Court File and Parties
Court File No.: FC1196/20 Date: 2023-07-26 Superior Court of Justice – Ontario Family Court
Re: Jessica Rose Irene Terpstra, Applicant And: Michael John Terpstra, Respondent
Before: Mitrow J.
Counsel: Dayna McNair for the Applicant Erin Burns for the Respondent
Heard: May 31, 2023
Endorsement
Introduction
[1] Each party brings a motion for an interim order. The parties have one child. The sole issue for both motions is which school the parties’ daughter, L. (sometimes referred to as “the child”), will attend in September 2023.
[2] The child turned age four in March 2023. She will be entering junior kindergarten in September 2023. Each party has specified his or her choice of school. For convenience I refer to the applicant as “the mother” and the respondent as “the father.”
[3] For reasons that follow the order below provides that the child shall attend the school chosen by the mother.
Brief Background and Litigation History
[4] The parties were married in 2014. They separated in October 2020 but continued to live separate and apart in the matrimonial home until January 2021 when the mother moved out. The mother has been living at her parents’ home in St. Thomas. The father remains in the matrimonial home located in Belmont.
[5] While the parties have been unsuccessful in resolving the issue of the child’s school, the parties are commended for having resolved a number of other issues, including a partial final order. The parties were assisted significantly in reaching agreement by utilizing mediation.
[6] In relation to non-parenting issues, the parties consented to a partial final order of Korpan J. dated February 11, 2022, dealing with all child support and property issues, including equalization payment on a final basis and with the parties to bear their own costs regarding the resolved issues.
[7] In relation to parenting issues, the parties have been able to achieve significant progress. They agreed to a shared parenting schedule pursuant to interim without prejudice minutes of settlement finalized in March 2021. As described by the father, this was a complex three-week rotating schedule structured around the father’s work schedule.
[8] As a result of the father’s motion brought in November 2022, the parties consented to the interim parenting order of Hassan J. dated November 30, 2022. That order dealt only with parenting time and did not deal with decision-making responsibility. The relevant portions of that order can be summarized as follows:
a. Each party has equal parenting time with the child;
b. Each week the child will be with the father from Monday at 3:45 p.m. until Wednesday at 3:45 p.m., and with the mother from Wednesday at 3:45 p.m. until Friday at 3:45 p.m.;
c. The parties shall alternate weekends from Friday at 3:45 p.m. to Monday at 3:45 p.m.; and
d. Effective June 30, 2023, the pickup times for alternating weekends shall change to 3:30 p.m.
[9] Given the parties’ efforts and success in agreeing to the child’s parenting schedules since their separation, it was disappointing that their respective affidavits drifted from the issue before the court, and instead focused on criticizing each other’s parenting and behaviour on various previous occasions, and with each party denying the allegations of the other.
[10] This conflicting critical discourse was neither helpful nor relevant. The parties had already agreed to equal parenting time as reflected in the court order; hence their continued criticism of each other’s parenting and behaviour was not connected to any live issue on the motions before the court.
The Parties' Positions
[11] The mother is employed as a teacher at Assumption Catholic Elementary School (“Assumption”), located in Aylmer, Ontario. The mother’s residence in St. Thomas where she resides with her parents is not within the catchment area for Assumption. The mother’s plan is to register the child to start school at Assumption; however, it is the mother’s evidence, not disputed by the father, that the mother can obtain a waiver for the child to attend Assumption on the basis that the mother is a teacher at that school.
[12] The mother is looking to purchase a home in Aylmer. Her searches in the Aylmer area so far have been unsuccessful, and the mother may need to purchase a home in the St. Thomas area instead. The mother desires to move closer to Assumption.
[13] The father’s home in Belmont is within the catchment area of St. David Catholic Elementary School (“St. David”), located in Dorchester. The father’s plan is to enroll the child in St. David.
[14] Both Assumption and St. David are within the jurisdiction of the London District Catholic School Board.
[15] The father is employed at the Toyota manufacturing plant in Woodstock.
