Court File and Parties
COURT FILE NO.: FC-21-248-1
DATE: 2022/09/01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KYLE EGON KRAGLUND
Applicant
– and –
KRISTI CARIN
Respondent
Counsel:
Mimi Marrello, for the Applicant
Self-represented, for the Respondent
HEARD: August 25, 2022
Reasons for Decision
PARFETT J.
[1] This motion is a request by the Respondent for the court to determine which school the parties’ eldest child, P.K. should attend starting in September 2022.
Background
[2] The parties were divorced in May 2022. Pursuant to the separation agreement signed by the parties in 2021, the parties’ children were to attend Manor Park Public School. This school goes to grade six, after which students attend an intermediate or high school. In the separation agreement, the decision of which intermediate school the children were to attend was left to a later date.
[3] The parties have been unable to agree on an intermediate school for P.K., who starts grade seven this September.
[4] There are two schools in contention: Queen Elizabeth Intermediate School (QE) and Frank Ryan Catholic Intermediate School (FR).
[5] QE is the school in the Respondent’s catchment area and FR is the school in the Applicant’s catchment area. QE is a school in the east end of Ottawa, while FR is a school in the west end of the city. The parties share custody of their children on a 2-5-5-2 basis. Regardless of which school is chosen, one parent will have to cross the city when P.K. is with them to get her to school, or she will have to take public transit.
[6] In accordance with the separation agreement, the parties arranged for P.K. to speak to an objective third party about her preference in relation to school. Dr. Jennifer Vriend, a psychologist, was chosen by the parties and she prepared a report.[^1] According to the report, P.K. expressed a moderate preference for FR. She recognized that she would have to travel by public transit if she went to FR but did not express concern about that fact. She also noted that FR has a better scholastic rating than QE. Apart from these observations, P.K. indicated that the schools were much alike.
Positions of the parties
[7] The Respondent is adamantly opposed to P.K. attending FR. Her arguments are essentially two-fold: first, FR is a Catholic school and the parties had agreed that their children would not be raised in any religious faith and second, QE has better resources to deal with P.K.’s dyslexia. A secondary issue is the fact that FR would be much less convenient to the Respondent’s family.
[8] The Respondent notes that Manor Park is a feeder school for QE and therefore, the transition from elementary school to intermediate school would be seamless. In addition, as the school is in the same area as Manor Park, QE would provide consistency and stability for P.K. She raises concerns with the commute from her home to FR, indicating that it is long and complicated. In oral argument, the Respondent stated that with three other children to get to and from school, she is not able to drive P.K. to FR. She also pointed out that if P.K. attended QE, routines that were already established could be continued.
[9] As noted earlier, FR is a Catholic school. The Respondent is concerned that religion is necessarily an important component of the curriculum at that school and P.K.’s belief that she would not be required to attend religion classes fails to acknowledge the extent to which religion would form part of the whole curriculum. The Respondent emphasized in oral argument that the parties had agreed that their children would not be raised in any religious faith and therefore, for P.K. to attend a Catholic school runs counter to that agreement.
[10] The Applicant stated that there is little evidence for many of the assertions made by the Respondent. He notes that while FR is a Catholic school, it accepts students of any faith, and that accommodation is made for those students who are not Catholic. He points to the fact that FR is the better rated school. The Applicant states that while there is more paperwork involved in transferring P.K.’s Individual Education Plan (IEP) from the public-school board to the Catholic school board, it is not an insurmountable obstacle.
[11] The Applicant agrees that the commute could prove to be a challenge for P.K., but he has offered to provide a driving service to assist with the commute. He pointed out that P.K. could stay at his home until after rush hour when it might be more convenient for the Respondent to pick P.K. up. He also indicated that P.K.’s tutoring could take place at his residence as easily as it could at the Respondent’s residence.
[12] The Applicant argued that critical to any decision involving the choice of school for P.K. is for P.K.’s voice to be heard. He disagreed with the Respondent’s assertion that P.K. lacked the maturity to be part of the decision-making process, pointing out that P.K. was consistent in her preference for FR both in the initial and in the subsequent contact with Dr. Vriend. Additionally, he noted that P.K.’s reasoning was consistent and logical.
