COURT FILE NO.: FC-20-191

DATE: 20200720

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

TYLER CHARRON

Applicant

– and –

CRYSTAL ANN HOLLAHAN

Respondent

Tanya Davies, for the Applicant

Adrienne Curran, for the Respondent

HEARD: June 30, 2020

DECISION ON A MOTION

Audet J.

[1] This motion deals with the single issue of where the parties’ child should attend school in September 2020. The mother proposes Our Lady of Fatima, which in the catchment of her residence in the west end of the City (Nepean), within a four-minute drive. The father proposes St. Theresa Catholic School, which is in the catchment of his new residence in the east end of the City (Orleans), within walking distance from his home.

Background

[2] The parties began living together in or around September 15, 2013. They had one child together, Liam, who was born on August 14, 2016. The parties separated on or about July 25, 2018. At the time of their separation, the parties were residing in an apartment located on McEwen Street, in the west end of Ottawa. On September 1, 2018, the father moved out of the apartment and moved into his own rental unit, also in the west end, down the street from the mother’s residence. The mother still resides in the McEwen apartment to this day.

[3] The father is a floor installer. He worked for various flooring companies throughout the parties’ relationship and currently works for a tile and surfacing company, installing custom jobs for clients all over the city. His current work hours are from 7:00 a.m. to 3:30 p.m., Monday to Friday.

[4] The mother has worked in the restaurant industry for quite some time. When she was pregnant with Liam, she was working at a Harvey’s restaurant. She says that it has always been her intention to become a chef or a manager in a restaurant one day. She has known for quite some time that she would have to work her way up from the bottom in order to find her place. Approximately one year after Liam was born, she went back to work at Harvey’s while looking for other positions. About six months later, she landed a position at Hard Stones Grill in Nepean, working night and evening shifts. She still works there today, and she also works part-time as a line cook at the Royal Oak on Wellington Street West.

[5] It is the mother’s evidence, which I accept, that when she returned to the workforce after Liam’s birth, the parties agreed that the father would work during the day while she cared for Liam, and that she would work evening and night shifts after Liam went to bed, while Liam would be cared for by his father. This is how the parents managed their childcare duties during the year that followed the mother’s return to work.

[6] After the parties’ physical separation in September 2018, they continued to care for Liam in the same way, albeit from their own separate residences. The father worked during the day while the mother cared for Liam, and Liam was dropped off at his father’s residence before the mother began her work shift in the evening. The mother would pick Liam up at the end of her shift late at night, or he would stay with his father overnight and she would pick him up at 6:00 a.m. so that the father could go to work. The mother states that this arrangement benefitted both parties as they avoided any costs associated with daycare. The parties never signed a separation agreement confirming these parenting arrangements.

[7] I accept, as alleged by the father, that he did not feel that Liam transitioning from one home to the other in the middle of the night was in his best interest and that the need for the mother to try and find better work hours was an ongoing discussion between them after their separation. However, I find as a fact that it only became a pressing issue for the father when he started spending more time and planning for a future with his new girlfriend who lived in the east end of the City with her own daughter. I also accept the mother’s evidence that despite her best efforts, it was difficult for her to move to a day job given her lack of seniority.

[8] During the month of December 2018, the parties got into an argument following which the mother filed a police report. It is the mother’s evidence that she felt threatened by the father’s behaviour during this argument (she alleges that he raised his hand twice to hit her), and on the spur of the moment felt it important to have a record of same. The father disputes the mother’s version of what took place during this argument and the evidence before me does not allow me to conclude one way or the other. What is clear from the evidence, however, is that the father did not take well to the news that the mother had filed a police report against him.

[9] Upon finding out about this, the father unilaterally withheld Liam in his care and refused to return him to his mother’s care in accordance with the parties’ long-standing parenting arrangement. He advised the mother that Liam would be returned to her when the parties were able to come up with a “suitable plan of care” for Liam on a go-forward basis. He insisted on the mother attending the Ottawa Courthouse with him to participate in mediation during which they would try to come up with a parenting schedule that “met everybody’s needs”. In the meanwhile, he was only prepared to allow supervised access between the mother and the child, at a local child amusement center.

[10] Although the father disputes the mother’s allegation that he withheld Liam out of vindication because she filed a police report against him, and as a means to force her to accept his preferred parenting schedule – one that would accommodate his wish to move to Orleans to be with his new girlfriend – I find as a fact, based on the evidence before me, that this is exactly what the father did. He unilaterally and unreasonably withheld Liam in his care to force the mother to transition to a day-shift work schedule (or change employment, if necessary) and to agree to a week on-week off parenting schedule that would accommodate his desire to relocate to the east end while continuing to care for Liam on an equal time-sharing basis. By the same token, he tried to get the mother to agree to move to the east end to make their equal time-sharing schedule much easier to handle. His offer to allow limited supervised access to the mother in the meanwhile, where there was absolutely no basis for such restrictions, is revealing, as is his message to her on the day he withheld Liam: “Now with the stunt that you pulled today I now must take action. […] So as of now, I will be keeping Liam full time until you can present me with a healthy schedule that works for us all.”

