DATE: 2022 07 04
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Melanie Nina Treuman v Peter-John Wegrynowski
BEFORE: Fowler Byrne J.
COUNSEL: G. Gill, for the Applicant
G. Pribytkova, for the Respondent
HEARD: June 30, 2022, by videoconference
E N D O R S E M E N T
[1] There are two motions before me.
[2] The Mother seeks the following orders:
a) That the child continues to attend Owenwood Public School until this matter is adjudicated on a final basis;
b) That she has final decision making on all health decisions for the child;
c) That exchange times be set at 9:00 a.m. when school is not in session;
d) That the child attend summer camp as decided by the Mother; and
e) That the Father comply with two pre-existing orders, namely that the child’s health card be returned to her, in accordance with the order of Justice Emery, dated February 21, 2020, and that the child be un-enrolled from afterschool care at Mineola Public School, which enrollment was done contrary to my order of July 19, 2021.
[3] The Father seeks the following orders:
a) That the child be enrolled in Mineola Public School for SK for the upcoming year and PLASP after school programme at that location; and
b) That the child be enrolled in summer camp chosen by the Father.
Compliance with Prior Orders
[4] At the commencement of the motions, the parties indicated that it is their belief that the child’s health card has been misplaced and therefore cannot travel with the child between parenting visits.
[5] Accordingly, the parents shall cooperate and cancel any lost card and apply for a replacement card. At that time, the card can continue to travel between the parties as ordered by Justice Emery, but each party should have their own notarized copy in the event of emergencies.
[6] With respect to after school care, I have already ordered, that pending trial, the Mother had final decision making authority on choosing a day care. Accordingly, without the Mother’s agreement, the Father had no authority to enroll the child in the PLASP programme at Mineola Public School.
[7] The Father’s counsel argues that there is no order prohibiting her client from “securing a spot” in a day care, and that this is not technically a breach. I disagree. The Mother has final decision making on choosing day care. By registering the child, to “secure a spot”, the Father as in effect, chosen another day care for the child. More importantly, he has caused both parties to pay twice, unnecessarily, for after school care.
[8] That being said, the Father did appropriately seek an order to change schools and after school care. If he is successful in obtaining an order that the child change schools, after school day care at that school will be necessary. If he is not successful, then he may be responsible for the costs associated with “securing a spot” in both locations.
[9] Accordingly, whether or not I order the Father to un-enroll the child, will depend on my decision with respect to school.
What School the Child Shall Attend
[10] The issue of schooling came before me last summer. The child was to start junior kindergarten. In the winter prior, the parties were unable to agree on a school. The child was living with both parents on a 2/2/3 schedule for at least one year. The matter was expected to go to trial in May 2021, so the parties both registered the child in their respective preferred schools in the hopes that a decision following trial would resolve the impasse.
[11] Unfortunately, as the trial approached, the Father requested an adjournment as he was not adequately prepared. The adjournment was granted but the parties required an interim decision on schooling.
[12] This interim motion was argued before me. After considering the evidence of the Mother (the Father failed to file any materials) and after considering the submissions of both the Mother and the Father, I ruled that the child would be enrolled in Owenwood Public School for the 2021/2022 year. This order was not made on an ongoing basis, as it was assumed the trial would proceed before the next summer.
[13] Unfortunately, a trial was not scheduled. At a trial management conference in January 2022, the Office of the Children’s Lawyer (“OCL”) was requested to become involved. Unfortunately, the Father refused to participate. As stated in his affidavit sworn June 22, 2022,
I refused OCL's involvement at this stage, because [the child] is not in a good emotional state at this time to be interviewed by a third party again. He has been interviewed by the Children's Aid Society and by social workers at school. It is highly unlikely, in my view, that a 5-year old child with emotional and mental health struggles may correctly express his preferences with respect to the decision-making and parenting.
[14] It should be noted that the OCL was requested to do an assessment under s.112 of the Courts of Justice Act, R.S.O. 1990 c.C.43, and not report on the views and preferences of the child. Unfortunately, due to the Father’s failure to cooperate, the OCL declined any further involvement. Accordingly, the application was left in limbo, with no return date.
