COURT FILE NO.: FS-21-100918-0000
DATE: 2021-10-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
A.P.
Joshua J. Gleiberman, for the Applicant
Applicant
- and -
P.P.
Linda Starova, for the Respondent
Respondent
HEARD: September 29, 2021,
By teleconference at Brampton, Ontario
Price J.
Reasons For Order
NATURE OF MOTION
[1] The Respondent, P.P., moves for an Order that the Child of the Marriage, M.P., who is 8 years old, shall resume schooling at St. John of the Cross in Mississauga, Ontario, prohibiting unilateral decision-making regarding the child, appointing Wendy MacKenzie to conduct a s. 30 assessment of the child’s needs, and imposing a temporary and without prejudice parenting schedule on a 4-3/3-4 schedule, or on a week-about basis, pending the s. 30 assessment.
[2] A.P. moves for a temporary and without prejudice Order granting her sole decision-making authority regarding the child, permitting her to continue the child’s enrolment at St. Ambrose Catholic School in Toronto, appointing Linda Bleau to conduct an assessment in accordance with an endorsement sheet she has filed, and costs of the motion on a substantial indemnity scale.
[3] A.P. has asserted that she “has for the last 3 weeks been trying to obtain an Urgent Case Conference date from the Court by way of Form 14B, but due to the vagaries of the Brampton Court there have been a number of administrative misadventures blocking this attempt.”
[4] After having an Early Case Conference and consenting to a motion being heard today, and a timetable for the exchange of materials, A.P. did not properly up-load her responding materials to the Caselines platform and consequently, the Court did not have her documents to review in advance of the hearing.
BACKGROUND FACTS
[5] The parties began living together in a relationship resembling marriage in October 2002. They were married in Poland, on June 2, 2007.
[6] There is one child of the marriage: namely, M.P., who is now 8 years old (hereinafter, the "child").
[7] Shortly after the child turned five years old, A.P. began taking layover trips with Sunwing Airlines, which lasted from three to five days per week. P.P. cared for the child during the trips, feeding and bathing her, cleaning up after her, and putting her to sleep. During the winter months, P.P. had time off work and spent that time caring for the child. When both the parties worked, A.P.’s mother helped to look after the child.
[8] The parties lived in Pickering until 2015, when they relocated to Mississauga. P.P. says that it was A.P. who encouraged him to relocate to Mississauga as they had common friends there and A.P. wanted to move out of the suburbs and closer to a city centre.
[9] In the six years from 2015, when the parties bought the matrimonial home in Mississauga, until July 2, 2021, when the home was sold, the child grew up, resided, and attended school in Mississauga.
[10] After the move to Mississauga, tensions developed in the marriage and after a year and a half, on August 17, 2020, the parties separated when A.P. advised P.P. that she wanted a divorce.
[11] A.P. is employed as a senior cabin crew with Sunwing Airlines and in year 2020 earned just over $68,000.00. She was laid off from her employment due to COVID-19 and returned to work on August 1, 2021.
[12] P.P. is employed as a movie technician with IATSE Local 873. He was laid off intermittently during the pandemic and at the end of April 2021, he suffered a knee injury in a dirt bike accident. He received Employment Insurance (EI) benefits and CERB payments and his annual income in 2020 was just over $43,000.00. He returned to work on August 31, 2021.
[13] The police attended at the matrimonial home in April 2021 following an altercation. There were no charges laid against either party. The Children's Aid Society (CAS) interviewed the parties and recommended that they refrain from arguing in the child’s presence. They determined that no further investigation was warranted.
[14] The parties sold the jointly owned matrimonial home in Mississauga but continued residing there until the sale closed on July 2, 2021.
[15] At the end of May 2021, and again on June 18, 2021, P.P. gave A.P. through counsel a copy of the lease he had signed for his new accommodations in Mississauga, which would allow the child to remain enrolled at St. John of the Cross School. He shared his research on catchment areas close to the child’s school and his workplace. A.P.’s lawyer did not respond to his proposal.
[16] At the end of May 2021, the Applicant unilaterally signed a lease for a place in Ajax, Ontario, without notice to P.P. or consultation with him, although they were both represented by counsel.
[17] A.P. informed her former lawyer and A.P. eventually got out of her lease.
