Court File and Parties

COURT FILE NO.: FS-16-86373 DATE: 2018-08-01 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

SHAWN BRADD ANDERSON Applicant

Rochelle F. Cantor, for the Applicant

- and -

EVA DANIELLE McINTOSH-ANDERSON Respondent

William H. Abbott, for the Respondent

HEARD: June 6 and 7, 2018, at Brampton, Ontario

Price J.

Reasons For Order

OVERVIEW

[1] Shawn Anderson and Eva McIntosh-Anderson settled most of the issues arising from their separation in 2016. They agreed to share custody of their two daughters and agreed on a schedule of the times each of them would spend with their daughters. They agreed on the amounts of spousal and child support that Mr. Anderson would pay, the amount to be paid to equalize their net family property, and the terms of sale of their matrimonial home and how the proceeds of sale would be divided.

[2] The only issue that they were unable to settle was what school the children would attend in September, 2018. Mr. Anderson wants the children to continue attending a school on the west side of Mississauga, which they have attended since Junior Kindergarten. Ms. McIntosh-Anderson wants them to attend a school on the west side of Mississauga, closer to her parents’ home, where she and the children have stayed in the two years since she and Mr. Anderson separated.

[3] The Court heard evidence and argument on the choice of school at a two day trial beginning June 6, 2018, after which it reserved judgment. These reasons address that issue.

BACKGROUND FACTS

The parties’ marriage and separation

[4] The parties were married on February 2, 2002. They separated after 14 years, on March 21, 2016, when Ms. McIntosh-Anderson took the children and left the matrimonial home.

The parties’ children

[5] There are two children of the marriage, namely:

a) Annaka Anderson, who is now 11 years old (born September 24, 2006); and b) Trinity-Rose Anderson, who is 8 (born December 4, 2008).

The children’s current school

[6] Since Junior Kindergarten the children have attended St. Elizabeth Seton Catholic School, at 6133 Glen Erin Drive, (“St. Elizabeth Seton”), on the west side of Mississauga.

The parties’ current places of residence

[7] Since Ms. McIntosh-Anderson separated from Mr. Anderson, she and the children have lived with Ms. McIntosh-Anderson’s parents at 3521 Burningoak Crescent, on the east side of Mississauga. When the parties sold the matrimonial home and Mr. Anderson moved out, he rented an apartment at 2720 Windwood Drive, Mississauga, across the street from the children’s school.

The parties’ positions when they began the present proceeding

[8] On May 13, 2016, Mr. Anderson began the present proceeding in which he claimed, among other relief, shared custody of the children. He stated, “I am seeking a true shared 50/50 parenting arrangement that will allow the children to have full and meaningful time with both parents and each side’s respective family members.”

[9] In his Affidavit in Support of Claim for Custody or Access, (Form 35.1 of the Family Law Rules), Mr. Anderson stated that his plan was for the children to attend Peel Lunch and After School Program (“PLASP”) before school, then to attend school at St. Elizabeth Seton, and then to attend Magnitude After-School Martial Arts Program, near the school.

[10] In her Answer dated June 16, 2016, Ms. McIntosh-Anderson claimed sole custody. Additionally, she sought an Order “that Shawn’s access be supervised by an agreed upon third party until such time as it can be determined that he has received sufficient therapeutic intervention to correct or prevent the harm done to the children by Shawn’s unbridled and inappropriate communications with them.”

[11] In her Affidavit in Support of Claim for Custody and Access, Ms. McIntosh-Anderson, who was then employed in Toronto, stated that she was actively seeking employment in Mississauga so that she would be closer to home. She stated, “The children will continue to attend St. Elizabeth Seton Secondary [sic] School until they graduate. They will continue to attend PLASP and Magnitude After-School Martial Arts Program for before and after school care until they are old enough to walk to and from school on their own. The children will reside with me primarily. The Father will have access to the children in accordance with an agreed upon schedule.”

[12] When Ms. McIntosh-Anderson prepared her Affidavit in Support of Claim for Custody and Access, she was employed and still living in the matrimonial home. She and Mr. Anderson had not yet equalized their net family property, and she anticipated receiving child and spousal support from Mr. Anderson. Her plan, she says, was to drive from her work in Toronto to her parents’ neighbourhood on the east side of Mississauga. She intended to remain in the same neighbourhood, and possibly to remain in the matrimonial home.

Ms. McIntosh-Anderson’s change of circumstances

[13] Ms. McIntosh-Anderson’s plans changed when her employment ended in November 2016. The parties settled the issues of spousal support and equalization in 2017. They settled the issue of child support on a final basis January 9, 2018, on the basis that she receives child support of $1,000.

[14] Ms. McIntosh-Anderson applied for new employment in Mississauga, and sought to transfer the children to a school closer to where she lived. She proposed St. Edmund Catholic School (“St. Edmund”), at 1250 Melton Drive, on the east side of Mississauga.

[15] Ms. McIntosh-Anderson grew up in the neighbourhood where St. Edmund is located and where her maternal grandmother, Stella Kuznick, still lives. Ms. Kuznick lives on Sunny Cove Drive, about 4.9 kilometres to the south of Burningoak Crescent, where Ms. McIntosh-Anderson and the children have been staying with Ms. McIntosh-Anderson’s parents. Both neighbourhoods are on the east side of Mississauga.

[16] The cost of a home in Ms. Kuznick’s neighbourhood ranges from $500,000 to millions. Ms. McIntosh-Anderson acknowledged that she was unable to buy a house there until she secured employment. Shortly before the trial, she was interviewed for a position as Office Manager at the Electric Company, located at 2217 Dunwin Drive, on the west side of Mississauga. She felt good about the interview and received excellent feedback. A month and a half after the trial, she filed an affidavit in which she stated that she had been hired for the position at the Electric Company.

[17] At the time of trial, Ms. McIntosh-Anderson did not know when she would be able to buy a home, but believed that if she secured the position at the Electric Company, it would enable her to buy a home in Ms. Kuznick’s neighbourhood, where she hoped to live.

[18] If the children are transferred to a school near Ms. McIntosh-Anderson’s parents’ home, and where she and the children now reside, or near her grandparents’ home, where she would like to live, she will have a shorter commute from home to the children’s school in the morning, and from the school to her home in the afternoon.

[19] Ms. McIntosh-Anderson has discovered that the Fraser Institute, a private research facility headquartered in Vancouver, B.C., has ranked St. Edmund higher than St. Elizabeth Seton. She states that this is an important factor in her desire to transfer the children to St. Edmund.

Orders made to this point regarding the children’s schooling

[20] On August 8, 2016, Justice Trimble made an Order requesting the involvement of the Office of the Children’s Lawyer (“OCL”). The OCL accepted the request, and assigned Tracy Majewski, a clinical investigator, to undertake an assessment.

[21] On August 29, 2016, Ms. McIntosh-Anderson moved for an interim Order that the children reside primarily with her and attend St. Edmund for the 2016/17 school year, without prejudice to the parties’ right to argue, at trial, that they should attend school somewhere else. After hearing the motion, Van Melle J. made an Order dated September 2, 2016, directing that the children remain at St. Elizabeth Seton, but left open a future change of school if better information became available.

[22] The OCL held a preliminary disclosure meeting with the parties on December 2, 2016. In February 2017, it issued an Interim Report in which it made interim recommendations for a six-month period.

[23] On July 19, 2017, the OCL held a final disclosure meeting with the parties and their counsel. On August 3, 2017, it issued its Final Report. It recommended that Ms. McIntosh-Anderson have sole custody of the children, and supported her request to transfer the children to St. Edmund. It concluded that it would be unreasonable to expect her, as the custodial parent, and the children, to endure a longer commute for the remainder of the children’s primary school years.

[24] The OCL Report noted that a transfer to a new school would be less disruptive to the children now than it would be in the future. It stated that while the children would resist the change, Ms. McIntosh-Anderson was prepared to address their resistance through counseling, and to continue the children’s contact with their former class-mates.

[25] On August 11, 2017, Ms. McIntosh-Anderson moved for a temporary Order implementing the OCL recommendations or, in the alternative, permitting the children to attend St. Edmund beginning in September 2017. At the hearing of the motion on August 29, 2017, Bloom J. took the OCL Report into account, and noted that Van Melle J., in her endorsement of September 2, 2016, had left open a future change of school if better information became available. However, he concluded that the children should remain at St. Elizabeth Seton until the trial. He stated:

Trial is likely to be in the school year to commence in September. The children are doing well in their present school. The OCL recommendations were an inter-related package. The best interests of the children are the paramount consideration in this motion; but, even taking into account Justice Van Melle’s endorsement, the current arrangement should not be changed absent some compelling new facts. I am not persuaded that the circumstances before me demonstrate those compelling new facts.

As I have noted, the children are doing well under the current arrangements. At the trial, which is not far off, the school issue can be resolved in the context of the broader parenting issues. I therefore dismiss the motion at bar.

[Emphasis added]

The parties’ settlement of parenting issues

[26] On January 9, 2018, the parties signed Minutes of Settlement in which they settled all parenting issues. They agreed that they would have joint custody of the children, and would consult each other regarding any major decision regarding the children. They additionally agreed that, in the event of disagreement, Ms. McIntosh-Anderson would have the final decision-making power, save and except with regard to where the children are to attend school.

[27] The Minutes of Settlement provide that the children are to reside primarily with Ms. McIntosh-Anderson. They grant Mr. Anderson specified access to the children as follows:

a. Every other weekend, from pick-up at daycare or school on Thursday, until return to school/daycare on Monday; b. Every other Wednesday, from pick-up at daycare or school, until Thursday, when the children are returned to school or daycare; c. In accordance with the vacation schedule provided in the Minutes.

[28] In a standard two-week cycle, the children are with Mr. Anderson three out of every ten school day mornings and afternoons. They are with Ms. McIntosh-Anderson the remaining seven out of ten school day mornings and afternoons. In total, including weekends, they are with Mr. Anderson 41% of the time and with Ms. McIntosh-Anderson 59% of the time. On January 9, 2018, the parties consented to an Order of Van Melle J. in the terms of the Minutes (“the Order”).

[29] The parties’ Minutes of Settlement resolve all issues except where the children will attend school beginning in September, 2018. The Court heard evidence and argument on that issue at a two day hearing, June 6 and 7, 2018. After the hearing, the Court reserved judgment. These reasons address that remaining issue.

ISSUES

[30] The sole issue to be determined is what school the children will attend beginning in September 2018. Ms. McIntosh-Anderson wants to transfer them to St. Edmund, at the east end of Mississauga. Mr. Anderson wants them to remain at St. Elizabeth Seaton, at the west end of Mississauga. Both schools offer classes from kindergarten to grade 8.

PARTIES’ POSITIONS

Ms. McIntosh-Anderson’s Position

[31] Ms. McIntosh-Anderson submits that it is in the children’s best interests to be transferred from the west side of Mississauga, where Mr. Anderson lives, to the east side, where she and the children have been staying with her parents and where she hopes to buy a home now that she has secured employment.

[32] Ms. McIntosh-Anderson has secured a position as an Office Manager at The Electric Company, at 2217 Dunwin Drive, on the west side of Mississauga. She believes that her income from that employment may enable her to buy a home in the neighbourhood where her grandparents live, and where St. Edmund is located, both on the east side of Mississauga.