[11] The father withheld Liam for three days (from December 31, 2018 to the end of the day on January 3, 2019) until he was able to get the mother to agree to the parenting terms he wished to put into place for Liam during a mediation session that took place on January 2, 2019, at the Ottawa Courthouse. The mother states, and I accept her evidence on that point, that the father notified her for the first time through a text message the day prior to the scheduled mediation session, that he was moving to the east end and that he was seeking to establish a week on – week off parenting schedule that would make this move possible.

[12] In the context of the January 2 mediation session, the mother agreed to move to a week on- week off parenting schedule, as sought by the father. While the mother admits that during the mediation she verbally agreed to she would look for housing in the east end of Ottawa close to where the father intended to reside with his new girlfriend, nothing was reduced to writing. I find that the mother’s consent to do so was obtained by coercion and pressure, and under the threat that Liam would not be returned to her unless she agreed. I put absolutely no weight on the mother’s verbal agreement to look for housing in Orleans or to move there.

[13] Nonetheless, the mother did look for housing in Orleans. However, she was unable to find rental accommodations that met her and Liam’s needs at a cost that she could afford. As a result, she ultimately decided to remain in her McEwan apartment. Therefore, from January 2019 to this day, the parties have cared for Liam on a week about basis, with each of them making their own arrangements for daycare for Liam during their respective weeks. While the father only moved into his own residence in Orleans in June 2019, I find as a fact, based on the evidence before me, that he started to live with his girlfriend (in the east end) on or about January 2019, while still maintaining his west end apartment. In early January 2019, he had made arrangements to have Liam cared for by his friend “Bobby” in the east end while he went to work, and on January 31, 2019, the father advised the mother that his friend could no longer care for Liam and that he had enrolled him in Children’s Universe Daycare in Orleans (close to his current residence), where Liam would be during his parenting weeks.

[14] The mother states that she was able to move to a daytime schedule working 9:00 a.m. to 4:00 p.m. at some point in January 2019. She says that she works up to 80 hours on the weeks that she does not have Liam to make up for the time lost when she does. She found a daycare in Kanata that was prepared to care for Liam only every other week, and this is where Liam continues to be cared for (except during the first few months of the COVID-19 pandemic) when the mother is at work.

[15] Unfortunately for these parents (but fortunately for this child), Liam cannot go to school in Orleans one week and in Kanata the other.

Choice of School – The Legal Framework

[16] In Thomas v. Osika, 2018 ONSC 2712, 13 R.F.L. (8th) 191, at para. 37, I summarized the principles applicable to the court’s decision in relation to the choice of school:

37 The decision as to the choice of school that a child should attend, when the parents disagree, is ultimately a matter of judicial discretion. However, a number of general principles have emerged from the caselaw to assist the decision-maker in making the decision in the child’s best interests. They can be summarized as follows:

a. Sub-section 28(1)(b) of the Children's Law Reform Act specifically empowers the court to determine any matter incidental to custody rights. The issue of a child's enrollment in a school program must be considered as being incidental to or ancillary to the rights of custody (Deschenes v. Medwayosh, 2016 ONCJ 567);

b. It is implicit that a parent's plan for the child's education, and his or her capacity and commitment to carry out the plan are important elements affecting a child's best interests. In developing a child's educational plan, the unique needs, circumstances, aptitudes and attributes of the child, must be taken into account (Bandas v. Demirdache, 2013 ONCJ 679 (Ont. C.J.));

c. When considering school placement, one factor to be considered is the ability of the 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);

d. The emphasis must be placed on the interests of the child, and not on the interests or rights of the parents (Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.J. No. 52 (S.C.C.);

e. The importance of a school placement or educational program will promote and maintain a child's cultural and linguistic heritage (Perron v. Perron, 2012 ONCA 811 (Ont. C.A.);

f. Factors which may be taken into account by the court in determining the best interests of the child include assessing any impact on the stability of the child. This may include examining whether there is any prospect of one of the parties moving in the near future; where the child was born and raised; whether a move will mean new child care providers or other unsettling features (Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.);

g. The court will also look to any decisions that were made by the parents prior to the separation or at the time of separation with respect to schooling (Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.);

h. Any problems with the proposed schools will be considered (Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.);

i. A 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);

