COURT FILE NO.: FS-20-51
SUPERIOR COURT OF JUSTICE – ONTARIO
207 Cayley Street, Walkerton ON N0G 2V0
RE:
Melbourne v. Melbourne
BEFORE:
Justice Chown
COUNSEL:
Mikayla Grieg, for the applicant Graham Melbourne
Ram Shankar, for the respondent Laura Melbourne
HEARD:
June 20, 22 and 23, 2023
RELEASED:
August 14, 2023
Reasons for Judgment
[1] Where will Sloane, age 4, will start school in September: Kincardine, where her father lives, or Port Elgin, where her mother lives? Apart from this question, the parties have resolved all other issues in their divorce.
[2] In assessing what is in Sloane’s best interests, there is a very narrow difference between the two proposals, but for the reasons that follow, I prefer Ms. Melbourne’s proposal.
Background
[3] The parties began living together on October 1, 2010. They lived together in Thomasburg initially. They moved to Regina in 2011. They married on October 12, 2013. In January 2017 they moved back to Ontario. They lived with Ms. Melbourne’s parents until October 2017 when they bought the matrimonial home on Wellington Street in Port Elgin. Sloane was born January 18, 2019 and is the only child they had together. They separated on November 15, 2019 when Sloane was about ten months old.
[4] Mr. Melbourne began a relationship with Wendy Lake in May 2020. The parties both continued to live in the matrimonial home until August 28, 2020, at which time Ms. Melbourne left the matrimonial home. Sloane was then about 1½.
[5] Mr. Melbourne moved to Ms. Lake’s residence in Kincardine in July 2021. The parties sold the matrimonial home in August 2021. Mr. Melbourne and Ms. Lake had a child together, Bennett, in August 2021. Sloane was then about 2½.
[6] Ms. Lake has two children (Logan, age 14, and Reilly, age 12) from a prior relationship. Logan attended St. Anthony’s Catholic School in Kincardine but has just graduated from it. Reilly will be returning to St. Anthony’s in September.
[7] Ms. Melbourne is in a relationship with Craig Patey. They do not live together. Mr. Patey has an 11-year-old son, Carter. Carter attends Northport Public School in Port Elgin.
[8] Mr. Melbourne and Ms. Melbourne both work at the Bruce Power site in Tiverton.
[9] In a motion heard in April 2022, McGee J. determined that Sloane would attend Bright Beginnings daycare in Tiverton. She also set a parenting schedule that provided for equal parenting time.
The Specifics of the Parties’ Positions
[10] Mr. Melbourne requests an order that Sloane be permitted to attend St. Anthony’s (JK to grade 8). In the alternative, he would like her to attend Kincardine Tiverton-Township Public School (KTTPS) (JK to grade 2) and then Huron Heights Public School (grades 3 to 6). Under either alternative, he would like Sloane to remain registered in Bright Beginnings for before and after school care.
[11] Ms. Melbourne requests an order that Sloane be permitted to attend Northport (JK to grade 6) and Barrell of Monkeys Daycare in Port Elgin for before and after school care.
Factors
[12] The parties’ arguments and materials raise eleven factors that merit consideration.
1. The Parties’ Expectations Prior to Separation
[13] In some of choice of school cases, decisions that were made by parents prior to separation are a factor that has been considered: Askalan v. Taleb, 2012 ONSC 4746, at para. 32. This is so because such decisions may be considered evidence of what the parents thought was in the child’s best interest at the time: Woodhouse v. Woodhouse (1996), 1996 CanLII 902 (ON CA), 29 O.R. (3d) 417 at 431.
[14] Here, Ms. Melbourne says that the parties “discussed and agreed that we wanted to find a home in Port Elgin because we both wanted to raise a family there.” Mr. Melbourne disagrees and says Port Elgin was actually the third choice of communities they considered, and they also looked at places in Kincardine and Southampton.
