Court File and Parties

Court File No.: FS-19-217-00 Date: 2021-01-08 Ontario Superior Court of Justice

Between: James Cromwell, Applicant Counsel: Fadwa Yehia

- and -

Erin Allaby, Respondent Counsel: Paul S. Pellman

Heard: November 27, 2021

Reasons for Judgment

Chown J.

Introduction

[1] This is a motion by the applicant father for relief arising from the respondent mother’s move from Brampton to Scarborough. Among other relief, he seeks an order that “the habitual residence of the child” of the relationship “shall be the City of Brampton.” The mother brings her own motion for relief relating to parenting issues arising from her move.

[2] Each parent asks the court to order that, starting in September 2021, the child shall attend a school near where they reside. In other words, the court is asked to decide whether the child will start junior kindergarten in Brampton or Scarborough.

[3] For the reasons which follow, I have decided that the child should be enrolled in school in Scarborough and the primary residence of the child shall be with the mother in Scarborough.

Background

[4] The child is currently three years old. The current parenting arrangement is 2-2-3, arranged between the parents without a court order.

[5] The parents separated on August 18, 2019 after living together for approximately eight years. They were never married.

[6] The family home was located on Marblehead Crescent in Brampton. The mother purchased the property during the relationship and was the registered owner of it. The father asserts a trust claim for an equitable ownership interest in it.

[7] For the initial separation, the mother and father lived separate and apart in the family home. The father moved out on August 7, 2020, and into a nearby basement apartment with one bedroom and a den.

[8] The father has two children from another relationship: a girl age 12 and a boy age 15. He has a shared parenting arrangement for those children. They reside with him on alternating weeks. Under the terms of his separation agreement with the mother of those children, the father is prohibited from moving out of the Region of Peel.

[9] The mother works in Scarborough and commuted from Brampton to Scarborough daily for nine years.

[10] The father's employer is in Scarborough; however, he is required to attend the Scarborough office only approximately once a week or less. He services clients in the west side of Toronto, including all of South Eastern Ontario down to Windsor.

[11] Both parents have good jobs, with the father earning $65,000 and the mother earning $70,000 in 2019. They both have extended benefits through their employers. The mother says her extended benefits are better, and the father’s affidavits do not challenge this.

[12] There is differing affidavit evidence on what long-term plans were discussed during the relationship as far as locating the family is concerned. The father says the intention was to raise the family at the Marblehead Crescent home and the child would attend the local school there – the same school his other children attended. The mother says it had always been known that she would need to sell the Brampton home at some point and move closer to her job in Scarborough. She says they regularly discussed moving to the east end of the GTA once the father’s younger child from the previous relationship finished high school. That child is now age 12, so even under the mother’s evidence the move closer to her work would not have occurred for years.

Move to Scarborough

[13] The mother sold the Marblehead Crescent property and, effective September 2, 2020, she moved to her newly-rented Scarborough residence. Since then, the couple have maintained the 2-2-3 parenting schedule, with the mother doing all the transportation.

[14] The mother says her move was necessitated by two factors: she could not afford to continue to live in the family home on her own after the separation; and she could not continue to live in Brampton and maintain her job in Scarborough.

Unilateral steps

[15] The parties disagree on whether and when the father was informed about the mother’s plans to move.

[16] He acknowledges that by letter on August 6, 2020 he was notified that the mother would be relocating to Scarborough in either the first or second week of September. He was told on August 31, 2020 that she would be moving on September 2, 2020.

[17] The mother asserts that she was “very clear” after the separation that she would need to look for places to live that were closer to her work. She deposed that the issue was specifically conferenced at a case conference on June 8, 2020. The father deposed that there was a “coming soon” sign on the front lawn of the family home in early July. The real estate agent contacted the father and spoke on the phone with him prior to the home being listed.

[18] On my reading of the affidavits, it is not fair to say that the mother “sprung” either the sale of the matrimonial home or her move to Scarborough on the father. In early July, if not sooner, he was aware the house was being listed for sale. As early as August 6, 2020, he was aware the mother was moving to Scarborough. However, the mother did not provide notice with any particularity within the 60-day standard the new Divorce Act will set.

