Court File and Parties

COURT FILE NO.: FC-17-2387-3 DATE: 2022/02/16 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jennifer Traplin, Applicant AND: Bryan Ruckstuhl, Respondent

BEFORE: Justice M. Fraser

COUNSEL: Stephanie Smith, Counsel for the Applicant Bryan Ruckstuhl, self-represented

HEARD: November 24, 2021

Endorsement

[1] The Applicant mother, Jennifer Traplin (the “mother”) brought this motion to change. She asks for an order permitting the parties’ child, Gage, born March 2013, to be transferred to Mutchmor Public School located at 185 Fifth Avenue, Ottawa, ON, K1S 2N1.

[2] The Respondent father, Bryan Ruckstuhl (the “father”) in response to Motion to Change, opposes the mother's request to change Gage's school from Steve MacLean Public School in Riverside South. He alternatively requests that Gage attend school in Kanata.

[3] The father also sought to vary the child support. The child support issue was resolved by the parties on November 11, 2021 and the parties entered into comprehensive Minutes of Settlement on that issue.

Background

[4] The Applicant mother, Jennifer Traplin, is 40 years old and she has been employed with Stingray Radio Ottawa as the Afternoon Drive Announcer on LiVE 88.5 since 2005.

[5] The Respondent father, Bryan Ruckstuhl, is 45 years old and he has been employed by Claigan Environmental Inc. since September 2018.

[6] The parties only child is Gage who is almost nine years old. Gage is a happy, healthy, friendly and socially active child. He is currently in grade 3 at Steve MacLean Public School in Riverside South, Ottawa.

[7] The parties were married on December 3, 2009 and separated on September 1, 2015.

[8] The parties remained living in the matrimonial home, although separate and apart, until August 2016, at which time the father left the home. Gage initially remained in the mother’s primary care.

[9] Since September 2017, Gage, however, began residing with his parents on a week on / week off schedule, with exchanges taking place on Sunday evenings.

[10] By Final Order of Labrosse J. dated July 6, 2018, the parties share joint custody of Gage.

[11] Gage started Junior Kindergarten in September 2017 at John Young Elementary School in Kanata, which was in the catchment area of the matrimonial home. At the time, the parties had been separated for two years and were not living together. However, the mother was still living in the matrimonial home, and the father was living in an apartment nearby.

[12] When the matrimonial home was sold in October 2017, the mother moved to Old Ottawa South, and the father moved in with his then-partner, S. DiNardo, to Riverside South.

[13] At the time, the parties had an agreement that the father would pick Gage up from school every day, including during the mother’s parenting time. As such, they decided it would be best to transfer Gage to a school near the father’s new home in Riverside South for his convenience. Therefore Gage began to attend Steve MacLean Public School.

[14] In September 2018, the mother purchased a home in the Glebe. She has remained there to date. She advises that she intends to remain resident in this neighbourhood over the long term.

[15] In January 2019, the father purchased a home with Ms. DiNardo in Manotick. This placed Gage’s school right in the middle of both parents’ homes.

[16] In January 2020, the father’s relationship ended with Ms. DiNardo. The Manotick home was sold. At this time, the father began to rent a house in Kanata. He has remained resident in Kanata for the past two years.

[17] The parties have been unable to agree upon where Gage should attend school. The mother brought this Motion to Change on March 30, 2021.

Mother’s position

[18] The mother asserts the following reasons why she believes it is in Gage’s best interests to transfer from Steve MacLean Public School and attend Mutchmor Public School:

A. Steve MacLean is 25kms away from the father’s current home in Kanata and 14 kms away from the mother’s home in the Glebe. Gage currently spends over an hour a day commuting to and from school from his father’s current home in Kanata, and approximately 40 minutes a day commuting to and from school from the mother’s home in the Glebe.

B. Gage doesn’t have the option to walk home or ride the bus. He has spent years being driven across the city for play dates with classmates. He can’t do extracurricular activities with them. He is the only one of his school friends who doesn’t live in, or anywhere near, Riverside South.

C. By the time Gage is in Grade 6, the extended day program will no longer be available to him, but he will still have to spend the next two years waiting somewhere after school for his parents to pick him up when the work day is over. If he were to take an OC Transpo bus, it would take over two hours and three transfers to get to the father’s current house and just under two hours and three transfers to get to the mother’s house.