[15] I accept that when people buy a house, they usually plan to stay in it for a while. However, the evidence does not rise to the level where the parties had made a considered choice that their not-yet-conceived child would attend Northport. The parties’ expectations prior to separation are not a significant factor here.
2. Before and After School Care Options
Consistency of Daycare
[16] Sloane has been attending Bright Beginnings Daycare. Under Mr. Melbourne’s proposal, starting in September she will attend the before and after school programs of the same organization. He says that some of the friends she has from there will be attending the same program, and this will provide consistency and continuity.
[17] Ms. Melbourne notes that Bright Beginnings’ daycare program is not in the same facility as its before-and-after-school-care program. The two programs are run by the same organization, but in different facilities (although both facilities are in Tiverton). She argues that there will be many different children, so the consistency and continuity will be minimal.
[18] I do not see consistency of the daycare provider as a meaningful factor in this case, because the changes of routine for Sloane are such that she will really have a new beginning in September no matter which proposal I accept.
Daycare Attributes
[19] Each side has provided evidence as to the relative attributes of the two before and after school childcare programs they each prefer. There is inadequate evidence for me to conclude that one will offer a significantly better experience than the other.
[20] Monkey Barrel has longer hours that will allow for later pick up times when needed (6:00 p.m., as opposed to 4:45 p.m. for Bright Beginnings). Although that is offered as a benefit of Ms. Melbourne’s proposal, from a child-centered perspective, it is questionable whether this is a benefit. It will mean Sloane is more likely to be picked up later.
[21] Overall, I see no reason to favour one daycare over the other.
3. Daily Consistency
[22] There would be an element of daily consistency with Mr. Melbourne’s proposal, in that Sloane would have a daily commute of roughly equal duration whether she is with her mother or with her father. Under Ms. Melbourne’s proposal, Sloane’s daily commute would be much longer when she is staying at her father’s and very short when at her mother’s.
[23] When McGee J. decided the motion over which daycare Sloane would attend, one of the factors she emphasized was that Bright Beginnings moderates the driving time to even out all the trips from each parent’s home to the daycare, making for a better overall and consistent routine for Sloane. However, McGee J. specifically indicated that the choice of daycare is not binding on school placement for Sloane. She said the decision she was making was based on the record before her at the motion.
[24] There is a fundamental difference now. Sloane will not be staying at daycare for the day. She will be going to a childcare facility for before- and after-school programming only. Whether it is Bright Beginnings or Monkey Barrell, Sloane will have to travel from it to her school, and from her school back to it. The simplicity that Sloane has enjoyed until now of staying all day at Bright Beginnings cannot continue in September. Under Mr. Melbourne’s proposal, that twice daily bus trip will be about 10 minutes. Under Ms. Melbourne’s proposal, it will be about 4 minutes.
[25] It remains true that under Mr. Melbourne’s proposal Sloane’s day would start with a commute of relatively similar distance whether she is with her mother or with her father (12 minutes from Mr. Melbourne’s house and 19-23 minutes from Ms. Melbourne’s house). Under Ms. Melbourne’s proposal, the commute to the childcare facility will be about 2 minutes from her house and 29 to 30 minutes from Mr. Melbourne’s house. There is something attractive about the simplicity for Sloane of having a similar commute time each day, but it means putting her through more travel time overall. Also, under Mr. Melbourne’s proposal, on days that she is with him, Sloane would travel north to Tiverton and south back to Kincardine at the start of her day, and then again at the end of her day. This is not ideal.
[26] Overall, I do not see consistency in the amount of time that Sloane spends commuting each day as an important factor. Reducing her overall travel time is more important.
4. Mutual Convenience
[27] School buses run between Bright Beginnings and the schools in Kincardine, but not the schools in Port Elgin. The convenience of using Bright Beginnings for before and after school care is enhanced because this bussing is available to the parties.
[28] No school bus service is available from Kincardine to Port Elgin or vice versa.