[18] On June 9, 2021, A.P.’s new lawyer advised P.P. that A.P. intended to relocate to Durham Region and asked that the parties retain a parenting coordinator for a parenting plan allowing said relocation. On June 14, 2021, P.P.’s lawyer advised A.P.’s lawyer that P.P. was opposed to A.P.’s relocation for the following reasons:
i) The child was raised in Mississauga and had lived there for most of her life.
ii) The child’s friends lived close by to the matrimonial home. A move outside the area, and involving a longer commute, would affect the child’s stability and routine, and significantly impact her bond with her father and her father’s ability to parent her.
iii) P.P. had been an involved and caring parent to the child during the marriage and wished to continue this role in keeping with the child’s best interests. As the child grew up, she would need more attention, care and assistance from both parents in developing into a healthy, happy and hard-working woman.
iv) Both of the parties’ workplaces are located closer to Mississauga. A.P. works at Toronto Pearson International Airport with Sunwing Airlines, and P.P. works as a movie technician with IATSE Local 873 out of their various set locations, two of which are located in Mississauga and in Etobicoke.
v) A.P.’s mother, who helped to care for the child when both parties were at work, resided in the High Park area in Etobicoke.
vi) The friends of both of the parties could help out with looking after the child and also reside in Mississauga.
[19] A.P. did not offer any reasons for her proposed relocation to Durham Region, or explain how the move would be in the child’s best interests until she issued her Application on July 6, 2021. She then informed P.P. that she was seeking a fresh start and could use her share of the net sale proceeds of the matrimonial home to find cheaper accommodations in Durham Region, rather than in Peel, and because Durham, she believed, was cleaner and safer than Peel.
[20] The child has mentioned to P.P. on several occasions that she has gone with her mother to the cottage and met her mother’s boyfriend.
[21] On July 12, 2021, P.P.’s lawyer informed A.P.’s lawyer that, as a trades' member, P.P. had flexibility with his work shifts when scheduling day-long and week-long assignments and proposed a week-about parenting schedule for the child. A.P.’s lawyer did not respond to this proposal.
[22] Instead, A.P. imposed a parenting schedule following their moves into separate residences. A.P. initially intended to move to Durham Region but when P.P. learned of her intention and objected, she leased an apartment in Etobicoke. P.P. did not consent to the child residing primarily with A.P. in Toronto.
[23] P.P.’s lawyer addressed the child’s schooling for the current year in four separate correspondences to A.P.’s lawyer from July 12 to August 26, 2021. There was no response until September 8, 202l, when A.P.’s lawyer notified P.P.’s lawyer that the child had been enrolled at St. Ambrose Catholic School on September 3.
[24] On September 9, 2021, P.P.’s lawyer responded stating the following:
"Contrary to your assertion, [the child’s] residence has not moved from the Regional Municipality of Peel. It was [A.P.] who unilaterally decided to move out of the child's previous catchment area for schooling purposes and sign an Agreement to Lease on June 22, 2021 for her current residence at Sherway Gardens Road, in Toronto. A.P. ‘did not have to enroll’ the child at St. Ambrose Catholic School. She chose to do so unilaterally, absent a written agreement between the parties or court Order."
ISSUES
[25] The issues to be decided is which school it is in the child’s best interest to attend, and what parenting schedule is in her best interests on a temporary basis, pending the completion of a s. 30 Assessment.
PARTIES’ POSITIONS
[26] A.P. seeks an Order directing that the child shall attend St. Ambrose Catholic School in Etobicoke for the remainder of this academic year. P.P. seeks an Order that she resume her studies at St. John of the Cross School in Mississauga.
[27] A.P. seeks an Order granting her sole decision-making responsibility and primary residence of the child with her. P.P. seeks an Order for equal parenting.
[28] Both parties seek an Order for an assessment of the child’s needs pursuant to section 30 of the Children’s Law Reform Act. A.P. proposes that the assessment be conducted by Linda Bleau. P.P. proposes that it be conducted by Wendy MacKenzie.
ANALYSIS
Legislative framework
[29] The Court makes parenting orders, and orders as to what school a child will attend, based on the best interests of the child, taking into account the factors set out in s. 24(1) of the Children’s Law Reform Act. That Section provides:
Best interests of the child
24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. 2020, c. 25, Sched. 1, s. 6.
Primary consideration
(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. 2020, c. 25, Sched. 1, s. 6.
Factors
(3) Factors related to the circumstances of a child include,
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.
Factors relating to family violence
(4) In considering the impact of any family violence under clause (3) (j), the court shall take into account,
(a) the nature, seriousness and frequency of the family violence and when it occurred;
(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) the physical, emotional and psychological harm or risk of harm to the child;
(e) any compromise to the safety of the child or other family member;
(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and
(h) any other relevant factor. 2020, c. 25, Sched. 1, s. 6.
