COURT FILE NO.: FS-19-0109
DATE: 2020 10 06
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HANNA REICHE
Svetlana Cocieru, for the Applicant
Applicant
- and -
PETER REICHE
Michael Conroy, as agent for the
Respondent
Respondent
HEARD: August 28, 2020
REASONS FOR JUDGMENT
Trimble J.
[1] On 2 September 2020, I issued a short endorsement concerning the outcome of the motion, with reasons to follow. These are those reasons.
The Motion
[2] This is a motion brought by the applicant mother, to change the primary residence of John Matthew Reiche, born 17 October 2014, to her address, and for an order that he attend school near her home beginning September 8, 2020. She brings this motion within her motion to change the order of James J., dated 28 September 2018.
[3] The respondent/father opposes this. He requests that the child attend school, virtually, near his residence.
Facts
[4] The couple was married on 11 January 2014 and separated in April, 2016. John is their only child. Mother has an older child, Andrew, from a previous marriage. Andrew is not the subject of this motion.
[5] Pursuant to a consent order of James J. dated 28 September 2018, the couple has joint custody of the child and shared parenting time on a week about basis. The order also permitted mother to relocate to Toronto. Paragraph 7 of the order said:
The parties shall review the existing parenting schedule starting in 2020. The parties agree that John's starting grade one in September 2020 will be viewed as a material change of circumstances.
[6] Very shortly after the order was granted, mother relocated to Mississauga, and in May 2020, relocated to Barrie, both times without bringing a mobility motion before the court or seeking to amend James J.'s order.
[7] Father says that he was never informed of or consented to the relocations. Mother says that she did inform father that she was relocating to Mississauga. In any event, he was aware of that, as a fact, and never complained. He continued to do the driving necessary to facilitate the child's access on a week about basis. Mother also argued that with her poor language skills, she thought that by saying "Toronto" the order meant "the greater Toronto area", which included both Mississauga and Barrie.
[8] Since September 2018, John has spent alternate weeks with each parent. He is been enrolled in separate junior kindergarten and kindergarten classes, one in Pembroke, near father, and one in Mississauga.
[9] As contemplated by the James J. order, John will be entering grade 1 when school opens following Labor Day, September 2020. The determination must be made, now, about where he goes to school.
Positions of the Parties
Mother
[10] Because James J.'s order defined John's entering grade one as a material change in circumstances, mother brought her motion to change that order in March, 2019.
[11] She wants John to live with her and in her care, with access to father on alternating weekends from Friday at 7 PM until Sunday at 6 PM with an additional day if the Friday or Monday before and after the weekend is a holiday or professional development day. It is not possible for him to attend two schools.
[12] In mother's opinion, the best interest of the child requires that the child live with her, in Barrie. There he can go to one school where he can build relationships with his new teachers and new schoolmates. He has the company of his elder brother (by 6 years). Mother and her new partner have purchased a spacious new house in Barrie which is the "envy of the neighbourhood". Further, mother intends to open up a daycare so that she can provide after school and before school care for John, as well.
Father
[13] Father says that the best interest of the child require that the status quo should be maintained. Because of Covid-19, John can attend Champlain Discovery Public School in Pembroke, where he has attended since he entered school, and in which he is currently registered. He can take classes on line, which would allow the week about access status quo to be maintained.
[14] In any event, he says that John is thriving in Pembroke where he has strong ties to his paternal family. He will be returning the same school he has always been in and where he knows his teachers and his friends. He will continue at his church and the church youth program. He is very close to his niece, child of father's eldest daughter. He will continue to work on the farm, which he loves.
[15] Father says that Simcoe Muskoka District health unit reports that it has 19 active Covid-19 cases of a total of 676 since the pandemic arose. Renfrew County District health unit on the other hand reports no active Covid-19 cases out of a total of 30 since the pandemic arose. John would be much safer in Pembroke.
The OCL
[16] On July 31, 2020 the parties had their disclosure meeting with the OCL via telephone conference. The OCL did not appear at this motion. The representative of the OCL advised the parties that no report would be available until at least or at the earliest 31 August 2020. She explained, however, that she recommended that John reside primarily with mother commencing 6 September 2020 6 PM. Mother relies on this recommendation.
[17] Father does not contest the fact of the OCL's recommendation. Instead, he says he disagrees with it. He argues that it is merely an opinion which cannot found a significant change as suggested by Mother. The report has not yet been produced and not cross-examined upon.
A Note on Evidence
[18] Mother's affidavit in support of the motion addressed, largely, historical issues of the marriage and the separation. She reported on the OCL closure meeting and the existing arrangements. She dealt little in that affidavit with her move to Barrie or at all with school arrangements in Barrie.
