Superior Court of Justice - Ontario
Barrie Court File No.: FC-23-938 Date: 2023-12-11
Re: Jessica McCutcheon, Applicant And: Thomas McCutcheon, Respondent
Before: The Honourable Madam Justice S.E. Healey
Counsel: Rachel Zweig, Agent for the Applicant on the motion Michael Chan, Counsel for the Respondent
Heard: November 24, 2023
Ruling on Motion
Nature of the Motion
[1] The parties have two sons: Quinten, born September 25, 2008 (age 15) and Owen, born December 9, 2011 (age 12). The parties have been separated since 2014 and are now divorced.
[2] Quinten is in grade 10 at Orillia Secondary School (“OSS”), and Owen is in grade 7 at Marchmont Public School (“Marchmont”), both located in Orillia.
[3] The applicant mother moves for an order:
- That Quinten shall immediately commence attending high school at Barrie North Collegiate Institute (“Barrie North”) for the remainder of his schooling, subject to a material change;
- That Owen shall immediately commence attending elementary school at St. Marguerite D’Youville Catholic Elementary School (“St. Marguerite’s”) and thereafter, a high school in Barrie for the remainder of his schooling, subject to a material change.
[4] The respondent father opposes this relief. His position is that the boys should continue to attend their current schools.
[5] The father’s counsel raised a preliminary objection to the nature of the relief sought on this motion, in that what the mother is seeking is a final order. I agree. Any order that provides for final school placement throughout the entirety of the children’s secondary education would have to be made either on a motion for summary judgment or at trial. The only order that can be made is a temporary one. However, I am mindful that a temporary order that changes school placement has enormous effect and should not be made lightly. To do so on an interim basis, and upset the status quo, should not be done unless there are exigent circumstances that favour such a move.
[6] The only issue before me is whether the boys should be relocated to the new schools proposed by the applicant. The parties are not attempting to change the parenting arrangements.
[7] The parties have a separation agreement dated October 9, 2018. It is silent with respect to where the children will attend school.
[8] The mother applies for this relief for the following reasons: She takes the position that she is required to do more of the driving during the school year than the father because of the roles that the parties have always filled as parents due to the father’s career; that she has moved to Minesing for financial reasons and is residing in an affordable home; that she has secured subsidized daycare for her youngest child, aged 3, in Barrie, and that the terms of the subsidy require that she work for the same number of hours per day for which daycare is requested (six hours); the gas costs for the commute are not affordable to her; all three of her children are spending many hours in a car and losing sleep due to the boys’ enrolment in the schools in Orillia; she cannot work six hours per day and keep up with the driving schedule; the schools in Barrie are better than those in Orillia; and for these and other socio-economic reasons it is in Quinten and Owen’s best interests to be enrolled in schools in Barrie.
[9] The father opposes the relief sought because: the boys have strongly voiced their opinions that they do not wish to change schools; they are doing well in their current placements; they have grown up near and attended schools in Orillia since 2013; the Barrie schools do not offer any further benefit than their current schools; the proposed school for Owen is a Catholic school, the boys have no connection to Catholicism and switching to a public school upon entering high school will remove him from his classmates; the schools are not in either parents’ catchment area; and the applicant’s need to accommodate driving another child to daycare will end in September 2024.
Procedural History
[10] For reasons to be discussed, the mother issued an application and brought a request for an urgent motion on September 7, 2023. The father was served, and filed an affidavit setting out why he believed that the matter was not urgent. On September 13, 2023, Boswell J. found there to be sufficient urgency to grant a temporary order allowing the children to be registered in schools in Barrie.
[11] The father, having understood that the only issue that was going to be decided was whether there was sufficient urgency to set an urgent motion date, had filed limited material addressing only his view as to the lack of need for an urgent motion. On receiving the endorsement of Boswell J., he immediately brought a motion to set aside that order.
[12] On September 15, 2023, Boswell J. stayed his order and agreed to hold a one-hour hearing on the issue of school placement, for which both parties filed expansive affidavit material.
[13] That motion was heard on September 21, 2023, the conclusion of which was that Boswell J. ordered that the stay would continue, and that the parties were to proceed to an urgent case conference to attempt to resolve the issue.
[14] That case conference was held on October 6, 2023. The parties were unable to resolve this dispute. Leave was granted for the mother to bring a long motion.
[15] As I advised counsel at the outset of the hearing, with the order of Boswell J. being stayed, I consider this motion to be a hearing de novo. I have not been asked by the parties to consider the evidence filed on the earlier motions, nor have I done so. Both parties have filed lengthy affidavits and factums specifically for this long motion, which is the record upon which this decision is being made.
The Law
[16] The applicable test to determine which schools Quinten and Owen should attend is best interests. An assessment of their best interests must consider all the relevant circumstances as to their needs and the ability of each parent to meet those needs, guided by the factors set out in s. 24(2) of the Children’s Law Reform Act.