[33] Ms. McIntosh-Anderson argues that even though she is now employed on the west side of Mississauga, she can more easily drive from home, on the east side of the City, to St. Edmund, also on the east side, drop the children there, and then continue to her employment on the west side of the City. Additionally, it will be easier for her to call on her grandparents, who live near St. Edmund, for help in caring for the children.

[34] Ms. McIntosh-Anderson argues that commuting time is a more important consideration for her than it is for Mr. Anderson, as the parenting schedule allocates 70% of the children’s time during the school week to her.

[35] Ms. McIntosh-Anderson further argues that transferring the children to St. Edmund would enable them to wake up later in the morning and relax at home before leaving for school, as Ms. McIntosh-Anderson would have a shorter distance to drive them from home to school before proceeding to work. If the children remain at St. Elizabeth Seton, near Ms. McIntosh-Anderson’s proposed place of employment at the Electric Company, she reasons, they must accompany her on the longer leg of the drive from her home on the east side of Mississauga to their school on the west side of the City, where their current school is located, and where she is now employed.

[36] Finally, Ms. McIntosh-Anderson attaches importance to the fact that the Fraser Institute, a research and educational organization based in Vancouver, B.C., has ranked St. Edmund more highly than St. Elizabeth Seton.

[37] Mr. Anderson argues that allowing the children to remain at St. Elizabeth Seton, which they would prefer, would allow them to maintain the friendships they have developed at that school, which they have attended since Jr. Kindergarten. It would also avoid their having to face another transition after adjusting to their parents’ separation. Finally, he argues, because the parenting schedule allocates only 30% of the children’s time during the school week to him, moving the children to St. Edmund, which is further away from his home, would increase his commuting time, and further marginalize him from the children’s lives.

ANALYSIS AND EVIDENCE

Legal Framework

[38] Section 16(8) of the Divorce Act provides that when making an order for custody and access “the court shall take into consideration only the best interests of the child …”. [1]

[39] The Supreme Court of Canada has held that the children’s best interests must be analyzed from the child’s perspective, and not from the perspective of either parent. The focus must remain at all times on the child, not on the needs or interests of the parents. Consequently, “parental preferences and ‘rights’ play no role,” except in so far as they are necessary to ensure the best interests of the child. [2]

[40] Pursuant to the Divorce Act, the best interests of the child are determined by “reference to the conditions, means, needs and other circumstances of the child.” While the Divorce Act does not enumerate the factors to be considered when determining the children’s best interests, the Court has relied on provincial legislation, namely the Children’s Law Reform Act (“CLRA”), to guide it in the exercise of its jurisdiction under the Divorce Act. [3]

[41] In the present case, the factors listed in the CLRA have limited application, as the issue is what school the children should attend, and not which parent will have custody of them or what access the children will have to each parent. In making the latter determinations, section 24(2) of the CLRA provides that the Court shall consider all the child’s needs and circumstances, including,

a. the love, affection and emotional ties between the child and, i. each person entitled to or claiming custody of or access to the child, ii. other members of the child’s family who reside with the child, and iii. persons involved in the child’s care and upbringing; b. the child’s views and preferences, if they can reasonably be ascertained; c. the length of time the child have lived in a stable home environment; d. the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child; e. the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing; f. the permanence and stability of the family unit with which it is proposed that the child will live; g. the ability of each person applying for custody of or access to the child to act as a parent; and h. the relationship by blood or through an adoption order between the child and each person who is a party to the application. [4]

[42] In the present case, the parties have agreed to share joint custody of the children. They have agreed that Ms. McIntosh-Anderson will have final decision-making, except with respect to what school the children will attend in September 2018. The parties’ have also agreed on the parenting schedule. I therefore approach the issue of the choice of school in light of the arrangements the parties have made regarding parenting.

[43] Ms. McIntosh-Anderson’s motion involves her own and the children’s mobility. The ultimate question in such cases is “what is in the best interests of the child in all the circumstances, old as well as new?” In Gordon v. Goertz, (1996), the Supreme Court of Canada set out the factors the Court must consider in an application by a parent to change the children’s place of residence:

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. The views of the child; e. The custodial parent’s reason for moving, only in exceptional cases where it is relevant to that parent’s ability to meet the needs of the child; f. The disruption to the child of a change in custody; g. The disruption to the child consequent on removal from family, schools, and the community he or she has come to know. [5]

[44] I now turn to a consideration of each of those factors listed above, in so far as they pertain to a determination of what school the children should attend.

a) The existing custody arrangement and relationship between the children and the custodial parents

[45] As noted above, the parties have agreed that they will share joint custody of the children. The evidence discloses that the children have strong ties of love and affection with both parents.

[46] The parties have also agreed that the children will continue to be principally resident with Ms. McIntosh-Anderson. As noted above, in a standard two-week cycle, the children are with her seven out of ten school day mornings and afternoons, and with Mr. Anderson the remaining three mornings and afternoons. In total, including weekends, they are with Ms. McIntosh-Anderson 59% of the time and with Mr. Anderson 41% of the time.

[47] In some mobility cases, where the primary parent seeks to move the children’s residence a great distance, and where denying the motion would result in the children having to be placed in the care of the other parent, the Court has held that a change of parent is more disruptive to the children than a change of community. Ms. McIntosh-Anderson relies on a number of those cases to support her argument that her choice of school should prevail because the children are principally resident with her. For the reasons that follow, I do not find that the principles that emerge from mobility cases can readily be extrapolated and applied to the facts of the present case.

[48] In Drury v. Drury, (2006), the parties had joint custody of the children but the mother had been their principal caregiver throughout their lives. Justice Ingram found that “[n]ot only have the boys spent more time with her, she has consistently been the parent responsible for making arrangements for the children at times that neither parent is available for the children due to employment commitments.” Justice Ingram followed the line of authority that has held that the “primary parent and custodial parent are the same in mobility cases”. He allowed the mother to move 450 kilometres from Simcoe County to Ottawa. In doing so, he relied on the B.C. Supreme Court’s decision in Garvin v. Garvin, (2002), in which the Court states:

…The fact remains that Ms. Garvin has been the primary caregiver and, as stated in Gordon v. Goertz, the primary caregiver's views are entitled to great respect. In coming to this conclusion, I have simply equated the custodial parent's views with that of the primary caregiver's views because, in my view, although in this case there is joint custody, a primary caregiver's relationship with the children is generally the same as that of custodial parent when viewed through the eyes of the child.

[Emphasis added]

[49] In Bjornson v. Creighton, (2002), the mother appealed a decision that denied her permission to return to Alberta with the child. The Court of Appeal allowed her appeal, stating that while the “maximum contact principle does apply and is an important one, it is not absolute and it remains one factor in the whole of the analysis.”

[50] The Court of Appeal in Bjornson found that, in not permitting the child to move to Alberta with his mother, the trial judge had focused too much on the impact the move would have in reducing the father’s access time, and too little on the positive impact it would have if the child went with the mother. The Court of Appeal stated:

With the greatest respect to the learned trial judge, he did not contemplate what improvement, if any, would result to the interests of the child if the custodial parent were permitted to move to Alberta. I agree with the statement of counsel for the mother, as expressed in her factum, that the trial judge failed to "give due regard to the relationship between the quality of the custodial parent's emotional, psychological, social and economic well-being and the quality of the child's primary care-giving environment." The learned trial judge failed to appreciate the multi-faceted nature of the mother's desire to return to Alberta with the child and the concomitant positive effects on the child's best interests in being cared for by a well-functioning and happy custodial parent. [6]

[51] In Wood v. Wood, (2014), the mother sought to move with the children a 4 ½ hour drive from Bracebridge to Stittsville, Ontario. The parties had joint custody of the children pursuant to a final consent order, and the children resided primarily with their mother, the father having access from Friday to Monday, three weeks out of four, and one weekday evening during the fourth week. The children were accustomed to being cared for primarily by their mother and were very attached to her. The Court held that removing them from her would be more disrupting than allowing them to go with her. [7]

[52] I do not find the above-mentioned decisions helpful in determining what school the children should attend. Ms. McIntosh-Anderson is not proposing to move to another city, much less to another province. At most, she proposes to move from her parents’ home to her grandparents’ neighbourhood, both being on the east side of Mississauga. The total distance between the two neighbourhoods is less than 5 kilometres. Keeping the children at St. Elizabeth Seton, on the west side of Mississauga, would not necessitate transferring them from the care of Ms. McIntosh-Anderson, with whom they are principally resident.

[53] Where a change of school is necessitated by a change of residence of the parent with whom the children are primarily resident, the Court may permit the change of schools in order to accommodate the parent’s change of residence. Ms. McIntosh-Anderson relies on such decisions, arguing that as the children are principally resident with her, she should be permitted to transfer them to a school in the neighbourhood in which she wishes to live. Again, for the reasons that follow, I do not find that the principles of those cases are applicable to the facts of the present case.

[54] In Williams v. Lamoureux, (2011), the mother sought an order allowing her to transfer the 8 and 10 year old children to a different school. The mother’s evidence in support of the change of school related “principally to the change of her residence” in April 2011. Justice Warkentin noted:

One of the most significant reasons for the change of school is that Heritage Public School is a 30 minute drive from the Applicant's home, with no school bus service, whereas Pleasant Park is less than four kilometers from her new home and there is school bus service to the new school. From the time the Applicant moved to her new residence in April of 2011 until the end of the school year, she (or her father) drove the children to and from school each day, a two hour time commitment every day.

[55] Justice Warkentin allowed the change of school on the following basis:

While I accept that a change to the children's school will be another change they have to deal with, I do not accept that it is not in their best interests to change schools. They remained at Heritage Public School for the full first year after the parties' separation. The Applicant acknowledged the importance of not changing the children's school until the beginning of a school year, even though the ongoing commute was significant for her and the children. It is not unreasonable for the Applicant mother to make this change at this time. They have moved to a new neighbourhood where the mother is now the sole custodial parent of the children and responsible for all their day to day needs. She has ensured the children have met other children from the neighbourhood and from their new school so that they will have an easier time with the transition.

I am confident that the Applicant will ensure that both children receive whatever additional assistance they require with their adjustment to their new school … [8] [emphasis added]

[56] In the present case, the children have not moved to a neighbourhood of a sole custodial parent, nor to one that would require a change of schools. Ms. McIntosh-Anderson and Mr. Anderson have agreed that they will have joint custody of the children. Additionally, the children have continued to attend a school on the west side of Mississauga, where Ms. McIntosh-Anderson has now secured employment. Their current school is closer to her place of employment than the school to which she proposes to transfer them. It is also not much further from the neighbourhood where she proposes to live than from the neighbourhood in which they currently live.

[57] In Forte v. Forte, (2004), Corbett J. found that it was reasonable to change the children’s school based on the following factors:

(a) one of the proposed schools is in Cambridge, where the children are to be living, and the other is in Oakville. The children are young, and there is great merit to their attending a local school, where their schoolmates will also be their neighbours;

(b) the children do not have special needs. Although the court has little information about St. Margaret's Catholic School in Cambridge, it is a publicly funded separate school, and there is no reason to expect that it will not provide a reasonable standard of education for the children and meet their needs;

(c) attendance at the Oakville school, Rotherglen, has required Daria to drive for 2.5 to 3 hours per day. She does not wish to do this;

(d) attendance at the Oakville school has required the children themselves to spend upwards of 1.5 hours per day driving to and from school. This time could be spent on extra-curricular activities, playing with their friends, or other active pastimes. It also significantly reduces flexibility respecting the children's after school activities, since they must both return home at the same time, and at a time that is convenient for Daria;

(e) Daria is the custodial parent, and her choice of school should be respected unless it is unreasonable, contrary to the best interests of the children, or inconsistent with fundamental values historically respected by the family. [9] [Emphasis added]

[58] Justice Corbett concluded that the children now lived primarily in Cambridge, not Oakville, and a “change of schools naturally flows from that change”. The facts of the present case are readily distinguishable from those in Forte v. Forte. If the children remain at their present school, Ms. McIntosh-Anderson’s commute, at most, will be 40 minutes longer than her commute to the school to which she proposes to transfer them. Moreover, Ms. McIntosh will have to make most of that commute in any event in order to get to her new employment. The only difference is that she would be dropping the children off at their school before she makes her commute instead of afterward.

