Court File and Parties

Court File No.: FC-19-1449-00 Date: 2020-08-25 Superior Court of Justice - Ontario

Re: Scott Gardner, Applicant And: Samantha Greenspan, Respondent

Before: The Honourable Madam Justice R.S. Jain

Counsel: John Craig, Counsel for the Applicant Omar Khan, Counsel for the Respondent

Heard: August 20, 2020

Endorsement

Introduction:

[1] The Respondent Mother (RM) brought a motion requesting the following relief: an order for primary residence of the child Charlee Willow-Lynn Gardner born July 17, 2016 (hereinafter “the child” or “Charlee”) with parenting time to the Applicant Father (AF) on alternate weekends from 6:00 pm Friday until 6:00 pm Sunday; an order that Charlee shall attend Pine River Elementary School, Angus in September 2020; in the alternative, an order that Charlee shall attend Our Lady of Grace, Angus in September 2020.

[2] The Applicant Father (AF) brought a motion requesting the following relief: an order that Charlee shall attend Holy Family Catholic School in Alliston; an order that the child reside with each parent on a week about basis; in the alternative, an order that the Charlee reside primarily with the father and reside with the mother on alternate weekends from Friday at 6:00 pm to Sunday at 7:00 pm with two mid-week visits from 4:00 p.m. to 7:00 p.m.; an order that all transportation required to facilitate the parenting schedule be shared by the parents equally.

[3] The parties separated in 2017 when Charlee was about 1 year old. The parties are in dispute about the parenting arrangements that were in place following their separation. The evidence shows they have been following a shared parenting arrangement (2:2:3 schedule) since at least the spring of 2019. It is acknowledged there is a great deal of dispute about when and why this arrangement was commenced, and whether or not continuing to follow it is in Charlee’s best interests. The parties are also in conflict about which school Charlee should attend in September 2020.

Analysis:

Parenting Schedule

[4] In this matter, as outlined above, both parties are requesting dramatic changes to the status quo and to the temporary order of McDermot J. December 19, 2019. The order was made on the return of an urgent motion brought by the AF as he alleged the RM had unilaterally changed the status quo (shared parenting) schedule to primary residence with her. Both parties admit they have been following a shared parenting schedule since at least early 2019. McDermot J. ordered the parties to return to the status quo, being the 2:2:3 schedule. He further ordered that since the RM was on maternity leave, the RM would provide child care when the AF was working (instead of using a third party care-giver). The parties then agreed to the balance of the terms in minutes of settlement which continued the shared parenting schedule and specified that all the exchanges were to take place at the end of the driveway at the mother’s home.

[5] I agree with the submissions of Mr. Craig that the law is clear on the issue of a motion to change primary care, parenting time and primary residence. Although the best interests of the child are the ultimate arbiter, the moving party seeking the change must demonstrate compelling evidence warranting an immediate change in the parenting schedule for the child.

[6] The existing temporary order and agreement is presumed to be a well thought out, reasonable and rational decision by the judge and the parties at that time. It is not easily tampered with, (and neither is the status quo). Therefore, the issue is whether there are grounds to order another temporary change to that temporary order. As stated by McDermot J. in his decision Psaila vs. Sandurska dated July 10, 2020:

[11] for an interim change in custody and access to take place, the court must find that two factors are satisfied:

a. There must have been a material change in circumstances permitting the court to make a change: see s. 24 of the CLRA; and

b. If that material change is proven, there must be sufficiently compelling circumstances to make that change in custody: see Ceho v. Ceho, 2015 ONSC 5285 and the cases cited therein, including Batsinda v. Batsinda, 2013 ONSC 7869, Green v. Cairns, 2004 9301(Ont. S.C.J.) and Papp v. Papp, 1969 219 (ON CA), [1970] 1 O.R. 331(C.A.). In Grant v. Turgeon, 2000 22565 (Ont. S.C.J.), MacKinnon J. notes the required circumstances for an interim variation of custody as being “exceptional circumstances where immediate action is mandated.” In Miranda v. Miranda, 2013 ONSC 4704, Mitrow J. stated that the party seeking to change a status quo has a very high onus, clarifying at para. 26 that a “party wishing to disturb an interim status quo or vary an interim order faces a strong onus to produce cogent and compelling evidence to show that the physical, mental and moral welfare of a child would be in danger in maintaining the status quo”.

