Jane McGrath v. Colin McGrath

COURT FILE NO.: FS-20-98415

DATE: 2020-09-21

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Jane McGrath, Applicant

AND:

Colin McGrath, Respondent

BEFORE: The Honourable Justice McGee

COUNSEL: T. Teigert, for the Applicant J. Zimmerman, for the Respondent

HEARD: September 17, 2020

Endorsement on Motion Heard by Zoom Videoconference

[1]. Can the availability of on-line learning assist a parent who is primarily asking the Court for a change in their child’s school district? In this decision, I find that it does not.

[2]. Neither do I find that Ms. McGrath has discharged the onus to demonstrate why the children’s school district should be changed before the close of pleadings and in the absence of a written agreement or court Order for decision-making (custody) or a parenting schedule (access.)

Background

[3]. Mr. and Ms. McGrath are the parents of third-grader Nathan born August 10, 2012 and first-grader Alexa born June 7, 2014. Their son and daughter have been and are presently enrolled at Palgrave Public School in Caledon, Ontario; but they have not attended at that school since September 10, 2020. Their mother refuses to have them attend in person at the school in which they are enrolled.

[4]. There is no written agreement or court Order governing legal decision making for Nathan and Alexa. There is no written agreement or court order governing the children’s parenting plan, although the parents have fallen into a two-week routine in which the children are primarily with their mother, and with their father on Week 1: Wednesday at 3:30 p.m. until Friday at 9:00 a.m., and during Week 2: Friday at 3:30 p.m. until Monday at 9:00 a.m.

[5]. I am advised that Mr. McGrath will be asking for an expanded, shared parenting schedule in his Answer. He states in his affidavit materials filed in this motion that the current schedule developed after he was removed from the home. He asserts that it does not meet the children’s needs to maximize their time with both parents.

[6]. During the marriage the family lived in Palgrave, in a home that has now been sold and is scheduled to close on October 21, 2020. At the time of this hearing the home sits empty.

[7]. Mr. McGrath left the home on June 18, 2018 after allegations of domestic violence resulted in charges. Those charges were resolved in a peace bond. Since June 18, 2018 he has lived with his parents in Bradford and more recently, with a new partner in Alliston. He has been unable to establish independent housing because he is paying expenses for the Palgrave home and all his equity is tied up in the home.

[8]. Ms. McGrath is not living in the home because she, or person(s) on her behalf have already purchased a replacement home for her.

[9]. She is also contributing to the costs of the Palgrave home, and her September 4, 2020 Financial Statement shows no equity that would allow her to purchase a new home prior to the sale of Palgrave. She has not provided a copy of the Agreement of Purchase and Sale for her new home, despite being requested to do so. Mr. McGrath has been able to discover that the home was purchased for $1,258,000 but he has not yet determined the name of the purchaser(s.)

[10]. Ms. McGrath moved to her new home with the children on or about September 7, 2020.

[11]. In the week prior to moving, Ms. McGrath brought a motion before the service of an Application, asking for Orders for primary residence, custody, for a change in school enrolment, section 7 expenses, child support, that no spousal support be paid (she is the higher income earner,) for an equalization payment and an Order that the divorce be severed.

[12]. Justice Emery heard the September 4th motion and directed that only the school issues be conferenced as an urgent matter; but a conference could not be scheduled because there are no pleadings. Ms. McGrath’s Application was or could not be issued in the required timeline, so instead, the matter was placed before me as two emergency motions.

[13]. Ms. McGrath’s September 17, 2020 Notice of Motion asks that:

a. The children attend Goodwood Public School in Uxbridge for the 2020-2021 school year in person, and

b. In the alternative, that the children attend Goodwood Public School through e-learning, and

c. In the alternative, that the children attend Palgrave Public School for the 2020-2021 year through e-learning

d. On a temporary basis, that the children continue with the current schedule in which they live primarily with her and spend Wednesday at 3:30 p.m. until Friday at 9:00 a.m. with their father on Week 1 and Friday at 3:30 p.m. until Monday at 9:00 a.m. on Week 2.

[14]. Mr. McGrath’s September 17, 2020 Notice of Motion asks that:

a. The children continue to attend the Palgrave Public School in person, and

b. That the children continue to attend their extracurricular activities in Caledon, including hockey, gymnastics and soccer, and

c. If necessary, that the father have primary care of the children.

[A request for police assistance is also included and is dismissed as it is outside the scope of this urgent motion scheduled to determine the children’s school placement.]

[15]. At the start of the motion I indicated that school location is a very different issue than whether a child should be withdrawn from in-person attendance at school due to the risks of exposure to Covid19. I offered to convert the motions to a Case Conference. It was agreed by counsels that the Motions would proceed.

[16]. For the reasons set out below, I order that Nathan and Alexa shall forthwith attend Palgrave Public School in-person.