Past conduct
(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact with respect to the child. 2020, c. 25, Sched. 1, s. 6.
Allocation of parenting time
(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child. 2020, c. 25, Sched. 1, s. 6.
Jurisprudence
[30] As with any decision affecting children, the test when making a choice among schools is what is in the best interests of the child, and not the rights of the parents or what is in their interests. See: Gordon v Goertz, 1996 CanLII 191 (SCC), [1996] S.C.J. No. 52 (S.C.C.). The selection of a school must be determined based on which of the proposals is better for the children. See Grey v Grey, 2013 ONSC 5572, at para. 17.
[31] 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. See: Deschenes v. Medwayosh, 2016 ONCJ 567 (Ont. C.J.).
[32] In Thomas v. Osika, 2018 ONSC 2712, at para. 37, Justice Audet identified the following factors to be considered when determining what school is in the children’s best interests:
a) The parent's plan for the child's education and his or her capacity and commitment to carry out the plan, in accordance with the unique needs, circumstances, aptitudes and attributes of the child. See: Bandas v. Demirdache, 2013 ONCJ 679 (Ont. C.J.);
b) The parent’s ability to help the child with homework and the degree to which the parent can participate in the child's educational program. See: Deschenes v. Medwayosh, 2016 ONCJ 567 (Ont. C.J.);
c) The extent to which 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.);
d) Any decisions the parents made prior to separation or at the time of separation with respect to the child’s schooling. See Askalan v Taleb, 2012 ONSC 4746 (Ont. S.C.J.); Leclerc v Grace, 2020 ONSC 5556, at para. 34(g);
e) Any problems with the proposed schools. See: Askalan v. Taleb, supra;
f) Third party ranking systems, such as the Fraser Institute's, if considered at all, must be viewed with reference to the best interest of the particular child in a family law context. See: Wilson v. Wilson, 2015 ONSC 479 (Ont. S.C.J.).
[33] Additional Factors which the court may be taken into account in determining the best interests of the child include:
a. The impact on the stability of the child’s life. This may include examining where the child was born and raised, whether there is any prospect of one of the parties moving in the near future, and whether a move will mean new child-care providers or other unsettling features. See Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.);
b. It is not in the interests of a child to be moved about pending determination of an application for interim custody, and the status quo ought not to be disturbed unless there is urgency or necessity that justifies it. See Niel v. Niel, 1976 CanLII 1925 (ON CA), 28 R.F.L. 257 (Ont. C.A.); Marcy v Belmore, 2012 ONSC 4696, paras. 18-20 and 25.
[34] In this regard, a child’s habitual residence is defined in s. 22(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C-12. It provides:
A child is habitually resident in the place where the child resided in whichever of the following circumstances last occurred:
With both parents;
If the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent, or acquiescence of the other or under a court order;
With a person other than a parent on a permanent basis for a significant period of time.
Evidence and reasoning
[35] For the reasons that follow, I find that it is in the child’s best interest that she resume her studies at St. John of the Cross School in Mississauga and follow a 3-4/4-3 parenting schedule pending the outcome of a s. 30 Assessment to be conducted by Wendy MacKenzie.
a. Stability of the child’s environment
[36] The child has lived in Mississauga for the past five years. It is her place of habitual residence. She was residing there and attending St. John of the Cross School when she lived with both parents. When the parties first separated on August 17, 2020, and for the following year, the family continued residing in the matrimonial home in Mississauga until July 2, 2021, when the sale of the home closed.
[37] It cannot be reasonably asserted that P.P. acquiesced or consented to A.P.’s move out of Peel Region. He states, at paragraph 15 of his September 27, 2021, affidavit, “At no point did I consent to the child residing primarily with the Applicant in Toronto.”
[38] It is not disputed that P.P. opposed A.P.’s move to Durham Region. At the end of May 2021, A.P. unilaterally signed a lease for accommodations in Ajax, Ontario, without notice to, or consultation with, P.P., despite the fact that they were both represented by counsel. On June 9, 2021, A.P.’s new counsel advised P.P. of his client’s intention to relocate to Durham Region and P.P.’s lawyer responded on June 14, setting out his objections to the move. He stated, in part:
[M.P.] was raised in Mississauga and has lived there for much of her life. Her friends lived close by to the parties’ matrimonial home. A move completely outside of this area and involving a longer commute would not only affect the child’s stability and routine, but significantly impact my bond with the child and ability to parent the child.