[19] Neither party brought a motion prior to the mother’s move to Scarborough. In fairness, it would have been hard for either party to do so given the current difficulty in obtaining court hearing dates. It would have been particularly difficult for the father because he did not know the mother’s plans with much prior notice and had no control over her plans. Further, he may reasonably have expected the mother to bring a motion before making her move.

The Status Quo

[20] The sale of the matrimonial home necessitated a move for both parties. However, the current arrangement that the mother has created, discussed in more detail below, should not be considered the status quo. Per Batsinda v Batsinda, 2013 ONSC 7869 at para 28:

[T]he status quo that is relevant is that which existed just prior to the parties’ separation, except in circumstances where there is clear and unequivocal evidence that the parties agreed to a different decision-making and residence arrangement following the separation. A status quo created by one party unilaterally taking matters into their own hands, without any consent from the other party, does not fall within the principles established in Papp v Papp.

[21] While the parenting arrangement prior to separation cannot be maintained, it did involve the child having plenty of time with both parents and more regular time with her half-siblings. The arrangement immediately after the separation, where there was equal parenting time, closely resembled the pre-separation circumstance. The parenting arrangement for the first weeks after the father moved out of the house continued to involve equal time.

[22] The mother’s requested relief will therefore represent a significant change in the status quo.

Childcare Arrangements

[23] Starting at age 14 months, the child attended the home of Lynne Pedley for childcare. The father picked up and dropped off the child daily. This arrangement permitted the mother to commute to Scarborough.

[24] The father deposed that, without his knowledge, the mother terminated the arrangement with Ms. Pedley. This statement is not accurate. In fact, Ms. Pedley ended her services effective September 8, 2020 because she was transitioning to retirement. Ms. Pedley gave notice of this to both the mother and the father by email dated August 11, 2020.

[25] I found the father’s misapprehension on this point troubling, not just because it was inaccurate, but because it is odd that he would not have been aware of Ms. Pedley’s retirement (or alternatively, that he would not remember it). He did most of the drop offs and pick-ups and yet the mother was more in touch with Ms. Pedley. Ms. Pedley’s affidavit states that it was always the mother with whom she interacted when it came to the child. The father says in response, “This is inaccurate as I was the parent who had daily contact with Lynne.” However, daily contact does not necessarily involve meaningful interaction. The father’s apparent lack of awareness of Ms. Pedley’s retirement squares with Ms. Pedley’s perspective. I accept Ms. Pedley’s evidence on this point. She is an arm’s length witness.

[26] Ms. Pedley also stated that the father changed his phone number and neglected to give the new number to her. In response, the father deposed, “I provided Lynne with my new number shortly after it was changed.” Again, I accept Ms. Pedley’s evidence on this point.

[27] Finally, Ms. Pedley said the father told her that he had been advised to quarantine for 2 weeks due to a possible case of COVID-19, with the result that the mother cared for the child on her own for over 2 weeks. Ms. Pedley said the father disclosed during the conversation that he exaggerated his symptoms so that he would have an 18-day break from caring for the child. The father denies this conversation took place. He says he followed the health recommendations he was given, with his priority being to keep the child safe. Again, I accept Ms. Pedley’s evidence on this point.

[28] In January of 2019 (while they were still together), the parties put the child on a waiting list for a YMCA daycare in Brampton. A spot opened on September 8, 2020. This was just after the mother had moved and coincident with Ms. Pedley’s retirement. The father accepted this spot and the child attends this daycare when she is with the father. The father pays 100% of the YMCA daycare cost as required to preserve her spot there, even though the child only attends half of the time.

[29] The mother registered the child in a new daycare located in Scarborough.

[30] Thus, at approximately the same time, the mother moved, the arrangement with Ms. Pedley ended, and the child started attending two different childcare centres. Currently, the child attends the Scarborough daycare when with the mother, and the YMCA daycare when with the father. Each parent pays the daycare costs closest to their residence.