D. Following the completion of Grade 8, the highest level at Steve MacLean PS, Gage won’t be able to move on to the same high school as his peers because he doesn’t live in the catchment area.

E. Gage has no personal connection to Riverside South. He lived there for only 15 months (from November 2017 to February 2019) and has spent nearly three years being driven to and from school from his homes in the Glebe, North Grenville and now Kanata. Gage has spent nearly half of the last two school years learning remotely from home.

F. The mother has owned her home in the Glebe for more than three years, and has lived in the community for 4 years. She plans on staying long term.

G. Gage is already integrated into the school community in the mother’s neighbourhood, despite the fact he has never attended school there. Gage spends his time playing at the Mutchmor Public School playground, he knows over a dozen children in the neighbourhood, all of whom attend Mutchmor Public School, including his next door neighbour Hudson (who is the same age/grade as Gage and they would be in the same class).

I. Mutchmor Public School is 21.9 kms from the father’s current home and 600m from the mother’s home. It would take the father 18-26 minutes in the morning and 22-40 minutes in the afternoon to drive from his home to Mutchmor Public School. Gage’s drive time would drop from over 20 hours of commute time every month to roughly 8 hours or less.

J. The Mutchmor Public School after school program is run by Glebe Parents’ Day Care, which provides care at the school until 6:00 p.m. The program also operates summer and March Break camps and offers care on Professional Development days, all in the same location. While Steve MacLean Public School does offer similar after school care, it does not offer camps or Professional Development day care within an environment Gage is familiar with.

K. In case of an emergency, the mother is home for the better part of each school day. She is only required to work in the office weekdays from 2:00pm until 5:30pm. Her office is a ten-minute drive from Mutchmor Public School.

[19] The reasons which the mother provides which she feels supports the conclusion that Gage should not attend school Katimivik Elementary School in Kanata are as follows:

A. The mother believes that what the father proposes cannot be relied upon as a long-term plan. While the mother maintains that she has never wavered from her belief that Gage should attend Mutchmor Public School, she asserts that the father, on the other hand, has laid out multiple plans for his future living arrangements and school choices.

B. The father was given the opportunity to provide Gage stability when his neighbourhood was initially chosen for Gage’s school in 2017, but ultimately, he made the decision to leave the area on his own accord just over a year later.

C. The father has made it clear that maintaining Gage’s proximity to his school is not his priority. He has since moved twice – and five times in total since 2016.

D. The mother asserts that in 2021 alone, the father has entertained the notion of moving into a van/bus, moving in with his on/off girlfriend Heather into the home she owns in Stittsville and, at numerous points claimed to be moving back to Riverside South, then said he was staying in Kanata, and even briefly contemplated moving to the Glebe.

E. The commute time from the mother’s office to Kanata and back home would be nearly double what it is currently. As she is on the air until at least 5:30 pm every weeknight, she is not able to leave work any earlier to make up for this. As a result, Gage and the mother would have less time together in the evenings, as they wouldn’t be arriving home until 6:45pm, 40 minutes later than their usual arrival time. By contrast, the father would actually get home sooner by picking Gage up at Mutchmor Public School than he does when he picks him up at Steve MacLean Public School.

Father’s position

[20] The father believes that it would be in Gage’s best interest to remain at Steve MacLean Public School for the following reasons:

A. The father asserts that Steve MacLean Public School has been Gage’s “rock” since he started there in 2017. Through both parents moves, and a global pandemic, that has been his rally point. Steve MacLean Public School has kept Gage involved with his core group of friends via remote learning during the pandemic, and he is happy to be back learning with them again in person now.

B. Steve MacLean Public School has a great early day program which both parents have relied on.

C. Gage has thrived in this environment and continues to do so. He points out that in an email June 30, 2021, his Principle, Ms. Gauthier-King states “Gage always goes out of his way to say hello and share a story (or 2! ) in French when I've seen him out on the yard or in the hallways this year. He is such a positive, friendly and caring boy. In terms of the CBT, as long as Gage remains at SMPS, the cross boundary transfer continues to be in effect. The transfer is valid until the last grade of this school which would be grade 8.”