[39] When A.P. signed her lease in Etobicoke, the parties were in the midst of trying to negotiate a parenting plan, which P.P. proposed involve shared parenting and the child remaining at St. John of the Cross School in Mississauga. He objected immediately when informed that A.P. had enrolled the child at St. Ambrose Catholic School in Etobicoke.
[40] The choice of the child’s school must take account of the importance of maintaining stability in her life at a time when her family is in transition. Such stability favours the child remaining at St. John of the Cross School, which she has attended from kindergarten to grade 2.
b. The nature and strength of the child’s relationship with each parent, any siblings, and grandparents and any other person who plays an important role in the child’s life
[41] I find that the child’s relationship with each parent is equally strong. Both parties have been actively involved in her care and it is clear that the child is bonded to each of them.
[42] I do not accept A.P.’s assertion that P.P. was not involved in the child’s care before the parties separated and I find that her assertion reflects an unfair denigration of him as a parent. Shortly after the child turned five years old, A.P. began taking layover trips with Sunwing Airlines, which lasted anywhere from three to five days per week. She entrusted the child to P.P. during those trips, to feed and bathe her, to clean up after her and put her to sleep. During the winter months, P.P. had time off work and used the time to look after and spend time with the child. When the child began school, P.P. took her to the playground near the school and to her friends’ homes.
[43] M.P. is an only child. Account must be taken of the importance of her friends to her. The child and her family lived in Mississauga for the past five years. There is no evidence that contradicts P.P.’s assertion that the child was thriving at St. John of the Cross, the only school she attended prior to her mother’s removal of her to St. Ambrose. She has close friends from St. John of the Cross and from the playground nearby, which she and her friends frequented.
[44] P.P. names the child’s friends, A., E. and I. Their parents are good friends of P.P., and they all accompanied the children to the playground and when the weather permitted, the children played there for hours at a time.
[45] P.P. states that he also accompanied the child to her other classmate and friend's, M.’s birthday party. The two girls attended the same dance class on Saturdays, prior to the COVID-19 pandemic. The child’s other classmate and playground friend was M. P.P. accompanied the child to M.’s birthday party pre-Covid.
[46] A.P. makes no mention of the child’s friends by name and her affidavit lacks a detailed description of her activities that one would expect in a child-centered analysis of the factors to be considered in determining what home location and school would be in her best interests.
[47] Enabling the child to maintain her connections with her friends is especially important at this formative stage of her life, when her family is undergoing a profound transition.
c. The ability of the parties to support the child’s studies and the history of care of the child
[48] Given the child’s age, her schooling has not progressed to the point where either parent has had to be heavily involved in her academic studies. That said, her intellectual and emotional development must be viewed broadly, especially as she is only now emerging from a period when in-class leaning was suspended by the health measures adopted to combat the COVID pandemic.
[49] When the child learned to walk on her own and to ride her own bicycle, P.P. took her to the park with him to ride her bicycle, and to skate and roller blade. It is his uncontradicted evidence that he played with the child using toys, puzzles, board games and that they watched animated movies together. P.P. bought the child a hamster, guinea pigs and more recently, cats. I do not accept A.P.’s characterization of this as a bribe and accept P.P.’s evidence that it he gave her pets, both before and after the parties separation, to teach her responsibility at a young age in taking care of them.
d. Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent
[50] I find that P.P. is more likely than A.P. to support the development and maintenance of the child’s relationship with the other parent. A.P. seeks to exclude P.P. from decision-making regarding the child. P.P. seeks an order for shared parenting. Although there is no legal presumption in favour of shared parenting, and a parent’s claim for sole decision-making is sometimes justified and, as such, not reflective of an intention to marginalize the other parent, that is not the situation here.
[51] A.P. asserts that P.P. “has a temper and cannot control his temper”, but cites only one instance, in which the police, when summoned, did not lay any charge, and the CAS, after interviewing the parties, determined that no further involvement was warranted, and warned both parties not to argue in the presence of the child.
[52] A.P. makes the bald assertion, “The Respondent has not shown any interest in raising M.P.”, without any compelling evidence or details to support her assertion. When she states that “Even when in a position to care for [M.P.] the Respondent is irresponsible”, the examples she offers lack specifics as to date, appear trivial, and were readily refuted by P.P. For example, A.P. asserts that “The Respondent recently fed [M.P.] a cucumber as her only food for breakfast before returning her to me.” P.P. explains that his wife’s reference is to a Saturday morning when the child had slept in and A.P. texted him that she was on her way to pick her up at 9:30 a.m., so P.P. woke the child up and gave her a cucumber as a quick snack so that she would not be hungry on the trip back to her mother’s apartment.
