SUPERIOR COURT OF JUSTICE
FAMILY COURT
B E T W E E N:
ASHLEY KINROSS
Applicant
- and -
CURTIS EDWARD BLEAU
Respondent
R E A S O N S F O R D E C I S I O N
DELIVERED BY THE HONOURABLE JUSTICE P.E. ROGER
on December 2, 2022, at L’ORIGNAL, Ontario
APPEARANCES:
J. Gravel
Counsel for the Applicant
M. Gauthier
Counsel for the Respondent
SUPERIOR COURT OF JUSTICE
FAMILY COURT
T A B L E O F C O N T E N T S
REASONS FOR DECISION
1
Transcript Ordered:
January 31, 2023
Transcript Completed:
January 31, 2023
Approved by Roger J.:
January 31, 2023
Ordering Party Notified:
January 31, 2023
FRIDAY, DECEMBER 2, 2022
R E A S O N S F O R D E C I S I O N
ROGER J. (Orally):
[1] This is a close call and a very difficult motion to decide because, like the doctor says, there is no correct answer to whether Bailey should go back to in-person schooling despite her health issues.
[2] Also, this motion is difficult to decide because, from an evidentiary perspective, the opinion of the doctor is not appropriately before the Court. We have no real evidence of any impact on the children related to their attending school virtually, other than the parties’ impression or some anecdotal evidence, and also both parties’ plans do not fully address the situation.
[3] Nonetheless, accepting for a limited purpose the notes of Dr. Kovesi, which both parties are relying upon and to which neither party takes objection, we have that:
there is no correct answer;
different families have different risk level;
but that given the current viral infections, keeping Bailey at home might have been the right decision until it is reassessed.
[4] Further, other than the parties’ impression or anecdotal evidence, we have no evidence that sending Bailey and her brother to in-person school at this time or in January 2023 would be or is in their best interests.
[5] Consequently, on balance, it is more prudent at this time to err on the side of the status quo and order that both Bailey and Bentley continue to be schooled virtually, as they are at the moment, until this is reviewed and reassessed by Bailey’s doctor in March 2023 or earlier if that is at all possible.
[6] I link Bentley with Bailey not only to keep the children together but to minimize risk to Bailey given the conflicting notes of the doctor on this topic. Sometimes he says something about this, sometimes he says something else.
[7] I ask the parties to immediately contact Dr. Kovesi’s office to schedule a follow-up assessment for Bailey sometime in February or at the latest early in March 2023, assuming that this is possible with the schedule of Dr. Kovesi, for purposes of assessing whether it would then be appropriate to lessen restrictions and allow the children to be schooled in-person.
[8] Once that assessment is obtained, I ask the parties to attend a case conference if they are unable to resolve the issue of in-person versus virtual schooling and only if they fail to agree to proceed to a motion if that is required.
[9] In fact, it might be wise for the parties to immediately schedule a case conference for a day in March 2023 to be after the revised assessment of Dr. Kovesi. If a case conference is already scheduled, I ask the parties to think and consider whether there is any merit in proceeding with that case conference before the revised assessment of Dr. Kovesi. I leave that with the parties to make that decision, and I will talk to you, Mr. Gravel, right after the endorsement. Just give me a moment. (Pause)
[10] Considering my decision on schooling, I see no reason at this time to change the current and consent temporary without prejudice order of August 24, 2022 because the evidence on the children’s best interests is at this point not overly contradicted but also somewhat ambiguous because it is not clear how the children could be schooled virtually if they were with the father during the entire week, as he seeks. It seems sufficiently difficult for the father at this time to handle Thursday and Friday, and adding to this the entire week might exhaust not only his employer’s patience but also his very strong family network. Having said that, when the children return to school in-person, things might look differently because the father’s plan and family network is strong.
[11] A precision is made to the order of August 24, 2022 to make it clear that para. 3 of that order does not prevent the father’s mother or the paternal grandmother, Ms. Linda Cloutier, or any of the other family members who filed an affidavit on this motion from being with the children while they are schooled virtually at home on Thursdays and Fridays. In that regard, I do not agree with the Applicant’s stated lack of comfort with any of the Respondent’s family members who filed an affidavit on this motion. I find that any of them could look after the children on any of the Thursdays and Fridays while the children are being virtually schooled. This would allow the Respondent Father to work during those days.
