COURT FILE NO.: FC-19-1199 DATE: 2020/08/27
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Melissa Leclerc Applicant
– and –
James Grace Respondent
Mr. Coderre and Ms. Godbout, for the Applicant Ms. Crawford and Mr. Duguay, for the Respondent
HEARD: August 20, 2020
Endorsement
shelston, j.
Overview
[1] The applicant (“mother”) and the respondent (“father”) have one child of the relationship, Sienna, six years of age. The parties have joint custody of the child and a parenting schedule where the child alternates residences every Sunday at 5:00 p.m. at a midpoint between the parents’ homes.
[2] The parties do not agree on where the child will attend school in September 2020.
[3] The father proposes that the child attend the French Immersion Program at John Young Elementary school (“John Young”) in Kanata, Ontario. The mother proposes that the child attend the French language program at École Élémentaire Publique Louise-Arbour (“Louise-Arbour”) as well as the before and after school program, or in the alternative, that the child be registered in a French language public school or French Catholic school situated halfway between the respective residences of the parties. During submissions, the only school proposed by the mother was Louise-Arbour.
Preliminary Issue: Father’s Motion to Strike
[4] On August 7, 2020, I struck certain paragraphs of pleadings filed by the mother that contravened paragraph 3.1 of the Interim Without Prejudice Agreement. By Amended, Amended Notice of Motion dated August 19, 2020, counsel for the father sought to strike additional pleadings and documentation that were inadvertently not addressed in the first motion to strike.
[5] Counsel for the mother submits that if such pleadings are struck, then certain pleadings in the father’s material would have to be struck as well. However, counsel for the mother has not filed a motion to strike any pleadings either prior to or subsequent to my endorsement dated August 7, 2020.
[6] I have reviewed the paragraphs set out in the Amended, Amended Notice of Motion and find that to ensure consistency with my endorsement dated August 7, 2020, these paragraphs and documents must be struck. Consequently, I make the following order:
a) exhibits K and P of the mother’s affidavit dated January 13, 2020 are struck;
b) paragraphs 1(o), (p), (q) and (nnn) of the mother’s Reply are struck; and
c) paragraph 34 of the affidavit of Louise LeClerc is struck.
Factual Background
[7] The father is employed with the House of Commons from 6:30 a.m. to 3:15 p.m. with his office being in downtown Ottawa. Since the pandemic, he works remotely from home. He lives with Ms. Trudy Casey, who is a Registered Early Childhood Educator at a school in Kanata and who works from 10:45 a.m. to 6:15 p.m. They have one child, Nolan, born in April 2018.
[8] The mother is a senior communications advisor whose regular hours of work are between 8:00 a.m. and 4:00 p.m. Her employer is prepared to accommodate her work schedule based on her child’s schooling. In Week 1, when she has the child, she is able to work from 7:45 a.m. to 3:30 p.m. while on Week 2 she can work from 8:00 a.m. to 4:15 p.m. At the commencement of these proceedings, she worked in the Hull sector of Gatineau but in March 2020, she had a lateral transfer to another federal department in Ottawa in the same position just minutes away from her proposed school. As a result of the pandemic, she is currently working remotely from home.
[9] The parties lived together from January 2009 to August 7, 2015.
[10] The parties entered into a separation agreement signed by the father on September 8, 2015 and the mother on October 1, 2015. Both parties allege that the other drafted the agreement. What is not in dispute is that the agreement was drafted without the assistance of lawyers but both parties were free to obtain independent legal advice, which the mother did prior to signing the agreement. The agreement was signed and witnessed by the respective paternal and maternal grandparents of the child. The relevant portions of the agreement, which paragraphs are not numbered, that are germane to the issues before this court are as follows:
Melissa Leclerc (Mother) and James Charles Grace (Father), do hereby agree that their child (Sienna Amelia Grace) shall be in 50/50 joint custody of her natural Parents.
The mother and the father agree that the child will not be baptized or guided in religion; she will be free to make her own choices and will not be influenced by either parent.