[15] Not much has changed since last summer, except that the Father moved into the Mineola Public School catchment area (last year he was very close to the catchment area). The Father has another child from a former relationship. This child attended Mineola last year and will continue to do so this year. This will be this other child’s last year in Mineola as he will graduate to a middle school.
[16] The Mother has provided evidence that the child has done well in Owenwood Public School in 2021/2022. He has made friends and his behavioural issues have improved. His report card, dated February 2022, states he is doing well in class, he participates and is enthusiastic. The only item of note is that he was late 40 times. The Mother states that all but one of these times was when the Father was delivering the child to school.
[17] The Father states that it would be in the child’s best interests to attend school with his half-brother. He also states that Mineola has a French immersion programme that the child would benefit from. He also states that the Mineola area is his “area from birth” and that he has many friends there.
[18] The issue of his half-brother was already considered last summer. While it would certainly be nice for the child to see his half-brother at school, this will only last one more year and not reason, in and of itself, to change the child’s school.
[19] As for French immersion, this option is also available to students at Owenwood, who would be fed to the French immersion school starting at grade one.
[20] As for his neighbourhood “from birth”, it is not clear that the evidence supports that assertion. The child has resided with the Mother as well since birth, and it has not always been in that area. Also, the Father has only just moved to the Mineola catchment area. Also, the Father’s position fails to recognize that the child has formed friendships in his new neighbourhood around his Mother’s house and at his school as well. Even if the child lived in the Mineola area, his most recent attachments and connections at least as relevant for this motion.
[21] While the Father’s request is not technically a variation of an interim order, in that my prior order only contemplated the 2021/2022 school year, it should be treated as such. It is inconceivable that the court would contemplate a renewed investigation as to the child’s best interest with respect to school on a yearly basis pending trial.
[22] In order to vary an interim order, the Father must show a material change in circumstances that compels a change in the parenting arrangements that is in the best interests of the child: Radojevic v Radojevic, 2020 ONSC 5868 at para.18.
[23] In particular, the change in circumstances has to have occurred since the last interim order. The change must be material, in that it materially affects the child. The material change must raise exceptional circumstances where immediate action is required, and any order varying the previous order must still meet the best interests of the child: Thomas v Wohleber, 2020 ONSC 1258 at para. 45; Innocente v Innocente, 2014 ONSC 7082 at para. 45.
[24] This makes sense. The purpose of an interim parenting order is to establish some stability for the child until which time the parents can sort out a long term plan, or their dispute can be tried. In parenting cases such as this, an interim variation of an interim order may well substitute one routine to which a child has become accustomed for another, only to have first or even a third substituted at trial. For this reason, an interim order should only be varied on an interim basis if the evidence establishes clearly and unequivocally that the present arrangement is not in a child’s best interest and the proposed arrangement would be: Green v Cairns, 2004 CanLII 9301 at para. 14
[25] I see nothing on the facts before me that would show that it would be in the child’s best interests to change schools. Nor would it accord with the best interests of the child as set out in subsection 24(3) of the Children’s Law Reform Act, R.S.O. 1990, c.C12 (“CLRA”). A change at this stage of the proceedings would not afford the child stability, disregards an established plan of care and puts the convenience of the Father, over the needs of the child. The Father’s new address, albeit into the Mineola school catchment area, is only a 10 minute drive from his old address and is closer to the Mother’s home and Owenwood Public School. This is not material change in circumstances.
[26] The Father relied on Charron v Hollahan, 2020 ONSC 4423 in support of the principle that the court should consider the time spent in traffic when determining what school a child should attend. He claims it takes 45 minutes to get to the child’s school. Charron is distinguishable as the court was not asked in that scenario to make the child change schools after only one year. That case decided where the child would attend when he started school. Also, in Charron, the Mother resided in Nepean, and the Father resided in Orleans, residential suburbs on the opposite sides of Ottawa. The issue of traffic and travel time is more significant that in this case, as opposed to this case where both parties are in Mississauga and the Father is delayed from time to time, by his own evidence, by ongoing construction. Again, his move should actually improve his travel time.