[59] In Mitts v. Mitts, (2014), the parties had joint custody of their 10 year old child, who was primarily resident with the mother. The mother sought to move the child’s residence 154 kilometres from Waterloo to Wasaga Beach, Ontario. The father opposed the move. At trial, McLaren J. held that it was in the child’s best interests to allow the mother to relocate the child to Wasaga Beach. Justice McLaren noted:

vi) In allowing the move, the basic arrangements will still be in place. The mother will continue to have the primary residence of the child and the father will have regular weekend and holiday time, increased summer holiday time and additional weekend time can be given to make up, in part, for lost midweek time.

vii) The biggest hurdle the mother had in her case is the concern for the disruption on being removed from her community. However, Toni will see her family in Kitchener often. It is always difficult to change schools but Toni has been described as an outgoing girl who makes friends easily and as of the trial she had a new friend in Wasaga Beach; a girl of the same age who lives next door.

viii) The law is such that the custodial parent's views are entitled to great respect. As the parent with the primary residence, the mother's views have been given respect here but this is not the deciding factor.

xi) I am mindful that the law regarding relocation requires me to not view the case as two competing claims. I must be satisfied that the relocation is in the best interests of the child. For all the reasons given, I am of the view that it is in the best interests of the child that the mother be allowed to stay in her new home and neighbourhood with Toni, subject to generous weekend and holiday time for the father. The child will still have meaningful time with her father and she will continue to have her primary residence with her mother. I do not have any independent evidence that the child has taken a position on the move. The mother's reasons for the move were based on a genuine frustration over her financial situation and a desire to provide a better life for her daughter given the inadequacy of the child support paid, and the lack of financial disclosure. Although the child will be uprooted from the Kitchener area, she will be there often as she will be seeing her father often in Kitchener. … Likewise, it would be inappropriate to change the primary residence to that of the father when her mother has had the primary residence all her life. [10] [Emphasis added]

[60] The Court in Mitts allowed the parent with whom the children were primary resident to relocate them, notwithstanding a joint custody arrangement. [11] In that case, however, the choice was between changing the children’s school and changing the parent with whom the child was primarily resident. Additionally, the mother’s change of residence was necessary for financial reasons. That is not the situation in the present case, where the children can remain with Ms. McIntosh-Anderson without changing schools, and Ms. McIntosh-Anderson can maintain her new employment, which is closer to the children’s current school than to the school to which she proposes to transfer them.

[61] In considering a parent’s request for a move, the Court is required to examine the “social, psychological, and emotional aspect of a parent’s move, where the move would offer the children increased stability.” [12]

[62] In Choudry v. Cater, (2018), the mother was the custodial parent. She had changed the children’s school because she had moved from Etobicoke to Toronto, and she needed to move the children to a school in her new school district. The change of school was due to “convenience/geography”. The Court found that the mother’s reasons for the school change were “perfectly reasonable”. [13]

[63] The facts of the present case are not like those the Court faced in Choudry. Leaving the children at their present school will not require changing their principal residence from Ms. McIntosh-Anderson. It will also not require Ms. McIntosh-Anderson to drive a distance that is burdensome to either her or the children. The highest estimate of driving time from her home to St. Elizabeth Seton, and onward to the Electric Company is still only about 50 minutes, not much greater than her current commute from her parents’ home to the school, and only 10 minutes longer than her commute would be if the children were transferred to St. Edmund.

The OCL Recommendations

[64] The Courts of Justice Act (“the Act”) provides that the Office of the Children’s Lawyer (“OCL”) may make recommendations to the Court on all matters concerning custody of, or access to, the child and the child’s support and education. Once filed, the OCL Report forms part of the evidence at the hearing. The Act provides:

112(3) An affidavit of the person making the investigation, verifying the report as to facts that are within the person’s knowledge and setting out the source of the person’s information and belief as to other facts, with the report attached as an exhibit thereto, shall be served on the parties and filed and on being filed shall form part of the evidence at the hearing of the proceeding.

[65] Ms. McIntosh-Anderson seeks the implementation of the recommendations contained in the OCL Report. She relies on cases in which the Court has given effect to the OCL recommendations. In Mitchell v. Carson, (2012), the Court adopted the OCL recommendation that the mother have sole custody of a two year old child with access to the father. The mother was found to be able to provide a more stable environment for the child, based on observations of the conditions of both parties’ homes. The father sought joint custody, contrary to the OCL recommendations. The Court found that the father lacked insight into the child’s needs and did not accept responsibility for his own actions.

[66] In Ali v. Ali, (2012), the Court granted the father sole custody of a child, who was 1.5 years old at the time of the hearing. The OCL’s final report recommended that the father have sole custody of the child, with scheduled access with the mother. The OCL found that the father was able to provide a stable home to the child, and that the mother was impulsive and gave little forethought to the impact of her actions on the child.

[67] In Quercia v. Francioni, (2011), the Court granted sole custody of the children to the mother based on an OCL report, which found that the joint custody regime was causing harm to the children as a result of ongoing conflict created by the father. The Court found that the father was unable to respond appropriately to issues affecting the children and that, as a result, co-parenting had become impossible. It noted that the OCL report made clear “the need for sole custody to be settled on the mother”.

[68] In all of the above-mentioned cases, the issue was which parent should have custody of the children and with which parent they should be principally resident. In the present case, the parties have agreed to share joint custody, contrary to the OCL Report, which had recommended sole custody. I agree with Bloom J.’s conclusion that “The OCL recommendations were an inter-related package.” The parties themselves departed from the recommendations when they agreed to share custody of the children, and to require Ms. McIntosh-Anderson to consult Mr. Anderson on major decisions affecting the children. Although they agreed that Ms. McIntosh-Anderson would have final decision-making power in respect of most decisions, they made an exception in the case of the decision as to where the children are to attend school in September, 2018.

[69] Additionally, the weight of the OCL recommendations is diminished by the fact that Ms. McIntosh-Anderson, after initially indicating that she was calling the author as a witness, decided not to do so, leaving Mr. Anderson with the dilemma of whether to adjourn the hearing and call Ms. Majewski himself, or proceed without the opportunity of cross-examining her. In M.D.B. v. T.M.L, (2012), Zeisman J. of the Ontario Court of Justice stated:

[164] I agree that no weight should be put on the recommendations in the Office of the Children's Lawyer report due to the lack of the ability to cross-examine which is crucial to test the strength of those recommendations. There were also issues that could have been clarified and explanations provided to understand the basis for the recommendations. The parties were also not able to determine if the investigator’s recommendations would have changed because of the recent falling out between B.F.R. and the other parties or if the recommendations regarding the parents’ time would have changed as a result of the parents obtaining permanent accommodations. [14]

[Emphasis added]

[70] Similarly, in Vucenovic v. Rieschi, 2012 ONCJ 658, Pawaji J. in the Ontario Court stated:

36. An updated report from Thistletown dated August 29, 2012 was proffered by Mr. Vucenovic and objected to by Ms. Rieschi. I am not accepting it as it was submitted at the last minute with no opportunity for Ms. Rieschi to consider it and cross-examine the author. Mr. Vucenovic submits it in order to explain why the family’s involvement with Thistletown terminated. However, the parties agree that Mr. Vucenovic terminated the counselling with Thistletown in May 2012, and that he wanted to start it again in August 2012, but this time Ms. Rieschi refused. [15]

[Emphasis added]

[71] Mr. Anderson tendered a critique of the OCL Report but Ms. McIntosh-Anderson opposed its introduction on the ground that it omitted a statement of the expert as to his neutrality and an acknowledgement of his primary duty to the Court. While I have not taken that critique into account in making my decision, I also do not attach great weight to the OCL Report, having regard to the fact that the author was not called as a witness and exposed to cross-examination, and that Mr. Anderson was not permitted to tender his critique of the Report.

[72] The OCL Report notes that both parents reside in temporary or rented accommodation, which gives them greater flexibility. I take this to mean that because Mr. Anderson lives in rental accommodation and Ms. McIntosh-Anderson lives with her parents at their home, either parent is able to change residence without suffering serious financial loss.

[73] Mr. Anderson testified that he signed a new one year lease in September, 2017. He acknowledged that he does not have to sign a new lease and can become a month-to-month tenant. He states that he could move, but that a move would be costly and that he does not have the financial ability to do so easily, having regard to what he is paying for child support and children’s activities.

[74] While I accept that a move would be costly for Mr. Anderson, I do not find that a change of residence would result in financial hardship, within the meaning of s. 10 of the Child Support Guidelines, for either party. In making a determination as to the choice of school, I therefore place greater weight on the impact a change would have on the children’s social and familial network than on the financial impact it would have on the parents.

[75] The OCL Report states, “Ms. McIntosh-Anderson has indicated that she wants to make her current residential area her primary home in the long term, so that she can be close to her parents, who are a parenting support for her. Ms. McIntosh-Anderson indicated that the children currently have to commute a half hour to and from school each day, when the girls already have a busy evening schedule with ringette.” (page 17)

[76] The OCL Report further states, “While a move to a new school is never an easy recommendation and it is not a move that the children have expressed they want, it does not seem reasonable or possible, with the current set of recommendations, to have Ms. McIntosh-Anderson and the children to continue to do this long commute for the rest of their school lives. It will take a toll on them all. This writer would propose that it would be better that, if a transition needs to occur, it occurs now while they are young enough to make new friends and fully transition, before the tougher challenges of middle and then high school start. The children will need to integrate into their home so that they can have friends in their primary community. While the children are worried about a change in school, this can only be expected. They have never made a transition like this and, at the ages of 8 and 10 years, have only a limited perspective of what this might be like for them.” (page 17)

[77] I must disagree with the OCL Report in this regard. Ms. McIntosh-Anderson has secured employment that is closer to St. Elizabeth Seton than to St. Edmund. She has willingly assumed a greater commute for herself, and the commute, for the children, will be no greater than it was before she secured that employment. Moreover, the children wish to remain where they are, for the valid reason that they want to maintain the friendships they have had since they were in Junior Kindergarten. The Court must approach the determination as to what choice of school is in their best interests from the children’s perspective, and not from the perspective of either parent.

[78] The Court would not restrain Ms. McIntosh-Anderson’s choice of residence or employment unless it would have a detrimental effect on the children, having regard to both their relationship with their father and their relationships with their friends, teachers, and priest. If the increased commute imposed an unacceptable burden on the children, it might have to be restrained, but if Ms. McIntosh-Anderson is willing to assume the burden of additional driving, and she can avoid the children’s own travel being increased, then she should be permitted to move, but should not be permitted to dictate a transfer of school unless it would genuinely be in the children’s best interests.