[29] It is arguably fairer as between the parties to have them take Sloane to somewhere close to the mid-point of their two residences and close to the location where they both work. On the other hand, Ms. Melbourne could argue that fairness demands that Mr. Melbourne’s decision to move to Kincardine should not be a source of inconvenience for her.
[30] Trying to determine what is fair as between the parties is not necessarily straightforward and is the wrong approach. The decision should not be made by selecting the location that balances the convenience of the parents. “The convenience of the parents is not ignored, but is secondary to determining the best interests of the child when selecting the child’s school”: Mokhov v. Ratayeva, 2021 ONSC 5454, at para. 49. “Ultimately, the selection of a school must be determined purely on the basis of which of the two proposals is better for the children” [emphasis in original]: Grey v. Grey, 2013 ONSC 5572, at para. 17. The court should not create an untenable situation for either parent if it can be avoided. That would not be in the best interests of the child.
[31] Here, if I accept Ms. Melbourne’s proposal, this will be much less convenient to Mr. Melbourne but not untenable. According to the agreed facts it will take him 29-30 minutes to deliver Sloane to Monkey Barrell Daycare and according to Google Maps it will take him 18 minutes to drive to his work site from there. Mr. Melbourne will have about 47-48 minutes in the car (and Sloane will have about 29-30 minutes in the car) each way. I acknowledge this is inconvenient and not ideal, but it is not untenable. In this community, population centres are spread out so it can be difficult to avoid driving considerable distances.
[32] I would not place significant weight on this factor.
5. School Attributes
[33] The quality of education and overall benefits that the competing schools can provide is a factor that courts have considered in choice of school cases. However, often it is difficult for a judge to compare the quality of two schools. Unless the school offers a program that is particularly suited to the best interests of the individual child in question, it can be difficult to say one school is better than the other.
[34] Here, each side has provided detailed evidence as to the relative attributes of the proposed schools. There is inadequate evidence for me to conclude that one will offer a significantly better educational experience than the other, with the exception that St. Anthony’s offers French immersion, which is a point in its favour.
6. French Immersion
[35] Sloane’s oldest stepbrother, Logan, began in French immersion at St. Anthony’s but transitioned to English only instruction in grade 4. Reilly is enrolled in French immersion and is doing well in it. Mr. Melbourne would like to enrol Sloane in this program.
[36] In Perron v. Perron, 2012 ONCA 811, Rouleau J.A. held that the trial judge, who granted custody to the mother, should have considered making that order conditional on the child attending a French language school. In the course of his reasons, at para. 46, Rouleau J.A. stated that “Homogeneous instruction in French also promotes an in- depth knowledge of both official languages of Canada, which opens doors to a wider array of university and job opportunities.” The circumstances were considerably different than here. The father’s first language was French and French language instruction would promote and maintain that linguistic heritage. Rouleau J.A. was using the phrase “homogeneous instruction in French” to refer to a French language school as opposed to French immersion designed for English speaking children to receive some or all of their instruction in French. However, the point he was making is a good one. For many children, French immersion is an enriching experience. It is not right for all children, as Logan’s experience demonstrates. Nevertheless, overall, the option of French immersion is factor in favour of St. Anthony’s.
[37] With that said, I am not specifically asked to order that Sloane be enrolled in French immersion. Had I been asked to do so I would have a difficult time with the decision because it is not supported by Ms. Melbourne and neither party has any French heritage. Without Ms. Melbourne’s support it would be less likely to succeed. Mr. Melbourne described the question of whether Sloane would be enrolled in French immersion as a “conversation” he would have to have with Ms. Melbourne if Sloane is enrolled in St. Anthony’s. Ms. Melbourne considers that French immersion is not in Sloane’s best interests because she does not speak French and she would not be able to help Sloane with schoolwork in French. She is not fluent in French, and neither is Mr. Melbourne. Ms. Lake testified that there are many anglophone parents who put their children in French immersion and the school provides some assistance to them. Nevertheless, Ms. Melbourne’s perspective is understandable and likely not an uncommon reaction. There is no likelihood that the parties will agree on this. In these circumstances, St. Anthony’s French immersion program is not a factor that should be given much weight.