[17] It is not the interests or the rights of the parents that dictate the outcome: Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27, at para. 49. What may be most convenient for the parents is not, itself, a determining factor.
[18] A change in schools requires convincing evidence that such a change is in their best interests: Perron v. Perron, 2012 ONCA 811, at para. 38. This reflects the law that governs a court any time a parent is asking to change a child’s circumstances on a temporary basis. The party who wishes to disturb a status quo must meet a heavy onus of showing cogent and compelling evidence that the present arrangement is not in the child’s bests interests: Miranda v. Miranda, 2013 ONSC 4704, at para. 26.
[19] The mother has provided case law supporting the principle that courts should show deference to the decisions of the custodial parent, who is presumed to have the best interests of the children at the forefront: see Perron, at para. 41; Gordon, at para. 48; Adams v. Adams, 2016 ONCJ 431, at para. 70.
[20] In this case, the parties are joint decision makers. However, the Court of Appeal has held that the legal status of joint and shared custody does not foreclose the possibility that one parent can be, for the purposes of a mobility motion, the primary caregiver: Porter v. Bryan, 2017 ONCA 677, at para. 16 (see also Bourke v. Davis, 2020 ONSC 7667, paras. 81-83 for a discussion of this principle in the context of mobility cases). In Porter the court decided that although the parties had joint and shared custody, the evidence supported the conclusion the mother was nevertheless the primary caregiver. I see no reason why that same analysis could not apply to a motion to change a child’s school.
[21] In Askalan v. Taleb, 2012 ONSC 4746, a case in which one parent wanted to change a child’s school, the court referred to a list of helpful factors that may be taken into consideration in assessing any impact on the child’s stability. These could include examining how many years the child has attended the current school, whether there is any prospect of one of the parties moving, where the child was born and raised, whether a move will mean new childcare providers or other unsettling features, prior decisions made by the parties with respect to schooling, and any problems with the present school.
[22] Proximity to a parent’s home is not the deciding factor on these motions. As stated by Douglas J. in Hamid v. Hamid, 2016 ONSC 5013, at para 13:
Of paramount consideration is the school that will give the child the best competitive advantage, or provide the greatest confidence and motivation, or that will facilitate the child’s relationship with others, including his parents and classmates, or best promote his all-around development (see Schloegel v. McCroary, [2012] BCSC 1606).
[23] The weight to be given to the views and preferences of children in school-change cases is the same that would apply in situations of a change in custody, parenting or living arrangements. The child’s wishes are not to be confused with their best interests, but where a child is a teenager, an order should reasonably reflect their wishes. The weight to be attached to any expression of preference depends on the facts and is a function of age, intelligence, apparent maturity, and the ability of the child to articulate their view: Stefureak v. Chambers, 2004 CarswellOnt 4244 (ON SC), at para. 64.
THE EVDIENCE
Joint Decision Making
[24] Pursuant to the 2018 separation agreement, the parties share joint custody.
Voice of the Child Report
[25] Quinten and Owen were interviewed by an Office of the Childrens’ Lawyer panel lawyer, Kenna Bromley, for the purpose of preparing a Voice of the Child Report. They were interviewed individually on October 23 and October 31, 2023. Ms. Bromley’s report indicates that both spoke frankly with her, and were polite, intelligent and friendly.
[26] Quinten was adamant that he did not want to change schools under any circumstances, remaining consistent on both occasions that he wants to remain at OSS. He stated that it was “home” and that he has a good group of friends there.
[27] OSS is close to his Orillia home. He stated to Ms. Bromley that he was “okay” with waking up very early to be driven to school from his Minesing home.
[28] Owen told Ms. Bromley during both interviews that he wants to remain at his current school. He indicated that he has friends there and likes his teacher very much. He explained that he felt settled at Marchmont. Owen also said that he was “okay” with waking up very early on the mornings that he is driven from Minesing. When at his father’s, he can walk from there to school.
[29] Both boys indicated that they did not feel pressure to say one thing or the other; both were concerned that they be not asked to “pick sides”. Quinten was concerned with hurting his mother. Quinten and his mother have had a conversation in the past about moving schools in which, according to the report, his perception was that she told him that she could not afford food if they were unable to change schools.
[30] There is no evidence of “coaching” from the father to influence the stated preferences. The sharing by the mother with Quinten of her financial concerns does not seem to have influenced him to alter his views. There is no indication in the Voice of the Child Report that the children were expressing their preference for reasons other than what one would expect from children this age – they resist altering what is familiar and comfortable in their daily routines and social contacts.
[31] The preferences of each child weighs strongly in favour of the status quo remaining given their ages and clearly articulated reasons.
Current School and Stability
[32] The parties had been living in Severn at the time of their separation, having moved there in 2013. The father has kept his home in Severn since that time.
[33] Accordingly, the boys have lived in Orillia since 2013, and this is “home-base” when they are in their father’s care. They have been enrolled in schools in Orillia since that time.