[12] For Christmas, I find that what is in the children’s best interests is to be with the father from 4:30 on Wednesday, December 21, as per the current schedule, until 2:00 p.m. on December 25, 2022. This is only a very slight extension to the current schedule and it will allow the children to spend Christmas with both parents while at the same time minimizing exchanges. They will be with their father from the Wednesday to Christmas Day at 2:00 in the afternoon, and then they will be with the mother and resume the ordinary schedule after that. The current schedule, as per the order of August, shall be applicable to the rest of the Christmas holidays.
[13] It would be preferable if any further motion, if any are required, dealing with the children’s schooling, be returned before me if that is possible but I note that I am not seized of this matter because this might be difficult to accommodate in the event of any urgency or considering scheduling matters, I could be booked in some trial or something and it could be impossible. So I am not seizing myself of this matter but I am making a note and I want the order to reflect that any motion dealing with the schooling issue shall, if possible, be scheduled before Justice Roger, and this will allow at least for the staff to communicate with me to see if I am available, and if I am, they will send me to L’Orignal and I will deal with this matter. I do this in order to ensure consistency and hopefully make it more efficient for everyone.
...DISCUSSING ADMINISTRATIVE MATTERS
THE COURT: Mr. Gravel wanted to address me and after listening to his concern, I am correcting my endorsement and changing the paragraph that says, “Once the assessment is obtained, I ask the parties to go to a case conference.” I will say:
Once the assessment is obtained, the parties will attend a settlement conference which has been rescheduled for March 2, 2023 and hopefully will resolve this issue and only if they fail to resolve this issue at the settlement conference may they ask for leave of the settlement conference judge for a motion. He or she will then decide whether or not a motion should occur.
And then I will remove the paragraph that says, in fact, it might be wise to schedule a case conference because you already have a settlement conference. I will just scratch that out.
...SUBMISSIONS AS TO COSTS BY THE PARTIES
[14] THE COURT: On the issue of costs, success usually follows in the sense that there is a presumption that the successful party is entitled to costs, but that is only a presumption, and it can be rebutted.
[15] In the circumstances of this case, it is a very close call. The evidence surrounding whether the children should be schooled virtually or should be schooled in-person is certainly not clear. I erred on the side of caution, but it is not clear. The evidence about the best interests of the children as well, and I considered both parents’ plans, is not clear and it is intertwined with the schooling arrangements that result in the order that I have made. I think if I had made a different order on the school arrangement, I might have made a very different order on the parenting arrangements as well just because the plans, I found one was stronger than the other. I found the father’s plan stronger than the mother’s plan, so both the plans are in question. In the mother’s plan, there was no evidence that it was not working despite all of its frailties and there are many.
[16] So for those reasons, I will order – and because the success was slightly divided as the mother was really the successful party, and on Christmas the father was the successful party, that is one reason, but it is not really the reason. I take – I look at it this way. The reason is this was such a close call for both sides, the evidence was so ambiguous, so contradicted. The father’s plan is a stronger plan but is kind of unworkable at the moment with the medical – I won’t call it “evidence” but the medical information before the Court.
[17] In the circumstances, these motions are to be on a without cost basis, no cost. No cost for this motion and order to go that there be no cost for this motion.
FORM 3
CERTIFICATE OF TRANSCRIPT
EVIDENCE ACT, subsection 5(2)
I, Lynn Carrière, Authorized Court Transcriptionist, ACT ID 2366775200, certify that this document is a true and accurate transcription, produced to the best of my skills and ability, of the recording of Ashley Kinross v. Curtis Edward Bleau in the Superior Court of Justice held at 59 Court Street, L’Orignal, Ontario, taken from Recording No. 3411_CR02_20221202_085953_ 10_ROGERP, which has been certified in Form 1 by Tammy MacAllister.
January 31, 2023
Date Electronic signature of
Lynn Carrière, ACT ID 2366775200
Ontario, Canada
- This certification does not apply to the Reasons for Decision which were judicially edited.
A certificate in Form 3 is admissible in evidence and is proof, in the absence of evidence to the contrary, that the transcript is a transcript of the certified recording of evidence and proceedings in the proceeding that is identified in the certificate.