7. Religious Instruction
[38] Mr. Melbourne deposed that it “is important to me as Sloane’s father” that she be taught “the fundamental values, attitudes and actions that characterize a person of faith.” Ms. Melbourne says this is not genuine because religion was never important to Mr. Melbourne during their relationship. They never attended mass or any religious event. They never discussed raising Sloane with any religious affiliation or discussed having Sloane baptized. Ms. Melbourne asserts that it is only since he started his relationship with Ms. Lake that Mr. Melbourne raised the Catholic religion. She says that raising religious education is a way for Mr. Melbourne to bolster his position that Sloane should attend St. Anthony’s when the real motivation for his position is his convenience. She also argues that the fact that Mr. Melbourne’s alternative suggestion is a public school in Kincardine discounts Mr. Melbourne’s position that it is important to him that Sloane attends a Catholic school.
[39] Mr. Melbourne attended the separate school system. He was baptized in the United Church. He acknowledged that attending mass did not occur during his relationship with Ms. Melbourne, including on occasions where they gathered for Christmas and Easter with Mr. Melbourne’s extended family. Sloane is not baptized. Mr. Melbourne described only one attendance at mass with Ms. Lake and Sloane in November of 2022, when Bennett was baptized. It was not clear if there have been other attendances. He described listening to a live streaming of mass while driving in the car with the family. Ms. Lake’s evidence suggested they tried this only once. Certainly, attending mass with Ms. Lake and her children is by no means a regular event. In addition, Logan is transitioning out of the Catholic system and into the public system next year, which also may imply that religious instruction is not of fundamental importance for the family.
[40] Ms. Melbourne opposes certain Catholic teachings. The only area she specifically mentioned was the Catholic church’s stance on in vitro fertilization. Sloane was conceived through IVF and Ms. Melbourne testified that she would not want Sloane to learn information that might make her ashamed of how she was born. Ms. Melbourne testified that the Catholic church “does not look fondly” on the form of IVF that was used to conceive Sloane. I do not have other evidence on the Catholic church’s stance on IVF and will not make any assumptions about this; however, what is clear is that Ms. Melbourne does not favour Catholic education for Sloane in part because she does not agree with some of the Catholic church’s positions.
[41] Ms. Melbourne pointed to an application form for the enrolment of non-Catholic students for schools in the Bruce-Grey Catholic District School Board. On this form, there is a “Statement of Expectations” that says:
This Statement of Expectations indicates the deep concern, which, clergy, trustees, teachers and parents of the Bruce-Grey Catholic District School Board hold for the spiritual growth of our children. Therefore, we expect that parents and their children who attend our schools will embrace the following expectations:
• To show respect and reverence toward the Religious Education Programs and practices within our schools.
• To participate in all aspects of the Religious Education and Family Life Programs, liturgies and celebrations during school hours with the exception of the sacraments for those students who are admitted as non-Catholics.
• To assume the responsibility to inform their children as to the reasons why they cannot receive the sacraments if they are non-Catholic.
[42] The form also includes an attestation that says:
• I attest that the primary motivation for enrolling my child/children in a Catholic school is to obtain a Catholic education (not for family convenience or because of friction with school authorities from other school systems).
• I understand that the enrolment of my child/children is subject to annual review by the principal of the school.
• I understand that the application is subject to availability of facilities, space and transportation.
• I understand that I can only enroll my child/children in schools that are in the boundary corresponding with my residence.
• I understand that all students are required to adhere to the school and board's code of conduct.
• I agree to enroll all my children in the school for which I am making application.
• I agree to designate my tax support to the English-Catholic school system, if applicable.