[79] The author of the OCL Report states, “I have spoken at length to Ms. McIntosh-Anderson about a change in school and she seems to be fully aware of the challenges that would face her and the girls; she is prepared to support this and knows that things might be tough for a little while, until the children fully adjust.” This statement trivializes the challenge that the children would face, both in its extent and duration. I see no evidence that the author of the Report assessed the likely consequences of the move, or even discussed the subject with the children or their teachers or principal or with other collaterals.

[80] It is the children who face the challenge that a loss of their friendships and of the association with their school and church community would entail, not to mention the potential attenuation of their relationships with their father. It is not that things “might be tough for a little while”. They would be tough, and it is quite likely that the effect would not be for a little while, but potentially for a long while, especially as Annaka is entering grade 7, and will soon be preparing to enter high school.

[81] It is commendable that Ms. McIntosh-Anderson is prepared to support the children in facing the challenge of a transfer to another school. It is preferable, however, to spare them the challenge altogether, if the benefit of doing so outweighs the detriment.

[82] Ms. Majewski states in her Report that Ms. McIntosh-Anderson is ”prepared to keep up friendships for the girls from their old school and ringette”. She proposes that if Ms. McIntosh-Anderson feels that she can support the girls through a change in school successfully, then the change should occur. She states that if the change occurs soon, it can be supported by the children’s counsellor, Ms. Thornton” (pages 17-18). The author offers no evidence that she has explored the potential impact with Ms. Thornton, or that she has any sense from her as to what support she can provide, or to what extent it would ameliorate the harm to the children.

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

[83] Ms. McIntosh-Anderson argues that transferring the children to St. Edmund would not substantially impact or prejudice Mr. Anderson’s ability to exercise his regular access with the children. Mr. Anderson’s residence at 2720 Windwood Drive, apartment 408, Mississauga, is directly across the street from St. Elizabeth Seton. It is approximately 20 kilometres from St. Edmund and would require about a 20-25 minute drive.

[84] Ms. McIntosh-Anderson notes that Mr. Anderson would only have to make the drive six times every two weeks. She states that the change of school is not being proposed for the purpose of frustrating Mr. Anderson’s access, but rather to enable Ms. McIntosh-Anderson to maintain the necessary familial support while continuing to be the children’s primary caregiver.

[85] Ms. McIntosh-Anderson argues that because Mr. Anderson is currently residing in rental accommodation, he would be able to re-locate his residence closer to St. Edmund if the children were transferred there. The same could be said of Ms. McIntosh-Anderson’s current accommodation with her parents. Now that she has secured employment on the west side of Mississauga, she has a choice where to reside, and can, if she wishes, re-locate closer to St. Elizabeth Seton and to her proposed place of employment.

[86] Ms. McIntosh-Anderson testified that since the parties’ settlement of parenting issues on January 9, 2018, she communicates with Mr. Anderson through Our Family Wizard. She states that the communications are polite and cordial. While I accept her evidence in that regard, it was my impression of Ms. McIntosh-Anderson testimony and demeanour that she retains a significant anger toward Mr. Anderson and is the less likely of the two to facilitate the children’s contact with the other parent.

[87] Ms. McIntosh-Anderson argues that transferring the children from St. Elizabeth Seton, on the west side of Mississauga, to St. Edmund, on the east side, would have little impact on Mr. Anderson’s parenting time with the children and that, as the parent with whom the children primarily reside, she should be permitted to transfer them to a school near her home. While it is true that Ms. McIntosh-Anderson is affected more than Mr. Anderson by any change in her commuting distance to the children’s school, I have noted that Ms. McIntosh-Anderson will have almost the same commute to her new employment in any event. The only difference is that she will be dropping the children off after the majority of her commute instead of after.

[88] Because Ms. McIntosh-Anderson is responsible for driving the children to and from school on seven out of ten school days, a lengthening of Mr. Anderson’s commuting time would have a proportionately greater effect on the children’s time with Mr. Anderson, as they already have less time with him than they do with their mother.

[89] Mr. Anderson has offered to pick up the children from her home, or to have her drop the children at his home at 7:30 a.m. or earlier. When asked about this offer, Ms. McIntosh-Anderson noted that this would affect the parenting schedule and stated that she would prefer to follow the present parenting schedule.

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

[90] I have concerns about the impact that transferring the children to St. Edmund would have on their relationship with Mr. Anderson. While the parties’ Minutes of Settlement provide that Ms. McIntosh-Anderson is to consult with Mr. Anderson about major decisions affecting the children, this does not appear to have occurred in relation to the proposed transfer of the children to St. Edmund, or the change of church affiliation that such a move would entail.

[91] Ms. McIntosh-Anderson does not appear to have discussed her proposed changes with Mr. Anderson. She states that she uses Our Family Wizard, and describes communication as polite and cordial. However, there was discussion about St. Edmund and about other choices, including the change of church, by that means.

[92] Ms. McIntosh-Anderson stated that she believed she notified Mr. Anderson of her intentions regarding the change of school and of church, but does not remember how she did so. They do not talk on the telephone. She does not know whether the subject of a change of church affiliation had only come to Mr. Anderson’s attention through the lawyers, or whether it came to his attention for the first time during the trial. Her August, 2017 reply Affidavit dealt with the children’s daycare, but not with church affiliation.

[93] When asked whether she had conferred with Mr. Anderson about Trinity-Rose entering a theatre program, Ms. McIntosh-Anderson stated she did not because the program would be on “her time”. However, she also did not confer with him about Annaka’s request to take tutoring, which was offered for Math and English on different days, one of which days being one when she would be in her father’s care. She did not discuss it with Mr. Anderson. Instead, she told Annaka that she could attend on days when she was in her care and that if she wanted tutoring on her father’s nights, Annaka would have to discuss it with her father.

[94] Joint custody means that both parents have responsibility over the children’s well-being, including the choice of their doctors, church affiliation, school, and extra-curricular activities. If the parties have joint custody, they should confer with each other about all of these subjects.

[95] Ms. McIntosh-Anderson states that since January, 2018, she did not confer with Mr. Anderson because she did not see the purpose. Her wishes, she states, are available for him to read in the material exchanged between counsel. This outlook does not bode well for Ms. McIntosh-Anderson’s inclusion of Mr. Anderson in decision-making concerning the children.

[96] Ms. McIntosh-Anderson testified that if she received a call from the children’s school regarding a sickness or emergency on a day when the children were in her care, she would not call Mr. Anderson. She has other supports to rely on, and gave a list of her parents, who work, her siblings and friends, who also work, her grandmother, who is retired and still drives. Other than her grandmother, the only persons she would call are people who have work commitments.

d) The views of the children

[97] The children have attended St. Elizabeth Seaton since Junior Kindergarten. Annaka has attended there for the past eight years. Both children wish to retain the sense of familiarity they have with their school. They have made their preference known to the OCL investigator, Ms. Majewski, and to others. They do not want to leave St. Elizabeth Seaton.

[98] Annaka is going into grade 7. She is already talking about going on her grade 8 school trip. A change of school would change those plans. If the children are transferred, Annaka would be attending grade 7 and her 8 retreat at St. Edmund, with new friends.

[99] Ms. McIntosh-Anderson testified that the children struggle with bullying, which she says only started on April 20, 2018, approximately a month before the trial. She sought to refer to an “Important event” before that day, but objection was properly made to raising the issue, which she had not previously disclosed. There is no reference to bulling in the children’s report cards.

[100] Mr. Anderson testified that Annaka has indicated that she would like to attend St. Aloysius Gonzega Secondary School, which is situated at 2800 Erin Centre Blvd, in Mississauga. That school is four minutes south of St. Elizabeth Seton, along Glen Erin Drive.

[101] Ms. McIntosh-Anderson downplays the children’s preference to remain at St. Elizabeth Seaton. She testified, “There will be transitions. They would not be overly-excited about it. There will have to be discussions. They have never had a change of schools before. They have never done what most people do.” As for telling the children that they will not be returning to St. Elizabeth Seton, or to Magnitude, or to their church, and their friends, Ms. McIntosh-Anderson asserts that their relationships with friends will continue through ringette and summer programs, and that she will arrange “play dates” for them to replace seeing their friends at school. She adds that the children will make new friends.

[102] Ms. McIntosh-Anderson states, “No child appreciates change. They are unsure of the unknown. The change will elicit some upset feelings. I will deal with that change like any other, including having them speak to family members or counsellors.” She acknowledged that she has not considered sitting down with Mr. Anderson and working through the issue with the children. She has not accepted his invitation to participate in a co-parenting program, and did not attend a co-parenting program on her own.

[103] Mr. Anderson expresses the children’s views more forcefully and gives their preferences more weight. He testifies that the children would be distressed to leave their school and enraged that they are being forced to do so.

[104] Ms. McIntosh-Anderson asserts that the children don’t know what is in their best interests. They don’t want change, just as they did not want the parties to separate. She states that they lack any “gauge” for what is in their best interests. I disagree. In some respects, children have a greater sensitivity to at least some aspects of what is in their best interest. They know what is important to them, and the evidence discloses that their relationships, and a sense of continuity is important to them, and that the length of their current commute does not outweigh the value of their relationships with school friends and teachers to them.

[105] There are undoubtedly some aspects of the children’s best interests, such as the value of their education in helping them achieve the goals that they may have in the future, about which they lack sufficient experience to assess. The Court must weigh those factors, but should not allow them to obscure those aspects of their interests of which they have greater knowledge, because of its immediacy.

e) The custodial parent’s reason for moving, only in exceptional cases where it is relevant to that parent’s ability to meet the needs of the child;

Ms. McIntosh-Anderson’s preferred neighbourhood

[106] Among Ms. McIntosh-Anderson’s motives for transferring the children to St. Edmund is her preference to reside in her grandparents’ neighbourhood. She wishes to move there, in part, in order to have a home of her own, and to bring to an end her dependence on her parents and her residence at their home. Additionally, she would like to live in the neighbourhood where she grew up, and to facilitate her receiving support from her maternal grandmother, on whom she relies from time to time to care for the children as, for example, when they are sick and must stay home from school.

Ms. McIntosh-Anderson’s employment

[107] Both the interim and final Reports of the Children’s Lawyer state that Ms. McIntosh-Anderson wanted to transfer the children to St. Edmund in part to enable her to transport her children to and from school and their activities without disrupting her employment.

[108] As noted above, Trimble J. requested the involvement of the OCL on August 8, 2016. Ms. McIntosh-Anderson’s employment in Toronto ended in November, 2016 and she was not employed again until June 2018, when she was hired by the Electric Company.

[109] Ms. Majewski held her preliminary disclosure meeting with the parties on December 2, 2016, and issued her Interim Report in February 2017. She held her final disclosure meeting with the parties on July 19, 2017, and issued her final report on August 3, 2017.

[110] Ms. McIntosh-Anderson states that she and Ms. Majewski did not discuss her employment. She says that it simply did not come to mind. I accept her evidence in this regard, but find these references in the Report to her employment puzzling. I conclude that Ms. Majewski may not have fully understood Ms. McIntosh-Anderson’s rationale for wanting to transfer the children to St. Edmund.

[111] At the time of trial, Ms. McIntosh-Anderson had been interviewed for the position of Office Manager at the Electric Company at 2217 Dunwin Drive, on the west side of Mississauga. As noted above, she filed an affidavit 1 ½ months after the trial stating that she has been hired for that position and began her employment on June 13, 2018. Her hours of work are Monday to Thursday from 8:00 a.m. to 5:00 p.m. and on Fridays, from 8:00 a.m. to 3:00 p.m. During the summer, her hours on Fridays are from 8:00 a.m. to 1:00 p.m.

