Court File and Parties

COURT FILE NO.: FS-21-00012103-0001 DATE: 2024/04/22 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ASHLEY WEBBER, Applicant AND: CODY HUNTER, Respondent

BEFORE: Justice I.F. Leach

COUNSEL: Craig Potter, for the Applicant Ramanjit Kaur De Souza, for the Respondent

HEARD: April 19, 2024

Endorsement

[1] This matter, centred on a dispute between the parties concerning arrangements for the schooling of their two young children and associated transportation arrangements, was before me during the most recent hearing of regular motions in Woodstock.

[2] I have reviewed and considered all of the motion material filed by the Applicant, cross-motion material filed by the Respondent, and counsel submissions in relation to those two motions, and the necessarily summary and abbreviated nature of this endorsement should not suggest otherwise.

[3] However, by way of further initial background and overview in relation to this dispute and the motions before me:

a. The parties married in July of 2019, and thereafter had two children together; i.e., Noah, born in May of 2013 and currently in grade five, and Adelyn, born in July of 2017 and currently in grade one.

b. The parties separated in April of 2021, which in turn led to a family court proceeding between the parties here in Woodstock. That earlier proceeding was resolved by way of a final order dated March 3, 2023, made on consent by Justice King. Included in that order were provisions whereby:

i. Parenting time between the children and their parents was to be evenly divided, with each party generally having the two children in his or her primary care on a rotating “week about” basis, (with exchanges taking place each Sunday evening), apart from the children returning to the other parent’s care for a “mid-week” overnight visit on Wednesday afternoons.

ii. The parties generally agreed and were ordered to exercise “joint decision-making responsibility with respect to all important decisions to be made regarding the education, non-emergency healthcare, religious/spiritual and cultural upbringing, and extracurricular activity involvement of the children.”

iii. On an exceptional basis, to address what would happen “in the event the parties could not jointly make an important decision pertaining to the children within 14 days after the last of the Respondent and the Applicant becomes aware of the important decision at issue”, it was agreed and ordered that:

1. important decisions “pertaining to the non-emergency medical care of the children and those important decisions pertaining to the extra-curricular activity involvement of the children” would be made “solely by the Applicant”, subject to additional provisions whereby each child was not to be enrolled in more than one extra-curricular activity “per season”; and

2. important decisions “pertaining to the education and religious/cultural upbringing of the children” would be made “solely by the Respondent”.

c. At the time of the parties’ aforesaid agreement and that final order made on March 3, 2023, the parties’ children had been enrolled, since the beginning of the school year in September of 2021, in a specified public school in the Town of Ingersoll; a location lying between the Applicant’s residence in the village of Salford and the Respondent’s residence in the village of Embro. It was not disputed that, at the time of the parties’ agreement and the aforesaid final order, there had been no discussion whatsoever of any possible change to the school the children would attend.

d. Matters thereafter seem to have progressed without incident or dispute until late August of 2023. In that regard:

i. At the time, the children already were registered to resume their studies at their public school in Ingersoll, when the academic school year for 2023-2024 began on September 5, 2023. They also once again were registered to take the same bus transportation they had been using in that regard.

ii. On August 27, 2023, just nine days before the start of the academic school year, the Respondent sent the Applicant a text message informing the Applicant that he instead would be enrolling the children at a specified public school in Embro, instead of their public school in Ingersoll. He also informed the Applicant that he already had filed the necessary Embro school pre-registration in that regard, and already had spoken to the children about the change in their schooling. Although the motion material includes suggestions by the Respondent that he had sent the Applicant an earlier electronic communication about the intended change, on August 22, 2023, the Applicant denies that any such text message was sent, and there is no documentary evidence to confirm the existence of any such communication. Moreover, as the preserved text messages make clear the Applicant’s immediate and strong opposition to the change and her corresponding desire to make that opposition known to the Respondent as soon as possible, I think it reasonably clear, (and certainly clear on a balance of probabilities), that the Applicant did not become aware of the intended change until August 27, 2023; i.e., less than 14 days before the indicated change in relation to the children’s schooling would be implemented.

iii. In response, the Applicant immediately indicated her opposition to the proposed change, sending the Respondent responding text messages on August 27, 2023, emphasizing that arrangements for the children to continue their schooling in Ingersoll not only were in place, but were consistent with the earlier approach adopted by the parties to have the children attend a school midway between the respective residences of the parties; i.e., in Salford and Embro. Apparently referring to the making of the parties’ final agreement and resulting court order on consent, the Respondent answered with a text that same day which included the following statement: “That was for last year because we never had anything in place. But now we do.”

iv. Further text messages were exchanged between the parties the following day, (i.e., on August 28, 2023), again making clear that the Applicant disagreed with the proposed change. In that regard:

1. The Applicant highlighted the reality that such a change in relation to the children’s schooling was to be the subject of joint discussion, with the Respondent having final say in that regard only if no agreement was reached after such joint discussion over the course of 14 days. The texts also emphasized the Applicant’s position that there had been no such discussion, and that there would be no passage of the minimum 14 days before the Respondent would have final decision-making authority in relation to such matters, such that the status quo (of the children remaining at their school in Ingersoll) should prevail. The Applicant also emphasized that the proposed change would create child transportation challenges for her that she would be unable to meet, and that the children themselves were indicating that they did not want to switch schools.