IT IS AGREED that daycare will be provided by the families of both the mother and the father. In the event that this needs to change for any reason, it will be agreed upon mutually. No one, outside of direct family, will ever be in care of Sienna without the approval and consent of the other Parent. This includes, is not limited to babysitters, future boyfriends or girlfriends or other care providers.
IT IS AGREED that until the child starts school, the mother and the father will continue to reside within the reasonable distance of 50 km of each other. Once the child starts school, this section will be revisited and mutually agreed upon at that time and a suitable location that works for both parents will be chosen. No one parent will be forced into hardship to see their child or to accommodate her schooling. Both parents will be reasonably accommodated while maintaining the best scenario for their daughter and not impacting her in any negative way.
[11] After the agreement was signed, the child was in a 2/2/3 parenting schedule where she lived equal time with each parent and the maternal and paternal grandparents cared for the child when a third party was required. The mother moved back from Cumberland to Kanata in 2016 when she purchased a condominium.
[12] After separation, both parties re-partnered. In the spring of 2016, the mother started a relationship with Mr. Desabrais who has a daughter, Elyane. His daughter lived in the primary care of her mother in Masson, Québec while he lived in Thurso, Québec and had access to his daughter every second weekend from Thurso. In June 2016, the father started to cohabit with Ms. Casey at his home in Kanata.
[13] From June 2016 to February 2018, the parties lived their respective lives and shared the custody of their daughter.
[14] On February 27, 2018, the mother emailed the father raising the following issues:
a) she was planning on selling her condo in the late spring as her financial situation was not getting better and for the time being, she could not afford a property in Kanata so she was looking to moving closer to her parents in the east end and possibly renting an investment property owned by her father;
b) as a result of moving, she proposed an alternating weekly schedule (Sun-Sun) which would reduce the travel between the homes;
c) she proposed registering the child in a French school located downtown which would be beneficial to the father because he drove to work; and
d) she raised the issue of the child being registered in before and after school daycare.
[15] On February 28, 2018, the father replied:
This is a little abrupt and unexpected as we had agreed on her school since before she was born. I also already had my before and after care arranged. I really need to process this. Is this school even any good?
[16] On March 1, 2018, the father emailed the mother telling her not to proceed with registering the child and raising his concern that he was not comfortable with the child’s future being jeopardized by attending an inner-city school.
[17] On March 3, 2018, the mother replied by email addressing the issues raised by the father. Specifically, she stated in paragraph one:
I know I can’t do this without your permission hence why we’re discussing this. I have yet to do anything without your permission. I simply looked into options keeping in mind Sienna’s best interests, first and foremost those being equal time with both parents as well as her CEPEO French education. Those are my two priorities that have been taken into consideration and the ones that should matter right now.
[18] In the same email, she stated:
As for the weekends, it’s something that I could also propose to you as Orleans has great schools, but I thought before going to extremes, we should try to figure out a viable solution that doesn’t have to cut down on equal time.
[19] By email dated March 4, 2018, the father wrote to the mother the following:
I’m not going to agree to the downtown option. Little Italy? Possibly if I have more information. I work longer hours than most so be forced to pay before and after care. A school in Riverside South? Sure, if it’s in the middle for both of us or a really good school for Sienna, I’m not opposed.
[20] On April 22, 2018, the mother sold her condominium without conditions. On April 28, 2018, the mother submitted a conditional offer to purchase her residence with her partner in Orleans. On April 29, 2018, the mother advised the father that she sold her condominium in Kanata and provided information with respect to the conditional offer to purchase her new residence.
[21] On May 11, 2018, the mother registered the child to be approved for an out of catchment registration in a school of her own choosing without the consent or knowledge of the father. The child was subsequently approved to start junior kindergarten at the school registered by the mother.
[22] On May 14, 2018, the father advised that he was not approving or authorizing her move to Orleans because it completely turned the child’s life upside down and he was opposed to having the child being in a car for a couple of hours a day as it provided no stability and was not in her best interests.
