Court File and Parties

COURT FILE NO.: FC-17-2250-1 DATE: 2018/08/10 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Christine Madore, Applicant – and – Damien Babuder, Respondent

Counsel: Mary Cybulski, counsel for the Applicant Antonie Merizzi, counsel for the respondent

HEARD: August 7, 2018 (at Ottawa)

Endorsement

SHELSTON, J

1The sole issue before me is which school the parties’ only child, Dezmond, born October 19, 2014, should attend commencing September 2018.

2The applicant proposes l’École élémentaire catholique Au Coeur d’Ottawa (“Au Coeur”) while the respondent proposes l’École élémentaire et secondaire publique Maurice-Lapointe (“Maurice –Lapointe”). Au Coeur is located on Main Street in Ottawa less than one kilometre from the respondent’s work and a short drive to the applicant’s place of employment while Maurice-Lapointe is located in Kanata.

3The parties attended a case conference on May 18, 2018 and entered into Minutes of Settlement which settled all issues between the parties regarding custody, access, child support, security for child support, extended health and dental coverage for the child, equalization of the net family property and costs.

4The parties could not agree on which school the child should attend and agreed that this issue would be decided by the court prior to August 24, 2018.

Factual Background

5The parties married on June 9, 2012 and separated on November 10, 2016. At the time of separation, the parties and the child lived in the matrimonial home in Stittsville.

6The applicant has been working for the Privy Council in downtown Ottawa for 12 years as a Senior Communications Analyst. The respondent has worked for over 30 years as an automotive technician at an auto repair business owned by his mother and stepfather located on Gladstone Avenue between Bank Street and Kent Street.

7Following the child’s birth, the parties moved from their home in Barrhaven and purchased a home in Stittsville. The parties continued to commute from Stittsville to their jobs in downtown Ottawa. After separation, the applicant moved to her mother and brother’s home in Navan while the respondent remained in the matrimonial home in Stittsville.

8Since separation, the parties have shared the physical custody of the child on a two week rotation being a 2/5/5/2 basis.

9After separation, while the child was in the care of the respondent, the child attended the Munster Co-operative Nursery School. With the assistance of the respondent stepmother (Mrs. Barnes), the child attended every Monday and Wednesday.

10For the past six months, while in the care of the applicant, the child has been attending a private daycare during the day located near Main Street and Riverdale Avenue in Ottawa.

11At the date of this motion, while the child is in the care of the respondent, Mrs. Barnes goes to his home before he leaves for work to care for the child or, alternatively, he drives to her house at 7 a.m. The child has dinner with Mrs. Barnes at around 5:30 p.m. after which the respondent picks the child up and returns him home. The child has his bath by 7:30 p.m. and is put to bed by 8:30 p.m.

12As of September 2018, the parties have agreed that the child will be in the respondent’s care from after school on Monday until Wednesday at school and every second weekend from Friday after school to Monday morning. The child will be with the applicant from after school on Wednesday until Friday morning at school and every second weekend from Friday after school to Monday morning.

13The applicant is in a relationship with her partner who lives near the Aviation Parkway and works in the Glebe area of Ottawa. His two children, one aged 10 and the second child turning 12 in August, attend a French school in Orleans. It is the applicant’s plan that she will move in with her partner and his two children.

14Au Coeur has an extended day program open from 7 a.m. until 6 p.m. and the school’s hours are from 9 a.m. until 3:45 p.m. Maurice-Lapointe starts at 9:15 a.m. and there is an extended day program available from 7:30 a.m. until 6 p.m.

15The child has friends in both areas of where he lives.

Language of education

16Both parents acknowledge the benefit of the child attending a French school. While the applicant is Francophone and bilingual, the respondent is a unilingual Anglophone and requires assistance to read or speak in French.

17The respondent alleges that his proposed school is more welcoming than the applicant’s proposed school. The respondent relies on an email exchange between the respondent and the school authorities. Upon a review of the email exchange between the respondent and Au Coeur that started on June 26, 2018, the respondent wrote to the school asking questions about the enrolment of his son. The questions were in English and the next day, on June 27, 2018, a response was provided in French. There is no evidence that the respondent requested a response in English or that he indicated to the school authorities that he did not understand French.

18I acknowledge that the respondent has difficulty in French but, at the applicant’s school, there will be no homework based on a Finnish school model. The respondent will be required to communicate with the school authorities and to attend parent-teacher interviews. There is no evidence that all communications will be in the French language only.