[34] Quinten has attended OSS for both grade 9 and his current year. It is on a semester system with exams held in January. Quinten is described as academically strong and doing well in his present educational environment. His grade 9 second semester report card bears this out.
[35] Owen attended a Montessori school in Orillia in the past but has been at Marchmont for three years now and is in grade 7. Owen is described by his mother as having academic struggles, although there is no evidence that he requires accommodation. His report card from grade 6 shows him achieving a grade of “satisfactory” in all areas except for collaboration, in which he obtained “good”. No major concerns are raised in that final report and he was advanced to grade 7.
[36] Both parties have presented some evidence about how the current schools compare to the proposed new ones, none of which is compelling. Although the applicant’s evidence states that Barrie North has advanced programming, which demonstrates the school’s quality, there is no evidence that Quinten has been recommended for such programming. Academically, there does not seem to be any need for the change for Quinten, and the evidence shows that he is doing well at OSS.
[37] The same is true for Owen. The mother has not presented convincing evidence that it is in Owen’s best interests to change to St. Marguerite’s because it offers any educational advantages of benefit to Owen.
[38] There is no compelling evidence that the boys are currently involved in extracurricular activities or sports that are associated with their current schools or which would be impacted by a commute.
[39] The mother submits that by attending school in Barrie, Quinten will have an opportunity to obtain a part time job that aligns with his interests in technology and music. The father submits that there are equal job opportunities for youths in Orillia.
[40] Last year, Quinten was employed at Horseshoe Valley Resort, which is located about half-way between Barrie and Orillia.
[41] There is no compelling evidence that either location is better positioned to offer part time jobs or avocational pursuits that would enrich Quinten and eventually Owen.
[42] Quinten has a girlfriend who attends a different high school in Orillia and hopes to switch to OSS next semester. This is a relationship of brief duration at this point and cannot be a factor in my determination. In terms of friends generally, the mother indicates that she will continue to foster their relationships with existing friends, and that they will be able to continue to see those friends when at their father’s home.
[43] The father notes that neither of the proposed schools are in either parent’s catchment area, and there is no evidence that the area superintendent will support such a change. The applicant’s response to this is that she had begun this process before the litigation started by first enrolling the boys in the school in her catchment area, Elmvale, which is a collective grade 7-12 institution. Her evidence is that thereafter she has been assured that obtaining permission to transfer to St. Marguerite’s and Barrie North will not be a problem. There is no documentary evidence filed to support, or refute, this information and so I treat it as neutral.
[44] The stability and performance of the boys at their current schools is a significant factor weighing against the mother’s proposal.
Disruptions to Parenting Arrangements
[45] As indicated, the change in schools does not impact the parenting arrangements.
[46] There is, however, the specter that if forced to change schools, the boys may rebel and choose to spend more time at their father’s. For Quinten in particular, given his age, this is a consideration. Forcing him to change schools could place him in a situation in which he “votes with his feet”. This could be significantly disruptive to the amount of time he is in the care of his mother, and their relationship, as well as his relationship with his siblings.
[47] Assigning weight to this is difficult. Quinten has expressed that he would live at his father’s house if forced to go to a new school. Whether he would act on this, or whether it was just something voiced in frustration, is unknown. Still, while speculative, it weighs in favour of the status quo.
Applicant’s Move to Minesing and Alleged Agreement re Schooling
[48] The father has re-partnered with a woman named Shannon, who now lives with him along with her two biological sons, Lucas and Dylan. This relationship seems to be one of several years’ duration.
[49] Before Shannon and her children came to live with the father in Severn, the evidence shows that there was consideration being given by the father to moving to her home in Barrie. Instead, the decision was made to rent out that property in Barrie.
[50] Up until June 2022, the mother was residing in Orillia. She was involved in another relationship that produced a daughter, Kia, who is now 3 years old. She explained that in June 2022, Kia’s biological father suddenly evicted her from that home, which I infer was in his name but in which she and the children had continued to live following the 2019 separation in that relationship. Kia’s father continues to live in Orillia.
[51] The applicant’s current partner is Grant, with whom she has been in a relationship since 2020. He also has two children, Kingston and Trinity, both of whom attend St. Marguerite’s. When she needed to find new housing in June 2022, she and Grant decide to begin to cohabit.
[52] They decided to live within their budget in a trailer park due to high rental prices, and searched for something on the outskirts of Barrie and Orillia to be close to both the father and Grant’s ex-wife. Grant’s ex-wife lives in Barrie. They ultimately found a vacancy at a trailer park in Minesing.
[53] There is no evidence that the father objected to that move. There are provisions in the separation agreement that address relocation of the children; neither party addressed those provisions in argument. Accordingly, the applicant’s evidence that the father was well-informed of the decision to move to Minesing, and that his consent was sought and obtained, is uncontested.
[54] The father maintains that it was a condition of him agreeing to the move that the boys would continue to attend their present school.
