’s best interests include the following:
(a) Sacred Heart is close to where Noah is spending most of his mid-week (school) time;
(b) when Noah is at his home in Stittsville, the distance to Sacred Heart School is approximately 3.6 km. Noah will be able to take the bus. On those days, although Noah will have some time alone until either Mother, Lowell, or his 13 year-old step-sibling home, he will be able to spend it in the comfort and safety of his home;
(c) Father’s afterschool plans for Noah would have created an unpredictable and confusing patchwork that would not have been in Noah’s best interests;
(d) Noah would no longer face uncertain and complex driving and afterschool arrangements, something that has been a challenge for Noah since September 2015.
(e) all of Noah’s fall and winter extracurricular activities take place in Stittsville. Therefore, on most days of the week Noah would have to be driven from ADHS to his extracurricular activity in Stittsville. On days when Mother is picking up Noah from Almonte, that would require Noah to wait to be picked up and driven the 30 km from ADHS to Stittsville, and then to his extracurricular activity. While Noah will still have to commute to Stittsville on the mid-week overnights at his Pakenham home, the commuting will be much reduced;
(f) Sacred Heart is located close to Noah’s home in Stittsville; he can get himself to and from school on the school bus, which will give him a measure of independence, appropriate to a child of his age;
(g) Noah already knows some children in his Stittsville neighbourhood and on his soccer team, who will be attending Sacred Heart, which will both assist him in the transition and allow him to build on his social networks in his Stittsville neighbourhood;
(h) Noah will be able to have a predictable and stable routine, which both parents agree he should have;
(i) Noah can and will make new friends and, because he is in his Pakenham home every other weekend and one night each week, he will also be able to maintain his childhood friendships;
(j) Noah has demonstrated his ability to be adaptable to different situations; and
(k) Noah would have to change schools in any event, something that all children do when they move from grade school to high school and then to university or college.
[58] It should be noted, that I accept the conclusions of Price J. in Wilson v. Wilson, 2015 ONSC 479 the Fraser Institute school rankings have not governed the choice of school.
Costs
[59] If there is a request for costs, written submissions not to exceed 3 pages plus Bills of Costs, and copies of any offers to settle shall be served and filed within 14 days of the release of these Reasons.
L. Sheard J.
Released: August 22, 2017
CITATION: Clark v. Moxley, 2017 ONSC 4971
COURT FILE NO.: FC-15-1451
DATE: 2017/08/22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HEATHER CLARK
APPLICANT
– and –
NEIL MOXLEY
RESPONDENT
REASONS ON MOTION
SHEARD, J.
RELEASED: August 22, 2017