[23] On June 20, 2018, the mother purchased a jointly owned home with her partner Mr. Desabrais and his daughter, Elyane, in Orleans. As a result of that move, the parties agreed that Sienna would alternate residences weekly with the transfer being Sundays at 5:00 p.m. at Tunney’s Pasture, approximately halfway between both residences. The exchanges were done between the mother and Ms. Casey.
[24] In July 2018, Mr. Desabrais’ parenting schedule with his daughter also changed to an alternating weekly schedule. The child’s mother remained in Masson, Québec as did the agreement that she would attend school in Masson, Québec.
[25] As the issue of the child’s school was unresolved, the parties agreed to mediation/arbitration process with Ms. Guindon. The mediation took place on July 12, 2018 which was not successful. A date for the arbitration was set for August 22, 2018 with Ms. Guindon but never took place as the father terminated his participation based on his concern that the mediator was biased.
[26] Faced with no agreement regarding the child, in August 2018 the parties entered into an Interim Without Prejudice Agreement setting out a mediation/arbitration process to resolve the school issue starting in September 2019.
[27] The second round of mediation was to proceed before Ms. d’Artois. The process was delayed and eventually took place without counsel on February 1, 2019. No agreement was reached and the parties were to proceed to arbitration before Ms. Bartels. The arbitration never occurred. Both parties blame each other as to why the arbitration did not proceed.
[28] On June 26, 2019, the mother commenced this application.
[29] Pursuant to the terms of the Interim Without Prejudice Agreement, the parties agreed that neither party would disclose to a mediator, arbitrator or the court where the child attended school as of September 2018. In the mother’s pleadings, she disclosed where the child attended school from September 2018 to June 2019. The father brought a motion to strike any references in the mother’s pleadings that breached the Interim Without Prejudice Agreement. On August 7, 2020, 2020, I struck all references in the mother’s pleadings that disclosed any information as to where the child attended school from September 2018 to June 2019.
[30] In June 2019, the mother registered the child to attend Louise-Arbour without the consent of the father. The child attended that school from September 2019 to June 2020 on the weeks she was in her mother’s care. On the weeks that the child was the care of the father, she was cared for by Ms. Casey and the paternal grandmother and grandfather. The paternal grandfather passed away unexpectedly in November 2019.
[31] After being on maternity leave for a year, starting in September 2019, Ms. Casey would leave her home at 9:40 a.m., drop off both Sienna and Nolan to her paternal grandparents’ home to drive to her school off Greenbank Road.
The Issues Between the Parties
[32] The issues to be resolved at this temporary motion are as follows:
a) which school shall the child attend for grade one as of September 2020?
b) should the child be registered in a French immersion school or a French language school?
c) should the child attend a Catholic or public school?
d) should the child be registered in before and after school daycare, in which daycare center and who will assume the costs?
e) costs.
Legislative and Jurisprudential Framework
[33] The Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”) provides that the merits of an application in respect of custody of or access to a child shall be determined on the basis of the best interests of the child. A non-exhaustive list of the various factors that the court is to take into consideration in determining the best interests of the child are set out in section 24 (2) of the CLRA.
[34] In Thomas v. Osika, 2018 ONSC 2712, Audet, J., summarized, at para. 37, the general principles to be considered in deciding the choice of school for a child 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 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).
Position of the Parties
[35] The mother’s position is that is in the best interests of the child to attend Louise-Arbour, a French language school, because it is midway between the parents’ residences, that a French language school meets the linguistic and cultural needs of the child and the school can accommodate the mobility issues of the father.
[36] The father’s position is that the best interests of the child to attend John Young in Kanata because it is close to the father’s home, the commute time to school for the child would be dramatically reduced, the school has an excellent French immersion program, attending that school would allow the child to spend more quality time with her brother Nolan, and the school can accommodate the mobility issues of the father. The father rejects the mother’s proposal because the parties intended that the child would attend school in Kanata, the travel to attend the mother’s proposed school is not in the child’s best interests, the father is not sufficiently bilingual and the school cannot accommodate his needs.