On-line v In-Person Attendance at School

[17]. At the time of this decision, there are a plethora of helpful cases which set out the tests for withdrawing a child from in-person attendance at school due to the risks of exposure to Covid19.

[18]. Most recently, Justice Edwards in Nolet v. Nolet, 2020 CarswellOnt 12509 has taken the view that there is a presumption that it is in the best interest of a child to attend in-person schooling, absent compelling evidence to the contrary.

[19]. I accept that view. It is a natural evolution of the tests first established by Justice Himel in Chase v. Chase, 2020 CarswellOnt 12173 later expanded and built upon by Justice Akbarali in Zinati v. Spence, 2020 CarswellOnt 12519 and most recently by Justice Trimble in Amin v. Kabir, 2020 ONSC 5245.

[20]. Ms. McGrath’s counsel does not argue those tests on this motion.[^1] Her counsel did not contest Mr. McGrath’s assertion that the children were really excited to return to school on the 10th, that Nathan greatly benefits from the in-person help he receives for reading and that both children are healthy and accustomed to the wearing masks.

[21]. In fact, Ms. McGrath’s September 17, 2020 supporting affidavit seeks as a first ground of relief, that the children be enrolled in-person at Goodwood Public School, in Uxbridge, Ontario where she currently resides. She only proposes that the children attend on-line (at Goodwood or Palgrave) if a change in school registration to Goodwood is denied.

[22]. The September 17, 2020 affidavit delves into her experience of the marriage, why she must be the children’s primary caregiver, why she chose to move to Uxbridge and the events leading to the listing of the sale of the Palgrave home on June 30, 2020. She makes no mention of the children having any health concerns or risks of exposure to Covid19. In fact, she states at paragraph 52 that

“while it is not my preference that the children attend eLearning, this would enable

Mr. McGrath and I to work out our residential arrangements and the parenting schedule in the normal course and will not prejudice either of our parenting time claims.”

[23]. This is a most unfortunate conflation of a motion to withdraw a child from in-person attendance at school and a motion to change a child’s primary residence following a parent’s unilateral move from the school catchment area.

[24]. The availability of on-line learning is not a means by which a parent will be permitted to unilaterally change a child’s school district.

[25]. As set out in Zinati, the jurisdiction to order e-learning comes from the best interests’ criteria in the Children’s Law Reform Act and must be exercised strictly in accordance with a child’s specific health and educational needs.

[26]. To do otherwise is to lift the Court’s focus off the child’s best interests and place them squarely on a parent’s best interests, an action not permitted by Gordon v Goertz, 1996 CanLII 191 (SCC), [1996] SCJ No 52 (SCC) which directs that emphasis must be placed on the interests of the child, and not on the interests or rights of the parents.

[27]. On the first determination of whether Nathan and Alexa should be withdrawn from in-person attendance at school due to risk of exposure from Covid19, I find that there is no basis for the Order sought. The children are to attend school in person.

Should the Children Continue to Attend School in Palgrave or Transfer to Goodwood?

[28]. A request for a change in school registration before parental decision making and parenting schedules are decided is a powerful change in the status quo that can affect far more than where the child attends school.

[29]. A request for a change in school registration that is sought by a decision making parent, or contested by a joint decision maker or non decision making parent custodial parent will have a different approach because a decision-making parent will be afforded some deference. School enrolment is an incident of custody in the Children’s Law Reform Act. This makes sense, because a parent who has been agreed, or found to be a decision maker has already demonstrated the ability to place a child’s needs before his or her own needs.

[30]. Moreover, the parenting schedule will have by then been determined, so that any benefits to a change in school district can be measured against its impact on the parenting schedule.

[31]. It is almost always premature to consider a change schools when neither the decision making parent(s) nor the parenting schedule has been agreed or decided, particularly when the parents are in an early and/or active stage of a parenting dispute.

[32]. Where a child attends school is a critical factor in fashioning a parenting schedule. In some cases, it can bear upon which parent ought to be the decision maker, or whether the parents can make joint decisions. A parent in the school district, or closer to the school has a real advantage because so much of a child’s social and educational well being, and day-to-day schedule is tied to the school. If one parent’s move places the other parent at a distance, the prospects for shared parenting fade. Far enough way, and they may be extinguished. Not because it would not benefit the child, but because practically, it just can’t be done.

[33]. Courts are on to this. We know that too many early motions for a change in school district are bootstrap custody claims. And we rarely permit it.

[34]. As frankly stated by Justice Pazaratz in Cosentino v. Cosentino, 2016 ONSC 562, “[p]arents should think twice about trying to move a child to another city in the middle of a custody dispute” because Courts may not permit the move.

[35]. The dilemma facing a Court tasked with such a decision is real. As identified by Justice Pazaratz at paragraph 10, “[t]emporary orders can have a huge impact on final Orders. Effectively, they can have a forever impact on children. As a result, motions judges must be mindful of both short-term and long-term dynamics, to ensure that the maximum contact principle is not undermined by the unilateral action of either party.’