[27] Accordingly, the child will remain in Owenwood Public School, and shall remain there pending an agreement by the parents or until a trial decision says otherwise.
Afterschool Care
[28] Given my decision on the child’s school, my previous order of July 19, 2021, should prevail. The Mother has the final say on the child’s day care, which includes before and after school care. The Father shall immediately un-enroll the child from the PLASP programme affiliated with Mineola. That spot should be made available for a child attending that school.
Summer Camps
[29] Due to the inability of the parties to agree on summer camps, both parties have registered the child in a day camp of their choice for the entire summer.
[30] The Mother claims that the child wants to attend camp with his friends from school, which is Huron Park Camp. Some of these children used to be in the child’s day care prior to starting school.
[31] The Father wants the child to attend MC Day Camp, which is where he went last year and where his half brother attends. The Father claims some of the child’s friends are at this camp as well.
[32] Summer camp for a child of this age (6 years old) is a form of day care. I have already ordered that the Mother has final decision making power for day care. Accordingly, the Mother does have the right to decide where the child should attend. The court also recognizes though, the need for stability and continuity during the summer, as well as during the school year. Last year, the child attended MC Camp and he should be accorded that familiarity again this year. Accordingly, in the summer, the child will go to the day camp of the Mother’s choice for the first 5 weeks of the summer and of the Fathers choice for the last 4 weeks.
Interim Decision Making for Health
[33] There is already an interim order in place, obtained on consent, that the parties have joint custody, as it was known then. This meant that they both had the right to make major decisions for their child.
[34] I acknowledge that the parties have had difficulty making joint decisions regarding the child’s health. This difficulty was acknowledged in the endorsement of Justice McGee on January 11, 2022, where she encouraged an agreement of consultation, but giving the Mother the decision making authority. At this juncture, the Father is not willing to make this compromise.
[35] Despite this difficulty, decisions have been made. Accordingly, I see no reason at this interim basis to vary an interim order regarding decision making.
[36] The Mother relied on Batsinda v Batsinda, 2013 ONSC 7869 for the proposition that there is no presumptive rule in favour of the status quo that must be rebutted by the party seeking to change the current arrangement. This case is distinguishable in that the parties in that case were not seeking to vary an interim order.
[37] The Mother also relied on Kaplanis v Kaplanis, 2005 CanLII 1625 (ON CA), 2005 CarswellOnt266 (Ont.C.A.) for the proposition that joint custody, as it was known then, is not appropriate when the parties are unable to effectively communicate. While this principle of law is sound, it is not analogous to this situation. In Kaplanis, after trial, the trial judge ordered joint custody. This decision was overturned on appeal based on the fact that the parties have historically not been able to cooperate or communicate. There is no mention of whether an interim order was in place prior to trial.
[38] Accordingly, I see no basis on which to vary this interim order, but the parties’ inability to cooperate and communicate will be a factor at trial and could very well result in decision making power in all areas being granted to one party.
Exchange Times
[39] While the child is in school, exchanges took place at school. One parent would drop off in the morning, and the other would pick up after the afterschool care programme. The question arises when school is not in session, or if the child is sick and cannot attend. What should the proper exchange time be?
[40] It would seem obvious that if the child is at day care, the exchanges should take place as if the child is at school. For other times, the Mother asks that it take place at 9:00 a.m. in the morning, which is more in line with the temporary schedule in place. The Father asks that it take place between 5:00 and 6:00 p.m., only stating that a 9:00 a.m. exchange is “unreasonable”. A mid-day exchange is not feasible given both are working.
[41] There is no magic to the exchange time except to demonstrate that there is an inability to cooperate on even the most mundane of decisions. To the Mother’s credit, she is not so much concerned with the time, but rather the need for some clarity and stability on at least one issue, so as to reduce the conflict.
[42] I note that the parties have agreed to start Easter Weekend parenting time with the Father in 2020 from 9:00 a.m. on Good Friday and ended at noon halfway through the weekend. There appears to be no other endorsement with respect to the start or end of parenting time when there is or school or day care.