[37] The mother submits that her proposed school could accommodate the father’s concerns about communication with the school teachers, his mobility issues and that there is a reasonable alternative to allow the father to have the child delivered to her proposed school on his weeks. Further, she submits that no matter which school is selected, the father cannot deliver the child to that school because of his hours of work commenced at 6:30 a.m. The father’s own plan is that his partner, Ms. Casey, will deliver Sienna to the school in Kanata.
Each Party’s Plan
[38] Prior to the COVID-19 pandemic, the father would leave for work and drive downtown to his office on Queen Street for 6:30 a.m. The responsibility for caring for Sienna and Nolan fell to Ms. Casey. She would care for both children, drop the children off at the paternal grandmother’s house and go to work. Since the COVID-19 pandemic started, the child care for Sienna and Nolan has been assumed by Ms. Casey.
[39] The father proposes that Sienna attend John Young from 8:45 a.m. until 3:15 p.m. Ms. Casey would either walk Sienna to school with Nolan or she would drive her there in the morning and Sienna would be picked up in the afternoon by her grandmother. The father would pick up both children after work.
[40] In the mother’s case, both the mother and her partner are responsible for their respective child. They both leave at 7:00 a.m., with the mother driving Sienna to the school in Ottawa while her partner drives his daughter, via the ferry at Cumberland, to her school in Masson, Québec. He then continues on to his employment in downtown Ottawa.
[41] The mother’s plan is that the child would attend Louise-Arbour with school hours from 9:10 a.m. to 3:30 p.m. The mother would leave Orleans at 7:00 a.m., drop the child off at the before care program at the school at approximately 7:30 a.m. and go to work for 7:45 a.m. She then would leave work at 3:30 p.m. to pick the child up from school and drive home by 4:00 p.m.
Father’s Disability
[42] The father submits that he suffers from a disability that is a significant factor to be taken into consideration in deciding which school the child should attend. He submits that John Young is fully accessible for people with disabilities while Louise-Arbour is the least accessible for people with disabilities in that school board. Further, he submits that the accessibility for his disability is very important to allow him to maintain his dignity as a disabled person while participating in his child’s education.
[43] The mother argues that despite the accessibility report, Louise-Arbour is required to accommodate individuals with disabilities and that the school is ready and willing to meet with the father to address these issues.
[44] The degree of the father’s disability has been an issue in this litigation. Based on an accident of falling off a ladder that occurred in his home in 2016, the father has been left disabled and suffers from severe mobility limitations leaving him with constant pain and limiting the use of his left leg. He has undergone numerous surgical procedures. He states that he cannot place significant weight on his left leg and requires two crutches to walk for short distances.
[45] As a result of the accident and ensuing disability, he could no longer perform the duties as IT Field Services Tech which required him to travel to and from client locations. He was acting as an IT supervisor requiring him to work out of the office and working full-time. He drove to and from work and while at work he would walk from the accessible parking stall to the elevators and then from the elevators to his office which is located in close proximity to a conference room and accessible washroom.
[46] The father states that his normal hours of work have been extended from 2:30 p.m. to 3:15 p.m. and that the extra 45 minutes per day is banked and used to offset time to attend medical appointments, surgery and recovery, which in the past have been substantial.
[47] In her affidavit dated January 16, 2020, Ms. Sophie Hart, manager of the IT Services Center states that, at that time, the father was required to be on-site to supervise team members beginning at 6:30 a.m. and that no further accommodations can be made as it is a fundamental operational requirement of his current position which required him to be on-site at 6:30 a.m. She further stated that the father was supervising two locations, being Hawthorne Road and Queen Street.
[48] The father stated that he is having problems with both knees requiring cortisone injections and that he is in daily pain. The mother admitted in questioning that the father has a disability, for now. She does not believe that the father will be on crutches forever but admits that he is required to walk with crutches for the time being. She admits that he has limitations on his ability to climb stairs and also has limitations on how far he can walk.
[49] The mother has filed photographs of the parking lot and back entrance of Louise-Arbour which indicate how close the parking lot is to the back entrance, that the back entrance has no steps and that the child’s classroom is on the first floor, not far from the back entrance.