j. Third party ranking systems, such as the Fraser Institute’s, should not factor into a Court’s decision. These systems of ranking do not take into consideration the best interest of the particular child in a family law context (Wilson v. Wilson, 2015 ONSC 479);

k. If an aspect of a child's life, such as school placement, is to be disrupted by an order of the court, there must be good reason for the court to do so. Thus, before a court will order a child to transfer schools, there must be convincing evidence that a change of schools is in the child's best interests (Perron v. Perron, 2012 ONCA 811 (Ont. C.A.);

l. Custodial parents should be entrusted with making the decision as to which school children should attend. When a sole custodial parent has always acted in the best interest of a child, there should be no reason to doubt that this parent will act in the best interest of the child when deciding on a school (Adams v. Adams, 2016 ONCJ 431);

m. Those cases are very fact-driven. The courts are not pronouncing on 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 v. Medwayosh, 2016 ONCJ 567).

Analysis

[17] I find that both parents have been closely involved in Liam’s care on a day-to-day basis throughout his life, and that they are both equally fit to care for him. I find that despite some conflict and the unfortunate events of December 2018, these parents have mostly been able to work together cooperatively to meet Liam’s needs. I find that both parents are fully capable of providing him with the support he needs to succeed in life and in school.

[18] This said, I question the father’s ability to put Liam’s best interests ahead of his own, at times, which is clearly illustrated by his unilateral withholding of access for the purpose of achieving his goal to move to Orleans. The father has also taken other unilateral steps, without seeking the mother’s input or consent, which leaves me with some concerns about his willingness and ability to promote her relationship with Liam and to allow her to continue to play an important role in Liam’s life if he were to attend school in the father’s catchment. For instance:

• When the father withheld Liam on December 31, he arranged for Liam to be cared for by his friend “Bobby” while he was at work, but he refused to provide the mother with “Bobby’s” phone number and address, or to facilitate a meeting between them;

• In January 2019, the father unilaterally registered Liam in a daycare in Orleans without any notice to or consultation with the mother. Despite her repeated requests, he only provided her with the name of the daycare and its contact information in April 2019;

• The father started speech therapy sessions with Liam at a private speech language pathologist in Orleans without any prior consultation with the mother, and without her prior consent or knowledge. The mother alleges that he refused to provide her with the name and contact information of this speech pathologist when she asked, so she could follow up with him. The evidence provided by the father reveals that he did not provide her with that information until two months after the sessions started (in November 2019). In February 2020, the mother started speech therapy sessions with a different speech therapist in Nepean during her weeks;

• The father went ahead and registered Liam in St. Theresa Catholic School, despite the fact that the parents have been unable to agree on a school for Liam to date.

[19] While the father states that any decisions he made over the past two years were made having solely Liam’s best interests at heart, I find that all the above decisions were made solely to allow and facilitate his move to Orleans, and for no other purposes.

[20] Liam is a perfectly healthy and happy little boy. He is fortunate enough to have two parents who love him very much and who want the best for him. Liam has no special needs, except for a mild speech delay which is currently being addressed with speech therapy from two different professionals as stated above. He is on the waiting list at CHEO for the First Words program and once he gets in this program, he will likely stop seeing his current speech therapists.

[21] The school preconized by the mother, Our Lady of Fatima, is an English Catholic school which is part of the Ottawa Catholic School Board. It is located 1.4 kilometers from her house, which is approximately a 3-minute drive from her home, or a 15-minute walk. Before and after school daycare is available at the school, and it runs from 7:00 a.m. to 8:00 a.m. (when school starts) and from 2:30 p.m. (when school ends) to 6:00 p.m. each day. In that school, Liam will have instruction in both English and French (he if is able) throughout the day. Our Lady of Fatima is a large school (there are three Kindergarten classes each capped at 23 students) which offers students with access to many professional services such as speech therapy, if needed. Liam will also be able to take the bus from home in the morning if needed (given his parents’ work hours he would attend after school daycare in the afternoon).

[22] The school preconized by the father, St. Theresa Catholic School, is also part of the Ottawa Catholic School Board. It is located at a walking distance from the father’s residence. Before and after school daycare is available at the school from 7:00 a.m. until 8:30 a.m. (when school starts) and from 3:00 p.m. (when the school ends) on. Liam will also have instruction in both English and French in that school, as well as access to many professional services to ensure that he meets his full academic potential. The father’s partner’s older daughter also attends this school. While the father refers to her as “Liam’s best friend”, given the significant age difference between them (she is four years older than Liam), it is clear that opportunities for contact between them at school will be minimal. I do not see this as a significant advantage for Liam, although I accept that it might be comforting for him at the beginning to know that his older step-sibling is in the same school and available to him if needed. Liam will also be able to walk to and from school with her when he is older.