[7] The RM says that the child “has suffered both physically and emotionally” as a result of the parenting schedule. In her materials, the RM made several allegations against the AF. She says that he was “abusive throughout the relationship, including financially and emotionally.” After separation, she alleged that the AF used “control and manipulation” as a means to get her to “agree to his demands.” She further alleged that the AF’s mother, (the paternal grandmother) was “emotionally abusive” towards her and has “interfered with Charlee’s upbringing.” The RM says that all of Charlee’s health difficulties regarding constipation occur solely when Charlee is in the AF’s care. She blamed the AF and speculated that Charlee is anxious and afraid when residing in his care. The RM said she and her partner bought a house and moved to Angus and now they are settled in Angus, (which is approximately 20-25 minutes away from Alliston – where the AF lives with his mother). The RM and her partner had a baby boy together (Declan) on November 30, 2019. The RM says that Charlee is very fond of her new baby brother, and that the RM hoped that Charlee and Declan could attend the same school in Angus in order to keep the siblings together.

[8] The AF denied all the RM’s allegations and made his own allegations about the unilateral steps the RM has taken to try and impose her schedule and deny him parenting time with Charlee. He further made allegations that the RM abused him during the relationship and that after separation she continued to be uncooperative and non-communicative in the co-parenting of their daughter. He denied the allegations the RM made against his mother and described his mother as “simply supportive” of his efforts to co-parent Charlee. He described Charlee as being “loved unconditionally by all the members” of his family. He requests a change in the parenting schedule to “week about” to reduce Charlee’s travel time, or, in the alternative to have Charlee primarily reside with him. He said that if he had primary care and residence, his mother can take Charlee back and forth to school in Alliston, (as she works at the school). He said that he has been “actively involved” in Charlee’s health care since her birth and denies the RM’s allegations that Charlee’s health difficulties are not being addressed in his home.

[9] It is clear that the RM is distressed regarding her belief that Charlee is anxious and unable “to have a bowel movement in her Father’s care.” She provided a letter from her doctor dated April 30, 2020 that purported to support her position. However, I find that the doctor’s letter cannot be heavily relied upon as proof that it would be in Charlee’s best interests to reside primarily with the RM. The letter is speculative and is based upon the reports and opinions provided by the RM. The letter is not an expert investigation. The opinion offered makes a tremendous leap to come to the conclusion that that in would be in the “best interests of Charlee’s health” to live with the RM and that this “may normalize Charlee’s bowel patterns.” Bowel issues in young children can have many different causes (these can include the child’s physical and emotional health, environment and diet). The letter confirmed that the issue had only been brought to the doctor’s attention by the RM “a few weeks” prior, yet the child has been residing in a shared arrangement for over a year. The RM did not reconcile how this conflicts with her fear that Charlee only experiences these difficulties while in the AF’s care.

[10] What is clear to the court is that this little girl is stuck in the middle of a high conflict separation and it is likely causing her anxiety. The parents should be more focused on seeking help for the child and educating themselves to learn strategies to lower the conflict. They must learn how to cooperatively parent (instead of continuing to just blame each other and point fingers). If they do not learn to trust each other again and improve their communication, a trial judge may find that a change to the primary residence will be needed, (however, poor Charlee will have gone through most of her young childhood not knowing a day of peace). Is this what these parents want? The court believes that these parents both have a great deal of love for their daughter. The question is, do they love their daughter more than they dislike each other?

[11] In my view, most, if not all of the many of the allegations the parties have made against each other are more about their own feelings about each other (as a result of their separation). Their submissions were primarily in relation to their past relationship and the ongoing conflict and less about what is in the best interests of Charlee. Both the RM and AF have failed to satisfy the court as to the existence of a change in circumstances that has taken place since the date of the temporary order and/or the beginning of the shared parenting status quo. They have also failed to satisfy the court as to the existence of circumstances (regarding the child’s physical and/or emotional welfare) that were sufficiently compelling to make a temporary change in that order or the status quo.

[12] Therefore, Charlee shall continue to reside with each parent on a shared parenting schedule pursuant to the consent order of McDermot J. dated December 19, 2019. Further, so long as the Respondent Mother is able, she shall continue to provide before and after school child care for Charlee when the Applicant Father is working. Exchanges shall continue to take place at the Respondent Mother’s home.