[112] The trial judge may receive new/additional evidence that meets the criteria outlined in Hughes v. Roy, (2016):

The governing authorities makes it clear that that the court's discretion to re-open a trial should be exercised sparingly and cautiously. The court must consider the following factors, when determining whether to re-open a case after the end of the trial, either before or after judgment has been rendered:

1. whether the evidence, if presented at trial, could affect the outcome of the trial or could have changed the result if judgment has already been rendered;
2. whether the evidence could have been obtained before the trial by the exercise of reasonable diligence;
3. whether the evidence is relevant, necessary, and reliable;
4. what, if any, is the prejudicial effect of the new evidence;
5. the importance of the integrity of the trial process;
6. whether it would cause a miscarriage of justice if the new evidence were not accepted;
7. in child protection cases, the court ought not to accept a very restrictive approach and should hear further evidence so long as it is relevant to the consideration of what is in the best interests of the child. Flexibility should be maintained by the court when exercising its discretion. [16]

[113] I am of the view that the evidence should be admitted in the circumstances. In N.H v. J.H., (2017), the Court, which entertained a motion to introduce new evidence while a trial decision was under reserve, the Court made the following comments on the propriety of the trial judge receiving new evidence, which I find apt in the present case:

19 Perhaps there is some confusion as to when a trial begins and finishes. That should be dispelled.

20 It is trite law, that a trial judge remains seized of the issues before her until a formal order or judgment is entered in the court record. There are several cases that stand for the proposition that a judge is not functus officio until the order is formalized. On the other hand, this does not mean that trials should be converted to rolling ongoing interminable hearings. Once the court has released a decision, it would be a rare case where it might be in the interests of justice to withdraw reasons of the court and to rehear the case on the merits. I make this point simply to emphasise that in certain circumstances a trial judge could re-open the hearing even if she had released her reasons. The trial is not technically concluded until the judgment is entered. In my view the trial is still in progress.

21 Trials are of course subject to formal procedures. Just because the decision is under reserve and the trial is still in progress, does not confer upon the parties or the trial judge a licence to continually entertain additional evidence. Generally speaking a party must marshal all of its evidence and present it during the trial. The party is not permitted to try to bring more evidence to bolster its case after that party's case is closed. It is for that reason that rules and principles have evolved concerning this issue of re-opening the case. Justice Mackinnon referred to them when she gave leave to the applicant to re-open his case in April. She referred with approval to the factors outlined in Hughes v. Roy. Amongst those factors are whether the evidence is relevant, necessary and reliable, whether it could have been obtained before the trial by the exercise of reasonable diligence and whether it would cause a miscarriage of justice if the new evidence were not accepted.

23 It is certainly possible that the change in circumstances which has taken place since the parties closed their cases would meet the test for re-opening the trial. There can be no question that the trial judge has that authority at a time when she has not yet released her decision. Whether to entertain that evidence or to re-open the trial is a decision for her and her alone and it would not be appropriate for a motions judge to entertain that evidence on a motion while the decision remains under reserve. [17]

[114] The evidence regarding Ms. McIntosh-Anderson’s new job was anticipated at the time of trial but was not yet available. Because the evidence could not have been obtained during the trial itself, the factors outlined in Hughes favour its admission.

[115] I accept that Ms. McIntosh-Anderson’s new position as Office Manager, and the $60,000 salary it entails, will benefit her and better enable her to meet the children’s financial needs. Ms. McIntosh-Anderson gives as one of her reasons for wanting to transfer the children to St. Edmund, to ease her commute when transporting the children from home to their school, and then continuing on to her new place of employment at the Electric Company.

[116] Ms. McIntosh-Anderson testified at the trial that she hadn’t yet thought through what her driving schedule would be if she was hired at the Electric Company. Because Ms. McIntosh-Anderson had not been told what time she would be required to begin work at the Electric Company, or whether her employer would be flexible in that regard to accommodate her need to get her children to work, it cannot be determined whether the children’s continued attendance at St. Elizabeth Seton would interfere with her work commitment.

[117] If Ms. McIntosh-Anderson travelled west from Burningoak Crescent, where she and the children currently reside, the Electric Company Office would be south of that, along Glen Erin Drive. Ms. McIntosh-Anderson was unsure whether the Electric Company, which has its offices at 2217 Dunwin Drive, runs off of Glen Erin Drive, the same street where St. Elizabeth Seton is situate. In fact, the map that Mr. Anderson tendered discloses that Dunwin Drive, where the Electric Company is situate, does run east off of Glen Erin Drive, and is a block east of Glen Erin Drive.

[118] A change of the children’s school is not necessary to enable Ms. McIntosh-Anderson to meet the demands of her new employment. As noted above, the change of schools would not substantially reduce her commute; it would simply mean that she will be dropping the children off after her drive across the city instead of before it. Because she is required to begin work at 8 a.m., leaving the children at their present school would require her to drop the children off, or have her parents drop them off, either to PLASP, which begins at 7:30 a.m., or at Mr. Anderson’s apartment.

[119] St. Elizabeth Seton is situated just 8.2 kilometres north of the Electric Company, along Glen Erin Drive. Ms. McIntosh-Anderson acknowledged that she had not actually plotted the course between the school and the Company.

[120] Ms. McIntosh-Anderson states that it takes her about 35 minutes to drive from Burningoak Crescent to St. Elizabeth Seton; if there is heavy traffic, construction, or bad weather, it takes her 45 minutes. The children start school at 8:45 a.m.

[121] I understood Ms. McIntosh-Anderson to say that the drive from the school to the Electric Company was 50 minutes. I believe that I must have misunderstood her, as the drive is only 8.2 kilometres south along Glen Erin Drive from St. Elizabeth Seton to the Electric Company. At that distance, in light traffic, the drive would be more like 13 minutes. Mr. Anderson testified that he ran the “Waze” computer application to check the time required to travel from his apartment, which is across the street from St. Elizabeth Seton, to the Electric Company. At 7:34 a.m. and at 7:45 a.m., the program disclosed that the drive to Dunwin Avenue would take 12 minutes.

[122] Ms. McIntosh-Anderson may have meant that the entire drive from her home to St. Elizabeth Seton (35 minutes) and then to the Electric Company (a further 15 minutes) was 50 minutes.

[123] The evidence discloses that the Electric Company is closer to that school than to St. Edmund, which is 14.9 kilometres away. The Electric Company is 15.5 kilometres west of 3521 Burningoak Crescent, in southeast Mississauga, where Ms. McIntosh-Anderson and the children currently reside. Ms. McIntosh-Anderson has driven that distance in less than 20 minutes.

[124] It is a 25 to 45 minute drive from Ms. McIntosh-Anderson’s current home on Burningoak Crescent to St. Elizabeth Seton, depending on weather and traffic conditions. She can drop the children off at PLASP at 7:30 a.m. The 8.5 kilometre drive from the School to the Electric Company would be 13 minutes in ideal conditions, but even allowing a half hour for poor conditions, would enable her to arrive at work by her start time of 8 a.m.

[125] Ms. McIntosh-Anderson testified that if the children were transferred to St. Edmund, she would have no problem getting them to PLASP. St. Edmund’s is a five minute drive from where she lives. They have to be driven there. St. Edmund offers PLASP beginning at 7:30 a.m. PLASP covers children up to grade 12.

[126] Ms. McIntosh-Anderson states that she would be able to drop the children at PLASP at 7:30, and get to work by 8 a.m. Her plan is either to drop the children at PLASP at 7:30 a.m. and continue to work, or have her parents take the children to school, where outdoor supervision begins at 8:30. Classes at St. Edmund begin at 8:45 a.m.

[127] Mr. Anderson’s counsel suggested to Ms. McIntosh-Anderson that PLASP ends at grade 6. She acknowledged that she was not aware of that, but allowed that it was possible. She thought that special arrangements might be made if another sibling is attending the program, and suggested that Annaka was not as mature, and it would be reasonable for her to continue attending. She stated that when Trinity-Rose gets to grade 6, their grandmother will drive them, or they may by that time live close by and the children can walk.

[128] Ms. McIntosh-Anderson states that she does not know whether she is entitled to enroll the children in St. Edmund if she is residing with her parents on Burningoak Crescent. I do not find her evidence to be credible on this point. She acknowledged that she had applied to enroll the children at St. Edmund and for that purpose, had given her grandmother’s address on Sunnycove. She states that she did so because the school needed an address in its catchment area and because she intends to move to that neighbourhood.

[129] Ms. McIntosh-Anderson noted that the children are principally resident with her, and that she currently lives at Burningoak Crescent, which is not in the catchment area of St. Elizabeth Seaton. However, she acknowledged that the children have a primary residence with her and a secondary residence with their father, and that they are in the catchment area of their secondary residence.

[130] I find it likely that unless and until Ms. McIntosh-Anderson moves to that neighbourhood, she will not be entitled to enroll the children at St. Edmund. Additionally, I find that there is no certainty that both children will qualify for PLASP. Ms. McIntosh-Anderson’s grandparents, who are 82 years old, did not testify and have not committed to be available to provide regular and reliable transportation for the children if they are transferred to St. Edmund.

f) The disruption to the children of a change in custody;

[131] As noted above, neither leaving the children at St. Elizabeth Seton, nor transferring them to St. Edmund will result in a change of custody or of their principal residence.

g) The disruption to the children consequent on removal from family, schools, and the community they have come to know

[132] The children’s pediatrician, dentist, orthodontist, and therapist, are all at Bristol Square in Oakville. Bristol Square is on the west side of Mississauga, off Winston Churchill, near the Electric Company.

Impact on the children’s, and parents’ commuting time

[133] Since the parties separated in March 2016, the children have commuted from their maternal grandparents’ home at 3521 Burningoak Crescent, on the east side of Mississauga, to St. Elizabeth Seton, on the west side. As Ms. McIntosh-Anderson has primary care of the children, who are in her care seven out of ten school mornings and afternoons, she is responsible for the majority of the driving to and from school.

[134] When the children are in Ms. McIntosh-Anderson’s care, her commute from her home to St. Elizabeth Seton is approximately 15-20 km each way, including highway driving. She states that when traffic is light and the weather is good, the drive usually takes her approximately half an hour. When traffic is heavy, or when the weather is bad, it can take her 45 minutes.

[135] Ms. McIntosh-Anderson states that the commute from Burningoak Crescent to St. Elizabeth Seaton has taken a toll. She notes that on seven out of ten days in a two-week cycle, they have to make the trip from her home to St. Elizabeth Seton and from Magnitude to her home. Depending on their schedules, they are sometimes in the car from home to the arena for ringette. Ms. McIntosh-Anderson acknowledges that some of the driving has resulted from her pursuing some of the girls’ interests. She enrolled Trinity-Rose in the theatre school, for example, and Annaka in Guides, each of which entail additional driving. The result, however, is that by her estimation, the children can spend as much as 70% of their time out of school in the car.

[136] St. Edmund is approximately four kilometres from Ms. McIntosh-Anderson’s parents’ home at 3521 Burningoak Crescent in Mississauga. The drive does not require highway driving. Ms. McIntosh-Anderson would be able to drive from her home to the school in 5 to 10 minutes. She argues that if she transfers the children to St. Edmund, it would reduce the amount of time they spend commuting to and from school each day, and the amount of time they need to spend in before and after school care.