[55] At some point in this process, there was a text exchange between the parties, in which the father specifically asked the mother about the plans that she and Grant had made for moving. Her answer included the information that “we are hoping to find something just outskirts of Orillia. I don’t want to switch the boys’ school, to be honest, but I also need them to be able to bus because I’m going to have to start working soon and can’t do those bus runs x 2 schools”.
[56] There is no evidence that the father replied to this text message to object to the spectre of the boys changing schools.
[57] The applicant’s evidence is that at no time during conversations with the father about the move did she ever promise to facilitate the drive to the boys’ schools in Orillia indefinitely.
[58] When the 2022 school year began in September, and throughout that year, the mother drove the boys to Orillia for school during the time that they were with her. She explained that the trailer park only allowed residence until October 31, and at the outset of the school year she had no idea where she would locate her next accommodation. An unexpected opportunity then arose to rent a four-bedroom home located on the trailer park property for $1,000 per month, a deal that she and Grant seized. They continue to live at that location in Minesing.
[59] In a text message exchange in which he was informed of the rental house price, the father remarked on it being a good deal. He did not raise the issue of where the children would attend school.
[60] The father has not produced evidence of his assertion that he consented to the move away from Orillia on the stipulation that the boys continue to attend the same school. I find that the evidence does not support that such an agreement was ever reached.
[61] On the record before me, there is no agreement between the parties that would weigh against the mother’s proposal.
Schools Attended by Step-siblings
[62] Both of Grant’s daughters attend St. Marguerite’s. Kingston is 7 and Trinity is 11, the same age as Owen.
[63] One of the benefits of changing Owen’s school, from the mother’s perspective, is that he would then be attending the same school as Grant’s daughters. Trinity excels academically. The mother’s evidence is that Trinity and Owen are close. It is thought that Trinity would help to encourage Owen in his studies and socially.
[64] Shannon’s son Dylan attends Marchmont. A text message sent by the father dated August 27, 2023 suggests that he must be the same age as Owen, as the father indicated that “Owen and Dylan are excited to hopefully be in the same class”. The father’s evidence is that they enjoy a close bond.
[65] Shannon’s son Lucas attends Barrie North Collegiate, where he is in an advanced program. Although a daily trip between Severn and Barrie is already being made by this family to get Lucas to school, the father explains that Lucas is expected to get his driver’s licence and soon will be driving himself.
[66] As discussed below, Owen and Quinten’s sister Kia attends St. Margeurite’s for daycare.
[67] This configuration suggests that there is no benefit to any school over the other in terms of the family dynamics. Even Kia’s attendance at St. Marguerite’s does not tip the balance, as Owen would have only one year at that school (grade 8) with his sister when she begins to attend kindergarten next year.
[68] This factor is neutral.
Daycare for Kia
[69] The mother’s goal was to return to the workforce, working alongside Grant in his business, as soon as daycare could be secured for Kia. She was waitlisted for daycare in Minesing and Barrie.
[70] After a year and a half wait, Kia was accepted into pre-school daycare at St. Marguerite’s. The mother was notified on August 25, 2023.
[71] The mother also qualified for 100% subsidy until September 2024, which is when Kia will begin kindergarten. To qualify for full time subsidy, the mother must work for a minimum of six hours per day. Without the subsidy, the monthly cost of the daycare is $608.
[72] The mother informed the father right away once she learned of the daycare arrangement, and indicated her intention to move their sons to new schools. It was then that their former productive parenting processes broke down, leading the mother to file her urgent motion in order to attempt to start the boys in the new schools at the beginning of the 2023/24 academic year.
[73] The mother’s subsidy has now been placed on a “Break in Service” for a maximum of three months. During this break she has does not receive any of the subsidy. She is paying $608 per month in daycare to preserve the spot.
[74] Her evidence is that the father helped to drive the boys back to her house after school for one week, which allowed her to work longer hours. However, as of October 31 the father indicated that he could not drive them to her home after school, for reasons that he did not explain. This limited her to working less than full time hours and resulted in the temporary loss of subsidy.
[75] For reasons to be explained, the mother’s financial circumstances dictate that she must work, and to do so, she needs to have Kia enrolled in daycare.
Time Spent at Each Parent’s Home
[76] The most contentious evidentiary dispute between the parties is their parenting schedule. The applicant’s evidence is that she has always been and remains the parent most responsible for the children due to accommodating the father’s work schedule, and that they have always spent more than 60% of their time in her care. The father maintains that since separation he has always had the children over 40% of the time, and that child support was based on a shared parenting arrangement.
[77] From the boys’ perspective, they told Ms. Bromley that they reside with both parents, Quinten saying “pretty much” equally and Owen saying equally for the most part. However, both also indicated that they spend “a bit more” time at their mother’s. Quinten attributed that to his father’s work as a helicopter pilot.
[78] The father has worked as a helicopter pilot throughout the marriage. The family has moved several times – to Newfoundland and British Columbia and back to Ontario – to accommodate his jobs. The mother’s evidence is that he has changed helicopter companies seven times in ten years as each offered a poor work/life balance.