[16] There is no dispute between the parties as to their work hours. The mother works weekdays from 8:15 a.m. to 3:20 p.m. The father commutes to work daily, approximately a 30-minute drive each way. The father works a rotating three-week shift schedule as follows:
Week 1 (midnight shifts) 10:30 p.m. to 6:30 a.m. from Sunday night to Friday morning;
Week 2 (afternoon shifts) 2:30 p.m. to 10:30 p.m. Monday to Thursday, and Friday from 2:30 p.m. to Saturday morning at 1:45 a.m.; and
Week 3 (day shifts) 6:30 a.m. to 2:30 p.m. Monday to Friday, and Saturdays from 5:45 a.m. to 10:45 a.m. (but only if production is behind).
[17] The father relies on his parents (“paternal grandparents”) to assist him, when necessary, with childcare. The paternal grandparents are retired and reside in Union. The mother has raised some issues as to the paternal grandparents’ willingness and availability to assist the father, including that the paternal grandparents had travelled regularly to Arizona prior to the pandemic for several months during the winter. It is the father’s evidence that his parents have been clear that they will be able to assist in the child’s care as required.
[18] While the evidence supports a conclusion that the paternal grandparents will be available, the reality is that the parties have already agreed to a parenting schedule, knowing the father’s work schedule and knowing that he will need to make childcare arrangements during periods of time when he is working and not available to care for the child during his scheduled parenting time. There is nothing in the current interim order that requires the childcare to be provided by the paternal grandparents when the father is at work. It can be inferred from the order that each party was satisfied that the other party will make adequate childcare arrangements when the party is unavailable to care for the child during his or her parenting time.
[19] Accordingly, I would not view any potential unavailability of the paternal grandparents as an issue or concern.
[20] Each party lives approximately 10 minutes or so from his or her preferred school. While there is various evidence regarding distances, for example, the distance between the parties’ residences, and the distance between the mother’s residence and St. David and the distance between the father’s residence and Assumption, I do not view these distances as creating any concerns because all driving times are generally less than 30 minutes.
[21] The father’s plan when the child is in his care, is that the child will take the bus to and from school. Given the father’s work schedule, for two out of the three weeks, the father is available to get the child to school, and for two out three weeks, he is available when the child returns home from school. The paternal grandparents will assist on those occasions when the father is not available.
[22] The mother’s plan does not include any bussing. She will take the child with her to work. When the child is in the father’s care, the mother has proposed that she is willing to drive to the father’s residence in the morning to pick up the child and take her to school, if the father “does not wish to make arrangements to take her himself.”
[23] Each party has raised various benefits regarding his or her plan and has criticized the plan of the other. That evidence is discussed below.
The Law
[24] Both parties in their pleadings have claimed a divorce. Each party cites the Children’s Law Reform Act, (“CLRA”), as the applicable statute.[^1] However, in this case the Divorce Act would apply by reason of paramountcy. Also relevant is s. 27 of the CLRA.[^2] Specifically, the interim relief sought by both parties in their respective motions is governed by s. 16.1(2) of the Divorce Act, which deals with interim parenting orders. It is noted that the existing interim order of Hassan J. dated November 30, 2022, referred to previously, was made pursuant to the Divorce Act.
[25] In making a parenting order, the court may provide for any other matter that the court considers appropriate: s. 16.1(4)(d), Divorce Act. That section is broadly worded and would allow the court to make an order regarding the child’s school.
[26] The court must take into account only the child’s best interests when making a parenting order: s. 16(1); and in determining the best interests of the child, the court must consider all factors relating to the circumstances of the child including the factors listed in s. 16(3).
[27] In Thomas v. Osika, 2018 ONSC 2712 (Ont. S.C.J.), relied on by the mother, Audet J. has provided a thorough and helpful summary of the jurisprudence, factors and principles to consider when a court is making a decision as to the school a child will attend, at para. 37:
[37] 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);
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);
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);
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);
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);
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).
