SUPERIOR COURT OF JUSTICE - ONTARIO
RE: J.D., Applicant
AND:
T.D., Respondent
BEFORE: Conlan J.
COUNSEL: Dorothy Kosinka, for the Applicant
Gabrielle Pop-Lazic, for the Respondent
HEARD: September 9, 2020
ENDORSEMENT
I. Introduction
1There is a dispute between the parents, the Applicant mother J.D. and the Respondent father T.D., about the primary residency and place of school for their 12-year old son.
2Time is of the essence. School has started across Ontario. Consequently, this Endorsement is very brief.
The Motions
3There are two Motions before the Court. The mother moves for an Order that she have primary residency of the child in Dundas, Ontario, and that the child attend school in Dundas. The father moves for an Order that he have primary residency of the child in St. Catharines, Ontario, and that the child attend school there.
4In April 2014, on consent, Coats J. made a Final Order granting to the parties joint custody of the child and roughly equal parenting time which was set out in a very detailed schedule. At that time, everyone lived in Burlington, Ontario.
5Since then, the mother moved to Dundas in January 2020, and the father moved to St. Catharines in June 2020.
6There are serious allegations back and forth between the parties, including that the father is harassing and threatening, while the mother is an alcoholic and mentally ill.
7Each side claims that her/his plan for residency and schooling is fully supported by the child.
8There have been no cross-examinations conducted on any of the affidavit material filed by either side. There is no input currently from the Office of the Children’s Lawyer (“OCL”). There has been no Case Conference conducted. The father’s Motion was short-served. A real conundrum exists.
II. Decision
9The most that this Court feels comfortable doing today is to make an interim interim without prejudice Order dealing only with the schooling of the child.
10This Court orders that:
(i) the OCL shall be requested to become involved, with both a clinical investigator and independent counsel for the child appointed;
(ii) to expedite the receipt of input from the child, a Voice of the Child Report shall be prepared by someone approved of by both sides, failing which I will choose someone (the parties have until 4:00 p.m. tomorrow, September 10th, to agree on the author of the Report);
(iii) both Motions shall be adjourned to a date to be fixed by the trial coordinator, in consultation with both counsel;
(iv) in addition, the trial office shall, in consultation with both counsel, schedule a Case Conference; and
(v) strictly on an interim interim without prejudice basis, until 3:00 p.m. on September 18, 2020 (unless varied before then by a subsequent Court Order), at which time the Court may extend the within Order, the child shall attend school remotely (online) through the Canadian Martyrs Catholic Elementary School in St. Catharines.
11In my view, given the conflicting evidence before the Court and the seriousness of the issues at stake, numbers (i) through (iv) above are necessary in order for the Court to make a decision that is in the best interests of the child.
12Item (v) above is a compromise. This is a tricky matter for this Judge to navigate. If I order that the child go to school in-person in either Dundas or St. Catharines, then I will be doing so without any input from a 12-year old child who clearly is entitled to express his views and preferences, and I will be making the Final Order of Coats J. practically impossible to adhere to, causing an imbalance in parenting time and a litigation edge to one side over the other when the Motions are decided on their merits.
13I am told that online learning is available in both jurisdictions being proposed. I am forced to choose one of them. I choose St. Catharines for the online learning only because two of the child’s half-siblings attend that same school and may be able to help the child become acquainted with the type of programming that the school offers.
14I contemplated doing nothing today about the place of school, pending input from the child. If I was dealing with a 6-year old, that probably would have been fine. But I think that a 12-year old should not miss even a week of school programming.
15This is the best that I can do today. Temporary Order accordingly. Rather than entertain costs submissions now, I order that they be reserved to the Judge presiding on the return date.
16I am not seized of this matter, however, if scheduling permits it may be advantageous to the parties for either the Conference or the return date of the Motions to be before me.
17I thank both counsel for their help today.
(Original signed by)
Conlan J.
Date: September 9, 2020