D. Both parents know many of Gage’s friends’ parents in Riverside South. Should an early day program not be available in the future, Gage could potentially have options to walk home to friends’ houses after school until either parent could pick him up. There is also the option of transportation home after school with private driving services. Given this is three years away, the father does not feel that this decision should be made now.

E. Steve MacLean Public School is only 8 km from the mother’s work office. That makes for a very easy pick up for her after work at 5:30 pm. Her morning drive to drop Gage off is easy as it is against traffic, and the mother not start work until 2:00 pm.

F. Steve MacLean Public School is a 30 minute drive for the father. If Gage were to go to Mutchmor Public School, both parents would have to deal with unstable, busy Highway 417 rush hour traffic both ways to and from Kanata daily. The father asserts that this will add drive time to the day.

G. Gage continues to have regular play dates and screen time with friends from Steve MacLean Public School in Riverside South.

H. The father maintains that the parties have already talked about the idea of Gage going to Cantebury High School which is outside the Steve MacLean catchment anyway. As such, when Gage’s cross boundary transfer expires at the end of grade 8, they will not need to apply once again. This is also five years away and doesn’t need to be decided right now.

[21] The father asks that alternatively, Gage should go to Katimivik Elementary School in Kanata for the following reasons:

A. Katimivik Elementary School goes from grades 4 to 8. Mutchmor Public School only goes to grade 6 and therefore would require yet another school change in two years for Gage.

B. Katimivik Elementary School is only 800 meters from the father’s Kanata home.

C. Gage started sledding in the winter on a hill at Katimivik Elementary School when he was 3 years old. He enjoyed it as well last year, and he will continue to this winter season. He and his father bike there in the summer, and they also race their RC cars there in the parking lot. Therefore Gage is very familiar with the school area, parks, and neighbourhood.

D. The father asserts that Gage has lived in Kanata for six years of his life and he is only eight. He is very familiar with all of Kanata, as well as Stittsville where his “camping gang” all live only 5km away. This gang of seven kids has spent time together almost every “dad week” the past two years. They have been on fourteen camping trips together since the Summer of 2020 alone, not to mention countless other events.

E. In the case of an emergency, Gage has a much larger support system in Kanata then he does in the Glebe. In contrast, he believes the mother knows one couple in the Glebe, who are gone to the cottage during the summer and not around in the event of an emergency.

F. The father could be home before and after school for Gage, saving both parents any added early day program costs. Gage could walk home even on weeks with his mother.

G. Given the 20 minute drive to Kanata from mother’s office, the mother could pick Gage up at 5:50 pm in Kanata and still be home in the Glebe by 6:10-6:20 p. This is the same time she gets home from Steve MacLean with Gage now, so her drive time wouldn’t change.

Issues

[22] I am asked to decide the following:

1. Has the mother established that there has been a material change in circumstances?
2. If so, what school should Gage attend, commencing September 2022?

Analysis

[23] The Divorce Act, RSC 1985, c. 3 (2nd Supp) governs this motion to change.

[24] Choice of school is a parenting decision. Where the parties have been given joint decision-making power, courts should be reluctant to interfere unless parents can’t resolve the issue. In that event, the onus is on the parent trying to change the child’s school and the proposed change must be in the child’s best interests.

[25] Indeed, section 16 of the Divorce Act requires that in making any parenting determination, I am to take into consideration only the best interests of Gage. In so doing, I am to give primary consideration to Gage's physical, emotional and psychological safety, security and well-being.

[26] Subsection 17(5) of the Divorce Act requires that before I vary a parenting order or contact order, I must be satisfied that there has been a change in the circumstances of Gage since the making of the order.

[27] The general principles which guide a decision respecting where a child shall attend school when the parties disagree were set out by Audet, J. in Thomas v. Osika, 2018 ONSC 2712 (S.C.J.) at para. 37 as follows:

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, a number of 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 specifically empowers 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 educational 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 which 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] S.C.J. No. 52 (S.C.C.));

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 (Ont. C.A.));

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. S.C.J.));

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. S.C.J.));

h. Any problems with the proposed schools will be considered (Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.));

i. A decision as to the choice of school should be made on its own merits and based, in part, on the resources that each school offered in relation to a child's needs, rather than on their proximity to the residence 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. S.C.J.));

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. S.C.J.));

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. C.A.));

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 should be 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 (Ont. C.J.));

m. Those cases are very fact-driven. The courts are not pronouncing on what is best for all children in a general sense but rather deciding what is in the best interests of this child before the court (Deschenes v. Medwayosh, 2016 ONCJ 567 (Ont. C.J.)).