[28] Both parties rely on Hamid v. Hamid, 2016 ONSC 5013 (Ont. S.C.J.), where Douglas J. sets out a more concise list of factors to consider at paras. 10 and 11:
[10] The parties further agree that the factors outlined in the case of Askalan v. Taleb, [2012] ONSC 4746 are a useful guideline in considering this issue. These factors include:
Assessing any impact on the stability of the child;
Examining how many years the child has attended his or her current school;
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;
Decisions that were made by the parents prior to the separation or at the time of separation with respect to schooling;
Any problems with the present school.
[11] These factors are of course not meant to be exhaustive and indeed the parties identified additional factors for consideration.
Discussion
[29] The discussion below addresses the arguments advanced by the parties in support of their positions.
a. Before and After School Care
[30] The mother deposed that if the child attended Assumption then there would be no need for before or after school care. While I agree with that evidence, I disagree with the mother’s position that school care would be required during her parenting time if the child attended St. David.
[31] The mother gives the example that she would need to leave home at 7:00 a.m. to take the child to school, and then have enough time to arrive at work. However, there is no need for the mother to take the child to school in the morning during her parenting time. She can drop the child off at the father’s residence and the child would take the school bus from there.
[32] Similarly, at the end of the school day, during the mother’s parenting time, the child would take the school bus to her father’s residence, and could be picked up from there by the mother.
[33] I concur with the father that before and after school care is not required should the child attend St. David.
b. Concerns Raised by the Father Regarding Assumption
[34] The father makes allegations that in the past the mother told him “a lot of negative things” about Assumption prior to separation; the father mentions a confrontation the mother had with a parent in or about 2018 at a grocery store parking lot; the father claims that the mother complained prior to the child’s birth about other teachers’ children who attended at Assumption; the father claimed, without explaining the source of his knowledge, that he learned that in 2020 a teacher at Assumption had treated the child of another teacher poorly, causing that teacher (who the father names in his affidavit) to remove the children from the school for two years. The father speculated that L. may receive negative treatment at Assumption as the daughter of a teacher at that school. Finally, the father claims that in the brief period from September 2020, after the mother returned to work from her maternity leave, until October 2020 when the parties separated, that the mother had “four arguments with staff.”
[35] The mother addresses these allegations in her reply affidavit. She obviously has first-hand knowledge of all matters raised by the father including the occurrences in 2018 and 2020. It is not necessary to detail the mother’s response, which disputes significantly the father’s evidence. It is sufficient to note that there is simply no substance to the father’s attempts to portray Assumption in a negative light. In relation to the occurrence in 2020, the father’s failure to explain his source of information diminishes the weight to be attributed to his evidence, which amounts to little more than speculation. The mother’s evidence regarding the incident in 2020, and all other alleged incidents, is first-hand and more persuasive.
[36] The mother deposes that she “loves” her workplace and gets along well with her colleagues. The mother disputes the father’s characterization, that in the fall of 2020, the mother had “arguments” with staff. The mother explains that schools were just reopening after the pandemic; there were many “conversations” (not “arguments”) about protocol and procedure, and information being received from the Board was changing frequently.
[37] The father’s attempts to malign Assumption including his suggestions of conflict between the mother and other teachers or staff, are neither credible nor deserving of any weight. The father’s evidence that the child might receive negative treatment at Assumption, as a child of a teacher, is baseless speculation entitled to no weight.
c. School Ratings
[38] I place no weight on the father’s evidence that Assumption has the “lowest school rating from the schools in both of our catchment areas.” That bald assertion has no factual underpinning. Also, it is disputed by the mother. In any event, third party ratings do not take into consideration a child’s best interests and should not factor into a court’s decision: Thomas v. Osika, supra, at para. 37(j).
d. The Child’s Circumstances
[39] It is important to note that the child was only 22 months of age when the parties separated physically in January 2021. While the father seeks to emphasize the child’s connection to the matrimonial home and its neighbourhood, I do not view that as a significant factor.
[40] At the date of the hearing of the motions, the child had lived the majority of her life in two separate homes. She is accustomed to living in two neighbourhoods.
