Court File and Parties
COURT FILE NO.: FC 389/20
DATE: 2022/08/29
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
RE: L.M.S-P., Applicant
AND:
D.B.P., Respondent
BEFORE: HASSAN J.
COUNSEL: Salim J. Knot, for the Applicant
Self-represented, for the Respondent
HEARD: August 23, 2022
RULING ON MOTION
[1] The Applicant commenced a Motion on August 2, 2022, seeking relief relating to the child, J.S-P.’s registration for school, and parenting time. The issue of registration for school was before the court today. The parenting issues are to be dealt with on December 7, 2022.
MOTION RE: SCHOOL REGISTRATION
[2] The Applicant requests that the child, J.S-P., be registered for JK at Masonville Public School (MPS). The Respondent does not have a countermotion before the Court, but takes the position that the child, J.S-P., should attend Cedar Hollow Public School (CHPS), where the Respondent registered him in March 2022.
[3] The parties were previously before the Court on August 25, 2021. Both parties had Motions before the Court, seeking to register the child, J.S-P., in different daycare/pre-school centres; the Applicant at Grosvenor Nursery School and the Respondent at Cedar Hollow Children’s Centre. Campbell J. ordered that J.S-P. be enrolled at Cedar Hollow for pre-school/daycare, for the 2021-2022 school year, and that he attends no more than half of each day, as best suited the schedule of the parents. In relation to registration for school, Campbell J. stated in his Endorsement:
“(It should be clear that this order, particularly as it relates to J.S-P. education has a limited effective life. A decision will have to be made as to what school J.S-P. will attend when he beings (sic) JK next fall. It is my hope that the parties will work that out and not require resort to the courts.)”
[4] The parties confirmed that J.S-P. did attend Cedar Hollow for the school year and continued for the summer months on the request of the Respondent, who required childcare due to his employment.
[5] Despite the clear indication from Campbell J., that the issue of J.S-P. JK registration would either be determined on agreement or through the Court, the Respondent registered him at CHPS, without the consent or even knowledge of the Applicant. He advised the Applicant after the fact. He deposed that he had “pre-registered” the child, to ensure a position, in the event that the child did attend Cedar Hollow. The Applicant submits there is no “pre-registration”; simply registration, and that the result of this registration, which she submits the Respondent would know, is that she was not able to “pre-register” the child at MPS.
APPLICANT’S POSITION
[6] The Applicant seeks to register J.S-P. at MPS. The Applicant is a tenured Associate Professor at Huron College. She deposes she resides in the Masonville area in a neighbourhood with multiple families having children who will attend MPS, with whom J.S-P. is familiar. She deposes that MPS is located approximately 4 minutes drive from her home and approximately 6 minutes from her employment. It is approximately 12 minutes from the Respondent’s home. She deposes that J.S-P. will have a short walk to the bus stop with her, along with other friends in the neighbourhood, and they would then travel by bus to MPS, which she estimates to be less than a 10-minute ride.
[7] The Applicant deposes that the parties themselves, and she after separation, chose to reside in the Masonville area due in part to the high-ranking schools in the catchment area. The Applicant deposes that MPS receives high rankings, and she has researched and found it to be an enriched school environment.
[8] The Applicant also deposes that J.S-P. is familiar with the Masonville area and with the MPS school yard, where he and other area children play, and that he knows children in their neighbourhood who already attend MPS and others who will be attending along with him, including a child who lives with the Applicant at the present time, whom she is hosting, along with his Mother, as Ukrainian refugees.
