Burrill v. Burrill, 2023 ONSC 6888

COURT FILE NO.:FC-23-00000231-0000

DATE: 20231206

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ZACHERY DEVON BURRILL

– and –

MELODY ANNE BURRILL

John Mastorakos/James Quinn, for the Applicant

Bobbi-Jo Saucier, for the Respondent

HEARD: November 17, 2023

N. EDMUNDSON J.

RULING ON MOTION

Overview

Overview

1This is a motion brought by the applicant father, Zachary Burrill, in which he seeks an interim parenting order for:

a. joint decision-making responsibility

b. shared parenting on a week about basis, and

c. an order that the child be enrolled at Prince of Wales public school in Belleville or another school in Belleville as agreed by the parties.

2The respondent mother, Melody Burrill:

a. does not oppose the request for interim joint decision-making responsibility

b. does not oppose a shared parenting schedule but requests a 2-2-5-5 schedule, and

c. opposes the request to enrol the child in Prince of Wales public school in Belleville and submits that it is in the child’s best interests to attend Athol-South Marysburgh Public School in Prince Edward County.

3On consent, there shall be a temporary order for joint decision-making responsibility.

4For the reasons set out below:

a. I am granting the mother’s request for a 2-2-5-5 schedule for interim shared parenting time.

b. I am granting the father’s motion that the child be enrolled in Prince of Wales public school in Belleville or such other school in Belleville as the parties agree, commencing in January 2024.

Background

Background

5The parties were married on June 13, 2015 and separated on November 6, 2022. They have one child Hazel Emelia Anne Burrill who was born on October 1, 2016.

6The parties separated on November 6, 2022 following a physical assault by the father on the mother while Hazel was in the home. The mother states that Hazel was present during the assault which the father denies. The police were called to the home and the father was charged and subsequently pled guilty in January 2023. A transcript of the facts for his plea was not provided for use on this motion. He has a 12-month probation order which restricts his contact with the mother.

7As a result of the separation, the matrimonial home on University Avenue in Belleville was sold. The mother requested that the date of closing occur after Hazel had completed her school year. The mother and Hazel were living in the matrimonial home until the date of sale, June 28, 2023, when they moved in with Ms. Burrill’s new partner in Milford, Ontario.

8Hazel attended kindergarten and grade 1 at Prince of Wales public school in Belleville. She remained at that school for eight months from the date of separation until the sale of the home. The father continues to live in the catchment area.

9The father started an application under the Divorce Act on June 9, 2023. The application was served by personal service on the mother on June 24, 2023. One of the claims in the application is for an order for Hazel to remain at Prince of Wales public school or some other mutually agreed upon school in Belleville.

10The mother had notice of the father’s objection to a new school for Hazel on June 24, 2023, four days before she moved.

11The mother’s answer is dated July 24, 2023 and was served on that same date by email on father’s counsel. In her answer she states that she had moved to her current residence in Prince Edward County, approximately a 40 minute drive from Belleville, and resides with her new partner. She also states that she has submitted the registration for Hazel to attend at Athol-South Marysburgh public school (“Athol”).

Habitual Residence

Habitual Residence

12I find that Hazel’s habitual residence is Belleville, Ontario, being the place where she lived with both parents and where she lived for the eight months following the separation.

Best Interests and Domestic Violence

Best Interests and Domestic Violence

13In considering what is in Hazel’s best interests, I have considered s.16 of the Divorce Act in its entirety. Section 16(3)(j) requires that I consider the presence of any family violence and its impact and and s.16(3)(k) requires that I consider any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child. Additionally, s.16(4) directs the the court in considering the impact of family violence under s.16(3)(j) to take into account specific factors.

14I find that there was a physical assault of the mother by the father and I find, based on the affidavit evidence, that the child was either present or exposed to the aftermath of the assault. In reaching my decision I have considered the presence of family violence and the exposure of the child to that violence at every step.

15There are no allegations of domestic violence other than the November 6, 2022 assault of the mother. The mother does allege that the father was keeping track of her through the neighbours and that he was asking Hazel about her early in the separation. The father acknowledges making inappropriate comments and says that he now knows better. The father has completed various programs to address the impact of his behaviour on his daughter. His recent communications in the parenting app are child focused. The mother has been facilitating the exchange of the child with the father in a public place; she has offered to continue to do this. She has agreed to shared decision-making responsibility and shared parenting time on a temporary basis.