[19] After father filed his response material, the office manager of mother's lawyer's office filed an affidavit in reply. I have given this affidavit very little weight. I say this for the following reasons:
Mother was splitting her case. For the first time, she provided evidence about where in Barrie the family would live, and what school John might go to, and the daycare arrangements. None of this was provided in the original affidavit. It was not new information to Mother.
Mother did not swear the affidavit herself. The affidavit was solely based on hearsay as expressed by mother’s lawyer's office manager.
Mother's counsel said that the affidavit was put in its form as submitted because there was not enough time for mother to swear an appropriate affidavit. I do not accept this. This is not what the affidavit says. In any event, there is a procedure to remote swearing of affidavits.
Setting aside the form of the affidavit, it is not clear from the affidavit whether at any specific point, the affiant is expressing his or her own opinion, a fact within his or her own knowledge, or something that she or he knows on information and belief. He, for the most part, does not say from where his information and belief comes.
[20] Father's evidence, too, has difficulties. He spends 20 paragraphs of the 66 paragraph affidavit dwelling on mother's move to Mississauga, and then to Barrie, in violation of the September 28, 2018 order of Justice James. This section of his affidavit is argumentative. Father blames mother for creating the whole situation. He says in paragraph 29:
Had Anna not moved from Pembroke to Mississauga in the first place, week- about parenting schedule would have been completely and easily sustainable for an indefinite period for John, giving him stability and predictability throughout his childhood.
[21] Rather than dealing with the issue currently facing John, father is still unhappy with James J.'s order. Notwithstanding that mother had the ability to move, he resents her for doing it. Finally, father is fixed on the view that mother will never agree to any order, for any length of time.
[22] With respect to the OCL's opinion, the parties agree that, at the disclosure meeting the OCL recommended that John live with mother, with alternate weekends with father. I give this opinion little weight. The OCL's full opinion is not available. It cannot be considered in light of the evidence upon which the OCL made its recommendation.
Issues
[23] The following issues arise on this motion:
Is this a motion about mobility or about where the child should go to school?
Should the child attend school online, or in person.
Issue One: Is this a motion about mobility or about where the child to go to school?
[24] Father's position is that mother's motion is, in effect, a mobility motion. I disagree. The urgent issue is where John goes to school. I agree, however, that the residence question is necessarily incidental to where the child goes to school.
The Law
[25] Audet J., in Thomas v. Osika, 2018 ONSC 2712 at para 37, summarized the criteria for judges to consider in a "choice of school" case. 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, several 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 in section 16 (2) of the Divorce Act empower 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 (Ont. C.J.));
(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 education 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 the parent can participate in the child's educational program (Deschenes v. Medwayosh, 2016 ONCJ 567 (Ont. C.J.));
(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] SO No. 52 (SCC));
(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 (ONCA));
(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. SCJ));
(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. SCJ));
(h) Any problems with the proposed schools will be considered (Askalan v. Taleb, 2012 ONSC 4746 (Ont. SCJ));
(i) A decision as to the choice of school should be made on its own merits and based, in part, on the resources of one parent or the other, or the convenience that his attendance at the nearest school would entail (Wilson v. Wilson, 2015 ONSC 479 (Ont. SCJ));
(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 (Ont. SCJ));
(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. CA));
(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 is 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 (OCJ.));
(m) Most cases are fact-driven. The courts are not pronouncing on what is best for all children in a general sense but what is in the best interests of this child before the court (Deschenes v. Medwayosh, 2016 ONCJ 567 (Ont. CJ)).
[26] In addition to these principles, there are others that apply. For example:
(a) It is not in the interests of children to be tossed backward and forward pending determination of an act application for interim custody (see Neil v. Neil and Waldron, 1976 CanLii 1925 (Ont. C.A.));
(b) The court must determine whether the existing arrangement is actually or potentially harmful to the child or whether the child's best interest requires a change. (See JLM v. PDAB, 2012 ONSC 4696, at paras. 18 to 20);
(c) A motion for temporary relief should never disturb the existing status quo unless it is in the child's best interest, there is urgency, and it is necessary to do so. (see: JJLM v. PDAB, para. 25);
(d) The selection of a school must be determined purely on the basis of which of the two proposals is better for the child (Grey v. Grey, 2013 ONSC 5572, at para. 17).
[27] In this case, I must be guided by John's best interests. In addition, I must be guided by evidence, not polemic, hyperbole, a lay litigant's opinion, or broad statements.
[28] In this case, it is in John's best interest that he resides primarily with father, spending every other weekend and holidays with mother. I say this for the following reasons:
Every case about where a child goes to school is based on its facts.
Father says that mother is trying to change the status quo, and therefore bears the burden to prove that the change in the status quo is in John's best interest. I disagree. A change in the status quo was inevitable because of James J.'s order which decreed that John's entering Grade 1 was a material change in circumstances. In this circumstance, each party has the onus to establish that his or her proposed school and residential arrangement is in the best interest of the child.