[137] Ms. McIntosh-Anderson replied that she has no problem with the drive to St. Edmund, but stated that if the children were getting a ride with her parents, it would give them time for breakfast at home. She stated that Annaka is not “a morning person”. However, even if Ms. McIntosh-Anderson were to drive the children to St. Edmund, it would be better than the current arrangement, where they have to commute a great distance to St. Elizabeth Seaton. She states that that drive takes 25 minutes in ideal conditions, but often takes 45 minutes. She added that they have enjoyed the ride, and Annaka has made the best of it, but that it is not ideal.

[138] Ms. McIntosh-Anderson states that if her father or mother were doing the driving to St. Edmund (they now work), the children could stay home longer in the morning. If they drive the children to St. Elizabeth Seton, they would not have to leave until 8:20 a.m., or, if weather or traffic conditions are poor, at 8:05 a.m., in order to get them there by the commencement of classes at 8:45 a.m.

[139] Ms. McIntosh-Anderson was asked about what her plan would be if she were at work and one of the children were ill. On one of the seven of ten days in a two-week cycle when the children are in her care, the children’s School would call her to pick them up. It would be a shorter drive for her from work, on the west side of Mississauga, to St. Elizabeth Seton, just north of her workplace, than it would be from her work to St. Edmund, on the east side of Mississauga.

[140] Mr. Anderson would also be closer to St. Elizabeth Seton if one of the girls were sick and it were necessary for him to attend at their school to pick her up. He states that he was the parent who most often picked up the children from school before the parties’ separation. His work during the marriage was 20 minutes from the school. Ms. McIntosh-Anderson did not contradict his testimony in that respect.

[141] When the parties first separated, Trinity-Rose had an accident at school. Mr. Anderson, who worked at the same job he has now, brought her a change of clothes and underwear. Mr. Anderson explained that his direct supervisor at work is a separated father, as is the general manager. They have the schedule of separated parents, know what that is like, and are flexible with Mr. Anderson’s needs as regards his children.

[142] Annaka is turning 12 this September. It was suggested to Ms. McIntosh-Anderson that if she were ill, she could walk across the street and go to Mr. Anderson’s home. She replied that she did not think the girls had access to their father’s apartment building. Annaka has taken baby-sitting and Home Alone programs.

[143] Mr. Anderson testified that the girls have keys to his apartment. Annaka keeps her key in her back pack. They can come to his apartment at any time, he explains, and remain there until they are picked up.

[144] Ms. McIntosh-Anderson stated that she would not be comfortable with Annaka walking home to the apartment by herself from St. Elizabeth Seaton. She does not walk across park near my home alone. If Mr. Anderson decided that Annaka would walk from school to his home, today, she would object. There have been other situations where Mr. Anderson has suggested she walk alone.

[145] Mr. Anderson characterises the issue as one of maturity and responsibility, and of self-confidence. If they’re ready for that risk and are ready to look after themselves, whether at the courthouse or a parkette, he is comfortable allowing them to undertake it. He notes that the children have taken the baby-sitting and “Home Alone” program.

[146] Mr. Anderson explains that at the entrance to his apartment building, there is buzzer code, which rings his cell phone. The girls walk with a group of class-mates from the school to his building at approximately 3:15 p.m. The girls then call him. In the event he did not answer immediately, they call the landlord and the landlord lets them in. The landlord is a resident who lives in the building and does the maintenance. If the landlord is not in his apartment, the paging system puts them in contact with him wherever he is. I am satisfied that the security system that Mr. Anderson has in place is adequate to ensure the children’s safety and access to his apartment if he is not at home.

[147] Ms. McIntosh-Anderson proposes location, safety and security, and distance from home among the factors that should favour a transfer of the children to St. Edmund. She states that St. Edmunds is in a well-established part of Mississauga. She considers the neighbourhood around St. Edmund to be a safe community because it is well-established, occupied by families who have lived there awhile. It does not have a lot of high rise apartments. She acknowledges that she did not raise a concern about safety in her affidavits. She states that she is aware of some “unsafe instances” that have happened around St. Elizabeth Seaton, but does not offer any particulars. In the absence of such particulars, or of evidence to support a comparison of the safety of the two neighbourhood, I am not prepared to give this consideration any weight.

[148] Mr. Anderson works in Georgetown. He begins work at 8:30 a.m., and works until 5 p.m. From St. Elizabeth Seaton to his workplace is a 35 minute drive. St. Edmund is approximately 25 minutes further east than St. Elizabeth Seton. Therefore, on Mondays, when Mr. Anderson has care of the children, he would be driving them 25 minutes from his home to St. Edmund, dropping the children off at 7:30 at the PLASP, and then driving approximately an hour to his workplace, to arrive by 8:30 a.m. While it could be done in ideal conditions, the uncertainties of traffic conditions and weather could prevent him from arriving at work on time some days. While his employer is flexible, it is undesirable to create a situation that makes late arrivals at work a regular occurrence.

[149] On afternoons when Mr. Anderson has care of the children, he would be leaving work at 5 p.m. and would be driving approximately an hour to pick up the children, and 25 minutes further to return them to his home. A transfer of the children to St. Edmund would result in a substantially greater increase to Mr. Anderson’s commute than the decrease to Ms. McIntosh-Anderson’s commute.

[150] When asked, Ms. McIntosh-Anderson acknowledged that she had not considered what Mr. Anderson would do if the children were transferred to St. Edmund. She added, “How he manages his time is his business.”

Impact on the children’s school performance

[151] Both children do well at St. Elizabeth Seton, maintain grades in the A’s and B’s. Their teachers have nothing but positive things to say about them at parent/teacher interviews.

[152] This past academic year, Annaka was selected as an ambassador to participate in a conference promoting mental health and well-being. For the past two years, she has been rewarded with a “Day-Off-Class” for exceeding requirements and doing excellent work on an independent project. Due to her studious nature, Trinity-Rose was selected to support and assist a student in her classroom who has behavioural challenges. She is a helpful student and has a sense of pride and accomplishment.

[153] The teachers’ reports at the most recent parent-teacher interviews at St. Elizabeth Seton were glowing. The children are doing well in their academic performance, in their extracurricular activities, and in their interactions with family and friends in their neighbourhood. It is uncertain what effect a transfer to St. Edmund will have on their performance.

[154] Ms. McIntosh-Anderson agrees that St. Elizabeth Seton has wonderful teachers, and that the children have a wonderful relationship with their teachers and with their school principal. Trinity-Rose’s teach, Mrs. Yew, this past year, was new to the school. Annaka’s teacher, Ms. Talfyan, was her teacher for the past two years. Trinity-Rose has had teachers who taught Annaka in the past.

[155] In seeking permission to transfer the children from St. Elizabeth Seton to St. Edmund, Ms. McIntosh-Anderson relies heavily on the Fraser Institute rankings of the two schools. She states that the rankings are an important factor in her desire to transfer the children to St. Edmund.

[156] Ms. McIntosh-Anderson argues that St. Edmund consistently ranks higher than St. Elizabeth Seton. For the 2013-14 school year, St. Elizabeth Seton ranked 445 of 3037 schools, and was given a rating of 7.7 on a scale of 10, while St. Edmund ranked 1st of 3037 schools and had a rating of 10. For the 2015-2016 school year, St. Elizabeth Seton ranked 713/2900 schools and had a rating of 7.2/10, whereas St. Edmund ranked 83/2900 schools and had a rating of 8.7/10. For the 2016-17 school year, the most recent ranking available, St. Elizabeth Seton ranked 912/3064 schools and had an overall rating of 7/10, whereas St. Edmund School ranked 191/3064 schools and had a rating of 8.3/10.

[157] Neither party offered evidence as to what the Fraser Institute is, what its agenda may be, how it arrives at its rankings, or how reliable its rankings are. In Wilson v. Wilson, (2015), this Court reviewed the jurisprudence regarding the use of Fraser Institute rankings of schools. [18] It noted that in Hart v. Mascarin, Emery J. declined to consider evidence of such rankings that the father tendered, comparing the schools which the parties proposed their child attend for junior kindergarten. Justice Emery stated:

I do not propose to compare the statistics for each category of the validity of the criteria utilized by the Fraser Institute for its analysis of both schools for two reasons. First, this information is opinion evidence that should be offered by an expert. No affidavit from any person at the Fraser Institute was filed and no information was provided for the architect or author of the study, let alone his or her credentials. There was no attempt to comply with Family Law Rule 14(19) for Ms. Birch to state the source of the information by name and if she believes it to be true. The internet printouts do not in my view qualify as reports from an expert under Family Law Rule 20.1.

Second, and equally significant, this evidence is hearsay. The filing of this evidence did not allow Ms. Mascarin an opportunity to properly respond. She was not given the opportunity to cross-examine whoever at the Fraser Institute created the criteria, collected the data, or how the criteria or data was applied to reach those results. These printout sheets should not in any event be accepted for the truth of their contents.

[158] This Court, in Wilson v. Wilson, additionally relied on the decision of the B.C. Supreme Court in K.L.H. v. T.W.H. (2003), in which McKinnon J. accepted the expert evidence of a professor from the Faculty of Education of Simon Fraser University in respect to the Fraser Institute report and methods of evaluation employed by the Ministry of Education, noting that the sense of community often revolves around school activities, both for students and their extended families. It followed, McKinnon J. noted, that attendance at the neighbourhood school enhanced a student’s membership in that community and a sense of belonging. Relationships initiated at school were nurtured in that broader context, which included sports and other extra-curricular activities. The expert pointed out that the Fraser Institute relied heavily on ranking examination results which in her view represented only a partial picture of what constituted a “good” school. She opined that the rankings could not provide information on the complex range of variables that parents face when selecting appropriate schools for their children. In selecting the school proposed by the mother, McKinnon J. concluded:

I am not persuaded that a straight ranking system, as tendered by the Fraser Institute, is a reliable indicator of what is in these children’s best interests…Obviously rankings will fluctuate year by year. I accept that there are many factors, as suggested by Dr. Toohey, that define a “good” school. These children ought not to be shifted about simply because their particular school dropped in ratings based solely upon test results. So long as the Ministry of education can demonstrate that a school meets or exceeds standards set by that Ministry (as here) the fact that some other school might score higher, is not in my view a basis for changing schools in the facts of this case.

… It is not appropriate for me to comment about choices made by consenting parents. Perhaps there are parents who think it in the best interests of their children to follow the Fraser ratings and effect changes in accordance with those ratings. That is their business. My concern is to reflect and decide what is in the best interests of children whose parents have separated or divorced and who cannot agree on the choice of school. [19]

[159] In Schloegl v. McCroary, (2012), the British Columbia Supreme Court heard a reference in which it was called upon to decide between two schools proposed by the parents for their 5 year old child. The mother sought to rely on the Fraser Institute rankings. Watchuk J. cited McKinnon J.’s comments in K.L.H. v. T.W.H. and continued:

Further, there is only minimal evidence regarding the basis upon which schools are rated by the Fraser Institute. The rankings, absent a complete context and explanation for them, are of no assistance to the Court here. What they do indicate is that the mother, to her credit, has done research to substantiate her choice of schools, as has the father.