[43] Therefore, I find that it would make sense, that if a child was unable to attend school, then it would be more convenient for all parties that the child remains with the parent with whom they spent the night before. If the child was ill, or if there was a PD day, they could sleep in. Again, there is no magic to this time, just some predictability for the parties.
Next Steps
[44] The OCL order indicated that the next attendance, if necessary, would be a settlement conference. Obviously, a further settlement conference was warranted as it was assumed that the recommendations of the OCL would have been known and a fruitful discussion on parenting would take place.
[45] As that is not the case, I see no utility in a further settlement conference. From what I can see on Caselines, there has already been at least one case conferences, one settlement conference, and two other trial management conferences. The parties have been advised of and recommended to pursue mediation through Peel Mediation Services, which I did again at the hearing of this motion. If I was to refer this matter to a settlement conference again, the first date is not available until March 2023, and then I can estimate a trial management conference would not take place until late 2023, or early 2024. A trial date may not be available to 2025.
[46] This matter needs to be resolved more quickly. The parties do not need to expend more time and spend more money on further interim conflict. This matter involves a cohabitation that lasted just over one year. The child is now 6 years old. The litigation has been ongoing for 3 years. Time to move to trial.
[47] Accordingly, both parties agreed that it would be better to proceed directly to trial management, and I have made myself available for a morning this fall, so that a new court date will be set.
Conclusion
[48] For the foregoing reasons, I make the following orders:
a) The Mother shall forthwith apply for a new Health Card for the child, cancelling any lost card; the Father shall cooperate fully and sign whatever forms are necessary.
b) The Mother’s address shall be the primary address indicated on the child’s Health Card.
c) Upon receipt of the Health Card, each party shall obtain, at their own expense, a notarized copy of the Health Card that shall remain at their home and the original Health Card shall travel with the child as ordered by Justice Emery;
d) The child shall be enrolled in and continue to attend Owenwood Public School pending the adjudication of these issues on a final basis;
e) The child shall attend the PLASP before and after school care programme associated with Owenwood Public School;
f) The parties will cooperate and ensure that going forward, they are only paying towards the PLASP programme at Owenwood Public School;
g) The additional cost imposed upon the Mother for paying for an additional PLASP programme in 2022, contrary to my order of July 19, 2021, will be dealt with at trial;
h) All exchanges shall take place at school or at summer camp, in accordance with the schedule set out in the Order of Justice Emery, dated February 21, 2020;
i) If the child does not attend school or day camp due to illness, or school or camp closure, the exchange shall take place at 5:30 p.m. on that day;
j) Commencing July 4, 2022, and until August 5, 2022, the child will attend the day camp selected by the Mother, namely Huron Woods;
k) Commencing August 8, 2022, to September 2, 2022, the child will attend the day camp selected by the Father, namely MC Day Camp;
l) Both parties will ensure the child attends day camp and shall not be kept home except in the case of illness or injury, or by prior written agreement by the parties;
m) This matter is adjourned to a trial management conference, fixed for October 25, 2022, at 9:00 a.m., before me, in person.
n) In preparation for this trial management conference, both parties are to serve and file the following:
i. Jointly prepared Trial Scheduling Endorsement Form; if the parties are unable to jointly prepare this form, each is to do so;
ii. Opening Statement; and
iii. Offer to Settle;
o) The parties are to come to this conference prepared to discuss the witness list, the time required, and the use of affidavit evidence in lieu of examination in chief;
p) The parties are urged to resolve the issue of costs. If they are unable, the parties are to serve and file their written costs submissions, no more than 2 pages, single-sided, exclusive of Costs Outline and Offers to Settle, on or before July 15, 2022; responding written submissions, with the same size restrictions, shall be served and filed no later than July 20, 2022; and
q) The remainder of both motions are dismissed.
Fowler Byrne J.
DATE: July 4, 2022
COURT FILE NO.: FS-19-273-0000
DATE: 2022 07 04
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Melanie Nina Treuman v Peter-John Wegrynowski
COUNSEL: G. Gill, for the Applicant
G. Pribytkova, for the Respondent
ENDORSEMENT
Fowler Byrne J.
DATE: July 4, 2022