[31] With respect to daycare enrolment, each parent accuses the other of acting unilaterally and not informing the other. Their affidavits contain all the details. I conclude that neither side fully communicated with the other about daycare arrangements.

[32] The father notes that under the current arrangement, the child is exposed to two different geographically-distanced groups, increasing the risk of contracting COVID-19 for everyone involved. In response, the mother states that in Scarborough, the child attends private daycare with only two other children. In contrast, in Brampton there are at least 11 other children in attendance.

Distance

[33] The mother’s second affidavit includes a Google Maps image showing the driving time between the two schools is 40 minutes to one hour when the departure time from Brampton is 7:00 AM. The father’s second affidavit includes a Google Maps image showing the driving time between the two residences is typically 35 to 55 minutes using the 407, and 40 minutes to one hour and 10 minutes using the 401. I accept both these as accurate.

What Kind of Case is This?

[34] While the parties have advanced this case as a mobility case, it is as much about a parenting schedule as mobility, and it involves a choice of school. It is not the kind of case where one parent wants to take the child to another province or country. The distance involved is a relatively modest although significant commute.

[35] The parties agree that once the child begins junior kindergarten in the fall of 2021, it will not be possible to maintain the 2-2-3 parenting schedule as the child will attend one school throughout the week. Thus, the outcome of this motion will determine which parent will have parenting time during the week. While this motion will result in an interim order, with the anticipated backlog of trials expected as a result of the pandemic, a trial in this matter may not occur for quite some time, so the outcome of this motion may have longstanding implications.

[36] This month, the child can be enrolled in junior kindergarten for September, either in Scarborough or Brampton. Thus, a choice of school is involved in this motion, but the case is not like many “choice of school” cases, where the court is asked to decide between, for instance, a gifted program or regular program for a child, or French versus English instruction.

[37] Below, I consider principles from mobility cases, cases determining who should be the primary caregiver, and cases involving choice of school. While characterizing the case helps with the framework for analysis, in the end what matters is the best interests of the child, and I must try to give effect to the maximum contact principle. Even in mobility cases, the “superordinate consideration” is the best interests of the child determined from a child-centered perspective, and consideration of the maximum contact principle is mandatory: Berry v Berry, 2011 ONCA 705 at para 10 and 27; Porter v Bryan, 2017 ONCA 677 at para 10.

Relationship Between the Parties

[38] The parties have each filed two detailed affidavits in which they criticize each other without mercy.

[39] There has been police involvement although apparently no charges. The father took to wearing a body camera, out of concern for being falsely accused of wrongdoing. Not surprisingly, the mother found that to contribute to what was a “horrible” situation in the home.

[40] It is apparent that these parents have had difficulty remaining civil to each other. With that said, they have been able to work out some of the issues. There may be ways for them to build on that and work together for the best interests of their child.

Two Loving Parents

[41] The parties are critical of each other’s parenting.

[42] The mother took a one-year parental leave so was with the child for the first year. The mother appears to have taken more of the initiative required for the child’s social life. The mother has included photos of the half-sister’s room in extreme disarray. She raises a concern of the child sharing a bedroom with her older half-sister.

[43] The father has been reliable to look after the child when the mother has needed him to do so to accommodate her schedule. He has managed to get along with his former partner in a way which has allowed them to share equal parenting time with their children. He says the photo of the half-sister’s room was taken at the Marblehead Crescent residence. The room in his current residence that she shares with the child is tidy and clean. He has many of his own criticisms of the mother.

[44] The mother complains that the father fails to meet the child’s oral care and general hygiene needs and does not feed her a healthy diet.

[45] The father asserts that the mother does not respect COVID-19 protocols.

[46] I will not review in any further detail the allegations they have made against each other. It is not possible for me to resolve where the truth lies for many of the disputed allegations, but I do come away from my review of the affidavits with the strong impression that the mother is more attuned to the child’s needs. Ms. Pedley’s evidence, in my view, deserves particularly strong weight given that she has no stake in the outcome.