[9] The Applicant also deposes that her work schedule is flexible enough to make her available to J.S-P. when needed. She teaches approximately 6 hours per week and her remaining time is flexible. She can be available if J.S-P. is ill or needs to leave school, or if the Respondent is unavailable during his parenting time with J.S-P. The parties, at this time, have a shared parenting time schedule. The Applicant deposes that the Respondent’s employment as a free lance videographer, which means that his schedule is unpredictable and often last minute. She deposes that since the Order of Campbell J., the Respondent has called on her many times to request that she have care of J.S-P., on his parenting time, due to work commitments/opportunities. She attached emails from the Respondent, offering the Applicant the “right of first refusal” to care for J.S-P., due to his work commitments. She also attaches an email of January 2022, from the Respondent, which states in part: “Regarding the future schedule, the big flaw is that almost all of my work falls on weekdays, and I don’t have any control over what my schedule is, unless I turn down work altogether”. He goes on to indicate that he is trying to switch industries but until he is able to complete that move “…scheduling as much of J.S-P. time with me on weekends and time with you on weekdays is the one thing that matches closest with both our work schedules, which results in the least disruption”.
[10] The Applicant further deposes that she values education and higher education more than the Respondent and she can better support his educational pursuits. She also claims that the Respondent’s untreated ADHD would make it difficult for the Respondent to manage J.S-P. education.
RESPONDENT’S POSITION
[11] The Respondent’s position focuses on the fact that J.S-P. is already familiar with the neighbourhood and CHPS, as a result of his attendance at the pre-school/daycare next door to the school. He deposes that J.S-P. is comfortable and adjusted in the school location and that his friends in the neighbourhood will also be attending CHPS. He deposes that J.S-P. will be walking to school, as he did in daycare, when in his care, and driven to the same location with the Applicant, when in her care, similar to when he attended daycare. He deposes that J.S-P. is already familiar with people in the school office, from his attendance at daycare.
[12] The Respondent deposes that there is no guarantee that J.S-P.’s bus trip will be less than 10 minutes, and that it could be up to 70 minutes. He deposes that the MPS has “problematic” parking, which could result in J.S-P. having to walk further from his drop-off location to the school.
[13] The Respondent deposes that the Applicant herself acknowledged that J.S-P. enjoyed and did well attending Cedar Hollow daycare.
[14] The Respondent did not specifically respond to the Applicant’s evidence regarding his lack of availability through the week, his unpredictable and last-minute schedule, or his requests for the Applicant to assume care during his parenting time. He indicates that he will respond to some of the evidence, in the December 2022 portion of the Motion. He deposes that in the event that he and the Applicant are not available, that either of his parents or the parents of one of J.S-P.’s friends, will assume care of J.S-P..
[15] The Respondent deposes that he and his family equally value education and that he is also accomplished and well able to assist and support J.S-P. in his educational endeavors. He deposes that his ADHD is now managed and is a difference not a deficit.
[16] The Respondent stressed that CHPS best meets J.S-P.’s need for “stability, consistency and familiarity”.
DECISION
[17] Section 16.1 of the Divorce Act, provides the authority to make an interim Order relating to decision-making or parenting time, and incidents of both. This includes the decision as to registration at school. Section 16 sets out the factors the court must consider, in making a determination in the best interests of a child.
[18] Both parties provided the court with various cases dealing with the issue of a child’s attendance or registration at school. The cases are clear that the determination is in the discretion of the court, based on the specific facts of each case.
[19] The Respondent characterized the decision as whether J.S-P. will continue to attend Cedar Hollow, and that the issue was whether he should move to another school. He referred to caselaw addressing that issue. The Applicant submitted that Campbell J. was clear that J.S-P. was attending Cedar Hollow daycare/pre-school only, and that the determination of what school he would attend, would be determined either between the parties or through the court. The Applicant argued that entering the formal school system is different from daycare/pre-school, and that the decision as to where J.S-P. will attend JK, is a decision as to the start of a new phase in J.S-P.’s life.
[20] I agree with the Applicant that this is not a determination of whether J.S-P. will continue to attend Cedar Hollow. J.S-P.’s attendance at Cedar Hollow was clearly limited to the school term of 2021-2022 (extended at the request of the Respondent) and was clearly daycare, arranged mainly to assist the parties with childcare, but also to allow J.S-P. to become familiar with the social aspects of a school environment. Attendance is determined by the parents, as their needs dictate. Conversely, school is for the benefit of the child, and attendance is not discretionary. Entering the formal education system, even at the level of JK, is a transition. Attendance is daily and full-day, and not determined at the discretion of the parents.
