Taylor Clarkson v. Dustin Harris

COURT FILE NO.: 1674/18

DATE: 2019-08-20

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Taylor Clarkson, Applicant

AND:

Dustin Harris, Respondent

BEFORE: The Honourable Madam Justice L. C. Bale

COUNSEL: Mr. S. Garcea, Counsel, for the Applicant

Mr. S. Heeley, Counsel, for the Respondent

HEARD: August 16, 2019

ENDORSEMENT

Introduction

[1] This matter appeared before me on a regular Friday motions list.

[2] The Respondent father has brought a motion for an Order that the child Austin Harris, born May 7, 2014, be enrolled at Yorkview Public School in Dundas, ON commencing September 2019.

[3] The Applicant mother has brought a cross-motion for an Order that the child be enrolled at Jarvis Public School in Jarvis, ON commencing September 2019, and a designation that she have primary residence of the child.

[4] The issue of Austin’s school enrollment is the main issue before the Court, although it may have implications on the parties’ current access scheduled as ordered on a temporary temporary without prejudice basis by Brown J. on January 4, 2019 which provides for the following:

The parties shall share equal time with the child in accordance with the following schedule:

i. The child shall be with the Applicant from Sunday at 11:00 a.m. until Wednesday at 8:00 p.m.; and

ii. The child shall be with the Respondent from Wednesday at 8:00 p.m. until Sunday at 11:00 a.m.

Background

[5] The parties commenced cohabitation on January 2, 2012. They separated on or around September 1, 2016. The child Austin is the only child of the relationship. He is currently four years of age, and is scheduled to commence Junior Kindergarten in September 2019.

[6] There is a difference of opinion as to the historic primary residence of the child. During their cohabitation the parties resided together in the Respondent father’s home in Dundas, Ontario. The Applicant mother purchased a home in Jarvis, Ontario in or around September 2018.

[7] Since January 4, 2019 the child has resided on an approximately equal basis between the parties as result of the Temporary Order made by Brown J. after a contested motion.

[8] Both parties have parenting concerns about the other, including:

a. The mother argues that she is and has always been the child’s primary caregiver. She argues that the Respondent is abusive, unstable, unemployed, a drug user, and overly-reliant upon the paternal grandparents for provision of care for Austin.

b. The Respondent father disputes these allegations, although he acknowledges his current position of unemployment and past drug use. In his previous Affidavit materials he asserted that he has been the primary caregiver for the child since April 2016, at the time of closure of his business, and that the mother is the aggressor in their conflict, abuses alcohol and is a user of cocaine.

[9] All of the parenting concerns each party has voiced in relation to the other parent were before the Court at the contested motion before Brown J. regarding time-sharing of Austin.

[10] The mother has an outstanding Impaired Driving charge before the courts, which is scheduled for trial in September. Neither party has any other criminal record or outstanding charges.

[11] The Hamilton Children’s Aid Society appears to have had involvement with the parties but has not taken any position with respect to this motion.

[12] Both parties seek to have the child enrolled in the public school in his or her own respective school catchment area for the upcoming September 2019 school year.

[13] The parties’ current residences are approximately one hour apart, with the father residing in Dundas, Ontario, and the mother residing in Jarvis, Ontario. Both parties own their respective homes.

[14] This Court is being placed in the unenviable position of choosing a school for the child. Both options will result in a bad arrangement for the child under the current access regime, and this arrangement will likely require further review in the near future as a result of the child’s imminent full-time attendance in school.

The Law

[15] Subsection 28(1)(b) of the Children’s Law Reform Act empowers the Court to determine any aspect of the incidents of the right to custody or access, including education.

[16] The issue is to be determined on the basis of the best interests of the child under s. 24(2) of the Children’s Law Reform Act.

[17] Counsel for the Respondent father relies upon the case of Cosentino v. Cosentino (2016 ONSC 5621) which is factually similar to the case at bar. In Cosentino, Pazaratz. J. notes the following:

a. …“Temporary orders can have a huge impact on final orders. Effectively, they can have a forever impact on children. As a result, motions judges must be mindful of both short-term and long-term dynamics to ensure that the maximum contact principle is not undermined by the unilateral action of either party” (para. 10);

b. … “And yet, as often happens, these weighty temporary decisions have to be made based on hastily prepared, incomplete, contradictory, and untested affidavit materials” (para. 11);

c. … “on a temporary choice-of-school motion – particularly one with mobility overtones – a cautious approach is necessary to safeguard the best interests of the child, and avoid manipulation of the process” (para. 16); and

d. … “the school issue is inextricably intertwined with the more general custody and mobility issues. Major changes with mobility implications should not be made on a temporary basis, except in the most compelling of circumstances” (para. 17(g)).

[18] I have also reviewed the case of Hamid v. Hamid (2016 ONSC 5013, paras. 10-11). This case cites with approval a number of factors which may be taken into account by the Court in determining the best interests of the child in relation to selecting or changing a child’s school, as previously discussed in the case of Askalan v. Taleb (2012 ONSC 4746). Those factors include consideration of the following:

i. Any impact which may be had on the stability of the child;

ii. The number of years the child has attended his or her current school;

iii. Whether or not there is any prospect of one of the parties moving in the near future;

iv. Where the child was born and raised;

v. Whether a change of schools will mean new child care providers or other unsettling features;

vi. Decisions that were made by the parents prior to separation or at the time of separation with respect to schooling.