[53] P.P.’s lawyer’s assertions in correspondence on July 29, 2021, and reproduced in his affidavit, are substantially uncontradicted. The correspondence notes the following:
i) A.P. withheld the child from July 12 through to July 22, 2021. He was "granted" only four hours of parenting time with the child on July 15. A.P. took the child to the cottage and kept her even on her birthday. This was contrary to any of the schedules that either party’s lawyer had proposed to that point.
ii) A.P., who was not present when P.P. injured himself while riding his dirt bike, attributed the accident to alcohol consumption, which P.P. denies. In her affidavit dated September 23, 2021, she states that she was informed of this by a friend, whom she does not identify.
iii) When P.P. advised A.P. that his mother would be visiting from Poland and wished to see and spend time with the child, A.P. accused him of wanting a week-about schedule with the child in order to employ his mother's services to look after the child.
iv) During this time, A.P. called the child 2-3 times per day while she was in her father’s care and questioned her about what she did with her father, what she ate for each meal at his home, when she woke up and went to bed, etc. She then told the child that the swimming pool at her condo was open and that she expected the child to be returned to her care by July 30 so they could go there together, which resulted in the child asking her father to drop her off at her mother's apartment.
[54] A.P. asserts that P.P. has taken an ad hoc and tactical approach to parenting, and has made it clear that he will use self-help to obtain what he wants. I disagree, and find that it is rather A.P. who has used self-help in removing the child from Mississauga and enrolling her at St. Ambrose Catholic School near her residence without obtaining P.P.’s consent or a Court Order permitting her to do so.
[55] I find that A.P.’s enrollment of the child at St. Ambrose Catholic School was designed, in part, to gain a strategic advantage in the proceeding and a greater control over the child. The Court disapproves of such unilateral action. See Moussaoui v. Herkouken 2021 ONSC 196, paras 46 to 47 and 60 to 62.
[56] A.P. complains that when asked to provide an Undertaking not to use self-help, P.P. “has further taken a tactical view and made that Undertaking conditional on an Undertaking by the Applicant not to enroll [M.P.] at St. Ambrose. Given the disproportionality of this request, the Applicant has refused to provide such an Undertaking.” I find that it was not unreasonable for P.P. to seek an undertaking from A.P. that she not enroll the child at St. Ambrose. He was entitled to expect that she would not enroll the child at St. Ambrose without his consent or a Court Order, and it was unreasonable of A.P. to refuse to give one.
e. the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained
[57] Having regard to the child’s young age and level of maturity, I find that her views and preferences cannot be reliably ascertained.
f. the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage
[58] Both the schools proposed by the parties are Catholic schools, consistent with the child’s religious and spiritual upbringing and heritage.
[59] P.P. asserts that of 3037 schools in Ontario rated by the Fraser Institute, St. Ambrose C.S. ranked 577, with an overall score of 7.5 out of 10 and that St. John of the Cross ranked 301 with an overall score of 9.5 out of 10. He attaches to his Affidavit as Exhibit "C" a copy of the comparison on of the two schools.
[60] School ranking concerns the general population of students, not this particular child in the context of her particular circumstances at the present time. If ranking is to be considered at all in the choice of schools for the child, it is only one factor and is less important than her overall relationships with family and friends. See Wilson v Wilson, 2015 ONSC 479.
[61] In the absence of expert evidence that relates the rankings of either school to the child’s particular educational needs, I am not persuaded the rankings are relevant in this case, must less determinative of what is in the child’s best interests.
g. Plans for the child’s care, and the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child
[62] A.P. asserts that the child is with her during the week and with P.P. during the weekends, and argues that it is therefore she who will be responsible to take the child to school. I find that the only reason the child is with A.P. during the week is that she removed the child to Etobicoke and enrolled her at St. Ambrose Catholic School near her apartment, and has refused P.P.’s request to spend parenting time with the child during the week.
[63] A.P. asserts that St. Ambrose is less than a kilometre from her apartment, whereas the child’s old school is more than a 25-minute drive from her apartment. Having unilaterally decided to move out of the child’s school catchment area, A.P. cannot rely on transportation difficulties to extract the child from that area. See Tsiriotakis v. Rizzo, 2018 ONSC 1544, at paras. 21 and 27.