Relocation

Relocation

16I find that the mother’s move to Milford is a relocation as defined in s.2(1) of the Divorce Act and that the relocation provision in s.16.9 of the Act applies. Section 16.9(3) provides that an application can be made to the court, without notice to the other parent, to ask that the requirements of notice in s.16.9 do not apply or may be modified where there is a risk of family violence. The respondent mother did not apply for such an order.

17The leading case for determining if a relocation should be permitted on a temporary motion is Plumley v. Plumley 1999 CanLII 13990 (ON SC), [1999] O.J. No. 3234 (S.C.J.), where the court set out the following principles:

a) A court will be more reluctant to upset the status quo on an interim motion and permit the move when there is a genuine issue for trial.

b) There can be compelling circumstances which might dictate that a justice ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial of the best interests of the children or the best interests of the children might dictate that they commence school at a new location.

c) Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong possibility that the custodial parent’s position will prevail at trial.

18At the time of the mother’s relocation the father had limited parenting time. He submits that the mother cut off all contact with Hazel. I find that there is no evidence to suggest that the mother has influenced Hazel about seeing her father. The records from the Supervised Access Services showed only appropriate behaviour on the part of the mother when dropping off and picking up Hazel. The notes also showed that Hazel went easily with her father. I find that the mother set up the means for the father to communicate virtually with Hazel immediately after the separation and that the father and Hazel have been talking regularly. While the resumption and increase of in-person parenting time did not progress at the speed the father wanted, the mother did make the arrangements to resume and increase parenting time in accordance with what she saw as the best approach for Hazel.

19However, the mother moved without notifying the father and registered Hazel in the new school when she knew that the father did not consent. Her decision to do this without the required notice under the Divorce Act, and consent, cannot create a change in the status quo.

20The father is not objecting to the move for Hazel when in the mother’s care so long as her school is not changed. The mother has engaged in self-help by unilaterally changing Hazel’s school without the father’s consent or a court order.

21I have considered the impact on a final resolution of a temporary order allowing a relocation, and specifically in this case, a change in school, and find that it is likely to impact a final resolution.

22I find that the school change is a consequence of the relocation and that the mother does not meet any of the three criteria set out in Plumley for a relocation and therefore the change of school cannot be condoned on that basis.

Choice of School as an incident of Decision-Making

Choice of School as an incident of Decision-Making

23Choice of school is a custodial decision. Only when there is no temporary or final Order for custody should a court be asked to determine particulars of a child’s education. When a child is already enrolled in a program of education the starting point for the determination is clear: unless there are compelling circumstances, students will continue their education in September at the school where they were enrolled in June. Disrupting a child’s school placement is to be avoided. School is often the most stable and neutral place for children whose parents are transitioning from one home to two homes. The court needs to ask if there are compelling circumstances that justify a change in school pending a final order for decision-making and parenting time. See: D.B. v. M.R.B., 2019 ONSC 4925.

24The general principles guiding the court in deciding where a child shall attend school when the parties disagree were set out by Audet, J. in Thomas v. Osika, 2018 ONSC 2712 (S.C.J.) at para. 37 as follows:

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 (Ont. C.J.));

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 (Ont. C.J.));

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 CanLII 191 (SCC), [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 (Ont. S.C.J.));

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 (Ont. S.C.J.));

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 (Ont. C.J.));

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 (Ont. C.J.)).

25Parents should avoid attempting to change a child’s school before a final parenting order is in place. They run the risk that the court will see the action as an attempt to secure an advantage in a parenting dispute. The advantage is obvious. A change in schools will shift the argument for primary residence in favour of the parent who lives closer to the school. See: Cosentino v. Cosentino, 2019 ONSC 2016 ONSC 5621.

26As I have found that the mother cannot create a new status quo by taking unilateral action to register Hazel at Athol, the status quo for Hazel’s school is Prince of Wales in Belleville.

27The onus for an order to change schools rests with the mother and the change must be in Hazel’s best interests.

28The mother has stated that she wants Hazel to leave Prince of Wales school and go to Athol in Prince Edward County because of concerns about Prince of Wales related to Hazel’s behaviour and choice of inappropriate friends. I note that for most ot Grade 1 Hazel was dealing with the separation of her parents following the assault of her mother. It may be that Hazel’s behaviour was influenced by events at home. The mother has not addressed whether Prince of Wales could make changes to assist Hazel. She has not addressed whether another school in Belleville could meet Hazel’s needs. The father has confirmed that Hazel is still eligible to attend Prince of Wales.

