CITATION: Lackey v. Treiguts, 2017 ONSC 5493

OSHAWA COURT FILE NO.: FC-16-2142

DATE: 20170915

SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Andrea C. Lackey, Applicant

and

Viktors A. Treiguts, Respondent

BEFORE: The Honourable Madam Justice Woodley

COUNSEL: Alexander McLeod, for the Applicant/Moving Party

Julie A. Layne, for the Respondent/Responding Party

HEARD: September 14, 2017

ENDORSEMENT RE MOTION TO CHANGE SCHOOL

Overview

[1] The Applicant mother seeks an Order that the parties’ two children (age 10 and age 7) transfer from their current school to a school located in close proximity to the Applicant’s current address.

[2] The Respondent father resists the motion on the basis that the Applicant has failed to demonstrate that the transfer will be in the best interests of the children.

Issue

[3] Should the court order that the children transfer from their current school to the school proposed by the Applicant?

Determination of Issues - Order

[4] For the reasons that follow I find that the Applicant has failed to demonstrate that the proposed transfer is in the best interests of the children at this time.

[5] The motion is dismissed without prejudice to the Applicant to bring a further motion after the Applicant has obtained a permanent residence. Any further motion filed must provide sufficient evidence focused on the issue of whether the proposed transfer is in the best interest of the children, including consideration of the effect, if any, of the proposed transfer, on the existing joint custody and shared residency arrangement for the children.

Analysis

Proposed Transfer of School – Best Interests of Child

[6] All motions dealing with residence, care and control of a child must be determined on the basis of the best interests of the child.

[7] Where a parent seeks to change a child’s school, the onus is on the parent seeking the change to establish that the change is justified on the basis of the best interests of the children.

[8] Where a court is asked to consider whether a child should change schools, the following considerations apply:

a. The best interests of the child governs the decision;

b. The parent suggesting the change must demonstrate that the change will be in the best interests of the child;

c. Factors which may be taken into account include a review of how many years the child has been at the current school; whether there is any prospect of one of the parties moving in the near future; whether a move will mean new child care providers or other unsettling features; any problems with the present school or proposed school; and the child’s views and preferences if they can be determined.

[9] While the case before me is not pleaded as a mobility case - the determination of the issue necessitates findings that may directly affect mobility and existing custody and parenting arrangements.

[10] The Supreme Court of Canada in Gordon v. Goertz [1996] 2 S.C.R. is the leading authority in mobility cases.

[11] The focus of any motion concerning choice of school and mobility is the best interests of the child and not the interest and rights of the parents. Additionally, the following considerations are paramount to any decision rendered:

a. The existing custody arrangement and relationship between the child and the custodial parent;

b. The existing access arrangement and the relationship between the child and the access parent;

c. The desirability of maximizing contact between the child and both parents;

d. Disruption to the child of a change in custody; and

e. Disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

[12] In the present case the Applicant and Respondent began cohabitating in July of 2007 and separated in October of 2016. After separation the parties continued to live in the jointly held family home until the Respondent purchased the Applicant’s interest in May of 2017. The Applicant moved to her mother’s home in Lindsay, Ontario on a temporary basis. The Applicant continues to reside there while waiting to purchase her own residence.

[13] The Applicant mother is a police officer and the Respondent father is a self-employed plumber. Both have some degree of flexibility in their work schedules.

[14] The parties have joint care and custody of the children and an equal shared residence schedule. The children reside with the Respondent when the Applicant is working, and with the Applicant when she is not. The Applicant works shifts for four days in a row, and then has four days off. The parenting arrangements were agreed upon in May of 2017, and were made into a consent Order signed by me on September 14, 2017.

[15] The Applicant and the Respondent equally share the transportation. The Applicant picks up and drops off the children at the commencement ad conclusion of her access at the school, and when access occurs on a non-school day, from the Respondent’s home.

[16] By the terms of the May 2017 agreement (finalized by court order on September 14, 2017) the parties agreed that a private assessor would provide a report to the court in regards to custody, access and mobility issues regarding the children.

[17] The Applicant claims that the parties agreed to retain Ms. LeMay to prepare an independent assessment to determine the issue of the children’s place of education commencing September 2017.

[18] In reliance of her position, the Applicant filed a letter dated June 14, 2017, written to Ms. LeMay which states, in part: …”As one of the main issues deals with the location of the children’s place of education, I would ask that the issue alone, recommendations be provided prior to September 1, 2017 if no resolution on said issue is reached.”

[19] The Respondent disputes that Ms. LeMay was retained to determine the issue and further disputes that an assessment was produced.

[20] To the extent that it is relevant, I note that the issue to be determined by me is based upon the best interests of the children and even had an assessment or formal opinion have been prepared, I am not bound by any such assessment or opinion as the assessor/expert cannot usurp the role of the court.