[47] Also, the evidence of Ms. Pedley and the combined evidence of the parties shows that the mother was doing more “planning” – arranging daycare, planning social life, interacting with Ms. Pedley. The father was doing more actual care – waking, feeding, drop off and pick up at daycare. However, discrepancies in their assumed roles was likely at least in part because the mother was required to commute to work.

[48] Both parents love their child, want the best for her, and want to maintain a close relationship with her. I do not doubt that both parents are capable parents and either could look after her needs and provide a loving home for her.

[49] The above comments are made based on affidavits and without the benefit of cross examination. In cases like this one, affidavits are a poor substitute for live testimony with cross examination. It is hard for a motions judge to assess (or trust) evidence which amounts to criticism of an adverse litigant. The trial judge will be in a better position to assess the parties’ parenting.

Daily Commuting for Mother

[50] The mother stated in her second affidavit that it would have jeopardized her job to commute daily from Brampton to Scarborough while meeting the demands of her role as a mother post-separation.

[51] I agree that it is not sustainable for the mother to continue to reside in Brampton, leave the child in childcare in Brampton, and commute to Scarborough. On a 2-2-3 schedule, the burden is significantly reduced but for the days the mother would be responsible for drop off and pick up at daycare, she could not get to and from work without additional assistance. It is likely that the only way the mother could keep her job would be if her employer offers some flexibility with her hours. The evidence on this point from the father is that the mother’s employer provided her 15-minute grace period on the days that she had to drop the child off at daycare before work. The mother’s response to this is “I was never permitted a 15-minute grace period at which to arrive at work late.” It seems likely that the mother would have a better understanding of her employer’s policies, so I accept her evidence on this point.

[52] Barring some flexibility from her employer, the mother would have to find help for before or after daycare hours. There is no evidence on whether this is possible.

[53] Furthermore, the long commute results in a long day for the mother and therefore a long day away from home for the child. This is less than ideal in terms of the best interests of the child. The stress of commuting (not just the driving but the time crunch that it causes when there are deadlines to pick up a child) is also less than ideal in terms of the best interests of the child.

Relationship with Siblings

[54] The father’s affidavit indicates that the child has a close bond to his other two children. Since birth, the child has lived with them on alternating weeks. At the father’s current residence, the child shares a bedroom with his 12-year-old daughter. His older daughter has obtained her babysitting licence and helps with care. The mother does not deny this and expresses admiration for these children.

[55] The proposed relief requested by the mother recognizes the need to foster this relationship, first, by proposing the father have parenting time three weekends per month, and second, by proposing a term that the parties shall make best efforts to ensure that the child’s weekends with the father coincide with those weekends her half-siblings are with the father, and that the parties shall adjust the weekends from time to time to ensure there is overlap.

Gordon v Goertz factors

[56] The factors from Gordon v Goertz, [1996] 2 SCR 27 at para 49 are relevant.

Change in Circumstances

[57] There are no orders in place for custody or access. There is no separation agreement. This is the first inquiry into the best interests of the child regarding the parenting arrangements. Given this, no change in circumstances need be established.

[58] In any event, it was necessary to sell the matrimonial home as a result of the separation, so both parents had to move. Ms. Pedley retired. There has been a significant change of circumstances.

Existing Custody and Access Arrangements

[59] If the mother remains in Scarborough and the father remains in Brampton, with effort, the parties could maintain 2-2-3 parenting until the child enters school in September. However, as indicated, from that point a 2-2-3 arrangement will only be feasible if the parents live close to each other, and the father cannot relocate outside of Peel Region because of his parenting agreement with his prior spouse. The parties agree that the child needs to be enrolled in one school or the other, so will necessarily have to be with one parent for five days per week effective September 2021.

[60] In addition, the child is currently attending two daycare centres. This is a serious concern given the pandemic and the increased risk this poses to the child and the other children in the daycares, and all their families. The current arrangement needs to be changed.