[79] It is her evidence that it is only since obtaining his most recent job at Mustang Helicopters in 2019 that the father has had anything close to a schedule. Before then, he had no schedule. For 2023, he sent her a photo of a post-it note showing the days that he is scheduled to be piloting a helicopter, but this does not include days flying out of or returning to Ontario, or training days, or last minute changes in schedule. It is her evidence that this creates a chaotic and inconsistent schedule that she has always accommodated, and spills over to his personal time, such as vacations that he does not discuss with her in advance.
[80] The father denies this narrative, and provides a letter from a former employer that indicates that he was scheduled to work three weeks at a time, with three weeks off.
[81] He also provides charts in his affidavit for 2021 to 2023, indicating when the children were in one or the other parent’s care. Although Quinten told Mrs. Bromley that he resides with his parents on a “two week rotation”, the charts indicate that this cannot be true. What it does show is that there is almost no pattern, and that overall, the mother spends lengthier periods of time at a stretch with the children. This was particularly so in 2021 and 2022.
[82] The mother states that this chart is inaccurate and misleading, and that she has found contrary proof of at least 40 days in which the children were in her care.
[83] The mother’s evidence is that 2023 has been a unique year in that the father has been in Ontario for more time than in any previous years. Her evidence is that it is an irregularity for the father to have time off in the fall, as that usually occurs in December and January. Usually he works during September through November.
[84] She has stated that the father has often messaged her over the years to let her know that he is leaving early, or delayed. An example of their dynamic is found at Exhibits E and F to the applicant’s October 26, 2023 affidavit. For example, Exhibit E is a text message in which the mother asks him what day he is to leave, his response is “next Wednesday”, “don’t know what time but I am gonna make it as late as possible”. Her response was “you leave next Wednesday?!”, and he replied “I work Thurs. to Thurs. Travel on my off time” (emphasis added). The evidence satisfies me that although the father may generally work on a two week on, two week off rotation, his schedule is subject to change, including due to changes in flights, and remains largely outside of his control.
[85] As the mother states in her evidence, “this is an arrangement that has worked very well for the father, as he is able to accommodate his career on demand, without considering where the children will go, having to make any arrangements, or pay for daycare.”
[86] The father states that he has not been able to take a job locally because it would pay less than out of province work. As his evidence shows, in 2022 he turned down a job as a police pilot working out of Buttonville Airport because it involved shift work, paid $99,792, which was less than he was then earning, and was “too far for Mr. McCutcheon’s obligations”.
[87] At the time of their separation the mother had been out of the labour force for seven years so that she could be at home full time to look after Quinten and Owen.
[88] At paragraph 3.1, the separation agreement provides that “The children will reside primarily with Jessica and with Thomas as decided between the parties.”
[89] The parties have differing views on what that sentence was intended to mean. The mother suggests that it was intended to be read as follows: [the children shall reside primarily with Jessica][and with Thomas as decided between the parties]. The father suggests that it was intended to be read as follows: [the children shall reside primarily with Jessica and Thomas][as decided between the parties].
[90] The mother’s interpretation is the most reasonable. In the father’s construction, the word “primarily” loses all meaning and its inclusion is unexplained. As the agreement does not contemplate the children living with anyone other than their parents, residing “primarily with Jessica and Thomas” is unnecessary and makes no sense. If, as the father suggests, the agreement was that the children would reside an equal amount of time with each parent as decided between the parties, the agreement could have explicitly said so.
[91] I find that the sentence was an acknowledgement that the children would be spending more time with the mother than the father – that her home would be the primary one. I accept her evidence that the phrase “with Thomas as decided between the parties” was a nod to his unpredictable work schedule.
[92] Accordingly, I prefer the mother’s evidence over that of the father, for the purposes of this motion, that this clause in the separation agreement was an acknowledgment that the mother had undertaken the primary parenting role before the separation because of the father’s work. This conclusion also informs what occurred in subsequent years – more time has been spent at the applicant’s house, and she has been the parent that has most had to accommodate the needs of the other to ensure that the boys’ needs are met. She has made herself available to do so at all times.
[93] Argument was made about the significance of the child support amount agreed to, as set out in the separation agreement. The father argues that it was a set off amount, offering this as proof that the parties were equal-time caregivers. The mother disputes this, saying that she acceded to the terms in the separation agreement for other reasons. Given my interpretation of the parenting provisions of the agreement, the father’s characterization is less probable.
[94] The mother does acknowledge that when the father is home he is a “hands-on” parent who is very involved with their sons. He is also good about ensuring that they get to school on time.
[95] When the father is at home, as he has been for an extended period in October and November this year, the parties share parenting on a rotating weekly basis. If this were to keep up, the mother would be responsible for 10 days per month. Her evidence is that since the father is out of the province more than he is at home, she is responsible for driving the boys, on her evidence, an average of 18 days per month.