[50] In an email dated February 21, 2019, the principal of the school confirmed that while the school does not have elevators, the bathrooms have a simple bar on the wall for individuals with disabilities and one of the main doors is accessible by persons in wheelchairs.
[51] The father stated that he attended at the rear entrance of the school but could not gain entrance to the school. He was apparently advised by the school principal that the protocol was to call the school office, who would send someone down to let the person in the rear doors of the school. The father stated that he called the office and no one attended. The father did not provide any further particulars as to the date and time of his attendance or whether he communicated that issue with the school authorities and their response. The mother denies the father ever attended because he has rejected being involved or inquiring as to anything related to her proposed school.
French Language or French Immersion
[52] The mother proposes that the child attend a French language school, as she did. She states that it is very important for the child to be raised in a French culture. The father attended a French immersion school and he wants Sienna to attend John Young because it has an excellent French immersion program. He states that he seeks a balance of French and English between the households.
[53] When the child is in the mother’s care, the language in the household is French. Conversely, when Sienna is in the father’s care, the language of the household is English.
[54] While the mother is bilingual, the father alleges that because of his limited ability to speak, read and write in French, if the child attends a French language school, he will not be able to assist her in her education. The father is classified as a bilingual employee. As set out in the offer of employment dated March 13, 2018, one of the terms of his appointment were as follows:
You are being appointed to a bilingual position on an imperative basis.
[55] I find that during the parties’ relationship, the father made an effort to speak to the mother in French to practice his French for work. I accept that he understands French and is capable of communicating in a very basic level in French. I have also reviewed his email exchange with the principal at Louise-Arbour in February and August 2019. These emails disclose an ability to communicate in writing in French albeit with the assistance of Google translate. The father is also aware that there are other services available on the internet to assist parents in the French language with their child’s education.
[56] While the entire curriculum at Louise-Arbour will be in French, the father has stated that other than math and English, Sienna’s education at John Young will be taught in French.
Transportation to and from School
[57] The father will not be involved in transporting his daughter to and from school whether it is at John Young or Louise-Arbour. On the other hand, the mother will be doing all the driving whether the child goes to school in Kanata or Louise-Arbour.
[58] If the child were to go to school downtown, the father states that he would have to drop the child off at approximately 6:00 a.m. at a twenty-four hour daycare where she would wait until she would then be transported by bus to school downtown. The father would then drive to pick her up at the end of the school day. The father opposes such option.
[59] The mother proposes that there is an alternative option that Ms. Casey could drive the child to school every second week with Nolan, and the father could pick her up from school.
[60] Ms. Casey does not start work until 10:45 a.m. in Kanata. The father and Ms. Casey’s plan is that she would drive Sienna to John Young and then drop Nolan off at the paternal grandmother’s home for the day. Ms. Casey has filed an affidavit dated January 16, 2020 where she addresses the issue of driving in paragraph 19 as follows:
If Sienna were to go to the school that Melissa is proposing I could not drive Sienna to school downtown and I do not agree that it would be in Nolan’s best interests to go to a school downtown when he is school ready. More importantly, if Sienna were to go to a school downtown she would miss out on the time and fun she cherishes with Nolan each morning. Sienna would have to go to a 24 hour daycare and then be transported to school by a stranger. If Sienna were to be given a choice I believe it is obvious the choice she would make.
[61] If the child attends John Young, the mother will have to travel from Orleans to Kanata, drop the child off at school, then drive back to her office or home to start her workday. She would then have to drive back out to Kanata to pick the child up after school and then drive home. In the mother’s questioning, she stated it takes between 40 to 60 minutes to drive from Orleans to Kanata depending on the day and the traffic. The mother is opposed to such extensive traveling for the child because it would be a complete change in her current schedule, goes against the stability of the child and would not be in her best interests.