29If the court authorizes a change in school to Athol for Hazel, the mother has offered to provide all transportation including on the days when Hazel is with her father. On those days this plan would have the mother driving approximately 40 minutes to pick up Hazel in Belleville, then 40 minutes back with her to Athol; she would do the reverse trip in the afternoon for a total of 2 hours and 40 minutes each day. The mother is employed. This is a plan which requires a significant time commitment from the mother and one which is not reasonable in the long or even medium term.

30Additionally, the mother’s plan precludes the father from the usual impromptu conversations that occur with the teacher or school staff when a parent attends at a school for pickup and drop-off. It prevents uninterrupted time for Hazel with her father and contains a message to Hazel that her mother is the person in control of her time. As a practical matter, the school will see the mother as the decision-maker as she is the parent who they will see every day.

31There is no evidence about the projected stability or longevity of the mother’s new living arrangement and whether a further move is likely to occur. Hazel was born and raised in Belleville. Prior to separation the parents decided that Hazel would attend Prince of Wales and she has done so since kindergarten. She also remained there for eight months following the date of separation. There is no compelling reason for a change in schools.

32For all of these reasons, I find that it is in Hazel’s best interests to attend school at Prince of Wales public school. Given the concerns that the mother is now raising about Prince of Wales I am giving the parents the option of agreeing on another school in Belleville. If they do not agree on another school in Belleville before January 2, 2024, then Hazel will attend Prince of Wales Public School.

33I have considered the immediate impact of this decision on Hazel. She will continue to be able to see new friends when she is in her mother’s care and will be able to engage in extracurricular activities in the Milford area. She will also be able to resume or build new friendships in Belleville with the support of both parents.

34The mother should not have registered Hazel in school at Athol without the father’s consent; she should have brought the matter to court for a determination well in advance of September 2023. She had notice of the father’s position in June 2023. As the parent seeking the change, the onus was on her to seek a court order in the absence of his consent.

Shared Parenting Schedule

Shared Parenting Schedule

35In considering the shared parenting schedule I agree with the mother that it may be too soon for Hazel to be away from her mother for a full seven days every two weeks. I find that shorter periods of time are in her best interests. I also find that the schedule proposed by the mother allows each parent to set up extracurricular activities during their parenting time with their daughter as they will each have Hazel with them on the same two weekdays.

36The exchange for Hazel will occur at school or in a neutral public place. The 2-2-5-5 schedule will limit contact between the parents which is important given the probation order terms on the father while allowing Hazel to know which parent she will be with on a consistent basis.

Order

Order

36Temporary Order to go as follows:

1. The applicant father, Zachery Devon Burrill and the respondent mother Melody Anne Burrill shall exercise shared decision-making for Hazel Emelia Ann Burrill, born October 1, 2016.

2. The applicant father, Zachery Devon Burrill and the respondent mother Melody Anne Burrill shall have shared parenting time with the child, Hazel Emelia Ann Burrill, born October 1, 2016, commencing December 11, 2023, on a 2-2-5-5 two week schedule:

a. Monday and Tuesday with her mother

b. Wednesday and Thursday with her father

c. Friday to Tuesday inclusive with her mother

d. Wednesday to Sunday inclusive with her father.

e. Such further and other time as the parties may agree in writing with each other.

3. The exchanges shall occur at Hazel’s school with the parent who had Hazel the night before dropping her off at school and the parent commencing their parenting time picking her up after school. For PA days or long weekends the exchange shall be at 9am at a public place agreed to in advance by the parties in writing.

4. On Sunday, December 24, 2023, the father shall return Hazel to the care of her mother at 7pm unless otherwise agreed to by the parties in writing.

5. On January 8, 2024, Hazel shall commence attendance at Prince of Wales Public School in Belleville unless the parties agree on an alternate school in Belleville on or before January 2, 2024.

Costs

Costs

37If the parties cannot agree on the issue of costs, they may make written submissions, limites to three pages, and shall include a bill of costs including disbursements and HST, relevant caselaw and offers to settle. The applicant shall serve and file those submissions within the next 30 days. The respondent shall have 14 days to serve and file a response.

I thank both counsel for their able submissions and materials.

Edmundson J.