In this case, mother has not met her onus.
I accept that Barrie is a wonderful city, with good schools and amenities for children. That, however, is not sufficient in and of itself. Mother must show that it is in the best interest of John that he lives with her in Barrie, with alternate weekend access to father.
Except for the presence of mother, her partner, and Andrew (John's elder brother), John has no connection to Barrie. He has no school that is familiar to him, or extra-curricular activities that can continue. I doubt that he has any real friends in Barrie having moved there at the end of May, in the middle of the pandemic requiring social isolation. He has no affiliation with any place of worship. Everything would be new to him in Barrie.
Father attempted to make an issue of the fact that mother moved outside of the Pembroke area but not in compliance with James J.'s order. I reject this argument. Regardless of where mother lives, Mississauga, Toronto, or Barrie, by virtue of James J.'s order, September 2020 was going bring a tectonic change in John's daily routines.
In face of the inevitable disruption that comes with John's entering Grade 1, the most consistent and stable aspect of his life is in Pembroke. His father lives there. He has a close relationship with his cousin who is only two years his senior. Father also says that John has a close relationship with many cousins and other family members. I find this latter evidence unhelpful as it was broad, and lacked any specificity. John will be enrolled in the same school at which he had kindergarten, and at which he has been successful to date. He is familiar with his father's church in Pembroke and their youth program. He works on the farm with his father.
[29] The decision to have John reside primarily with father is also based on my analysis of the second issue.
Issue Two: should the child attend school online or in person?
[30] Were it possible that John could continue his education uninterrupted, it might be feasible to continue with the week about resented residential arrangement. Father says this is doable. He says that John can attend school remotely, regardless of whose home he visits.
[31] Is remote learning feasible and is it in John's best interest?
[32] As indicated, above, father has the onus to prove that his proposal for John's education is in John's best interest.
[33] The return to school of children in the middle of a pandemic is worrisome for parents and challenging. Two loving parents, putting what they view as the best interests of their child as their controlling concern, can come to different positions. However, return to school in the middle of a pandemic has created between these parents yet another battleground on which to fight. Given the evidence and positions taken in this motion, it is clear that their view of John's best interests is clouded by their view of each other.
[34] The central difference between the parties with respect to returning to school is whether John should return to school online or in person.
[35] At the time of this decision in September the case law concerning withdrawing a child from in-person attendance at school due to the risks of exposure to Covid19 was only just developing. There is now an established trend.
[36] McGee J., in McGrath v. McGrath, 2020 ONSC held 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. This was established by Himel J., in Chase v. Chase, 2020 CarswellOnt 12173, and expanded in Zinati v. Spence, 2020 CarswellOnt 12519 by Akbarali J., by me in Amin v. Kabir, 2020 ONSC 5245 and by Edwards J. in Nolet v. Nolet, 2020 CarswellOnt 12509.
[37] In Chase v. Chase, Himel, J. says:
The courts are not the best place to decide issues such as where a child goes to school during the middle of a pandemic. However, it falls to the court to make these decisions when parents cannot.
A better approach for parents is to engage in mediation with a professional or third-party trusted family member or friend and find creative ways to resolve the school did attendance dispute such as a) enrolling the child at the beginning of the school year, reviewing the plan at Thanksgiving, or following an outbreak at school or a second provincewide wave, or at the first opportunity provided by the school board to reconsider the choice; b) delaying in person school attendance and reviewing the decision when specific criteria are met; c) create a small part of children who could learn remotely together with the assistance of parents or tutors; or four) explore in person attendance for part of the day and in home learning for the balance.
The burden imposed by Covid-19 on family law cases is tremendous, and the move to virtual court attendances has placed tremendous strain on the family law system. Resources must be used carefully and proportionately by the court.
Generally, even absent the Covid-19 pandemic, "where should our child go to school" disputes arise on the eve of the children's return to school, because the parents have allowed that to happen. They create an urgency through their lack of attention, indifference, inability to talk and compromise, and stubbornness. It is a false urgency. Since the children suffer, it falls to the court to solve the question.
In effect, the parents abandon to the court their parental obligation to make a decision with respect to their child's well-being, leaving that decision to a judge they have never met, whom they may only meet virtually during the argument of the motion, and who would never likely meet the child.
[38] From the decision, it appears that Himel J, had much more evidence than I had with respect to what schools are doing to protect children during the pandemic and the return to school.
[39] Himel J. also had the benefit of two cases out of the Québec Superior Court, whose approach, she adopted.
[40] In Droit de la famille -20682, 2020 QCCS 1547, L'Honorable Claudia P. Prémont, J.C.S., declined to order the children's return to school as a family member suffered from an auto-immune disease making them high-risk, which would have limited contact.