[62] During the questioning, the mother undertook to provide clarification as to whether her employer was flexible to accommodate a later start in the morning when she had the child. In response, by letter dated July 22, 2020, a representative of her employer confirmed which department she worked for, her hours of work, her requirement to work 37.5 hours per week and an acknowledgment that her employer was prepared to continue to accommodate her hours of employment considering her child’s hours of school. The letter does not clarify whether the employer would be flexible if the child went to school in Kanata.
ANALYSIS
[63] Both parties love their child and are presenting plans which they each believe are in the best interests of their daughter. The child loves both of her parents, the parties’ respective partners as well as Nolan and Elyane.
[64] Both parties agree that it is in the best interests of this child that the parents have equal decision-making power and that the child live with each parent on an alternating weekly basis.
[65] Both parties categorically reject the proposal of the other with respect to the child’s school.
[66] I find that the parties contemplated in the separation agreement signed in 2015 that until Sienna started school, the parents would continue to reside within 50 km of each other. At the time the agreement was signed the mother was living in Cumberland and the father was living in Kanata. The mother resided in Cumberland after separation for approximately 11 months and from 2016 to 2018, she resided in Kanata. She moved to Orleans in June 2018 and continues to reside there today. She continues to comply with the terms of the separation agreement in that she resides inside the 50 km geographical limitation.
[67] I find that the parties agreed that when the child started school that the agreement to reside within 50 km of each other would be revisited and mutually agreed-upon at that time in order to select a suitable location that works for both parents. Specifically, the parties agreed that neither party would force the other into hardship to see their child or to accommodate the child’s schooling. Finally, the parties agreed that they would try to reasonably accommodate each other while maintaining the best scenario for their daughter and not impacting her in any way.
[68] The separation agreement does not define which school and in what district the child will attend. The agreement provides that the issue will be revisited when the child is of school-age. I find that the parties agreed in 2015 when the child was one year old that she would attend a French language school, Maurice-Lapointe in Kanata, when she started school. I find that that agreement was based on the fact that the parties were living together as one family unit in Kanata. I find that the 50 km geographical restriction in the original separation agreement contemplated flexibility for the child’s future. If the parties intended that the child attend school in any event in Kanata, it should have said so. It did not. There is no such provision.
[69] I find that the mother moved to Orleans for a multitude of reasons including purchasing a jointly owned home with her partner. The evidence indicates that her partner started to have his daughter on an alternating weekly schedule in the summer of 2018 on the basis that she continued to attend school in Masson, Québec. I accept the mother’s evidence that the time to drive to Elyane’s school is approximately 20 minutes.
[70] In arriving at my decision, I recognize that the mother had the right to move wherever she wished, but there are consequences of that decision. She moved from Kanata to Orleans thereby greatly increasing the potential travel time for the child. For that reason, she proposed a school halfway between both residences and close to both parties’ employment. However, the reality is that both parties live at opposite ends of the city.
[71] No matter which school the child attends, the father will be required to assist his daughter in the French language in all of her courses except math and English. Further, I find that his designation is a bilingual employee as well as the emails exchanged between the father and the principal at Louise-Arbour indicate an ability to communicate in French. If he were to need help in French while assisting his daughter in her education, there are tools available on the internet as well as tutors to assist them in reaching that goal.
[72] In my view, a French immersion school can meet the linguistic needs of a child. A French language school addresses not only the child’s linguistic but her cultural needs as well.
[73] The father has made the issue of his disability as a significant argument against the child attending the school proposed by the mother. I find that while the father walks with the aid of two crutches, the video and photographic evidence shows that he is able to move easily in and out of his truck, place gas cans in the trunk of his truck as well as walk across a parking lot.
[74] I have also considered the pictures of the parking lot and rear entrance of Louise-Arbour which show that the father could park his vehicle in the parking lot in the back of the school, walk through the back doors of the school which have no steps and then continue on to Sienna’s classroom which is also on the first floor.