[96] It is not possible on the conflicting affidavit evidence to decide exactly how much time the boys have spent and will spend in each parent’s care in 2023 and throughout the 2024 school year. But I am satisfied on the evidence that: 1) it is an arrangement that may work out to be in the realm of 40 to 50% of time with the father in 2023, but was not this much in previous years and may not be this much in 2024; 2) the mother has historically been the primary parent in terms of day-to-day decision making and meeting the children’s needs; 3) the nature of the father’s work schedule leaves him dependent on the mother to be flexible with respect to her availability to get the boys to school; 4) greater responsibility has rested and will rest on the mother to get the boys to school.
[97] These findings weigh in favour of showing some deference to the mother as the primary caregiving parent who has been performing that function consistently with the children's best interests.
[98] The mother’s affidavit explains the careful consideration that she has given to the potential schools in Barrie. While I have not placed much weight on some of her considerations, I do accept that she has given much thought to the issue of which schools are best suited to each child. If it were a matter of her convenience alone, she would ask that they be moved to the school closest to her residence, which is not the case.
Commute Time
[99] On days that the mother must drive all three children, she makes two round trips per day, totaling 206 km. All three must be woken by 6:15, and they leave the house at 7:00. Quinten starts school at 8:00, so he is dropped off by 7:45. Owen is dropped off at his father’s house and walks from there. He does not start school at Marchmont until 9:20.
[100] After returning to Barrie, the mother drops off Kia at daycare between 8:30 and 8:45. She states that she works from 10:00, but must stop by 2:45, a duration of 4 hours and 45 minutes. She must stop by 2:45 to pick up Kia by 3:20 and the boys at 3:50 in Orillia. She then reverses the morning’s routine, and they all arrive home at 4:40. Accounting for stops, the drive is 1.5 hours, performed twice daily.
[101] Kia has to be in the car for both morning and afternoon trips. This puts the mother and Kia in the car for three hours daily, more with bad weather or traffic.
[102] However, Kia’s father has parenting time every Tuesday and Thursday from 10 to 4, plus some weekend time. The transportation arrangements are not explained in the applicant’s affidavit, nor is it explained why this does not impact on the daycare subsidy. Her evidence is that at some point in the future, which she does not identify, this schedule will graduate to every Wednesday from 10 to 4, and every other weekend.
[103] Grant operates his own business. His work hours are often in the morning, according to the applicant’s evidence, due to the time difference working with international partners. He also travels for the business. His own children are bussed to St. Marguerite’s when they are with him, but Kia cannot do so because she is not school-aged, and in daycare. The mother’s evidence is that Grant’s ability to help her out by driving Kia is limited.
[104] The mother explains that she cannot start work before 10:00 when she takes the boys to Orillia because she does not have time to get ready for work before leaving for Orillia.
[105] If the children were to change schools, Owen would take the bus into Barrie and Quinten would be driven. Quinten would be woken at 6:45 and get an additional 30 minutes of sleep each day. Owen would be woken by 7:30 get an additional 1.5 hours of sleep.
[106] The time in the car is obviously greatly reduced for Quinten, as the trip from Minesing to Barrie is 20-25 minutes. Quinten would again be dropped off at 7:45, and Kia could be placed in daycare by 8:00. The mother would be free to work from 8:30 to 3:00. Pick up time in Barrie would be at 3:20 and they would arrive home at 3:45.
[107] The Barrie schools are almost equidistant between each parent’s house, ie: a 20- to 25-minute drive for the mother, a 30- to 35-minute drive for the father. However, they would have to get up earlier than they are now when at their father’s in order to make the trip from Orillia to Barrie.
[108] The father has offered that the boys could stay at his home until later in the day after school, when the mother could pick them up after working a longer day. While this might accomplish that goal, it does not solve the long commutes that will continue for the next six years if the parties remain living in these locations. It also does not solve the very long days faced by this family if the boys remain in Orillia until closer to the dinner hour.
[109] This arrangement would still have the mother leaving Kia at daycare between 8:30 and 8:45, and working from 10:00 to 4:30 with a half hour for lunch. By the time that she picked up Kia and drove to Orillia to retrieve the boys, it would be at least 5:30. They would be getting back home well after 6:00, with dinner and homework still to be undertaken.
[110] The father suggests that the mother’s circumstances are temporary, and will resolve when Kia starts kindergarten at St. Marguerite’s next September. The evidence suggests that Kia will then be able to take the bus. But on days when Grant cannot supervise, the mother cannot leave a young child unsupervised to take the bus while she drives the boys to Orillia. Nor are Grant’s children always there to accompany her to the bus. Taking Kia with her for the commute would result in Kia being dropped off only after the mother returns from Orillia, between 8:30 and 8:45. Again, she cannot begin work until later in the morning. In order to work a full day, Kia will have to attend aftercare. The mother’s evidence is that this will cost approximately $20 per day, which is the same as her proposed hourly income. Working a long enough day to make this worth her while will only exacerbate the late hour at which this family will finally arrive home in Minesing after the mother does the return trip to Orillia.