[41] While the father claims that he purchased the matrimonial home in the Dorchester catchment area “in large measure because of the school rating”, that fact is disputed by the mother, as she deposes that the father purchased this residence well before they were in a committed relationship, and that when he purchased this home, his concerns were related to his work commute and distance from his family.
[42] It is not possible, on the evidence, to make any finding that the child will have some advantage, as suggested by the father “from attending school in her catchment area with peers in her neighbourhood.” There is a dearth of evidence from the father as to the alleged “neighbourhood peers.” The mother points out that the father’s residence in Belmont is one street outside the Assumption catchment area. This means, for some children who live in Belmont and attend a catholic school, that they will go to Assumption.
[43] Although the children living in the mother’s neighbourhood in St. Thomas would not attend Assumption, the mother points out that the child is familiar with the Aylmer community where Assumption is located. Similarly, the father indicates that the child is familiar with the Dorchester community where St. David is located.
[44] I find that the child’s equal-time parenting schedule and the separate communities that the child enjoys while living with each parent, do not merit the location of one party’s residence to be preferred over that of the other, in relation to the child’s choice of school.
e. The Parties’ Discussions Prior to Separation Regarding the Child’s School
[45] Decisions made by parents prior to separation can be a relevant consideration: Thomas v. Osika, supra, at para. 37(g).
[46] Both parties agree that prior to separation they had discussions about the child attending school at Assumption. While the mother characterizes this discussion as an “agreement”, the father disputes that any agreement was made.
[47] Given the conflicting evidence, it is not possible to make a finding that the parties had reached an agreement prior to separation. However, the father acknowledges discussing this topic and he deposes that the mother was not sure at the time if the Board would permit a waiver as they lived outside of the catchment area for Assumption.
[48] It is noteworthy, however, that there is nothing in the father’s affidavit suggesting, during those discussions, that he had expressed to the mother any opposition to the child attending Assumption. The mother deposes that the father expressed opposition only after the separation.
f. The Mother’s Potential Move
[49] The prospect that a parent might move is a factor to consider: Thomas v. Osika, supra, at para. 37(f).
[50] The father points out that he has no plans to move, that the location of the mother’s potential move is unknown, and that this lack of stability supports the father’s plan as to the choice of school.
[51] While I concur that a parent’s plan to move is a factor to consider, I also find, on the facts, that the mother’s desire to move does not adversely affect her plan.
[52] The evidence is that the mother wants to move closer to Aylmer, if possible, as that is where she works. The mother’s evidence is that she will either be in Aylmer, or she may need to remain in the St. Thomas area. There is no evidence to suggest that the mother’s move, whenever it occurs, will create any material change in terms of distances between the parents’ residences or between the mother’s or the father’s residence and Assumption.
[53] Also, I am dealing with the school issue on an interim basis. Should there be some further unexpected or unpredictable consequence relating to the mother’s move then that can be addressed at trial.
g. Bussing the Child to and from School
[54] As noted earlier, the father’s plan involves the child taking the school bus to and from school. The father supports the child being on a school bus and views this as an opportunity for the child to gain some independence.
[55] The mother’s plan involves no bussing. In any event, bussing would not be available if the child attends Assumption as both parties currently reside outside the catchment area. The mother believes that it is preferable for the child not to be bussed, and she describes various concerns regarding potential issues with bussing.
[56] L. is very young. At her age, and considering that she will just be starting school, the opportunity of being driven to school by a parent, rather than having to take a bus, would be beneficial to the child and would be in her best interests.
h. Emergencies and School Functions
[57] If the child attends St. David, the mother raises the issue of neither parent being able to respond promptly to any medical or other situation or emergency affecting the child while she is at school and when both parents are at work. It would take close to 30 minutes before either parent could attend at St. David from his or her place of employment.
[58] The child has a history of food allergy issues, some of which she has outgrown. However, the mother described an occurrence in the summer of 2022 where the child reacted adversely from an apparent allergic reaction. The child’s symptoms were described as consisting of vomiting, being covered in hives, laboured breathing and drooling uncontrollably. The father does not dispute this evidence. This resulted in the child attending at a hospital emergency department.