Charlee’s School

[13] The other important issue in which the parents have been unable to agree is which school Charlee should attend. The AF seeks an order that she attend a Catholic elementary school where his mother works, namely Holy Family Catholic School in Alliston. The RM seeks an order that she attend a public school in Angus, namely Pine River Elementary School. In the alternative, she seeks an order that Charlee attend a Catholic school called Our Lady of Grace, also in Angus. Both of the schools suggested by the RM are within 3-4 minutes of her home.

[14] The AF is Catholic, and he said that during his parenting time, he “often takes Charlee to church.” Charlee has been baptized, and the AF wishes for her to attend Holy Family Catholic School in Alliston, where his mother works. He said that the PGM would be able to take Charlee to and from school. He believed this would “ease Charlee’s transition into Junior Kindergarten.”

[15] Despite the hopes expressed by the AF, I find the simple fact that the PGM works at that school means that Charlee could be exposed to more conflict and anxiety. There is no trust between the parties nor between the RM and the PGM. While the PGM’s desire to assist may come from a positive place, the child has a parent who is able to take her to and from school. The RM can “ease Charlee’s transition” into school. In my view, there is no need to rely on the PGM to the do the job of a parent where Charlee’s mother is available to do this. The PGM is a grandmother, not a parent.

[16] In addition, the AF said that he wished to “expose” Charlee to the Catholic faith by having her attend Catholic school. However, in my view, if the AF is already taking Charlee to church during his parenting time, then Charlee is receiving that exposure, and attendance at Catholic school is not necessary.

[17] In his materials, the AF further provided “school ratings” by the Fraser Institute to support his choice of school, (he argued that Holy Family is ranked “significantly higher” than both schools suggested by the RM). Although school rankings are interesting, I agreed with the submissions of Mr. Khan on this issue. School rankings are hearsay and they were not helpful to the court to determine what school would be in the best interests of this child in this situation.

[18] Lastly, the AF stated that when the RM moved to Angus she “agreed that our daughter would attend school in Alliston.” He provided a text message that he said proved this allegation. Upon review of the text message, I do not find it to be a clear statement or agreement that the child would attend school in Alliston. It speaks of a willingness “to put her in a school in Alliston,” but this was in the context of if or when the RM and her partner came back to reside in Alliston. The text also speaks of the RM’s concern regarding Charlee and her brother going to the same school. The text says nothing about Catholic school.

[19] Charlee is at the exciting beginning of her in school career. She should be able to enjoy this period of time and feel supported by both of her parents. As time goes on, there will be many factors that will contribute to her academic success. Not to be repetitive, but the parties may want to educate themselves on the effect of being exposed to continual parental conflict on a child’s academic success and confidence.

[20] On this issue, the court agrees with the RM and finds that it is in Charlee’s best interests to attend a school closer to the RM’s residence. In my view, Charlee should go to the school that will cause her the least potential for future change or exposure to future conflict. The RM is not Catholic. Both parents should be able to equally support Charlee in her education. Since Charlee has and will have exposure to the Catholic faith through her father, she should be permitted to go to a public school for her non-religious education. Therefore, I have decided that Charlee should attend the public school that was suggested by the RM being Pine River Elementary School, in Angus.

Order:

[21] For the reasons set out above, temporary order to go:

i. Dismissing both parties’ motions to change the shared parenting schedule to week about or to give either of them primary care of the child.

ii. The child, Charlee Willow-Lynn Gardner born July 17, 2016 shall be registered and attend Pine River Elementary School in Angus, Ontario.

[22] As there has been mixed success, pursuant to r. 24 of the Family Law Rules, O. Reg. 114/99, the court may apportion costs as appropriate. If the parties cannot agree to the amount of costs, the parties may make written submissions on the issue of costs on a 7 day turnaround, with the Respondent making submissions first and then the Applicant. Cost submissions shall be no more than 3 pages in length (12 pt. font size, regular 1-inch margins, 1.5 spacing), exclusive of any costs outline or offers to settle. All costs submissions shall be delivered via email at: barriejudsec@ontario.ca. If no submissions are received by September 14, 2020, the issue of costs will be deemed to have been settled between the parties.

Jain J.

Date: August 25, 2020