• I understand that all students are required to participate fully in the Religion and Family Life programs as well as the school and board based religious activities and celebrations.
• I understand and agree to all of the above-mentioned acknowledgements and attestations.
[43] Ms. Melbourne testified that she will not sign this attestation. I do not have any evidence as to how the board would respond to this circumstance. Ms. Melbourne also deposed, “I understand that parents are interviewed by the principal and superintendent before Sloane would be accepted to the school and that baptized Catholic children who practice the faith are prioritized.”
[44] Mr. Melbourne testified that 20% of the students at St. Anthony’s are non-Catholics. He also testified that there has never been an annual review for his stepsons, as the form suggests may occur (however, Logan and Reilly are not registered as non-Catholics).
[45] I am not prepared to conclude that the board would refuse to enrol Sloane if Mr. Melbourne signed the enrolment form but Ms. Melbourne did not. As she relies on this issue as a factor weighing against St. Anthony’s, the onus is on Ms. Melbourne to show that her unwillingness to sign the attestation is a barrier to Sloane’s enrolment, and she has not met this onus.
[46] I do, however, see potential for problems if Sloane attends the Catholic system with Ms. Melbourne unprepared to adopt the expectations set out in the board’s Statement of Expectations and while Ms. Melbourne is expressing views in opposition to Catholic teachings. In the right circumstances, and perhaps for an older child, it could be an enriching experience to be exposed to different points of view, but in this case, it will likely be a stressor for Sloane that is best avoided. In saying this, I do not at all intend it as a slight towards Ms. Melbourne. It is not the court’s role to weigh in on a subject such as religion, or to criticize either party for the views that they hold.
[47] It might be different if the Catholic faith had been part of the parties’ lives or if it was a greater part of Mr. Melbourne’s life with his new family, but overall, this factor weighs against St. Anthony’s for Sloane.
8. Shared Family Experiences
[48] Mr. Melbourne says that Sloane will miss out on the shared experience of her older stepbrothers and her younger brother if she does not attend St. Anthony’s like them. I agree with Mr. Melbourne on this point. It is good for siblings to be able to share experiences that arise from attending the same school (for example, having the same teacher). This factor supports St. Anthony’s as the choice of school but does not carry much weight.
9. Available Community Support (Family and Friends)
[49] There is plenty of support from family and friends in both communities in the event of an emergency or need for Sloane to be picked up from school. This factor is neutral.
10. Next Transition
[50] St. Anthony’s goes from grade JK to grade 8 and then is a feeder school for Sacred Heart High School. Sacred Heart is located in Walkerton. To avoid the significant bus ride to Walkerton, some St. Anthony’s students switch from the Catholic system to the public system after grade 8. As I have noted above, Logan has chosen to make this switch and will be attending the public high school in Kincardine in September.
[51] Northport goes from JK to grade 6 and is a feeder school for Saugeen District Senior School (SDSS) for grades 7 to 12. SDSS is in Port Elgin and is within walking distance (1.6 km according to Google Maps) from Ms. Melbourne’s residence. It is 40 km or approximately 33 minutes from Mr. Melbourne’s residence in Kincardine.
[52] Much could change between now and when Sloane must transition schools. However, this factor favours Ms. Melbourne’s proposal, although it does not carry much weight.
11. Commute Time
[53] Ms. Melbourne’s proposal will offer less time in transit for Sloane. By this I mean less time in cars and buses on an overall basis. She will be in transit for a much longer period of time when staying with Ms. Melbourne because she will have to go all the way from Kincardine to Port Elgin on those days. However, she will have little time in transit when she is with Ms. Melbourne. I show my math in the following chart.