[36]. The mother’s request for a change in school district may ultimately be found to be in the children’s best interests, and to her credit, it was not without notice. When earlier this year Mr. McGrath refused to sell his interest in the Palgrave home to her, she gave notice in a letter dated March 21, 2020 that she would be purchasing in the Uxbridge area. The Palgrave home was listed for sale. Nothing more was raised or discussed about Uxbridge. On August 6, 2020 she advised Mr. McGrath that she had purchased a home in Uxbridge.

[37]. Mr. McGrath immediately offered to move back into the Palgrave home for the period between the closing of the Uxbridge house in early September and the October 21, 2020 closing of the Palgrave home. That way, the kids could start school in Palgrave and the parties had more time to work out a resolution. With a division of the jointly owned house sale proceeds Mr. McGrath would have the ability to move to or close enough to the Palgrave Public School district for the children to continue.

[38]. Ms. McGrath refused the offer and wrote on August 28, 2020 that instead, she would stay in the Palgrave home until the sale closed.

[39]. But she didn’t.

[40]. Instead, she moved the kids to Uxbridge and served the September 4, 2020 motion to get Orders for everything. She told the Palgrave school principal that neither parent lived in the school district even though they still owned their home and Mr. McGrath had offered to move back in.

[41]. In Thomas v Osika, 2018 ONSC 2712, 2018 CarswellOnt 9913, Justice Audet set out a list of criteria to consider when a parent unilaterally purchases a home in a different school catchment area. I recommend the case to counsels and its comprehensive checklist of criteria for the court to consider.

[42]. In this case, I cannot even attempt such an analysis . It is simply too soon. Pleadings have not yet been exchanged. There is no independent evidence of the children’s best interests. The father requires his portion of the sale proceeds to re-establish housing and those proceeds may be some time in coming. The mother’s counsel asserted during the motion that the equalization payment may not be agreed for some time.

[43]. I can observe, even at this early stage, significant elements of high conflict litigation.

[44]. When I review the record available to me at this time, I find that the mother’s evidence for a change in school district is insufficient.

[45]. For example, her counsel made much mention of Uxbridge being closer to both sets of grandparents who live in Bradford and Lindsay. I was not advised of the roles they play in the children’s day-to-day lives and how their mother’s residence being a shorter distance away from their grandparents and farther away from their father is in their children’s best interests or justifies a change in schools. In another example, Ms. McGrath states that Uxbridge is more affordable that Palgrave, but the cost of her replacement home – and her failure to disclose the Agreement of Purchase and Sale - belies a lack of means.

[46]. I am left with a status quo in which Nathan and Alexa are registered in an excellent school that they have attended throughout their young lives, at which they have friends, educational supports – particularly for Nathan, continuity and familiarity. All of which are positive attributes in any young child’s life, vital during a pandemic.

[47]. Mr. McGrath undertakes to drive the children to school on his days, and to be available for additional days should they stay in their present school. It seems sensible to return to his summer proposal that he reside in the former matrimonial home until it closes.

[48]. If any feature of a child’s life is to be disrupted by an Order of the court, there must be good reason to do so. 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, see Perron v. Perron, 2012 ONCA 811.

[49]. I do not find that I have such evidence on this motion record.

[50]. Order to issue that Nathan and Alexa shall continue to be enrolled at Palgrave Public School until further Order or written agreement of the parties.

Postscript

[51]. In his materials Mr. McGrath sets out why the children’s interests are better served in Palgrave; but the tone of his materials convinces me that what he truly fears is being left out of the children’s lives. Perhaps if the parents engage in a child focussed discussions there will be a path forward.

[52]. Before closing the motion, I spoke directly to the parents about the essential qualities of successful post separation parenting: communication, planning and cooperation. There is a puzzle to be solved over the next few months as the sale of the jointly owned home closes. How do you build the best possible two-home family for Nathan and Alexa?

[53]. The parents have not attended mediation, a four-way settlement meeting, (in-person or virtually) the mandatory parenting information program or a case conference. I have asked counsels to recommend parenting mediators to their clients so that a plan can be developed that best meets the children’s needs, and I have encouraged the parties to schedule their Case Conference and prepare Net Family Property Statements as quickly as possible.

Costs Submissions

[54]. If counsels cannot resolve the issue of costs, submission are to be forwarded electronically to my assistant at kimberly.williams@ontario.ca on the following timetable: respondent September 30, 2020, applicant October 9, 2020, reply by October 14, 2020. Submissions are limited to three pages exclusive of Offers to settle and a Bill of Costs.

McGee J.

Date: September 21, 2020

[^1]: Ms. McGrath did touch on health concerns in the affidavit filed with her September 4, 2020 motion, but none specific to Nathan or Alexa’s personal risk, or any elevated risk from that of the general population.