[23] Both parents agree that at the time they lived together, it was their common intention to register Liam in a school within the catchment of their west end apartment.

[24] The mother has not re-partnered and she is solely responsible for Liam’s needs when he is in her care. Before the COVID-19 pandemic, when Liam was attending daycare from Monday to Friday, she relied on her parents or her sister, who live in Pembroke, to care for him when she was required to work on Saturdays. When the pandemic struck, her parents and sister spent a significant amount of time in Ottawa to care for Liam when the mother went to work (since daycares were then closed). The mother continues to rely on her parents and sister to assist whenever she needs them to care for Liam. She also relies on the support of a group of friends and work colleagues who live or work in the west end (one of her work colleagues lives in Gatineau but works in Nepean) and who are available to her and Liam whenever she needs them. Moving to the east end or Liam attending a school in the east end would significantly reduce the mother’s ability to rely on her support network to assist with Liam’s care when needed.

[25] The father has re-partnered. His partner works from home and is therefore available before and after school to care for Liam when the father is at work. The father’s family members and many of his friends also live in Orleans and are available, if needed, to care for Liam. If Liam goes to a school in Orleans, he will likely not need before and after school daycare on the weeks that he is in his father’s care. However, he will be required to stay in daycare longer during the mother’s parenting weeks, as she will be required to travel approximately 25 kilometers to and from Nepean to Orleans in heavy traffic before the beginning of Liam’s school, and then again when she finishes work at 4:00 p.m. She will likely not be back home until 5:30-6:00 p.m. on weekdays and will still have dinner to prepare and homework to complete.

[26] Given the father’s 7:00 a.m. to 3:00 p.m. work hours, if Liam goes to school in the west end, he will travel to and from his father’s home for the same distance, but before heavy traffic hours. The mother confirmed that she is prepared to care for Liam before school every day during the weeks that Liam is in his father’s care. Therefore, Liam will not be required to go to daycare before school regardless of the parenting schedule, since the mother only starts work at 9:00 a.m. and is able to drive him to school or put him on the bus before going to work. Since the father finishes work at 3:00 p.m., Liam will not be required to stay in after-school daycare past 4:30 p.m. when he is in the care of either of his parents. The father also has the support of his partner who can “hold the fort”, so to speak, and attend to household duties (such as preparing dinner) while he picks Liam up and drives back home after work.

Conclusion

[27] Ultimately, the decision as to which school a child should attend is a matter of judicial discretion. I find that both schools are fully equipped to meet Liam’s needs and to provide him with the environment and services he needs to achieve his full academic potential. From a practical perspective, I find that it is in Liam’s best interests to go to a school which is closer to his mother’s home, in the west end. At that school, and given the parents’ respective work schedule, he will spend less time in traffic and more time with each of his parents, while minimizing the time he needs to spend in before and after school daycare.

[28] As a result, I make the following order:

1. Commencing in the 2020/2021 school year, Liam shall be registered at and attend Our Lady of Fatima School, 2135 Knightsbridge Rd, Ottawa, ON K2A 0R3.

2. Liam shall be registered for before and after school care (as needed) at the extended day program of Our Lady of Fatima School.

3. If he so wishes, the father may drop Liam off at his mother’s home before school during his parenting weeks and the mother shall be responsible to bring Liam to school or to put him on the bus.

4. If either parent is able and available to pick Liam up directly after school on their parenting weeks, then they may do so to reduce the duration of Liam’s time in daycare.

5. Both parents may attend all of Liam’s school events, outings, and parent-educator/teacher interviews. If so desired, each parent may schedule individual parent-teacher interviews.

6. If both parents wish to volunteer for a class outing and they do not agree on who may attend, the parent who has parenting time that day shall have the first choice on whether or not to attend.

7. Both parents shall provide their email and contact information to the school so that they may both receive copies of Liam’s report cards and important notices/school events directly.

8. The parties shall each ensure that the school has their up-to-date emails, phone numbers and addresses so that they may be kept informed by the school.

9. Each parent shall ensure they have access to and regularly check any learning management system used by the school.

[29] The mother is the successful party in this motion. If the parties cannot agree on costs, they may provide me with written submissions on costs not exceeding three pages (exclusive of offers to settle and bills of costs), in accordance with the following timelines:

• The mother shall provide her submissions by August 5, 2020;

• The father shall provide his submissions by August 19, 2020;

• The mother’s brief reply, if any, shall be submitted by August 26, 2020.

Madam Justice Julie Audet

Released: July 20, 2020

COURT FILE NO.: FC-20-191

DATE: 20200720

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

TYLER CHARRON

Applicant

– and –

CRYSTAL ANN HOLLAHAN

Respondent

decision on a motion

Audet J.

Released: July 20, 2020