19I acknowledge that when the parties lived together they agreed that the child would attend the school in their neighbourhood, being Maurice-Lapointe. However, that was based on the parties residing together. That situation changed in November 2016 and there is no chance that they will reconcile so circumstances are significantly different.

20Au Coeur starts from kindergarten up to grade 6 and is temporarily located on Main Street. A new location will have to be found in the future. The school is involved in a pilot project where there will be no homework and emphasis will be on physical participation. Maurice-Lapointe goes from kindergarten up to high school. In this school, homework will be assigned.

21I find that both schools would be able to meet the needs of this child.

Location and travel

22Currently, the applicant lives with her mother and brother in Navan and her partner in Ottawa. She plans to move in with her partner on a full-time basis after this matter is completed.

Respondent’s school

23The applicant states that she must work 7.5 hours each day. She finishes work at 4:30 p.m. then walks to her car, arriving at approximately 4:45 p.m. If the child were to attend Maurice-Lapointe, the applicant would be required to leave downtown Ottawa on Wednesday after work and drive to Kanata during rush hour traffic to pick the child up before 6 p.m. when the after-school program ends. The applicant and the child would have to drive back across the city. On Thursday morning, Thursday evening and Friday morning, the applicant would have to repeat this commute with the child. On the following week, the applicant would be required to undertake the same commute, except that she would have to pick the child up on Friday after school and deliver him to school on Monday morning.

24The applicant submits that this commute is excessive travelling for the child and the applicant does not know if she can travel to the school by 6 p.m. to pick the child up.

25On the respondent’s time with the child, the child would be picked up by bus from the matrimonial home and returned to the matrimonial home or Mrs. Barnes would drive the child. The respondent’s plan is that the child would be with Mrs. Barnes before and after school until he got home. There would be no requirement for the child to travel the Queensway during rush hour.

Applicant’s school

26If the child would attend Au Coeur, the applicant’s commute from her mother’s home in Navan would be approximately 25 minutes and less once she starts to live full-time with her partner in Ottawa.

27If the child attended Au Coeur, the respondent states that he must be at work shortly after 7 a.m. and that he must close up the garage at approximately 5:30 p.m. The respondent states he would have to deliver the child to the extended care at Au Coeur shortly after 7 a.m. and pick him up for 6 p.m. then drive back to Stittsville. This would require that he wake the child up very early, feed him and travel from Stittsville to Main Street.

Friends and activities

28Both parties make submissions regarding the child having activities in their respective neighbourhoods as a basis for determining which school the child should attend.

29The respondent submits that his son is surrounded by his grandfather, step-grandmother, two loving great-grandmothers and a number of friends in the neighbourhood.

30The applicant submits that the child has many friends in the area, including children who attend the dojo and live nearby as well as friends from the daycare, including his best friend.

Child care cost

31If the child were to attend Maurice-Lapointe, there would be no need for extended care before or after school during the respondent’s time but there would be on the applicant’s time. If the child is to attend Au Coeur, there will be an extended care program and an associated cost. However, the parties addressed that issue in the Minutes of Settlement which indicate at paragraph 12, as follows:

12. The parties shall share all section 7 expenses shared equally, including daycare, medical/dental not covered by a plan, school, post-secondary, and agreed-upon extra curricular activities. Each party will pay half of the daycare cost of the school directly starting in September 2018.

Analysis

32The jurisprudence provides me with certain guidelines to consider on a decision regarding the child’s school. Factors to be considered are as follows:

(a) the ability of a parent to assist the child with homework and the degree to which the parent can participate in the child’s educational program (Deschenes v. Medwayosh, 2016 ONCJ 567); (b) the issue is not pronouncing what is best for all children in a general sense but rather deciding what is in the best interests of this child before the court (Deschenes, supra); (c) the emphasis must be placed on the best interests of the child and not in the interests or rights of the parents (Gordon v. Goertz, 199 S C.J. No. 52 S.C.C.); and (d) the decision as to the choice of school should be made on its own merits and based, in part, on the resources that each school offered in relation to a child’s needs, rather than on their proximity to the residence of one parent or the other, or the convenience that his attendance at the nearest school would entail (Wilson v. Wilson, 2015 ONSC 479).

33I find that both schools are of equal quality and can meet the specific needs of this child.

34When the parties lived together, they agreed that the child would attend school at Maurice-Lapointe. However, the parties are no longer residing together and live at opposite ends of the Queensway, the major thoroughfare in the city of Ottawa.

35Both parties work very close to the applicant’s proposed school.

