M.R.B. v. D.B., 2019 ONSC 4925

NEWMARKET COURT FILE NO.: FC-17-55195-00

DATE: 20190822

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

M.R.B. Applicant

– and –

D.B. Respondent

Self-Represented

Self-Represented

HEARD: August 20, 2019

RULING ON MOTION

MCGEE J.:

Overview

[1] D.B. brings this motion to change the school of the parties’ two younger daughters ages 13 and 10. He also seeks an Order for the appointment of the Children’s Lawyer, the payment of one half of undisclosed section 7 expenses and for disclosure of where M.R.B. and her new partner work. He asks for that information so that he does not inadvertently breach a restraining order that prevents him from being within 500 metres of their place of residence, employment, recreation or any other place where they might be.

[2] For the reasons set out below, I decline to order the change in schools and the appointment of the Children’s Lawyer.

[3] I cannot make an Order for the payment of undisclosed section 7 expenses, nor do I have a current Financial Statements that would permit me to assess the proposed equal division or whether the expenses qualify under section 7 of the Federal Child Support Guidelines. This term in the motion is dismissed.

[4] During M.R.B.’s submissions she reaffirmed the location of her and her partner’s employment. I noted those locations but will not set them out in this decision. Because this decision is being published, I have initialized the parent’s names and do not use either of the daughter’s names or identify their school.

Matter Should Have been Heard in May 2019

[5] Pursuant to the Trial Scheduling Order of March 18, 2019 M.R.B. filed her Trial Record on April 16, 2019. The primary issue for trial is the parenting of the parties’ three daughters ages 16, 13 and 10.

[6] The results of the assessment were first disclosed to the parents on July 19, 2018. The results are concerning. The clinical summary relates the depth of trauma experienced by all members of the family and its manifestation in the children’s refusal to see their mother. The results emphasize that the oldest child is at particular risk because she has been drawn into a lead role in reinforcing the father’s negative view of the mother.

[7] The clinical summary reads as a powerful admonition to both parents that the situation is in crisis, that there is a limited opportunity for healing and that the proposed treatment plan must be immediately implemented for the recovery of all family members. As it stood at the end of the assessment, the symptomology of the children was consistent with severe alienation.

[8] The assessor’s recommendations include a term that the children remain at their current schools where they have always attended, unless both parents agree otherwise.

[9] The summary concludes with an observation that the Court will need to consider a transfer of custody from the father to the mother should the treatment plan not be fully implemented. Joint custody is recommended as a mechanism to prevent further alienation.

Legal Framework for School Placement

[10] Choice of school is a custodial decision. Only when there is no temporary or final Order for custody should a court be asked to determine particulars of a child’s education.

[11] When a child is already enrolled in a program of education the starting point for the determination is clear: absent compelling circumstances, students will continue their education in September at the school at which they were enrolled in June. Disrupting a child’s school placement is to be avoided. School is often the most stable and neutral place for children whose parents are transitioning from one home to two homes.

[12] If I accept D.B.’s submissions at their highest, his proposal remedies the fact that neither parent now lives in the children’s school district because the former matrimonial home has just been sold. He now lives with or near family in Woodbridge and the mother resides with her new partner in Holland Landing. The girls are primarily resident with their father at this time because their relationship with their mother is broken.

[13] The father proposes that the 16-year-old daughter stay at her current school, but that the 13- and 10-year olds be enrolled in a school that is a short walk away from his new residence. He champions the proposed school as a “new start” for the girls where they can be surrounded by family, school aged paternal cousins and new friends.

[14] M.R.B. asks that the girls remain at their present school until parenting issues are determined. She describes a reasonable drive from each parent’s residence and confirms that the school is close to her place of work. She lauds the school for their extracurricular activities, engagement with the children and overall excellence. She draws attention to the benefits to their middle daughter in being able to finish Grade 8 with her friend circle since junior kindergarten. She describes the rich history of both girls’ involvement in the life of the school.

[15] Are there compelling circumstances in this case that permit a change in school prior to a decision on custody and primary residence? First, some relevant background.

Events Since the Trial was Not Reached in May 2019

[16] The trial did not proceed in May of 2019. As is the case with all high conflict separations, disputes worsen over time.

[17] The mother brought an urgent motion on June 12, 2019 to address issues around the June 19, 2019 closing of the sale of the former matrimonial home located in Aurora. Directions were given, and the costs of the motion were reserved to the trial judge. The sale of the home finally closed. The mother moved to Holland Landing. The father moved to Woodbridge.