Maximizing Contact with Both Parents

[61] Come September, if the child starts to live with one parent for school days, this will significantly reduce the child’s contact with one parent.

[62] The father will not be able to share equal parenting time if the child is enrolled in school in Scarborough. However, this problem can be ameliorated to some extent with the parenting schedule.

Reasons for Moving

[63] The mother has good reasons for moving, even when considering only reasons relevant to her ability to meet the needs of the child. Indeed, her reasons for moving are tied to her ability to meet the needs of the child.

[64] As a single parent, in order to be able to drop off and pick up the child at daycare, she needs daycare relatively close to her work.

[65] It is not sustainable for the mother to maintain her job and live in Brampton.

[66] She has a good job and a good income. That income supports the child.

[67] The job has reasonable hours, allowing her to spend quality time with the child.

[68] There is a good setup for the child in the newly-rented dwelling, in that there is more space including a backyard. The dwelling is a single-family dwelling. The child has her own room.

[69] She has relatives closer to the Scarborough residence.

[70] The husband emphasizes in his affidavits that the mother commuted for nine years. He argues that the mother’s “commute to work has only become an issue after separation and was not an issue during the past nine (9) years that she commuted from Brampton to Scarborough for work.” In saying this, the father fails to recognize or acknowledge the difficulty that comes with commuting and doing daycare drops offs and pick up. The commute for so many years was an accommodation to suit the father so that he could maintain a relationship with his other children.

Disruption re Custodial Arrangements and Community

[71] At age three, the child has limited connection to her community, daycare and friends. On the other hand, “courts have held that critical bonding time between the child and parents occur in the early years of a child's life”: Ann Wilton, Gary S. Joseph & Tara Train, Parenting Law and Practice (Toronto, ON: Thomson Reuters, 2020) at s. 7(6). Disruption of the relationship with either parent, due to decreased time spent with that parent, will be significant.

[72] The distance of the proposed move is a factor which must be included in the assessment of the extent of disruption, both with respect to disruption of custodial arrangements and disruption of community. The greater the distance, the more challenging the best-interests analysis becomes: Rifai v Green, 2014 ONSC 1377 at para 29. Here, the distance is modest, but the travel time is inconsistent, due to traffic, depending on the time and day.

Plumley Factors

[73] I will review the factors in Plumley v Plumley, [1999] OJ No 3234.

Upsetting the Status Quo

[74] These motions seek relief which is interim in nature.

[75] It was held in S (SL) v S (JA), 2013 BCSC 1775 at para 31 that:

The court should be careful about making an interim order that endorses a parenting regime that is significantly different than one that served the child well for some time after the parties' separation. That is not to say that the status quo should be slavishly preserved — it is only to say that the trial judge will likely be in a much better position than a chambers judge to fully assess all of the factors that will influence a decision about where [the child’s] best interests lie.

[76] The P.E.I. Court of Appeal similarly stated: “The parent seeking the interim order carries the burden of proving that compelling circumstances exist to make an interim order which varies the status quo which existed at the time of the motion.” P(D) v B(R), 2007 PESCAD 25 at para 34.

[77] In G (J) v G (D), 2014 ABQB 446, the court refused to permit a mother to move with the children despite the fact that she had primary care. The court reasoned that to significantly decrease the children's access to one parent on an interim basis would require persuasive evidence that moving was in their best interests. The court held that if either parent wanted a change of residence, that parent should bring the matter forward for a trial. Like here, there was considerable conflict in the information each parent provided. The court held, “In this case, it is wrong to radically change the children's access to either parent on the basis of conflicting affidavit evidence.” Ibid, at para 49. (But see Porter v Bryan, supra.)

[78] Because this is an interim arrangement pending trial, the mother faces a substantial burden to justify the change: MB v DAC, 2014 ONCJ 273. See also Papp v Papp, [1970] 1 OR 331 at para 34, and Batsinda, supra, at para 25 (“the existing arrangements, and how well they are working for the child, are relevant factors in deciding such motions. … as a working rule, a disturbance of the status quo at the interim stage requires more cogent evidence than may be required to disrupt the status quo after trial.”)

