Court File and Parties
COURT FILE NO.: FC-15-1498 DATE: 2019/09/26
COURT OF ONTARIO, SUPERIOR COURT OF JUSTICE, FAMILY COURT
RE: Pablo Gomez, Applicant AND: Noreen Revecho, Respondent
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Allison Lendor, for the Respondent (moving party) Jamie Mookerjea, for the Applicant (responding party)
HEARD: September 24, 2019
DECISION AND REASONS
[1] This is a motion for a temporary order imposing a parenting regime and determining where the child, Diamante Gomez, born December 13, 2014 is to attend school.
[2] It is surprizing that such a motion is being argued in September of 2019. This application has been before the court since the proceeding was launched in July of 2015 just after the parties separated and when the child was barely six months old. Since then, and despite the history of conflict and domestic violence set out in their affidavits, the parties have repeatedly attended at case conferences and settlement conferences and advised the court they were progressing towards a negotiated agreement.
[3] Throughout the proceeding, the parties have been able to parent the child without a court order and for the past two years they have adhered to the same parenting schedule. The only court order currently in place is a support order granted on consent in April of 2016 by Justice Minnema. In addition there was an order for a report by the Office of the Children’s Lawyer.
[4] Despite the appearance of calm, all is not well. The applicant has been represented by at least five separate lawyers and the respondent by two. Despite expressing commitment to some form of co-operative parenting, the parties have established residences distant from each other. Now they cannot agree on what school their child should attend and they have not taken steps to resolve the dispute despite the fact that it should have been clear that a decision would have to be made. In fact this was a subject discussed in the OCL report prepared a year ago.
[5] There is no fundamental conflict between the parents concerning the type of education they foresee for their child. They are both in agreement that French immersion in the Ottawa Catholic School Board is appropriate. This appears to be largely a dispute over geography and which parent will be most inconvenienced although the applicant father also believes he lives in a better neighbourhood. This is perhaps a reflection of the fact that the applicant has chosen to live with his parents in Barrhaven whereas the respondent was assigned a place in public housing once she was able to leave the shelter system.
[6] The mother wishes the child enrolled in Our Lady Mount Carmel Catholic Elementary School. The father has taken it upon himself to unilaterally enrol the child in St. Luke Catholic Elementary School in Barrhaven. He did this in the face of the OCL recommendations and with the apparent knowledge that this motion was pending.
[7] Although the school is the triggering issue for this motion, both parties now seek orders changing the status quo, establishing the primary residence of the child, altering the parenting schedule and imposing various other terms such as sharing of information, method of communication, and altering support. There is relief set out in paragraph 7 of the confirmation forms that is not set out in the notices of motion.
[8] This was a motion scheduled on a regular motions list and as such it is not possible for the court to engage in a nuanced review of complex evidence or to adjudicate a shopping list of potential parenting orders. This is a motion for a temporary parenting order and is not a summary judgment motion.
[9] There are no legal criteria for determining what school a child should attend or how many days the child should be in the care of each parent. The sole criterion for any parenting order is the best interests of the child. Nothing in the evidence filed on the motion persuades me that in the context of these facts the choice of either school or a minor change to the parenting schedule will have such an impact that one choice is demonstrably superior to the other. It is however necessary to impose a decision because the parents remain at odds and this is undermining any ability to co-parent.
[10] A judge faced with making a decision, such as what school to attend, which the parents are unable to make themselves is called upon to do so not because one choice is necessarily superior to another but simply because a choice must be made. The best interests of the child, particularly on a temporary basis, demand that there be stability and predictability, that the daily needs of the child are met, and that the child be insulated from adult conflict as much as possible.
[11] I am assisted in this case by the availability of the OCL report although it is now over a year old. I agree with counsel for the mother that it would be helpful to request an update to that report before this matter proceeds to a settlement conference or a trial.
[12] The court therefore orders as follows:
a. On a temporary basis, the parties shall have joint custody of Diamante Gomez, born December 13, 2014 and he shall have his principal residence with the respondent mother.
b. The child shall be enrolled in Our Lady Mount Carmel Catholic Elementary School, 678 Gardenvale Rd., Ottawa instead of St. Luke Catholic School.
c. Unless otherwise ordered or agreed in writing, the parents shall continue to exercise parenting time in accordance with the current status quo. Counsel are to insert the pick up and drop off times and arrangements into the formal order and if they cannot agree on those terms, they shall be in accordance with paragraph 2 of the OCL recommendations.
d. Paragraphs 3, 4, 6, 8 – 23 and 26 of the OCL recommendations shall form part of this order.
e. The parties shall use the communication log previously agreed upon and shall diligently complete it as required to communicate with the other parent. They may use a web based communication tool instead or in addition to the log if they both agree.
f. There will be an order requesting the Office of the Children’s Lawyer to update the report prepared in August of 2018.
g. The parties shall exchange work schedules and shall update the schedules when there are significant changes.
h. The parties shall complete all outstanding financial and other disclosure within the next 30 days and shall update their financial statements along with continuing disclosure as required by the rules and the forms.
i. The parties are to attend for mediation intake interviews with the court annexed mediation service in order to determine if mediation is appropriate and if it may assist in resolving the outstanding parenting issues. They are to complete this within the next two weeks.
j. A settlement conference is to be scheduled within the next 6 months.
k. Costs of this motion are reserved to the trial judge or other judge dealing with this matter.
Mr. Justice C. MacLeod
Date: September 26, 2019
COURT FILE NO.: FC-15-1498 DATE: 2019/09/26
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Pablo Gomez, Applicant AND: Noreen Revecho, Respondent
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Allison Lendor, for the Respondent (moving party) Jamie Mookerjea, for the Applicant (responding party)
DECISION AND REASONS
Mr. Justice Calum MacLeod
Released: September 26, 2019