[28] When the final order was made in this matter, the father was resident in the same catchment area as the school they agreed Gage would attend. I am of the view that once this changed, particularly since there is no compelling evidence which would suggest to me that either of the parties are going to move back to that area over the long term, there was a material change in circumstances such that the issue of Gage’s school should be addressed.

[29] Looking at the evidence as a whole, I am satisfied that both parties are good and loving parents, and both have what they believe to be in Gage’s best interests at heart. They should both be commended for this. I am satisfied that regardless of where Gage attends school, both parties are committed to making the arrangement work in the best possible way for Gage.

[30] I am solely to be governed by what I conclude in this instance to be in Gage’s best interests. Both parties propose schooling arrangements which are workable and likely to benefit Gage. However, I prefer the position advanced by the mother in this instance to be the best option for Gage.

[31] I have come to this conclusion based on the following factors which I have found to be compelling and which, when considered as a whole, leads me to the conclusion that the mother’s position should prevail:

A. Gage would benefit attending a school which is located in the same neighbourhood where he resides. As he grows older, this will likely enhance his ability to form friendships and allows for Gage to socialize with and to participate in extracurricular activities with those peers. This opportunity is fundamentally important to Gage’s development. While I know that the parties would make every effort to accommodate Gage’s ability to socialize with friends made at Steve McLean Public School and participate in extracurricular activities organized there, this will be more difficult and necessarily limited by the challenges posed by the commute that would be required.

B. In a few year’s time Gage will not be able to move on with his friends at the Steve McLean Public School to the high school they will attend. I understand that the father’s position is that this change would likely happen anyway given he maintains that the parties had discussed Gage attending a different high school (Canterbury High School). The problem with the father’s position is that it is premature to know that Gage will be attending Canterbury High School. Furthermore, Gage not continuing onto the same high school as the friends made in public school is likely to interfere with Gage’s ability to maintain many of those friendships if he remains at the Steve McLean Public School. On the other hand, if Gage were living in the same neighbourhood as his public school friends, this at least allows for these friendships to easily continue outside of school once it’s time for high school regardless of whether the decision is made for Gage to attend Canterbury High School.

C. While there may be no good time to disrupt a child’s life with a change of schools given the disruption that it will entail, I am of the view this would be easier for Gage now rather than later. Addressing the issue now will give Gage the chance to form alternative friendships which will hopefully be longstanding. I therefore don’t agree with the father’s position that this decision should be put off.

D. Much of Gage’s educational experience, unfortunately, has been remotely delivered over the last two years due to the COVID-19 pandemic. It goes without saying that this has likely impacted the development of Gage’s social network such that it might be a good time to make a change of schools.

E. The mother has demonstrated a level of stability in the sense that she is well-settled, and I accept that she is likely going to continue to live in her present location over the long term. This bodes well for the likelihood that Gage will make friendships which will not have to be interrupted by a further change of schools in the near future. In contrast, the father’s living situation does not seem as settled. This is not a criticism of the father but rather an observation of the present reality. It really does not matter why the father has had the number of moves he has in recent years nor why he continues to be considering different options. The bottom line is that I am not satisfied that, were Gage to be enrolled in school in Kanata, Gage would not be faced with a further move outside of the Kanata area at some point.

Disposition

[32] An order shall therefore issue that commencing September 2022, Gage shall attend Mutchmor Public School located at 185 Fifth Avenue, Ottawa, Ontario K1S 2N1.

[33] The parties shall attempt to reach an agreement on costs. If unable to do so, the mother may file brief submissions, not to exceed three typed double-spaced pages, together with a Bill of Costs, and any offers to settle, on or before March 4, 2022. Any responding submissions from the father, subject to the same directions, are to be filed on or before March 15, 2022.

M. Fraser J. Date: February 16, 2022