[160] In Schloegl v. McCroary, Watchuk J. stated, “It is not the task of this Court to determine the best school by any measure, standards, or comparison. The issue for this Court is solely to determine which school is in the best interests of Cage.” [20] She concluded that one of the public schools was in the child’s best interests, having regard to the fact that it was more affordable for the parents, who were of modest means, and would best facilitate the child’s ability to have both parents involved in his schooling.

[161] In Wilson, this Court stated:

Watchuk J.’s reasons remind us that there are factors other than the academic superiority of a school that must be considered in determining what school it would be in the best interests of a child to attend. The school that will give the child the greatest competitive advantage, or provide the greatest confidence or motivation, or that will best facilitate the child’s relationship with others, including his parents and class-mates, or best promote his all-around development, may be in his best interests even though there is a school that is ranked higher, based only on academic standards. [21]

[Emphasis added]

[162] Sheard J., in Clark v. Moxley, (2017), accepted these conclusions and noted that the Fraser Institute rankings had not governed the Court’s choice of schools in that case. [22]

Impact on the children’s choice of high school

[163] Annaka will begin high school in September 2020. Trinity-Rose will follow in September, 2022. Ms. McIntosh-Anderson argues that Annaka will be undergoing a school transition within the next two years regardless of whether she is transferred to St. Edmund for grade 7. She notes that there are numerous secondary schools near 3521 Burningoak Crescent, from which the children could choose based on their interests, strengths, and weaknesses:

a) Cawthra Park Secondary School: located at 1305 Cawthra Road, Mississauga, Ontario. This school is located approximately 6 km from the children’s primary residence. The Fraser Institute ranked this school 84 out of 747 schools in 2016-17, and gave it an overall ranking of 7.8/10. b) Philip Pocock Catholic Secondary School, at 4555 Tomken Road, Mississauga, is 2.6 km from Ms. McIntosh-Anderson’s parents’ home. It was ranked 156 of 747 schools in 2016/17 and had an overall ranking of 7.3/10. c) Curiously, both Applewood Heights Secondary School, at 945 Bloor Street East, in Mississauga, and John Cabot Catholic Secondary School, at 635 Willowbank Trail, Mississauga, were ranked 259 out of 747 in 2016-17 and had an overall ranking of 6.8/10. Applewood is located approximately 900m from Ms. McIntosh-Anderson’s parents’ home. Ms. McIntosh-Anderson attended this high school, as did all of her siblings and many extended family members. She states that she had a very positive experience attending the school and believes that her children would have a similar experience. John Cabot Catholic Secondary School is approximately 1.8 km from her parents’ home. d) Father Michael Goetz Secondary School, at 330 Central Parkway West, in Mississauga was ranked 380 out of 747 schools in 2016-17 and had an overall ranking of 6.2/10. This school is 5 kilometres from Ms. McIntosh-Anderson’s parents’ home.

[164] Ms. McIntosh-Anderson argues that the children should be consulted with regard to any decision regarding their choice of secondary school, and that the selection of a secondary schooling can be deferred to when Annaka is in grade 8. She states that besides the Fraser ranking of the schools, another factor is what the children want, and what area of study they want to pursue. She acknowledged that she does not know what areas of study St. Aloyscius offers, as she has not looked into it.

[165] When it was suggested to her that St. Aloysius offers both arts and academics, and that Trinity-Rose likes the arts and that Annaka like academics as well as the arts, she replied that the children’s interests may change next week.

[166] The evidence makes it clear that beyond their preferred areas of academic interest, the children’s relationships at school are important to them. St. Elizabeth Seaton is the intake school for St. Aloysius Gonzaga Secondary School (“St. Aloysius”). St. Aloysius is at 2800 Erin Centre Blvd, in Mississauga, just north of where Ms. McIntosh-Anderson is now employed. It is in the same general area in which St. Elizabeth Seaton is located.

[167] Ms. McIntosh-Anderson’s belief is that if you live in one neighbourhood, your child can attend school in another neighbourhood. She believes that children could attend St. Aloysius if they were living where Mr. Anderson lives. It is at least uncertain whether transferring the children to St. Edmund would preclude them from attending St. Aloysius. However, there is little doubt that if they remain at St. Elizabeth Seton, and Mr. Anderson continues to live where he is, and the parents continue to share joint custody of the children, the children will be able to attend St. Aloysius for high school. Transferring them to St. Edmund would risk foreclosing that opportunity for them.

[168] While this is not a factor in my analysis, I note that the Fraser Institute ranked St. Aloysius 47 out of 747 schools in 2016/17. In fact, it is ranked among the highest 2 schools in Mississauga, second only to John Fraser Secondary School, which is also very close to St. Elizabeth Seton, but is not a Catholic school.

[169] It is the children’s preference to remain where they are. In two years, Annaka will be starting high school, and she wishes to attend St. Aloysius, the school for which St. Elizabeth Seton is “the feeder” elementary school. Changing her school to St. Edmund could therefore have a significant impact on Annaka’s ability to maintain the relationships she has developed over the past eight years and her ability to continue into her high school years. If the children were not thriving at their present school, a change might be in their interests, but there is strong evidence supporting a finding that their existing school is benefiting them.

Impact on the children’s friendships

[170] The children have had the same friends over the past several years. Several have remained friends over the past three years. I find that those friendships give the children a sense of familiarity and consistency.

[171] Ms. McIntosh-Anderson states that both Annaka and Trinity-Rose have several friends in the neighbourhood of 3521 Burningoak Crescent in Mississauga, where they currently live with Ms. McIntosh-Anderson’s parents. Several members of Trinity-Rose’s ringette team live near 3521 Burnigoak Crescent and that two members of the team live within a few blocks. Annaka also has several friends from Girl Guides who reside in the neighbourhood. Ms. McIntosh-Anderson states that the children frequently visit the local park where many other young children from the neighbourhood play. The children’s cousins live only a few kilometres away, and frequently visit 3521 Burningoak Crescent to play.

[172] Ms. McIntosh-Anderson expects that the children will develop new friendships at St. Edmund if they are transferred there. She says that she is committed to maintaining the children’s friendships with classmates at St. Elizabeth Seton, and that she has hosted end-of-the-year parties, St. Patrick’s Day parties, Halloween parties, sleepovers, etc., which are well attended by the children’s friends, even though they attend school 15-20 kilometres away.

Impact on the children’s Church affiliation

[173] The children attend Mass with Ms. McIntosh-Anderson on the Sundays they are with her. Ms. McIntosh-Anderson is Catholic. Mr. Anderson is not.

[174] For the past 12 years, Ms. McIntosh-Anderson has taken the children to Mass at St. John of the Cross Carmelite Church, located near St. Elizabeth Seton on Glen Erin Road in Meadowvale. The Church is affiliated with the school. The girls know the priests there because the priests go to their school. The students at the school attend the end of the year Mass, which took place the day before this trial began.

[175] Mr. Anderson, who is not Catholic himself, explains that the parties married in the Catholic church and part of their agreement was that they would raise the children in the church. He states that he has taken classes at the church and encourages the children’s participation. He states that he has no intention of transferring them out of Catholic school and to a public school. He has participated with them in church ceremonies, although their participation in ringette creates demands on their time that sometimes conflicts with regular church attendance on Sundays.

[176] Ms. McIntosh-Anderson testified that the girls don’t often see friends at church unless the friends come with them. I’m not convinced that a change of church would not disrupt a community that the girls are a part of. The fact is that the church is an association that the children and their friends have in common, even their interaction at church is limited to seeing each other there. That association would be broken if the children were transferred to St. Edmund, and to the church associated with it.

[177] If the girls changed schools, they would attend St. Patrick’s Church, because it is affiliated with St. Edmund Catholic School. It is on Flagship Drive, around the corner and within walking distance of Ms. McIntosh-Anderson’s parent’s home.

[178] The drive from Ms. McIntosh-Anderson’s parents’ home to St. John of the Cross Church is 20 minutes on Sunday, when there traffic is light.

Impact on the children’s extra-curricular activities

[179] Ms. McIntosh-Anderson states that the children are forced to miss out on opportunities due to their lengthy commute. They’re on the go, with their activities, and there is insufficient time for Ms. McIntosh-Anderson to go home for dinner. Either she prepares meals in advance and bring box dinners or takes them to dinner at a restaurant.

(i) Taekwondo

[180] Both children are now enrolled in Taekwondo, which is offered at their Magnitude after-school program. The children have attended Magnitude for several years before the parties separated and have continued for several years since. They do their homework there and take Taekwondo. At the time of this trial, Annaka’s black-belt try-out was on the forthcoming weekend. Jasmine and Aiden are friends of Annaka’s in the program.

[181] The children attend the Magnitude program at 12 Falconer Drive in Mississauga, northeast of St. Elizabeth Seton. It is offered to children up to and including grade 8. There is a bus that takes the children from St. Elizabeth Seton to the Magnitude program at 3:30 p.m., and the children can be picked up from the program until 6 p.m. Taekwondo finishes at 4:45 p.m., so the children have free time from 4:45 pm until 6 p.m., or whatever earlier time their parents pick them up. They have toys and a room in which to do homework.

[182] Because Ms. McIntosh-Anderson’s work at the Electric Company ends at 5 p.m. from Monday to Thursday, and at 3 p.m. on Fridays, there is ample time for her to drive from work to the program to pick the children up by 6 p.m.

[183] In her testimony at trial, Ms. McIntosh-Anderson was critical of Magnitude. She says that it does not have people to assist the children with their homework. She describes it as “a loud and rowdy facility; sixty or more Kids in a giant gym”. She down-plays the importance of the program to the children. She states that Annaka is beginning to feel that she has outgrown Magnitude, although it offers programs for children through grade 8. She says that the children do not like the bus ride, which is an hour long.

[184] In response to the observation that her affidavit gives no indication that the children do not enjoy the program at Magnitude, she states that they find the good in the program, but are not passionate about it. She states that the parties chose Magnitude because they worked and their parents worked. In response to the suggestion that they have friends at Magnitude whom they have known for several years, she states that they have friends wherever they go, including Magnitude.

[185] In response to the suggestion that Annaka has been engaged in Taekwondo, and has progressed in her skills in the program, she states that there is another Taekwondo near St. Edmund that operates exactly like the program at Magnitude. They do not attend that program, she explains, because the bus does not transport them from their present school to that program. She acknowledges that she has not conferred with Mr. Anderson about transferring the children to another Taekwondo program.

[186] Although the Magnitude program is offered at four locations in the City, all of the locations are in the west end of the City, and none offer bus service from St. Edmund. The children can continue in Taekwondo whether or not they are transferred to another school. However, the continuity with the program they have attended for 12 years, and the children’s friendships with other children who attend the program, would be disrupted if the children were transferred to St. Edmund.

(ii) Ringette

[187] Both Annaka and Trinity-Rose are actively involved in ringette, a team sport resembling ice hockey, played, especially by women and girls, with a straight stick and a rubber ring, and with no intentional body contact. It is played during the academic year, from September to April.

[188] The ringette schedule is demanding. Mr. Anderson testified that Mississauga Ringette Association has ice times on Saturdays and Sundays from 9 a.m. to 6 p.m. Practices in the past year were on Mondays for Trinity-Rose and for Annaka on Tuesdays and Thursdays. Both were on the ice Friday evenings for house league games.

[189] On Sunday mornings, ringette and the Learn to Skate program runs from 9:15 to 10:15. Trinity-Rose has a Regional game at 9:15 a.m., and Annaka, who is on the Provincial team, follows at 10:15 a.m. Trinity-Rose is also on the ice at 10:15 a.m. and Annaka has power skating from 11:15 a.m. to 12:15 p.m.