[111] From the mother’s perspective, more time spent at home after school will benefit the boys in part by increasing her own availability after school to supervise and assist with homework as necessary.
[112] Should situations arise during the school day for either child, such as having to be picked up for illness, she will be closer.
[113] Despite the remarks made to Ms. Bromley, the applicant’s experience with waking up Owen in the morning has been fraught with difficulties. Her evidence is that even since his comments to Ms. Bromley, he has continued to express how much he dislikes waking up so early, and they are usually late leaving the house because of his trouble waking up at 6:15.
[114] One of the father’s suggestions for resolving this problem is for the boys to live at his home during the week, every week, with an increased time to the mother on weekends and during the summer. By implication, they would be in the care of the father’s partner when he is away for work.
[115] The applicant, quite understandably, does not find it to be in their best interests to be placed in the primary care of a step-parent when she herself is available to continue the care that she has always given.
[116] Given my finding that more time is spent at the mother’s house than the father’s during the month, the reduced daily time for the boys spent commuting, and increased sleeping time, weighs in favour of the mother’s proposal.
Mother’s Financial Circumstances
[117] The applicant’s evidence is that she is faced with imminent financial hardship with monthly bill defaults and a bank balance into the negative each month. She was relieved to learn that Kia had been accepted into daycare with subsidy so that she could get back into the workforce to contribute to the family income.
[118] The applicant’s evidence is that she is striving to provide a better quality of life to the children at her house, one that is more comfortable and financially stable than their present situation. Right now she struggles to keep the fridge full of food, according to her evidence. She states that her motion is not based on convenience, but rather on her need to support her family financially and avoid bankruptcy.
[119] The mother’s affidavit summarizes her situation: “The Respondent returned to the province right before the first day of school and left again a week later, leaving me with the burden of travel completely. I had negative $700 in my bank account, two maxed out Visas, and a ¼ tank of gas in my car”.
[120] Her evidence is that this is in contrast to the father’s home, as he is not only more affluent due to working full time, but because he has been underpaying child support for years. When the separation agreement was negotiated in 2018, the child support payment was $900 per month. A change has never been negotiated even though the agreement provides for annual financial disclosure and an adjustment of the Table amount of support. Neither party has explained why an adjustment has not occurred, even though there is evidence that the father’s income has increased considerably over the years. His 2022 Notice of Assessment shows total income of $127,177; when the separation agreement was made he was earning $83,586.
[121] The mother’s evidence is that the father has been grossly underpaying support, and states that he is $30,000 to $40,000 in arrears. There is no statement of arrears from the Family Responsibility Office in the record before me. I am uncertain whether the mother is erroneously referring to “arrears” as the sum that would be paid if a retroactive adjustment was made, or whether she means that there has been default in the $900 monthly payment.
[122] The mother has an opportunity to work for Grant’s business. It is her evidence that the business is badly in need of a “second in command”. She can earn $20/hr, working 7 hours per day as time permits, 5 days per week. She anticipates that this could bring in earnings of approximately $32,000 gross income.
[123] Her present income is comprised of Child Tax Benefits of $2,067 monthly, and child support.
[124] She has deposed that her gas cost can be a minimum of $400 per month under the current arrangement.
[125] Since this proceeding began, the father has voluntarily increased the amount of support to $1,472 per month. However, she is in no better position than she was in August, as she now has the daycare expense. Her evidence is that litigation continues with Kia’s father over the issue of sharing that cost.
[126] Whether the mother could find a different job that would accommodate a six-hour work day is moot, since I find that the work hours available to her currently are, at the outside, from 9:45 to 2:45 until next September when Kia moves into kindergarten.
[127] It is valid that the mother, as the most constant caregiver, seek to change the schools so that she can put in place arrangements to remain financially viable while providing care for the children. It is in their best interests to not have a significantly different standard of living in each household, and strongly in their best interests to not have a mother who is constantly stressed by financial concerns. An improvement to her physical, emotional and financial circumstances can only benefit the children.
[128] This factor weighs heavily in favour of the mother’s request.
Potential Future Moves
[129] The father owns his own home, and his partner owns one in Barrie. While there has been talk of moving there in the past, they appear to be settled in Severn.
[130] The mother is renting, which makes her housing circumstances more precarious. I have no evidence about her lease arrangements. The evidence suggests that even if they have to move they will strive to remain close to Barrie due to Grant’s parenting arrangements.
[131] Both parties are in relationships that are still relatively short. It is impossible to know what the future holds in terms of living arrangements and the inter-mixing of step-siblings.
[132] I treat all of this as a neutral consideration.
Conclusion and Order
[133] I accept that both parents genuinely believe that they are taking Owen and Quinten’s best interests into account in taking the positions that they have. It is most unfortunate that these parents have very quickly moved from a collaborative parenting relationship in which they openly discussed their children to saying things about one another that now cannot be unsaid.