[64] The parties’ respective work schedules and residential and work locations and the logistics of transporting the child between their respective homes and her school favour the child remaining at St. John of the Cross School. A.P. works only on Fridays and Sundays. She states at paragraph 9 of her Affidavit dated September 23, 2021, “My current work schedule is I am scheduled for flights on the weekends. I bid every month for weekend flights and given I am senior I will get the flights I bid for.” A.P.’s occupation as a senior cabin member for an airline allows her to modify her schedule to meet the child’s needs. She is therefore able to drive the child to and from St. John of the Cross School in Mississauga.
[65] Transporting the child the 25 kilometres from her apartment in Etobicoke to St. John School in Mississauga will not impose a meaningful burden on the child, especially if, as is likely, A.P. drives her. The drives will contribute to the time mother and daughter spend together. In the unlikely event A.P. is unable, on occasion, to arrange her work schedule to accommodate the travel, there are others who can drive M.P. in her place. A.P. has acknowledged that she has the support of her family, especially that of her mother, who she says can help her with child-care. I presume that the help her mother can give includes helping with driving, if on rare occasions that becomes necessary.
[66] P.P. is now working as a tradesman with a union and has flexibility in his assignments, as attested to by the booklets his lawyer produced to A.P.’s lawyer. It is in the child’s interests that she be at St. John of the Cross in Mississauga, where P.P. is available to attend at the school, if necessary, in an emergency.
h. Any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child
[67] Based on the single incident in which police or CAS were involved with the family, I find that family violence is unlikely to have an impact on the ability or willingness of either party to meet the child’s needs or the appropriateness of an order that would require the parties to co-operate on issues affecting her.
[68] I find that the level of disagreements between the parties does not demonstrate an inability to co-operate or to put the child’s needs ahead of their own. For example, they were able to co-ordinate the celebration of the child’s First Communion in such a way as to enable both parties to attend both the ceremony and the reception that followed.
The Section 30 Assessment
[69] I agree with the parties that a s. 30 Assessment of the child’s needs will be helpful. I have compared the curricula vitae of Ms. Bleau and Ms. MacKenzie and have concluded that Ms. MacKenzie’s background and experience will better enable her to ascertain the child’s needs and make recommendations that address the parenting issues in this case. Both assessors have experience both as a clinical investigator for the Office of the Children’s Lawyer and as a social worker. Ms. MacKenzie has marginally greater clinical experience than Ms. Bleau and additionally has participated in high conflict training and cases and has served as a supervisor, professor, and child protection worker.
Parenting Schedule
[70] Having regard to the child’s young age, I am of the opinion that frequency of her contact with each parent is more important than duration and accordingly, a 4-3/3-4 schedule will meet her needs better than a week-about schedule.
CONCLUSION AND ORDER
[71] For the foregoing reasons, I find that it is in the child’s interests that the parties have shared decision-making and equal parenting, and that the child continue attending St. John of the Cross School in Mississauga for the current academic year. It is therefore ordered that:
The child, M.P., shall attend school at St. John of the Cross School in Mississauga for the 2021/2022 academic year.
Neither party shall engage in self-help measures or unilateral decision-making regarding the child.
Wendy MacKenzie is appointed to conduct an assessment of the child’s needs and to make recommendations pursuant to s. 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C-12.
On a temporary and without prejudice basis, the parties shall conform to an equal parenting schedule whereby the child shall be with the parents on a 4-/3-4 schedule pending the completion of the s. 30 assessment. The child shall be in the care of P.P. from Sunday, October 3, 2021, at 7:00 p.m. to Thursday, October 7, 2021, at 7:00 p.m., when he shall drop the child off at A.P.’s residence, whereupon the child shall be in A.P.’s care until Sunday, October 10, 2021, at 7:00 p.m., when she shall drop her at P.P.’s residence, and alternating in that manner on an ongoing basis.
The parties shall forthwith obtain the My Family Wizard application and notify each other when they have done so. The parties shall thereafter use that application exclusively in their communications regarding the child.
If the parties are unable to agree on costs, they may, by October 15, submit written arguments, not to exceed 4 pages, and a Costs Outline, which shall include their counsel’s year of call to the Bar, partial indemnity hourly rate as per the Costs Bulletin of 2005, adjusted for inflation, their dockets or a summary of the time spent, a calculation of costs on both a partial and a full indemnity scale, and the party’s position on each of the factors listed in Rule 24(1) of the Family Law Rules.
Price J.
Released: October 1, 2021
COURT FILE NO.: FS-21-100918-00
DATE: 2021-10-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
A.P.
Applicant
– and –
P.P.
Respondent
REASONS FOR ORDER
Price J.
Released: October 1, 2021