SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 4755/21 DATE: 2021-10-18

Parties

RE: Amanda Kaarina Marie Hay, Applicant - and – Timothy James Hay, Respondent

Counsel and Hearing

BEFORE: Justice E. Gareau

COUNSEL: Jasmine Gassi Harnden, Counsel for the Applicant Jessica Stanley, Counsel for the Respondent

HEARD: October 14, 2021

ENDORSEMENT

[1] Before the court are two competing motions related to where the three children of the marriage should attend elementary school. At Tab 4 of the continuing record the applicant mother seeks an order that the children attend Greenwood Public School in Sault Ste. Marie, Ontario. At Tab 15 of the continuing record the respondent father seeks an order that the children attend Echo Bay Public School or, in the alternative, F.H. Clergue School in Sault Ste. Marie, Ontario.

[2] The parties are parents of three children, Alanah Kaarina Candice Hay, born January 17, 2013, Kristjana Isa Susannah Hay, born January 13, 2015, and Tavo Joseph Thane Hay, born September 3, 2016.

[3] The parties separated on December 31, 2020. At the time of their separation the parties and the children resided in Bruce Mines, Ontario. The respondent continues to reside there in the matrimonial home. Subsequent to the separation the applicant moved to Sault Ste. Marie, Ontario where she continues to reside.

[4] While there is dispute between the parties as to whether there is presently an equal sharing of parenting time and responsibilities with respect to the children, it appears that both parents have the children in their care for extensive periods of time. The time that the respondent has the children in his care revolves around his work schedule. The parties have agreed through executed minutes of settlement that the children be in the care of the father in accordance with his 5-5-4 rotating work schedule as follows:

Week 1: Friday at 3:00 p.m. to Tuesday at 6:00 p.m.

Week 2: Monday at 3:00 p.m. to Thursday at 6:00 p.m.

Week 3: Wednesday at 3:00 p.m. to Sunday at 6:00 p.m.

[5] At the time of the separation the two older children attended Echo Bay Public School. The youngest child, Tavo, was not yet enrolled in school. The children remained at this school for the balance of the 2020-2021 academic year and are currently enrolled at and attending the Echo Bay Public School. Alanah is in Grade 3, Kristjana is in Grade 1, and Tavo is in Senior Kindergarten. All the children attend school full days.

[6] There is no doubt that the logistics of getting the children to and from school in Echo Bay, Ontario are challenging and inconvenient to the parents. Maybe less so for the father because when the children are in his care, he takes the children to school and picks them up after school. When the children are in the mother’s care the father still picks up the children in the morning and takes them to the Echo Bay Public School and the mother picks the children up after school. This necessitates a drive from Bruce Mines to Sault Ste. Marie and then to Echo Bay for the father, and a drive from Sault Ste. Marie to Echo Bay and back to Sault Ste. Marie for the mother. The father utilizes a transportation service to get the children from Sault Ste. Marie to Echo Bay for school in the morning when he is unable to provide transportation.

[7] The children’s attendance at Greenwood Public School would undoubtedly be more convenient for the mother. The bus would pick up and drop off the children from her home with the school being a short distance from her home. Such an arrangement would also be more convenient for the father who would not have to pick up the children and drive them to Echo Bay for school on the days that they are in the care of the mother.

[8] The paramount consideration for the court is not the convenience of the parents but rather what is in the best interest of the children. Apart from Junior Kindergarten at F.H. Clergue School, the public school in Echo Bay is the only school that Alanah has attended. Echo Bay Public School is the only school that the two younger children have attended, although the court is cognizant of the fact that this is a short period of time for the younger two children who are only in Grade 1 and Senior Kindergarten. Undoubtedly there are routines and rhythms that have been established by the children while attending Echo Bay Public School.

[9] There is evidence before the court that the children have struggled with their parents’ separation and with the dismantling of their family unit. As noted in paragraph 18 of the mother’s affidavit sworn on July 28, 2021, “All three children are facing severe difficulties.” This is one thing that the parents seem to agree on. At paragraph 31 of the father’s affidavit sworn on August 13, 2021, he states that “The child Alanah has behavioural issues and all of the children have communicated feelings of stress and anxiety around the parties’ separation. The children’s healthcare providers have recommended that the parties maintain as much consistency as possible in the lives of the children.” I am told by counsel that the children are presently receiving counselling for the difficulties that they are experiencing.

[10] I agree with the mother that the children’s attendance at F.H. Clergue School would not be in their best interest. They are currently in an English speaking school and to require them to attend a French emersion school and have them make another major adjustment in their lives in face of all the adjustments they have had to make seems a little too much to expect of them. I do not agree with the mother’s position that the children should attend Greenwood Public School at this time. The children are struggling. They have gone through numerous changes in their lives and now have to commute between two homes. The children require certainty and stability. They do not need to be further uprooted by a change of schools in the middle of the academic year. The children’s attendance may be inconvenient for the parents and may require the children to travel more than is desirable but, in my view, the disruption and upheaval a change of school involves exceeds any drawbacks associated with them continuing to attend Echo Bay Public School at this time. The children require consistency and certainty at this time in their lives. The continued attendance at their school assists in providing this to them.

[11] The order requiring the children to continue to attend the Echo Bay Public School is a temporary order and after a more fulsome inquiry that only a viva voce hearing can provide, another solution may be found in the children’s best interest. It is the expectation of this court that the parties would be ready to have such a hearing prior to the start of the 2022-2023 academic year and that the court would have the benefit of viva voce evidence from the children’s educators and counsellor in order to assist in the assessment of what might be in the best interest of Alanah, Kristjana, and Tavo.

[12] For the reasons given, there will be an interim order that Alana Kaarina Candice Hay, born January 17, 2013, Kristjana Isa Susannah Hay, born January 13, 2015, and Tavo Joseph Thane Hay, born September 3, 2016, be enrolled at and attend the Echo Bay Public School for the 2021-2022 academic school year.

Gareau J.

Date: October 18, 2021