[18] On June 17, 2019 Justice Kaufman held a further Trial Scheduling Conference and addressed the ongoing conflict between the parents. He allowed the father to bring a one-hour motion on August 14, 2019 for a change in school to Woodbridge.[^1] Motion materials were to be served 30 days prior. “30 days prior” was underlined. Twice.

[19] On July 3, 2019 the mother brought a motion for a restraining Order against the father. Justice McCarthy endorsed that a restraining order was “not only justified, but entirely positive for all concerned.” An Order issued. No costs were ordered.

[20] On August 8, 2019 the father caused his mother to email M.R.B. with a Notice of Motion for a change in school, and three other grounds of relief (which were not permitted within Justice Kaufman’s endorsement). Attached to the email was an unsworn affidavit dated August 7, 2019. There was never any leave granted for service by email. The required 30 days’ notice had passed on July 14, 2019.

[21] Justice Kaufman was consulted by court staff on August 13, 2019 as to whether the motion could proceed on August 14, 2019, given the deficiencies:

a. less than 30 days’ notice;

b. unsworn affidavit;

c. improper service;

Justice Kaufman endorsed that the matter come before me on the following day (the 14th) to be spoken to. I had the option of conferencing the issues if I thought they could be resolved or rescheduling the motion.

[22] M.R.B. was not present at court on August 14th. I learned today that counter staff had already indicated to her on the 12th that the deficiencies prevented the motion from going forward on the 14th. I gave D.B. directions on repairing the deficiencies and set the motion to the afternoon of August 20, 2019.

Hearing of the Motion

[23] On the afternoon of August 20th I heard D.B.’s motion. At the same time, I was provided with M.R.B.’s responding materials.

[24] Upon a review of those materials I was surprised to discover that the parties had completed a section 30 assessment over the period of April 18, 2018 to July 11, 2018. D.B.’s motion had contained no reference to the assessment, its clinical summary or its recommendations. Instead, his affidavit focused on his perception of events that continue to fuel his indignation over the conduct of his former spouse. At one point in his affidavit, he turns the language of alienation found within the assessment towards M.R.B. – claiming that she is the offending parent.

[25] One paragraph in his lengthy affidavit addressed a failed attempt at reintegration therapy in May of 2019. That paragraph seemed misplaced as it had no relevance to a proposed school change. But with a full reading of the section 30 assessment, the paragraph and its attached exhibit became significant. It provides a sufficient basis for me to find that D.B. has wholly disregarded the proposed treatment plan set out in the assessment.

[26] Of particular concern to me was D.B.’s assertion that the two younger girls emailed the assessor on August 23, 2018 seeking his help in switching schools. D.B. today interprets the assessor’s failure to reply to the email as an indicator of the assessor’s broader failure to appreciate the issues to be determined. He attaches to his materials a screenshot of the email.

[27] I have serious concerns with the authenticity of that screen shot. First, there is no evidence that the assessor received the August 23, 2018 email. I find the language in the email somewhat adult for a then 9 and 12-year-old. The timing of the email is even more bizarre, because the girls were still living in Aurora and the house was a year away from being sold.

[28] Perhaps the email was sent, but ultimately, it is not a communication to which the assessor ought to have responded. An assessor is a neutral expert tasked with conveying to the court the best interests of the children. He is not the father, the mother, or the girls’ advocate. Outside the course of a duly constituted assessment he should never engage with the litigants’ children directly.

[29] D.B. does not indicate that he has directly communicated with the assessor or sought to reengage him since the disclosure meeting of July 19, 2018. The screen shot cannot be admissible evidence of the girl’s preferences to change schools. It serves only to show me that D.B. misapprehends the role of an assessor.

Analysis

[30] I can find no compelling circumstances that warrant a change in the girls’ school prior to a final determination of the parenting issues.

[31] A somewhat lengthier drive from home to school is not a sufficient basis. I find that D.B.’s proposed “new start” is more for his benefit than the girls. Over the years, the mother has been heavily involved with the present school.

[32] I do not discount the benefits of having cousins at the same school, but they are not a deciding factor. The relationship with the cousins will exist outside of school. At the girls’ present school they already have peers with whom they have attended school since junior kindergarten.