[75] By email dated August 16, 2019 from the school principal to the mother, the principal confirms that the school is ready to accommodate students and parents with reduced mobility issues such that for interviews with the teacher, the teacher would meet the parent on the first floor, activities would be in the school gymnasium which is accessible by a ramp and that the school currently has a parent who is restricted to a wheelchair who is accommodated at the school. I am not convinced on the evidence provided by the father that the school cannot accommodate him calling ahead to be allowed entrance into the school. The father’s description of the occasion when he attempted to have access to the rear doors provides no details as to the time of day, the date or any response from the school. There is no evidence that the father followed up with the school after this alleged incident. I conclude that the father’s disability is not significant enough to be the determining factor in the choice of her schools.
[76] The transportation issue is one of the more important factors that I have considered because of the distance between the parents’ residences.
[77] If the child attends Louise-Arbour, I agree with the father that the first option of dropping the child off at a daycare at 6 a.m. then being bussed to school is not in her best interests. The other option is that Ms. Casey would be required to drive her to school. I reject this option as well. Ms. Casey cares for Nolan in the morning and then goes to work. Further, she is not a party to these proceedings. For the mother, on the weeks that she has the child, they leave the home at 7:00 a.m., drop the child off at the before care program, pick the child up after work at 3:30 p.m. and return home by 4:00 p.m.
[78] If the child attends John Young, on the weeks that the father has the child, she can walk or drive to school and be picked up by the paternal grandmother at the end of the day. She can spend her mornings with her brother Nolan and be with him after school. On the weeks the child is with the mother, the child will be transported from Orleans to Kanata and back every second week with the commute time of between 40 to 60 minutes, depending on traffic.
DISPOSITION
[79] When I weigh all the factors, I find it in the best interests for Sienna to attend school at John Young. I have decided that this option is best for her because:
a) While I find that the parties had agreed, while living together, that the child would attend a French language school, they are no longer living together and things have changed. John Young meets the child’s linguistic needs. While the French language education would also meet her cultural needs, her mother can provide that in her home.
b) The father’s disability is not significant enough to eliminate Louise-Arbour as an option. Further, I am not convinced that the school could not accommodate his needs. However, John Young can accommodate his needs.
c) The father’s work schedule is not flexible and prevents him from delivering the child to either school. By attending John Young, Ms. Casey will care for the child in the morning, take her to school before dropping Nolan off at the paternal grandmother’s and then going to work. Ms. Casey is not obligated to drive from Kanata with the two children to drop Sienna off at school, then return back to Kanata to drop Nolan off at his paternal grandmother’s home.
d) If the child attends John Young, the paternal grandmother will provide afterschool care rather than third parties, which was one of the terms of the separation agreement.
e) The mother has flexibility in her work hours. Her normal work hours are between 8:00 a.m. and 4:00 p.m., but she has flexibility to change those hours within a 15-minute radius. The mother’s employer has accommodated her hours of work to take into consideration the school hours of her daughter. Despite giving an undertaking, the mother has failed to provide evidence from employer clarifying if they are prepared to further accommodate her work schedule based on the child’s schooling.
f) Attending John Young, while in the mother’s care, the child will have to leave the house before 7:00 a.m. and be driven to Kanata to be dropped off at school. The child would then be picked up by the mother in Kanata and returned to Orleans after school. This no doubt places more driving time on the child and mother every second week. The following week, while in the father’s care, the child will have little travel time to and from school. Overall, attending John Young reduces the travel time of the child going to school.
[80] I order that Sienna start grade 1 at John Young Elementary school in Kanata.
[81] I order that the parties are to share on a pro rata to income basis any before/after school daycare costs incurred by the mother with respect to the child attending John Young as a section 7 expense pursuant to the Federal Child Support Guidelines.
COSTS
[82] The father is the successful party on this motion. I order the father to provide his costs submissions, not to exceed three pages plus a detailed bill of costs no later than September 11, 2020. I order the mother to provide her costs submissions, not to exceed three pages plus a detailed bill of costs no later than September 25, 2020.
Released: August 27, 2020
COURT FILE NO.: FC-19-1199 DATE: 2020/08/27
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Melissa Leclerc Applicant
– and –
James Grace Respondent
ENDORSEMENT
Shelston J.
Released: August 27, 2020