36Both parties agree that the child should commence his education in the French language educational sector. There is no evidence that the school proposed by the applicant will refuse to communicate with the respondent in English or that a request has been made to the school for such communication. I cannot find that one school is more cooperative or open and receptive than the other school.

37Even if there was that issue regarding communication, if the child attends Maurice-Lapointe, the child will have homework in French which currently the respondent is unable to assist with. In the respondent’s affidavit dated July 24, 2018, the respondent states that at Maurice-Lapointe the school uses a French language educational program that facilitates French language acquisition for Francophones and students as well as for students learning French as a second language. The respondent’s concern is that he will be removed from his child’s education and not be able to participate fully due to language barriers. However, the respondent states that he is confident that it would not be the same at Maurice-Lapointe. All the documentation filed regarding Maurice-Lapointe is in French. I do not find that Maurice-Lapointe will be any different than Au Coeur regarding the involvement of a parent in the child’s life.

38The respondent also raises the issue that Au Coeur is not a permanent educational program, that the plan to move to another address is no longer viable and that negotiations are ongoing for the next school year for a location. I find that this concern is speculative at this time. As of September 2018, the school will be on Main Street.

39I do not find that the child’s status quo with respect to his family, friends, nursery school and activities is in Stittsville. Since separation, the parties have shared the physical custody of the child and the child has lived equally in the east end and west end of Ottawa.

40I reject this submission of the respondent that the applicant is proposing a school close to her residence. The applicant is living partially in Navan and partially with her partner in the east end of Ottawa. If the applicant wanted to propose a school closer to her residence, it would have been in the east end of Ottawa. The applicant’s proposal is in the central part of Ottawa while the respondent’s proposal is in the west end of Ottawa where the respondent resides.

41The respondent acknowledges that the applicant will have a significant commute on the days with the child if the child attends school in Kanata but that it’s in the child’s best interests to have and spend more time with his closest family. The respondent’s argument is that if the child were to attend the applicant’s proposed school he would miss quality time with his grandparents and the benefit of eating nutritious home cooked meals. I do not agree. When one considers the best interests of children, the first priority is the child’s relationship with his/her parents and not with extended family, friends and neighbours.

42The required commute for the applicant and child to Maurice-Lapointe would entail hours of travel to and from the downtown core. I do not find that the commute is in the best interests of this child. If the respondent dropped the child off at Au Coeur, the child would travel one way in the morning and one way in the afternoon with his father.

43To address the issue of the extensive travel required by the applicant if the child attends Maurice-Lapointe, the respondent’s stepmother offered to meet the applicant at a mutually agreed location in the west end to shorten the commute. While I accept that Mrs. Barnes has made a good-faith proposal to facilitate the applicant’s pickup of the child in the west end of Ottawa on the days the child would be with her, I reject such a solution. Firstly, I did not find it is in the best interest of any of the parties to have a third party involved for commuting the child to one of his parents. Secondly, the proposal is problematic as the parties may not agree on the location. The location may need to be changed if the parties have a falling out. Thirdly, Ms. Barnes is not a party to the proceedings and the court cannot order Ms. Barnes to perform any task and enforce such obligation in the event of default.

44During the case conference, the Master indicated in paragraph four of her endorsement the following:

With the assistance of their counsel, the parties were able to reach agreement on a final order on all matters with the exception of where Dezmond will attend school in August, 2018. Dezmond will be attending a school in the French Catholic School Board in Ottawa. Classes begin the last week of August. It is therefore important to have this matter determined by August 23, 2018 at the latest.

45This issue of choice of school is a corollary issue arising out of a divorce proceeding. The sole jurisdiction is a judge of the Superior Court. I am not bound by the Master’s endorsement.

Disposition

46I find that it is in the best interests of Dezmond that commencing September 2018 he attend Au Coeur.

47I order that the parties should cooperate and enrol the child in the school, including the extended day program.

48To date, there is no evidence that the parties have not cooperated with issues concerning their child. However, in the event the respondent refuses to sign the required forms, the applicant is permitted to sign all registration forms and any further documents required for the child’s registration without the need for the respondent’s signature.

Costs

49As this was a one issue hearing, the applicant was a successful party on this motion and is presumptively entitled to costs. I direct that the parties attempt to resolve the issue of costs by August 17, 2018. If they are unable to do so, the applicant shall provide her cost submissions not to exceed three pages plus a detailed bill of costs and any offers to settle by August 24, 2018 and the respondent shall file his cost submissions not to exceed three pages plus a detailed bill of costs and any offers to settle by September 7, 2018.