[33] D.B’s proposal might carry more weight were there a prima facie case that he will be granted custody. There is not. His failure to engage in the treatment plan for his and the girls’ healing from the trauma of this separation may be a sufficient basis to place their primary care with the mother.

[34] D.B.’s proposal might also carry more weight if there were certainty that he will continue living at his present residence. The parties’ financial issues remain outstanding.

[35] Every August or September there is another important decision on school placement that is not really about school placement. As best set out by Justice Pazaratz in Cosentino v. Cosentino[^2] parents should think twice before attempting to change a child’s school before custody is determined because courts will see the proposal for what it is: an attempt to secure an advantage in a high conflict parenting dispute.

[36] The advantage is obvious. A change in schools will shift the argument for primary residence in favour of the parent who lives closer to the school. Justice Pazaratz goes on to state at paragraph 10 of Cosentino that:

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.

[37] I agree.

[38] D.B. chose to relocate knowing where the girls attended school. He waited until August 7th to bring his motion. He continues to champion his and the girls’ suffering at the hands of the mother while ignoring a treatment plan that would alleviate that suffering. A custodial parent’s first duty of care is to protect. To ignore a treatment plan recommended over a year ago is not consistent with the role of a parent as set out in section 24 of the Children’s Law Reform Act.

[39] In the absence of compelling circumstances for this proposed change in schools, and to avoid D.B. securing an advantage in this high conflict parenting dispute, I dismiss his motion to change schools.

Request for Assistance of the Children’s Lawyer

[40] This motion was not contemplated in the Case Management Justice’s June 17, 2019 endorsement and I will dispose of it briefly.

[41] D.B. requests the involvement of the OCL to represent the girls because he believes that no one is listening to them – particularly the assessor.

[42] Requesting the assistance of the OCL is not an automatic entitlement of a litigant. In Haywood v. Haywood,[^3] I declined to request the appointment of the OCL at an interim motion because of the risk that the represented child would be (or had already been) conscripted by the father in his quest to win the litigation.

[43] Children are to be protected by the court as much as possible, not placed in the middle of the conflict, or employed as an advocate for a parent.

[44] In Laurin v. Martin,[^4] (Ont. S.C.J.), Justice Charbonneau also declined a request for the appointment of the Office of the Children's Lawyer stating:

The Court will only ask the O.C.L to intervene if the Court is satisfied it is necessary to do so to ascertain the wishes of the child and/or provide professional input, usually from a social worker, in order to permit the court to better ascertain what is in the best interest of the child.

[45] In my view, the assistance of the OCL would add value to neither the assessment nor the recommendations already before the court. Over a year ago the assessor identified the children as far too engaged, and far too impacted by the conflict. The evidence on this motion suggests that the situation has since worsened. I fear that representation would exacerbate the existing situation by amplifying the father’s voice through the daughters.

[46] As concluded by Justice MacPherson in Children and Family Services for York Region v. L.M. et al[^5] as he responded to a mother’s requested for representation of teenaged children who were rejecting the father:

Ultimately [the children’s] position will be of little assistance to the court if their views and preferences stem from the mother's interference in their relationship with their father.

[47] I decline to request legal representation by the Children’s Lawyer.

[48] If D.B. is correct that things have changed since the assessment was completed, his remedy is to update the assessment. I ask the parties to forward a copy of this endorsement to the assessor and I recommend that he be engaged to update the assessment for a November 2019 trial.

This Trial to be Given Priority

[49] I ask that the Trial Coordinator to give this matter priority on the November 2019 sittings.

Costs

[50] M.R.B. has been the successful party. If she seeks costs of this motion she is to serve and file her submissions for costs by September 3, 2019; D.B.’s costs submissions shall be served and filed by September 17, 2019; and any reply shall be served and filed by September 27, 2019. Costs submissions shall not exceed three typed pages plus copies of any Offers, or Bills of Costs. If no costs submissions are received by September 3, 2019, no costs shall be payable.

Madam Justice H. McGee

Released: August 22, 2019

[^1]: Trial Scheduling Orders generally prohibit any further motions, anticipating a trial within a short period. When a trial is not reached, and the next sittings are 4 – 6 months away, judges employ a more flexible approach. [^2]: 2016 ONSC 5621. [^3]: 2010 ONSC 5615. [^4]: 2006 CarswellOnt 8905. [^5]: 2018 CarswellOnt 448.