[19] There is ample caselaw in Ontario which confirms that when dealing with interim parenting issues, the de facto status quo should ordinarily be maintained until trial unless there is material evidence that the best interests of the children require a change.

[20] The Court must also be mindful of any implications that may flow from the choice of school on the principle of maximum contact between the child and each of the parents.

Analysis

[21] The relevant considerations under s. 24(2) of the Children’s Law Reform Act in relation to the educational issue before this court, relate primarily to stability and the plan proposed by each parent.

[22] I am unable to determine on this motion, on the basis of Affidavit materials alone, whether there is a difference in the love, affection, and emotional ties between the child and each parent or their extended families or the ability and willingness of each parent to provide guidance, education, or the necessaries of life to the child. The parties both present as capable of caring for Austin, bonded to the child, and involved in his upbringing to date. They have shared equal time with Austin, pursuant to court-ordered parenting arrangement, since January 2019.

[23] It is apparent to the Court that both parties wish to remain actively involved in the daily care of the child. Both parents have employment flexibility which would permit them to participate in the child’s ongoing care.

[24] It is presumed on the record before me that Austin’s educational needs would be met at both proposed schools. There is no evidence that Austin has any special needs.

[25] The majority of the ‘best interests’ factors in s. 24(2) of the CLRA are in this Court’s opinion, on the basis of the Affidavit materials, rather neutral. However, I find that the principle which does most significantly impact the Court’s decision in this matter is the stability of the child in the context of the current status quo.

[26] As per the case of Cosentino, the main reason the status quo is now in jeopardy is because the mother elected to relocate one hour away. The Applicant mother has led little evidence as to why she chose not to remain in the Dundas area.

[27] The emphasis of this Court is on the best interests of Austin, rather than the preferences or conveniences of either parent. It is the opinion of the Court that the plan proposed by the father better reflects the best interests of the child.

[28] Specifically, I find that the mother’s proposed plan to enroll the child in a school in Jarvis, Ontario is a more significant departure from the current status quo arrangement that the child has enjoyed for the majority of his life:

a. The child’s ordinary residence from birth to January 2019 was Dundas, Ontario. I make this finding for the following reasons:

i. the mother’s Affidavit in Support of Custody and Access, sworn on December 24, 2018 states “I live in Dundas, Ontario” (page 1);

ii. the mother’s Affidavit in Support of Custody and Access, sworn on December 24, 2018 seems to confirm the father’s position that the parties resided together (although separated) in his home in Dundas, from the child’s birth to September 1, 2016 and from January 1, 2018 to June 1, 2018;

iii. the mother’s Affidavit in Support of Claim for Custody or Access at paragraph 10 provides that “I plan to live at the following address: 1026 Kirkwall Road, RR #1 Dundas ON L9H 5E1” and advised that she resided with her sister Nicole Sweers (and niece and nephew) at that time;

iv. the mother’s Application dated December 24, 2018 references 1026 Kirkwall Road, Dundas, ON as her “home” and 13 Park Street, Nanticoke, ON as her “second house”;

v. the child’s only professional third-party care provider, his Family Physician, is located in Dundas, Ontario.

b. The mother’s plan requires a greater departure from the child’s current alternate childcare providers when the parents themselves are not available. The parties seem to agree that the paternal grandparents, who reside two doors down from the Respondent father’s residence, have regularly been called upon to assist with the care of the child since birth. While the parties may disagree as to the reason why the paternal grandparents are regularly called upon to provide care, they agree that historically this has occurred approximately twice per week. The paternal grandparents appear to be willing and able to continue to assist the parties with Austin’s care when he commenced school in September 2019. The mother’s educational plan for Austin seems to place reliance on the maternal grandmother and maternal great-grandparents for future assistance with childcare. The Court has some concern with this change in childcare for Austin, particularly in light of the undisputed assertion that the maternal grandmother has previously had a child removed from her care and placed in a foster home. Further, this Court notes that the Applicant mother previously had the support of her sister, who continues to reside in the Dundas area.

[29] The mother’s plan to enroll the child in a public school in that jurisdiction, approximately one hour from Dundas, is a departure from his status quo jurisdiction of his life to date. By contrast, I find that the father’s proposed plan requires a lesser change to the child’s current routine. The mother’s proposed plan is a change of jurisdiction (generally) for this child and includes more unsettling features. This change should not be encouraged at an interim stage of the proceedings before the issues of custody and access have been fully determined on the merits.

[30] On the face of the motion materials before the Court, the father’s plan provides more stability for the child pending trial. There is certainly no guarantee that either party will reside in their current homes on a forever basis, however I do note from the materials filed that the father appears to have resided in Dundas since 1979.

[31] In short, I find that the mother’s proposed plan is more disruptive to the child’s established routine and the father’s plan better reflects the best interests of the child.

[32] It is therefore the ruling of this Court that:

1. On a temporary basis, commencing September 2019 the child, Austin Matthew Harris, born May 7, 2005, shall be enrolled at Yorkview Public School in Dundas, Ontario.

2. If the parties cannot agree on costs, the party seeking costs shall serve and file cost submissions not exceeding 2 pages in length by September 20, 2019, and any responding submissions will be served and filed by September 30, 2019. If no submissions on costs are filed on or before September 20, 2019 the issue of costs shall be deemed resolved.

3. All other claims for temporary relief on this motion are dismissed.

Bale J.

Date: August 20, 2019