[21] Ms. LeMay provided comments and recommendations on the issue of the children’s place of education by email correspondence on September 2, 2017. The email reads as follows:

Subject: School

This is a most difficult decision. There are pros and cons on both sides. The kids, as suspected, we’re somewhat divided. They both also see the advantages of both schools. K spoke clearly about the friends she had, and will have going to A and the lack of friends that she felt she had at G. Both children acknowledged, that although Viktor was involved on occasion at the school, the vast majority of time it was Andrea who attended school functions during the day, dealt with illness, attended school trips, and was generally the one there.

I believe that M is choosing G because of familiarity in part, and wanting to please his dad. I think that he is conflicted, and very sad about the separation, and missing his mom a great deal at times. This is not uncommon for children to be conflicted post separation and trying to please both parents. K is clear that she wants to attend A and is able to articulate her reasons why. I also believe, in part, she is trying to please as well.

Having said all that, as a result of the proximity for Andrea to be able to attend school functions and continue as she has been, this is a necessary piece for the children in terms of their best interest. I believe that A may be the better choice. One could argue they could arrive at G to see how it goes, as it has been their home school, however, I am concerned about the 35 – 40 minute distance between the schools. Andrea would clearly not be able to attend during work time, and I am generally concerned about the distance between your two homes.

If there is a remote possibility that Andrea will not stay in Lindsay or move to have closer proximity then possibly G would be the better choice. If that is not the case then I would suggest again going with A to enable A to continue to attend as always.

[22] The Applicant relies upon the email in support of her motion to transfer the children’s place of education to the new school.

[23] The Respondent states that the email is “tepid” and falls short of an assessment or a meaningful review of the best interests of the children. The Respondent further submits that the email is inadmissible in any event and should not be relied upon as it is hearsay and opinion evidence.

[24] Having reviewed and considered the email from Ms. LeMay, I agree with the Respondent that the email does not provide any clear recommendations and offers little insight into the determination of the best interests of the children.

[25] Much emphasis in the email is placed on the Applicant’s ability to volunteer at the school with the suggestion that the Applicant would not be able to participate to the same extent as in the past if the children did not transfer to the new school.

[26] However, I give little weight to this consideration as the Applicant’s work location has not changed and the Applicant herself noted that she formerly volunteered at the children’s current school. Further the fact that the Applicant can volunteer more at one school than another does not necessarily mean that it is in the children’s best interest that the children transfer schools.

[27] With respect to the stated views and preferences of the children, given their ages, their views and preferences are only two considerations amongst many and difficult to obtain short of an assessment. The children’s views can be affected by many factors including separation anxiety, loyalty, their emotional reaction to their parents’ stressors and wishes, influence, and mistaken belief in the state of the family’s affairs. This same comment applies to any references made by the parents as to the children’s views and preferences and the children’s recent reported behaviours.

[28] Ms. LeMay notes overall general concern about the distance between the parties’ two homes and does not simply focus on which school is better for the children or preferred by them. This alerts me to the fact that although not addressed by the motion materials, mobility is at issue. Ms. LeMay notes “if there is a remote possibility that Andrea will not stay in Lindsay” then “school G would be the better course”. It is clear by this statement that the choice of school is directly tied to mobility which is inexorably tied to the current custody and parenting arrangements.

[29] The issue of mobility and schooling is complicated by the fact that the Applicant has not settled her residence permanently. The Applicant resides temporarily with her mother at her mother’s home – this is the home that is located in close proximity to the proposed school.

[30] In my view, it is pre-mature to move the children’s place of education before the Applicant has established her permanent home. Further, I am not satisfied on the record before me that the transfer is in the best interests of the children taking into consideration their current custody and residency arrangements.

[31] By allowing the current parenting arrangement to remain pending permanency and better evidence as to how the proposal effects the current arrangements, disruption is minimized and contact with both parents is maximized. In this manner the legal test as set out by the Ontario Court of Appeal in Berry v. Berry, 2011 ONCA 705 and Woodhouse v. Woodhouse (1916), 1996 CanLII 902 (ON CA), 29 O.R. (3d) 417 (C.A.) focusing on maximizing contact with both parents and minimizing disruption to the children is satisfied.

[32] As noted above, the motion is dismissed without prejudice to the Applicant to bring a further motion after the Applicant has obtained a permanent residence. Any further motion filed must provide sufficient evidence focused on the issue of whether the proposed transfer is in the best interest of the children, including consideration of the effect, if any, of the proposed school transfer, on the existing joint custody and shared residency arrangement.

[33] As for the issue of costs, the Applicant commenced the motion after receiving the recommendations of the jointly retained parenting plan facilitator. The motion was commenced in accordance with those recommendations. It is clear that the Applicant was acting in what she perceives to be the best interests of the children. In mobility and school cases where a parent seeks relief genuinely intended to be in the best interest of the children it is not appropriate to award costs to the successful party. In the present case each party shall bear their own costs of the motion.

Justice S. J. Woodley

Released: September 15, 2017