[59] The mother further points out that if the child attends Assumption, then the child will have the benefit of seeing the mother at school assemblies or other special school events. If the child attends St. David, then the mother’s evidence is that then she would not be able to attend those activities as they would always occur during school hours while the mother is working.
[60] The father’s work schedule is such that he may be able to attend such activities depending on when they are scheduled. The father’s work schedule does have periods of time when the child is in school and the father would not be at work.
[61] If the child attends Assumption, the mother’s ability to respond immediately to any medical issue or other emergency affecting the child is beneficial for the child and in her best interests. Similarly, it would be in the child’s best interests that the mother would always be present at any school assemblies or other special school events.
Conclusion
[62] As discussed in Thomas v. Osika, supra, at para. 37(m), cases of this nature are “very fact-driven”; the court is not deciding what is best for all children in a general sense, but rather what is in the best interests of the child before the court.
[63] While the foregoing discussion demonstrates that there are some neutral factors, in the sense that each party’s plan is equally responsive to the child’s best interests, there are other factors that favour the mother’s plan, including no bussing, the mother’s availability at school to respond to any medical or other emergency affecting the child and the mother’s availability to attend at school assemblies and special events during school hours.
[64] On more than one occasion, the father deposed that the mother’s plan for the child to attend at Assumption was for the benefit and convenience of the mother, rather than the child. I do not agree. I find, that for L., it is in her best interests to attend school at Assumption. The fact that this might be more convenient for the mother does not in any way diminish or affect what is in the child’s best interests.
[65] In circumstances where the father is at work and unable to take the child to school in the morning during his parenting time, then the mother should pick up the child from the father’s residence. She did volunteer to pick up the child in the morning. I also find that the mother should be obligated to take the child to the father’s residence after school on those occasions when the father is working and not available to pick up the child from school during his parenting time. However, the order below does permit the parties to make other arrangements on consent.
Order
[66] For reasons set out above I make the following temporary order:
The child shall be registered at, and shall attend, Assumption Catholic Elementary School in Aylmer, Ontario, commencing with the academic year starting in September 2023;
The mother shall register the child at Assumption Catholic Elementary School and shall advise the father of the registration. Both parties shall cooperate in signing any necessary documents required to complete the registration process.
For any day that the child is in school, the mother shall be responsible for either picking up or dropping off the child at the father’s residence in the following circumstances:
a. In the morning, and during the father’s scheduled parenting time, if the father is unable to take the child to school because he is at work, then the mother shall attend at the father’s residence to pick up the child for school;
b. In the afternoon, and during the father’s scheduled parenting time, if the father is unable to pick up the child from school when school ends because the father is at work, then the mother shall return the child to the father’s residence at the completion of the school day; and
c. Subparagraphs a. and b. are subject to the right of the parties to make different arrangements so long as the arrangements are agreed to by both parties and are in writing.
This temporary order is made pursuant to the Divorce Act.
If the parties are unable to settle the issue of costs of the motions, then the mother shall serve and file her written costs submissions within two weeks, the father shall serve and file his responding costs submissions within two weeks thereafter, and the mother shall serve and file her reply, if any, within one week thereafter; all costs submissions shall be typed, double-spaced, with minimum font 12 and are limited to three pages (two pages for a reply); any dockets, bills of costs and relevant offers to settle may be appended to the costs submissions; all authorities referred to in the costs submissions shall be hyperlinked; the costs shall be filed with the court in the usual manner with proof of service.
“Justice Victor Mitrow”
Justice Victor Mitrow
Date: July 26, 2023
[^1]: See the father’s factum and the mother’s statement of law [^2]: Section 27 of the CLRA states: If an action for divorce is commenced under the Divorce Act (Canada), any application under this Part in relation to decision-making responsibility, parenting time or contact with respect to a child that has not been determined is stayed except by leave of the court