[21] I do not place significant weight on the fact that J.S-P. has attended daycare next door to the school proposed by the Respondent. If anything, the Respondent’s evidence confirmed that the child, J.S-P., adjusted well to attendance at daycare and within the year that he attended, became familiar and comfortable with the routine and staff involved. With the support of both parents, he will become equally familiar and settled into whichever school he attends and the routines around his attendance.
[22] Regarding the position of each party, both parents described child-friendly neighbourhoods where J.S-P. is well settled, has multiple friends and is an integral part of the neighbourhood. Both described the proposed school as being close to their homes and places J.S-P. is familiar with. Both confirmed that J.S-P. would be attending school with other children in his neighbourhood, with whom he is familiar. Both schools are described as enriched and positive learning environments. I do not find either school superior to the other.
[23] I also find that both parents value education and would be capable of supporting J.S-P. in whatever school he may attend.
[24] I also do not place significant weight on the fact that J.S-P. will be transported by bus as opposed to walking or by vehicle, if he attends MPS. J.S-P. will be transported by vehicle or bus, at whichever school he attends, by one or the other parent. At CHPS he would walk from his Father’s home, with either his Father, a Grandparent or his friend’s parent(s), and would be driven by his Mother, from her home. If he attended MPS he would walk to a bus stop and travel by bus from his Mother’s home and either bus or vehicle from his Father’s home. Either scenario, in my view, is safe, effective and J.S-P. would adjust to the routine at both homes.
[25] Where the proposals of the parents differ, and what I find to be the most significant factor, is the schedules of each parent and their availability through the week, to respond to J.S-P.’s needs at his school. The Applicant is fortunate to have a schedule that allows her to be available most of the week, to ensure that J.S-P. arrives at school and to be available to pick J.S-P. up at school, if need be, or to be home with him if he cannot attend on a particular day. Her home and work are close to the proposed school, and she would be available to respond quickly to needs that may arise at J.S-P.’s school.
[26] The Respondent’s employment, on the other hand, is less predictable and requires that he be available for assignments, especially through the weekdays. The Respondent did not respond to this issue in either his Affidavit or his submissions, but did not contradict the description he provided, in his email to the Applicant.
[27] The determination of what school J.S-P. will attend for JK, is more than a determination of where he will attend for day care for one school term, as was the issue before Campbell J.. J.S-P. is embarking on his formal educational journey. I find, at this time, that the Applicant is in a better position to support that journey, on a day-to-day basis. She is not only available to ensure regular attendance and to be available in the event that J.S-P. does not attend or needs to leave school, but she is also available and in close proximity to the school, to participate in the school environment on a daily basis, if required or desired.
[28] Both parents stressed the need for consistency and routine for J.S-P., as he enters JK and beyond. In my view, the Applicant is in a better position to ensure this consistency and routine.
ORDER
[29] For the reasons set out above, Order to go:
That the Applicant shall have the authority to register the child, J.S-P., at Masonville Public School, commencing September 2022.
The Respondent shall forthwith withdraw the child's registration at Cedar Hollow Public School, if required to allow the registration at Masonville Public School.
Both parents shall be entitled to receive all information from Masonville Public School and have the ability to attend school functions when the child is not in their care.
If the parties are not able to resolve the issue of costs of the Motion, the parties shall provide written cost submissions, not to exceed 3 pages, double spaced, exclusive of Bills of Costs or Offers to Settle, as follows:
a. The Applicant to provide submissions within 10 days;
b. The Respondent to provide submissions within 10 days thereafter;
c. The Applicant to provide reply submissions, limited to 2 pages, within 5 days thereafter.
“Justice Sharon E. Hassan”
Justice Sharon E. Hassan
Date: August 29, 2022