[134] It is particularly unfortunate that the father seems to have devolved to alleging that the mother’s lifestyle has been unstable and that she has been motivated by her own priorities instead of those of the children, after all of the years in which she has so patently done what was necessary to accommodate the father’s work-related absences.
[135] I accept that the father is trying to honour the boys’ wishes first and foremost. That the present arrangement is also the most convenient for him is not his primary motivator.
[136] I accept that the mother is trying to achieve financial security and that she is motivated primarily by economic desperation and her rational assessment that a drive of this length, particularly in bad winter weather, comes at too great a cost for her entire family.
[137] The boys’ preferences and the stability of the status quo point heavily toward leaving the boys at OSS and Marchmont. The maintenance of the current parenting arrangement is also significant, and in their best interests to keep in place.
[138] The factors that point heavily toward changing the schools to Barrie North and St. Marguerite’s are: the mother having more care of the children, and historically being the parent to assume most responsibility; the father not being close at hand to meet their needs when he is working; the reduction in commute time and related benefits to the boys that would ensue, including more sleep; and the benefits of having an economically secure environment in their mother’s household, and the benefits that would ensue for the boys. Without a change in schools, the mother is trapped in an impoverished situation from which it is nigh impossible to see how she might extricate herself. Leaving that situation to worsen is definitely not in the boys’ best interests.
[139] On balance, changing schools is more consistent with their best interests.
[140] The final consideration is whether the evidence filed by the mother raises sufficiently pressing circumstances that the status quo should be interrupted on a motion.
[141] Just because the mother carried out this arrangement for the 2022/23 school year does not mean that it was easy or possible long term. The current situation is neither healthy nor viable. The boys, despite their protests, are better served by more sleep, less time spent in the car, and more free time. They are better served by having the parent who spends the most time looking after them being in a position to actually attend to their needs, as opposed to shuttling them back and forth on highways.
[142] I am satisfied that all of the circumstances, taken together, raise sufficient urgency that a temporary order changing the school placement should be made. However, I do not believe that doing so for Quinten while he is still in the middle of a semester is in his best interests. He will be facing exams or final evaluations, as Owen might be, and they should be permitted to complete the semester or term in their current placement despite the urgency of the applicant’s situation. If Marchmont is not on a semester system, the order is to take effect for him immediately following the December holiday break, in January 2024.
[143] The following order attempts to ameliorate the situation for the mother until the change takes place, as it is clear to this court on the evidence that she is presently out of financial resources.
[144] The mother’s motion will be granted, but cannot be ordered on a final basis as requested.
[145] This court orders:
- The parties shall immediately take all necessary steps and provide all necessary authorizations for Quinten to commence attending high school at Barrie North Collegiate Institute for the next semester beginning in 2024.
- The parties shall immediately take all necessary steps and provide all necessary authorizations for Owen to commence attending elementary school at St. Marguerite D’Youville Catholic Elementary School, either at the beginning of their next semester, if applicable, or otherwise on January 8, 2024.
- Until the change in schools takes effect, when the respondent is in Ontario he shall drive the children to and from school when they are in their mother’s care.
Costs
[146] The mother’s motion was granted, although not to take immediate effect and not on a final basis. Paragraph 3 of the order was not requested but made for the reasons provided.
[147] The parties both delivered offers to settle the motion in advance of the hearing date. As might be expected, neither party’s offer was substantially different from the positions taken on this motion.
[148] The mother’s offer to settle, however, did offer that the change to the new schools would take effect commencing the second term of the 2023/24 school year, as has been ordered. However, the offer was also framed in the terms of a final order, as it was intended to be in effect until the completion of each child’s high school education, subject to a material change. Her offer also dealt with costs. It offered that each party would bear their own costs if the offer was accepted by November 1, 2023 by 4:00 p.m., and thereafter the respondent would pay “costs to the applicant to the date of this Offer and full recovery costs” thereafter.
[149] The respondent’s Offer to Settle was that each child remain at their current school. There was no element of compromise, such as offering to assist with driving. It contained similar language as the applicant’s Offer with respect to costs prior to November 1, 2023 at 4:00 p.m., and reserved the right to pursue costs on a full indemnity basis thereafter.
[150] The applicant did not do better than her offer, as she did not obtain a final order. She is not entitled to full recovery of costs from the date of her offer. However, she is entitled to her costs in relation to the motion.
[151] Both parties have provided a Bill of Costs. Had he been successful, the father sought partial indemnity costs in the amount of $10,695.66, which included all of the time spent on this matter since its inception.
[152] The applicant’s Bill of Costs for this motion only totals $7,621.85 on a full indemnity basis.
[153] Taking into account the results, the time expended on the motion, hourly rates and the reasonable expectations of the respondent, I fix costs of this motion payable by the respondent to the applicant in the amount of $5,500 inclusive of HST and payable within 30 days.
HEALEY J.
Date: December 11, 2023