[41] In Droit de la famille -20641, 2020 QCCS 1462, L'Honorable Claude Villeneuve, J.C.S., ordered the two children (ages 9 and 11) return to school.
[42] Neither of those two decisions are binding on this Court. However, their reasoning is persuasive. As may be relevant to this case, those three courts held:
Governments (with the assistance of Ministries of Health and Departments of Public Heath), not courts, are most competent to assess the potential risks to children in a pandemic situation and to take the necessary measures to limit the spread of the virus.
The government's actions show that it is taking the necessary measures as the situation evolves.
When the government decides to allow the resumption of academic activities at the primary level, there is no need for the Court to question this decision, unless one or the other of the parties demonstrates on a balance of probabilities, through cogent evidence, that it would be contrary to the particular interests of their children to resume attending school, for example because of their health.
Decisions concerning a child must be taken in the child's interest and respect for his rights, and not in the sole interest of his parents.
Every child in Ontario has the right to receive educational services, but also has the obligation to attend a school for the year as defined by the Ministry of Education. This statutory obligation applies to children over 6 years of age, the principle is equally important to those of JK and Kindergarten ages.
Parents must take steps to ensure that their child fulfills his obligation to attend school. It is only in exceptional circumstances that a child will be exempt from this obligation.
The Covid-19 pandemic is an extraordinary situation calling for exceptional measures. But these are only temporary measures which do not modify the provisions of the Education Act.
Even though the return to school might not be mandatory, this does not necessarily take away the right of children to receive educational services nor mandate them in one form or another.
The parents must establish that they have and can take the means necessary to achieve other than in class attendance. If one of the parents cannot, in a context of shared custody, offer his child the proposed alternative to attendance at school for acceptable and reasonable reasons, there is no reason to deprive the child of his right to attend his school when it is possible for him to do so.
In addition, we must avoid changing the terms of custody unless the situation of the children and the parties requires such a change.
In the context where the child asks to return to school, it may be contrary to her interests if she does not attend school until a year from September.
It is up to both parties to support and motivate the children for their early return to school.
The current situation is unlikely to change until a vaccine is available, and that date is very uncertain. Therefore, although the way of teaching with social distancing measures can very likely be very different from what was done before, there is no reason not to trust teachers and teachers. educational institutions.
[43] The reasoning in these three cases is persuasive. I adopt their reasoning.
[44] In this case, I find that father has failed to discharge his onus to establish that attending school online is in John's best interest. He devotes scant time to the question in his affidavit. He says that as a result of the Covid-19 pandemic, schools are providing more remote learning and other flexible attendance options, so there is every indication that it would be possible for John to continue the status quo week about parenting schedule while the parties away the decision following a trial.
[45] This statement is bald. Father leads no evidence about the nature of online learning at the school, what is taught, what is not taught, or what support is available to the child on line.
[46] For a child's mental and physical well-being, it is better that they attend school, in person, where they can continue to learn from the teacher, directly, and receive support as they learn. They develop good social and interpersonal habits and become socialized to other children and their teachers. They run and play.
[47] To have a child learn online is the exception to the rule of in-person attendance at school. Mr. Reiche, who wishes to have his child taught by the exception to the rule, has the onus of establishing that online learning is in John's best interests. He has not done so.
Order
[48] On an interim basis, I order as follows:
The parties shall continue to have joint custody of John.
John shall have his primary residence with father.
John shall spend with his mother:
(a) every other weekend from 7 PM on Friday to 7 PM on Sunday;
(b) all long weekends from 7 PM on the last day of school for the week to 7 PM on the last day of the long weekend;
(c) the first half of any school holiday of more than one day, for example a Christmas break, Easter break, spring break.
(d) the Respondent shall pick John up from and drop John off to the Applicant's home on all weekend and long weekend access visits to the Applicant.
(e) the Applicant shall pick up and drop off John to the Respondent's home on all school holiday access visits with the Applicant.
(f) the parties are free to agree to a different pick up and drop off responsibility.
(g) father shall pick John up from and drop John off to mother's home.
- John will attend Champlain discovery public school in Pembroke, where he is currently enrolled. He shall attend school in-person.
[49] This order shall remain in effect until varied by further court order.
Costs
[50] if parties cannot agree about who pays whom costs, and in what amount, I will decide the question based on written submissions. The missions are not to exceed three double-spaced typewritten pages, excluding bills of costs. Father's submissions are to be served and filed by 4 PM, 23 October 2020, and mothers by 4 PM 30 October 2020. There will be no right of reply.
Trimble J.
Date: October 6, 2020
COURT FILE NO.: FS-19-0109
DATE: 2020 10 06
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HANNA REICHE
- and -
PETER REICHE
Applicant
Respondent
REASONS FOR JUDGMENT
Trimble J.
Released: October 6, 2020