[79] Mobility cases can rarely be decided without a trial: Guillotte v Sinopoli, 2010 ONSC 4471 at para 17.

[80] Here, the status quo, being the circumstance at the time of the separation, could not be maintained for this child. It was inevitable that a move from the family home would occur as a result of the separation of the parents. Once the existing daycare provider gave notice of her retirement, the existing daycare arrangement inevitably had to change. With the parties living separately, the mother has to do drop off and pick up at daycare. With this reality, commuting to Scarborough became unsustainable for the mother. It strikes me as inaccurate in the circumstances of this case to say that the mother is solely responsible for upsetting the status quo (although who is responsible is not important).

[81] I have also considered whether the parties’ employment is part of the status quo. The analysis must be child-centered. However, to the extent that the parties’ income supports the child’s standard of living, their employment is part of the status quo and effort should be made to maintain it.

Compelling Circumstances

[82] I have described above, including primarily under the heading “Reasons for Moving,” considerations which support and explain the mother’s decision to move. I do find the mother’s reasons for moving to be valid.

[83] Justice Marshman’s description of this factor in Plumley included an example which is apt here:

There can be compelling circumstances that might dictate that a judge ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial or the best interests of the children might dictate that they commence school at a new location.

[84] The mother’s move to Scarborough results in a financial benefit to the family unit in that the mother will be able to maintain her employment.

Whether Custodial Parent Will Prevail at Trial

[85] These parents currently share parenting time equally. There is no “custodial parent.”

Other considerations

[86] I do not have any evidence that the mother has sought employment in the Brampton area. In Larson v Clinton, 2009 CarswellOnt 2529 at para 47 to 49, a failure to present such evidence was a factor that weighed against permitting relocation. I would have benefited from evidence on this point. The parties may be able to provide such evidence to the trial judge. There is support in both parties’ affidavits that the mother has a good job with good benefits and a good employer. However, nothing about what might be available in Brampton. I have concluded that for this interim motion I should not place much weight on this consideration. Given the longevity of the mother’s employment, her good income, and the consensus that she has a good job, I am prepared to accept that there is a significant risk the mother will not be able to find equivalently remunerative employment in Brampton.

[87] The parties have raised some other factors which they think support their respective positions on the issues. The only one I found to be a meaningful consideration is that the father travels to service clients in the west side of Toronto and, according to his first affidavit, as far as Windsor. In his second affidavit he says he services clients “outside of the GTA during the weekdays.” Therefore, he may not be able to attend the daycare or school in Brampton on short notice in the event this is necessary. In contrast, the daycare and school, and the mother’s workplace and rented residence are all located within minutes of each other in Scarborough.

Custody

[88] In Bjornson v Creighton, 2009 CarswellOnt 8263 (ONCA), the Court of Appeal held that it was necessary to consider custody before considering mobility. This is in part because of the importance of the views of the custodial parent in the question of mobility, as described by Justice McLachlin, as she then was, in Gordon v Goertz, supra, at para 50.

[89] Here, neither party’s notice of motion requests interim custody. Neither party can claim the status of custodial parent.

[90] In Porter v Bryan, supra, the parties had agreed to joint custody and a shared parenting schedule. The mother sought to move their child from Cochrane to Thunder Bay. Her work in Cochrane was incompatible with caring for the child as a single parent, so she resigned her position. She could not find work in Cochrane but could find work in Thunder Bay. The motions judge disallowed the mother’s motion. The Court of Appeal allowed her appeal, stating:

[15] The motion judge held that in circumstances of joint and shared custody, there is no primary caregiver, and therefore neither parent’s interests can have greater weight than the other’s.

[16] We do not agree that the legal status of joint and shared custody forecloses the possibility that one parent can be, for the purposes of a mobility motion, the primary caregiver. On the record before us, it is evident that although the parties have joint and shared custody, the mother is nevertheless the primary caregiver. This conclusion is not only supported by the mother’s evidence, but from the father’s admission on his Form 35.1 affidavit, his answers in cross-examination, and affidavits from two of the father’s aunts. Accordingly, the consideration articulated in Goertz comes into play, and the mother’s reason for moving bears special consideration.

