Court File and Parties

COURT FILE NO.: 455/09

DATE: 2018-09-14

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jayne Audrey Bennett, Applicant

AND:

James Arnold Kenneth Burns, Respondent

BEFORE: The Honourable Mr. Justice A. Pazaratz

COUNSEL: Alisa P. Williams, Counsel, for the Applicant

Nicole Matthews, Counsel, for the Respondent

HEARD: September 14, 2018

Endorsement

[1] This is a “choice of school” motion for two children Zoey (age 12) and James (age 7).

[2] It’s Friday September 14, 2018. So far the children have missed the first nine days of the school year because the parents can’t agree.

[3] If that sounds like poor parental planning, the failing is compounded by the fact that this is the second year in a row where these joint custodial/equal time-sharing parents have had to go to court for a last-minute ruling on what should be a fundamental aspect of parenting.

[4] Pursuant to my consent order of October 13, 2017, last year the children attended Cathy Wever School, which was a bit of a compromise. But this year Cathy Wever won’t accept these children because neither parent lives in that school’s catchment area. For whatever reason, neither parent became aware that Cathy Wever was not an option until just before the school year started.

[5] That created an impasse:

a. The mother wants the children to attend Franklin Road School which is within walking distance of her residence on Hamilton Mountain.

b. The father wants the children to attend Prince of Wales School which is within walking distance of his residence in the central part of the city, below the escarpment.

[6] In many ways these parties – and their respective proposals – are evenly matched.

a. The equal time-sharing arrangement provides that the children are with the father Monday to Wednesday before school, and with the mother Wednesday after school until Friday. Weekends are alternated. Accordingly, each proposal entails certain days of the week when the children could conveniently walk to and from school – and certain days when transportation is a significant complicating factor.

b. Neither parent is employed outside of the home, so they each have some flexibility.

c. The Applicant mother does not have a driver’s licence (because of health issues) or a car available within her home. The Respondent father has a driver’s licence but no car of his own. However his partner (whose willingness to assist is touted as an important part of his overall proposal) has a car. He is not sure if he can use it to drive the children to or from the mother’s proposed Franklin Road School.

d. Each parent claims they have historically assumed a primary role in assisting the children with school related activities and academic advancement. It is impossible for the court to decide, based on the affidavits filed, whether either parent offers an advantage under this heading. The bottom line is that within the final order the parties consented to, they were both described as being equal in every way. In any event, no matter which school is selected, each parent will still have the opportunity to be significantly (and equally) involved in educational issues.

[7] In the detailed materials filed, each parent has tried to explain why their proposed school is better for the children. But in the circumstances, the relative strengths of the two proposals are difficult to gauge.

a. The mother says Franklin Road has smaller classes, so the children would receive more individualized attention. But the evidence on this topic is quite general and almost anecdotal. The EQAO scores for both schools are almost identical.

b. The father says Prince of Wales offers a native program. But it doesn’t appear that this has been a significant priority for either parent in the past.

c. Each parent says they can be more involved and attend school quickly for any emergencies, if the children attend the school closer to their residence.

d. The mother previously enrolled one of the children in counselling. The father says such counselling is available at the school he favours.

e. The father says his partner’s children attend Prince of Wales school, so Zoey and James would have siblings in the same school. The mother has a younger child who will be attending Franklin Road next year. So there would eventually be a similar sibling connection there as well.

f. The father alluded to recent mental health concerns about the mother. But these do not appear substantiated. In any event, he’s not asking that the mother’s role or involvement in the children’s lives be reduced. He simply wants the children to attend his neighbourhood school. I suspect the mental health issue is a red herring.

[8] I am not able to conclude that either school is better or more suitable for the children. It is quite clear that each parent has proposed a school based almost exclusively upon geographic proximity. The “my school is better than your school” arguments appear to be a self-serving afterthought.

[9] As with all parenting issues, the court must be guided exclusively by the best interests of the child. For children of these ages, the focus is less on academic achievement, and more on the daily experiences and quality of life associated with each proposal.

a. No matter which school is selected, the children will be going to a new school this year. Staying at Cathy Wever is not an option.

b. No matter which school is selected, the children will have an equal neighbourhood connection for about half of the week.

c. No matter which school is selected, the children will have the convenience and spontaneity of being able to walk to and from a nearby school, about half of the time.

[10] The main distinguishing feature between the two proposals relates to transportation: the logistics of how the children will get to or from school on those weekdays when they are living with the parent in a different catchment area.

a. Last year when the children were attending Cathy Wever School, the Respondent father was supposed to pay the Applicant $50.00 per month as his contribution toward the cost of taxi transportation getting the children to and from the mother’s residence. The mother says he didn’t make the required payments. The father says he did. In any event, taxi transportation this year would be even more expensive, if it happened to be available (which is unclear).

b. The mother has no option of having a car available for her. That means transportation between her residence and Prince of Wales would have to be by some sort of public transport. The father says he believes a school bus would be available, but there is no evidence on this topic in his materials. Presumably that should have been an important detail to confirm. There is no reliable information as to the transportation logistics from the mother’s home, if the children attend at the father’s school. There is no information as to how early the children would have to wake up at the mother’s residence to take some unknown transit mode to school in time for an 8:50 a.m. commencement.

c. At the father’s end, there is also no clear evidence as to transportation arrangements between his residence and school in the mother’s district. But the father appears to have at least the possibility of a family car available for some of the time. The father emphasized in his materials how helpful and supportive his partner is. How integrated Zoey and James are in the extended family he enjoys with his partner. In the circumstances, the quite realistic possibility (and I suspect it’s really a probability) that the father will be able to drive the children to or from Franklin Road School, tips the scale in favour of the mother’s proposal.

[11] Selecting a school is not an easy decision. But it’s an important decision, and it should have been made long ago. If parents who have “joint custody” are intent on turning this issue into annual last-minute motions in Family Court, then maybe they’re not really “joint custody” material.

a. Joint custody is more than just a “feel good” label. It entails mutual rights and mutual responsibilities.

b. Joint custody is appropriate where parents have the ability and willingness to work together – to efficiently and amicably plan and problem-solve – for the benefit of the children.

c. But joint custody is not appropriate where the absence of clear decision-making authority will lead to interminable power-struggles, impasse and paralysis.

d. With high-conflict parents, the absence of a “tie-breaking vote” can have devastating consequences for vulnerable children who don’t want to – and shouldn’t have to – get caught in the middle.

[12] Focussing on the narrow differences between the respective proposals – and in particular focussing on the best interests of the children, and the hopefully slightly less onerous transportation implications associated with Franklin Road School – I believe the mother’s proposal is to be preferred.

[13] The children Zoey and James shall attend Franklin Road School.

[14] The Applicant was successful and she seeks costs of $500 which is acknowledged to be a very modest amount, considering the amount of work put into this motion. The Respondent submits there should be no costs as both parties are responsible for the impasse which arose.

[15] Neither party filed a Rule 18 offer to settle.

[16] I have considered all of the factors set out in Rule 24.

[17] Pursuant to Rule 24(4) a successful party who has behaved unreasonably can be deprived of their costs.

[18] In this case I believe both parties have behaved unreasonably.

[19] There shall be no order as to costs.

Pazaratz J.

Date: September 14, 2018