Applicant’s Plan
Respondent’s Plan
Weeks Sloane is with applicant
Applicant’s residence to Bright Beginnings
12 min
Applicant’s residence to Monkey Barrel
29-30 min
Bright Beginnings to St Anthony’s
9 min
Monkey Barrel to Northport
4 min
St Anthony’s to Bright Beginnings
9 min
Northport to Monkey Barrel
4 min
Bright Beginnings to Applicant’s residence
12 min
Monkey Barrel to applicant’s residence
29-30 min
Daily commuting time
42 min
67 min
Weekly commuting time
210 min
335 min
Weeks Sloane is with respondent
Respondent’s residence to Bright Beginnings
19-23 min
Respondent’s residence to Monkey Barrell
2 min
Bright Beginnings to St Anthony’s
9 min
Monkey Barrel to Northport
4 min
St Anthony’s to Bright Beginnings
9 min
Northport to Monkey Barrel
4 min
Bright Beginnings to respondent’s residence
19-23 min
Monkey Barrel to respondent’s residence
2 min
Daily commuting time
60 min
12 min
Weekly commuting time
300 min
60 min
Totals
Total for Two Week Cycle
510 min
395 min
8 hrs 30 min
6 hrs 35 min
[54] This chart likely understates the difference. As Sloane gets older, she will be able to walk the 850 m from Ms. Melbourne’s house to Northport and avoid bussing or travelling in a car.
[55] Less time in the car for Sloane is a significant advantage. In saying this, I recognize that the time she would spend in transit under Mr. Melbourne’s proposal is not unreasonable in this community, where many children are bussed considerable distances for school. But in Sloane’s case, Mr. Melbourne’s proposal calls for more time in the car or on a bus, and this is a significant relative disadvantage compared to Ms. Melbourne’s proposal.
[56] This result is a function of the options the parties have presented. I suspect that Mr. Melbourne could have identified a before and after school program at or near one of the two schools in Kincardine that he is promoting. That would likely remove the difference in Sloane’s transit time under the two proposals, because it would largely eliminate the twice daily “north and south” travel to Tiverton that his proposal calls for on days when Sloane is with him. Likely, Mr. Melbourne would be able to provide a proposal that eliminates the difference in Sloane’s transit time but simply reverses who is inconvenienced.
[57] However, neither St. Anthony’s nor KTTPS is within an easy walking distance of Mr. Melbourne’s house. The walking distances are 2.9 km and 4.8 km respectively according to Google Earth. In contrast, the 850 m walking distance from Ms. Melbourne’s house to Northport will be readily walkable when Sloane is a little older.
[58] On behalf of Mr. Melbourne, I was directed to the decision of Audet J. in Thomas v. Osika, 2018 ONSC 2712. This decision is frequently cited in choice of school cases because of its excellent and concise recitation of factors to consider. Audet J. said, at para. 45, that having the ability to walk to school was not a factor that bore much weight on her decision. However, she also noted that these cases are very fact driven. She placed emphasis on the pre-separation understanding the parties had about what school the child would attend, and the fact that the father had stayed within the catchment area for that school. The driving distances and times for either school were very short for both parents, and they both worked from home, so in this regard the facts were quite different.
[59] In this case the choice rests on narrow differences in the advantages and disadvantages of each proposal, and the fact that Northport is within walking distance of Ms. Melbourne’s home therefore carries relatively more weight.
Result
[60] I am mindful of the importance of my decision to the parties as it will result in Sloane having more connections in Port Elgin, where her mother lives, or in Kincardine, where her father lives. I am also aware that my reasons offer narrow justification for selecting Northport over St. Anthony’s or KTTPS. But a decision must be made and there is little to separate the two proposals.
[61] Weighing the evidence and the involved factors for the decision, Ms. Melbourne’s proposal is preferable for Sloane.
[62] I therefore order that Ms. Melbourne may enrol Sloane in Northport Elementary School in Port Elgin and at Monkey Barrell Daycare.
[63] If the parties cannot resolve the issue of costs, I will receive written submissions consisting of at most three double spaced pages, plus offers to settle, bills of costs, and dockets. Respondent by August 25, 2023. Applicant by September 1, 2023. No reply.
Chown J.