[17] There is, in our view, a valid and compelling parenting-based reason for the move: it is necessary to enable the primary caregiver to remain financially viable while providing care for the child. The mother has done all she can be expected to do to secure employment in Cochrane. It has not worked out, and there is no good reason for her and her son to live in poverty when she has secured employment in Thunder Bay that will allow her both to parent her son and to provide economically for him.

[91] The facts in this case do not rise to the same level. As discussed above, there is no evidence here that the mother cannot find employment in Brampton, but I have accepted that this is a significant risk. Also, in this case the parents clearly share caregiving responsibilities more equally than in Porter. Still, as discussed below, I have found that the child’s interests are best served by being primarily with the mother over the father. On this basis, I therefore find a small measure of support from Porter for permitting the move to Scarborough.

Choice of School Cases

[92] I have reviewed and considered Thomas v Osika, 2018 ONSC 2712 at para 37, Reiche v Reiche, 2020 ONSC 6087 at para 25, Kumar v Jackson, 2018 ONSC 5108, Turnbull v Turnbull, 2018 ONSC 5060, and some of the cases they cite. These four cases list factors to consider when parents cannot agree upon school enrolment and a court is required to determine this issue.

[93] These “choice of school” cases identify as a factor decisions that were made by the parents prior to the separation: Askalan v Taleb, 2012 ONSC 4746.

[94] The father’s affidavit indicates that the parties intended to register the child in the school local to the matrimonial home in Brampton, Russel D. Barber P.S., which offers a French immersion program. This is not disputed by the mother. As indicated above, the mother’s affidavit also states that the parties discussed moving to the east end of the GTA once the father’s younger child from the previous relationship finished high school, and that will not occur for years.

[95] The evidence thus supports the conclusion that before separation, the parties intended that the child would go to the local school in Brampton. However, this did not amount to any sort of binding agreement. In any event, the best interests of the child govern. In Woodhouse v Woodhouse (1996), 29 OR (3d) 417 at 431, a mobility case, the court noted that even separation agreements “are not binding on the court because it is the interests of the children rather than those of the parents which are at issue.” However, the court said that “it is reasonable to think that at the time the separation agreement was made it reflected the parties' views of the best interests of the children.” Taking an analogous approach here, I would treat the discussions as evidence that, at the time, the parties’ views of the best interests of the child were that she should attend Russel D. Barber. Of course, the local school also represented the most convenient choice for the parties at the time. I do not think this factor carries much weight in this case.

[96] Another factor from the “choice of school” cases is the ability of the parent to assist the child with homework, as well as promoting and maintaining the child’s cultural heritage: Deschenes v Medwayosh, 2016 ONCJ 567; Perron v Perron, 2012 ONCA 811.

[97] The mother states that because she is fluent in French she is the only parent able to assist the child with her French Immersion homework, and that the child will eventually be enrolled in French Immersion. The father responds that many parents who are not fluent in French who are still able to assist their children in the French Immersion program.

[98] There is no evidence that French is part of the child’s heritage or culture, but it appears that both parents want the child to be enrolled in French immersion.

[99] In my view, the mother’s fluency in French is only of minor importance as a consideration.

[100] Overall, the factors described in the “choice of school” cases do not weigh heavily in the analysis here.

Equal Parenting Time is No Longer Possible

[101] The father can’t leave Brampton.

[102] Ordering the mother to re-establish the child’s residency in Brampton would put her employment at risk or lead to long days away from home for the child if the mother tried to commute, and a stressful situation. These are not in the best interest of the child and thus I decline to order the mother to re-establish residency in Brampton.

[103] Given this, the 2-2-3 schedule is not feasible. It would only be feasible if both parents could transport the child to the same daycare.

[104] As a result of these conclusions, equal parenting time is not feasible.