Legal Principles
[13] The test for a determination of this nature is what is in the child’s best interests.[^2]
[14] In a recent case, Thomas v. Osika,[^3] the court set out a comprehensive list of factors to consider when the court is being asked to choose a school for a child. The factors that are relevant to the present case are as follows:
• In developing a child's educational plan, the unique needs, circumstances, aptitudes, and attributes of the child, must be considered;[^4]
• The emphasis must be placed on the interests of the child, and not on the interests or rights of the parents;[^5]
• 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;[^6]
• 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 her attendance at the nearest school would entail;[^7] and
• These 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.[^8]
[15] Stability is an important factor to consider and generally, the courts will favour the status quo unless there is a good reason for any change.[^9]
Analysis
[16] In the separation agreement, the parties agreed that P.K. would have a voice in any decision that was made in relation to a new school. The agreement also indicated that the children would not be raised in any religious faith.
[17] While stability is a factor to consider in determining what is in P.K.’s best interests, the reality is that P.K. must change schools regardless. She has no profound connection to either of the neighbourhoods chosen by her parents but has friends in both areas of the city.
[18] P.K. has some learning difficulties, specifically dyslexia, but both schools will provide her with an IEP and P.K.’s tutoring will continue regardless of which school is chosen. As noted earlier, P.K.’s tutoring can take place at either residence.
[19] FR is a Catholic school but as pointed out by the Applicant, exposure to religion is not the same thing as being required to engage in that religion. P.K. will not be required to practice Catholicism while at FR.
[20] FR is a slightly better rated school than QE but were that the only factor in its favour, it would not justify choosing that school.
[21] QE is closer to the Respondent’s home, but FR is closer to the Applicant’s home. From that perspective, both schools are equally convenient. The issue is the commute when P.K. is living with her mother. While I sympathize with the Respondent’s concerns that if P.K. goes to FR, it will cause difficulties for her entire family, that is not a factor that I can consider. I must look solely to P.K.’s best interests.
[22] In any case, the Applicant is prepared to pay a private transportation service to assist with the problem of the commute in the morning and to have P.K. stay at his home in the afternoon until it is convenient for the Respondent to pick her up.
[23] If P.K. attends FR, it might affect her ability to attend dance classes in the east end of the city. However, as both parties are committed to P.K.’s attendance at these classes, they will undoubtedly be able to work out any logistical problems to ensure she continues with an activity she loves.
[24] Ultimately, what tips the balance in favour of FR is P.K.’s opinion. She has indicated that she would prefer to attend FR. While I agree with the Respondent that P.K.’s preference was not a strong one, the parties had previously agreed that P.K.’s opinion mattered. I agree with the Applicant that her voice should be heard and that she has the maturity necessary for the court to place weight on her choice. As pointed out by the Applicant, P.K. was asked for her views on two separate occasions and her view remained consistent.
[25] In the circumstances, the court orders that the child P.K. attend Frank Ryan Catholic Intermediate school for the 2022-23 and 2023-24 school years.
The Honourable Madam Justice Julianne Parfett
Released: September 1st, 2022
COURT FILE NO.: FC-21-248-1
DATE: 2022/09/01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KYLE EGON KRAGLUND
Applicant
– and –
KRISTI CARIN
Respondent
REASONS FOR decision
PARFETT J.
Released: September 1st, 2022
[^1]: Attached to amended confirmation of motion filed by the Applicant. [^2]: See s. 24 Children’s Law Reform Act, RSO 1990, c.C.12. [^3]: 2018 ONSC 2712 at para. 37. [^4]: Bandas v. Demirdache, 2013 ONCJ 679 (Ont. C.J.) [^5]: Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.J. No. 52 (S.C.C.) [^6]: Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.) [^7]: Wilson v. Wilson, 2015 ONSC 479 [^8]: Deschenes v. Medwayosh, 2016 ONCJ 567 [^9]: Sovereign v Sovereign, [2004] O.J. No. 550 (SCJ) and Templeman v Templeman, [1990] O.J. No. 1776 (Ont. Dist. Ct.).