[190] Ringette is not tied to the children’s school, and can continue whether or not they change schools. It is organized by age levels. In the fall of 2018, Annaka will be playing at the Under-14 level, and Trinity-Rose at the Under-12 level. Historically, both of those levels have practised at four arenas, three being in Mississauga and one being in Malton. Of the three arenas in Mississauga, Erin Mills Twin Arena, is located in the west end of Mississauga. The other Mississauga arenas are in the east end, at Iceland Arena on Matheson Blvd, off Tomken Road, north of where Ms. McIntosh-Anderson lives, and Carmen Corbasson Arena, on Tomken Road, south of where she lives. Paul Coffey Arena in Malton is east of where she lives.

[191] Ms. McIntosh-Anderson testified that the Meadowvale 4-rinks Arena is for younger children. She was unable to say for certain, but considered it to be unlikely that Meadowvale 4-rinks Arena would be used for Annaka’s practices in the coming year.

[192] Ms. McIntosh-Anderson tried to obtain information from the President of the Mississauga Ringette Association about the children’s ringette calendar for the fall, including where the children will be practicing. She was unable to obtain the information, as the season does not start until September. Scheduling is not likely to take place until mid-to-late summer.

[193] The practices and games may be at the same arena, but may be at different times and days of the week. Ms. McIntosh-Anderson testified that for Annaka the times were Tuesdays at 6:30 p.m. and Thursdays at 7 or 7:30 p.m. I conclude that Ms. McIntosh-Anderson, who will finish work at 5 p.m. from Monday to Thursday, and at 3 p.m. on Fridays, will be able to drive the children to their practices.

[194] On Tuesdays, the girls are with Ms. McIntosh-Anderson. From St. Elizabeth Seton, she took Trinity-Rose to theatre practice at 6:30 p.m. Annaka had to be at her arena 15 minutes before ice time. Ms. McIntosh-Anderson took both children to Erin Mills Arena, south of where they are picked up from their after-school program, then drove Trinity-Rose to Middlebury School for her theatre program, signed her into her class, and then returned to Erin Mills Arena, when Annaka was just getting onto the ice. She would then remain while Annaka was practicing and when she was finished, they would drive to Middlebury School to pick Trinity-Rose up.

[195] It is not disputed that both parents do a lot of driving in order to accommodate the children’s activities. However, the evidence simply does not support a conclusion that the driving would be substantially reduced, if at all, by a transfer of the children to St. Edmund.

(iii) Trinity-Rose’s Theatre Program

[196] Trinity-Rose’s theatre program has satellite office all over the Greater Toronto Area. The children can be signed up at whatever location is closest to their home. Trinity-Rose has been enrolled at the Middlebury Public School location in Mississauga, because at the time, that location was close to Annaka’s ringette practice.

[197] The theatre program is not tied to any school and can continue whether or not the children are transferred to another school. The theatre program resumes in the fall. Whether the girls remain at St. Elizabeth Seton or are transferred to St. Edmund, the choice of theatre location would again depend on the location of Annaka’s ringette practices and games. That will have to be determined when Trinity-Rose resumes the theatre program in the fall.

(iv) Girl Guides

[198] Annaka has been in Girl Guides since 2017, near Ms. McIntosh-Anderson’s home. She is considered 3rd year level. It is a program that helps develop a variety of skills, including leadership. It also fosters self-esteem. Annaka is excelling at Guides.

[199] The meetings for Girl Guides are on Monday evenings at 6:45 p.m. at St. John’s Anglican Church at Cawthra and Dundas Street, near Ms. McIntosh-Anderson’s home. Camps take place on weekends. Guides are not tied to the children’s school, so they could continue whether or not the girls change schools.

(v) Guitar Lessons

[200] Trinity-Rose takes guitar lessons. The lessons take place at Ms. McIntosh-Anderson’s home on alternate Wednesdays, which are Ms. McIntosh-Anderson’s night with the children. The teacher is flexible with lessons. The lessons are not tied to St. Elizabeth Seton, and can continue whether or not the children are transferred to St. Edmund.

[201] If practice time were still the same, and they were going to St. Edmund, they would not be attending Mega after school program. Ms. McIntosh-Anderson would go home, have dinner with the children there, and then taking them out to their evening activities.

Impact on the children’s familial relationships

[202] Ms. McIntosh-Anderson argues that she has been the children’s primary parent since birth and continues to be their primary caregiver. The children have their principal residence with her at her parent’s home at 3521 Burningoak Crescent, Mississauga, where Ms. McIntosh-Anderson has the support of her parents and family members in meeting her parental obligations to the children. Since separation, Ms. McIntosh-Anderson has transported the children to and from school, after-school programs, summer camps, extracurricular activities, medical appointments, church, and playdates. She has provided emotional and psychological support to the children, and says she tries to act in their best interests. She states that she is the parent who handles any crisis or emergency situation.

[203] Ms. McIntosh-Anderson has two brothers. One lives east of Highway 10 at Matheson Blvd. in Mississauga. The other, Robert, lives on Champlain Trial, near Matheson Blvd. and McLaughlin. Both locations appear to be approximately equidistant between Ms. McIntosh-Anderson’s current residence, or St. Edmund, and St. Elizabeth Seaton. Robert is a banker at an RBC branch in Burlington and works banking hours. His wife is a French immersion school teacher. Ms. McIntosh-Anderson testified that they currently care for the children about once per week.

[204] As for Ms. McIntosh-Anderson’s parents and grandparents, Ms. McIntosh-Anderson must decide whether she wishes to continue living in their neighbourhoods or to re-locate closer to her new employment on the west side of the City. If the children remain at their present school, Ms. McIntosh-Anderson’s parents and grandparents can still serve as a support for her, even though the children’s schedule may reduce the time their grandparents and great-grandparents spend caring for them in on school mornings.

[205] Mr. Anderson’s parents live in Niagara Falls. He does not have extended family living close by with whom the children interact on a weekly basis.

[206] The evidence does not support a conclusion that changing the children’s school is likely to expand their contact with their extended family, except in the event that Ms. McIntosh-Anderson calls on them more often to stay with the children, or to have the children stay with them, in the 50 minute interval between the time she leaves for work and the time the children would have to leave for school if they attended St. Edmund. In the afternoons, Ms. McIntosh-Anderson says that the children can be picked up at St. Edmund by their grandparents and can chill out until their evening activities.

[207] I am unable to conclude, from the evidence before me, that that interval would contribute substantially to “quality time” with the children’s grandparents or great-grandparents, in the sense of greater engagement with them.

CONCLUSION AND ORDER

[208] The children have been in a settled and stable school environment since junior kindergarten. There is no compelling reason to change their school, as they are performing well academically, are well-adjusted socially, and their preference is to remain among their friends and reference community. Additionally, it is in the children’s interests to reinforce their relationship with their father, who has access to them only three days out of ten school days.

[209] While I have given consideration to Ms. McIntosh-Anderson’s desire to move to the neighbourhood in which she grew up, what is more material to the choice of schools is the neighbourhood where the children grew up, which was in the neighbourhood of St. Elizabeth Seton. Their attachment to that neighbourhood is entitled to at least equal weight to Ms. McIntosh-Anderson’s attachment to the neighbourhood in which she grew up.

[210] The children’s loss of their relationships is not outweighed by a lessening of their commute, which would be minimal, even if Ms. McIntosh-Anderson buys a new home. There has been no evidence from either Ms. McIntosh-Anderson or the OCL as to the nature of the benefit that the children would derive from the time, if any, that they would save in the morning by a reduction of their commute. I conclude that the negative impact on the children of the proposed change of school and community outweighs the benefit that may be derived from a change.

[211] For the foregoing reasons, it is ordered that:

1. The children shall attend St. Elizabeth Seton Catholic School in September, 2018.
2. In the event Ms. McIntosh-Anderson is not able to drop the children at their school or pick them up from school at the time when she is to assume care of them, and is unable to arrange alternate transportation for them, she shall arrange with Mr. Anderson, by the use of Our Family Wizard, for him to assume care of them during the interval. Such time shall not affect the proportion of “parenting time” allocated to each parent under their Minutes of Settlement and the existing parenting Order, and shall not be the basis for any change in the manner in which child support is calculated.
3. Ms. McIntosh-Anderson shall pay Mr. Anderson’s costs in the amount of $17,780, based on the agreed-upon amount of $12,500 to the beginning of the hearing, and an additional $5,280, arrived at by applying the 11 hours of the parties’ argument to the partial indemnity hourly rate of $420 for Ms. Cantor, who was called to the Bar in 1991, pursuant to the 2005 Costs Bulletin, adjusted for inflation, plus H.S.T. The costs shall be paid forthwith.

Price J.

Released: August 1, 2018

COURT FILE NO.: FS-16-86373 DATE: 2018-08-01 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: SHAWN BRADD ANDERSON Applicant - and – EVA DANIELLE McINTOSH-ANDERSON Respondent REASONS FOR ORDER Price J. Released: August 1, 2018

[1] Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), section 16(8) [2] Gordon v. Geortz, 1996 CarswellSask 199 (S.C.C.), para. 69 (3); Young v. Young, 1993 CarswellBC 264 (S.C.C.), para. 159 [3] Divorce Act, supra, section 16(8); Children’s Law Reform Act, R.S.O. 1990, c. C. 12, section 24(2); W.(H.) v. T.(T.), 2014 CarswellOnt 2467 (S.C.J.), para. 27 [4] CLRA, Section 24(2) [5] Gordon v. Goertz, 1996 CarswellSask 1996 (S.C.C.), paras. 49-50 [6] Bjornson v. Creighton, 2002 CarswellOnt 3866 (C.A.), paras. 2, 20-30, 34; Gordon v. Goertz, supra, para. 128 [7] Wood v. Wood, 2014 CarswellOnt 10333 (S.C.J.), para. 16 [8] Williams v. Lamoureux, 2011 ONSC 4939 (S.C.J.), paras. 5-6, 21-22 [9] Forte v. Forte, 2004 CarswellOnt 2656 (S.C.J.), para. 8 [10] Mitts v Mitts, 2014 ONSC 6519 [11] Mitts v. Mitts, 2014 ONSC 6519 (S.C.J.), para. 396 [12] Butler v. Percy, 2009 CarswellOnt 5296 (S.C.J), para. 88 [13] Choudry v. Cater, 2018 ONCJ 238 (O.C.J.), paras. 158-163 [14] Brown v. Roberts, 2012 ONCJ 153 at para. 36, 163-166 [15] Vucenovic v. Rieschi, 2012 ONCJ 658 [16] Hughes v. Roy, 2016 ONCJ 65, [2016] W.D.F.L. 2061, at para. 9 [17] N.H v. J.H., 2017 ONSC 4414, [2017] W.D.F.L. 4271 [18] Wilson v. Wilson, 2015 ONSC 479, paras. 110 to 122 [19] K.L.H. v. T.W.H., 2003 BCSC 1089, paras. 23 to 25 [20] Schloegl v. McCroary, 2012 BCSC 1606, paras. 36 to 39, and 41. See also: Wafa v. Faizi, 2014 BCSC 1760, paras. 19 to 20. [21] Wilson v. Wilson, supra, at para. 111 [22] Clark v. Moxley, 2017 ONSC 4971, at paragraph 58