[105] The question then becomes, with which parent should the child primarily reside, and specifically, where should she reside during the week?

[106] With difficulty, I have decided on an interim basis that it is in the best interest of the child that she reside with the mother during the week and attend daycare in Scarborough, and that she attend school in Scarborough starting in September.

[107] I have already said that the affidavit evidence leads me to conclude that the mother is more attuned to the child needs.

[108] In addition, my impression of the evidence is that the situation the mother has created in Scarborough is likely to be more conducive to the child thriving than the circumstance in Brampton. One element of this is the shared room between the child and her considerably older half-sister in Brampton. In my view, on balance, the set up that mother has arranged in Scarborough is probably more conducive to the child’s development.

[109] Finally, there are other small factors. The mother is fluent in French and more able to assist with French immersion homework and involvement at school. The mother’s extended benefits are better, making it better that her employment is preserved. The father’s job involves daily travel so he might not be able to be near to the daycare or school in the event of a daycare issue.

[110] When parents separate, equal parenting time is the best way to achieve maximum contact with both parents. Unfortunately, I have concluded that equal parenting time is not feasible here. The best way to maintain as much contact with each spouse as is consistent with the best interests of the child is to provide generous parenting time to the father as circumstances permit. I also wish to maximize the time available for the child and her half-siblings to be together.

Orders re Parenting Schedule

[111] The child shall reside primarily with the mother.

[112] The father shall have parenting time with the child on the first, second, and fourth weekends of each month from Friday after daycare (or later on Friday should the father wish) to Sunday at 6:00 p.m. (to be extended to Monday morning drop-off at daycare should the father wish). Where the father’s parenting time coincides with a long weekend, the time shall be extended to cover the additional day of the long weekend.

[113] The parties shall make best efforts to ensure that the child's weekends with the father coincide with those weekends her half-siblings are residing with the father and the parties shall adjust the weekends from time to time to ensure there is overlap.

[114] The father shall have generous parenting time when he is able to take vacation. I will leave this to be specifically negotiated by the parties, or brought back before the court, if required.

[115] I would like the parties to negotiate additional weekday evening parenting time for the father (not overnight), and if they cannot I will receive further submissions on this issue. I do not preclude any options in terms of the number of times per month this should occur or what other terms might be imposed on it. If the parties cannot agree, counsel may write me through my judicial assistant, and I will arrange a hearing on the issue. This applies only for the next 90 days. After that, any motion on this issue should be brought in regular motions court after a case conference. A change in circumstances is not required for the parties to be entitled to bring a motion regarding weekday evening parenting time. Counsel may not write me with argument, only with a request for a hearing, whether they request an oral hearing or written hearing, and information about scheduling.

Other

[116] The party picking up the child shall be responsible for the transportation.

[117] The mother shall pay the father’s 407 tolls associated with trips to transport the child. For this to apply, the father must have and must fund the cost of a 407 transponder. The father shall provide proof of his incurred charges to the mother and this expense will be accumulated and paid quarterly.

[118] Because of the pandemic, I have no difficulty concluding that it is in the best interest of the child (and all concerned) that she should attend only one daycare starting immediately, being the Scarborough daycare selected by the mother. The parties shall share the cost of daycare in proportion to their incomes.

[119] The child shall be enrolled in and shall attend school in Scarborough.

[120] The parties shall not make disparaging remarks about each other in front of the child.

[121] All the foregoing are interim orders until trial.

[122] I would encourage the parties to be as flexible as possible, recognizing that any conflict between them is not in the child’s best interests.

Costs

[123] This was a difficult decision and a very close call. I am not inclined to award costs. If, however, there were relevant offers to settle or the mother believes there is very strong argument for costs, she may make written submissions to me by January 15, 2020. The father’s responding submissions would be due January 22, 2020. No reply submissions may be made without leave. Costs submissions must be two pages maximum, single spaced, not including Bills of Costs or offers to settle. These should be sent by email to my judicial assistant.

Signed: Justice R. Chown Released: January 8, 2021