2. The responding text messages from the Respondent included the following message: “So you’re going to ‘discuss’ this for 14 days and then have to let them switch anyways?”

e. When it became clear that the Respondent was intent on following through with his intended unilateral change of the children’s school location from Ingersoll to Embro, the Applicant retained counsel and brought a formal Motion to Change the aforesaid final order as soon as possible; i.e., commencing the underlying proceeding herein on September 29, 2023, just one month after she became aware of the contemplated change. Consistent with the provisions of Rule 14(4) of the Family Law Rules generally prohibiting the service of any motion material or hearing prior to the holding of a case conference in relation to a new family law proceeding, and Applicant counsel’s not unreasonable assessment that the circumstances likely would not satisfy the test for “urgency” allowing a departure from Rule 14(4) pursuant to Rule 14(4.2) of the Family Law Rules, the Applicant necessarily waited for the holding of a case conference before bringing a motion challenging the Respondent’s actions. Unfortunately, the continuing excessive demand for court time in relation to such matters delayed the holding of such a case conference until February 8, 2024. In the meantime, the Respondent went ahead with his contemplated change of the children’s schooling from Ingersoll to Embro, with the children starting school in Embro as of September 5, 2023.

f. The case conference proceeded before Justice Bezaire on February 8, 2024, at which time the parties were unable to resolve their current dispute.

g. By way of a notice of motion dated March 6, 2024, the Applicant brought her formal motion herein seeking interim relief that includes requests for a temporary order:

i. varying the existing parenting provisions of the final order;

ii. conferring sole decision-making authority for the children on the Applicant;

iii. requiring the parties to forthwith enroll the children again at the specified public school they previously had been attending in Ingersoll and for the children to continue with their schooling there pending further order of the court; and

iv. in the alternative, (i.e., if there was no order made immediately changing the children’s school back to Ingersoll from Embro), an order requiring the Respondent to bear responsibility for necessary transportation of the children on the days when the children were to be in the Applicant’s care.

h. By way of a notice of motion dated April 1, 2024, the Respondent brought her formal cross-motion herein seeking interim relief that includes requests for:

i. an order inviting involvement of the Office of the Children’s Lawyer pursuant to sections 112 and/or 89 of the Courts of Justice Act, R.S.O. 1990, c.C.45;

ii. a temporary order whereby the children would continue to be enrolled at their public school in Embro pending further agreement of the parties or further order of the court; and

iii. a temporary order whereby the Applicant would be solely responsible for necessary transportation of the children “during her parenting week”, or a more detailed allocation of those transportation responsibilities whereby the parties effectively would share in those responsibilities.

[4] With the entirety of the tendered evidence and party submissions before me in mind, I turn to consideration of those competing requests for relief. In that regard:

a. I begin by noting that, at the outset of the hearing before me, all concerned commendably indicated that, despite the formal requests for relief put forward in the notice of motion, there was a general agreement that the children should continue to attend their current school in Embro for the remaining balance of the current academic year. I independently agree with that approach. However it came about, the reality is that the children now have spent the majority of the current academic year at the relevant Embro school, and it no doubt would be severely disruptive from their perspective, and likely counterproductive in terms of the progress of their ongoing education, if they suddenly were required to change schools from Embro back to Ingersoll with just eight weeks or so remaining in the current school year. An agreement that the children should continue to attend school in Embro until the end of June nevertheless leaves open the question of how associated transportation responsibilities should be divided during that period.

b. In relation to the Respondent’s request for an order inviting involvement of the Office of the Children’s Lawyer:

i. Counsel indicated and confirmed, during the course of submissions, that the parties actually made a joint request in that regard during the course of the case conference before Justice Bezaire in February of this year. At the time, however, Justice Bezaire declined to make the order, even on consent, as the information presented at the time did not make it sufficiently clear that the limited resources of the Office of the Children’s Lawyer would likely be devoted, or devoted productively in any helpful way, to the limited issues raised by the current proceeding.

ii. In the current context, the Respondent indicated via his cross-motion and counsel submissions that he still desired the making of such an order, and the Applicant indicated via counsel submissions that she was not opposed to involvement of the Office of the Children’s Lawyer, provided that any order in that regard made clear the nature of the proposed involvement, (i.e., a full investigation pursuant to section 112 of the Courts of Justice Act, supra, or more limited involvement pursuant to section 89 of the Courts of Justice Act, supra, whereby the views of the children could be more objectively ascertained and confirmed), and provided that the desired order restoring the suggested status quo ante in relation to the children’s schooling in Ingersoll was not delayed by the making of any necessary arrangements or reporting in that regard.

iii. In my view, whatever the situation that may have prevailed at the case conference, the situation now has evolved to the point where an order inviting involvement of the Office of the Children’s Lawyer would be appropriate. In that regard, I do not think a section 112 investigation is warranted, given the relatively discrete issues raised by this current proceeding. However, the location of the children’s schooling clearly is one having a significant impact on their lives and well-being, having regard not only to the location of their school per se, but to ancillary matters having an impact on the children, including the potential challenges and hardships associated with related transportation arrangements, (e.g., involving not only the amount of time the children will have to spend being driven between locations but also their waking hours and daily routines), and ability to maintain social contact with established and new friends. Moreover, the court is now being presented with sworn but conflicting evidence not only relating to the children’s supposed indication of preferences for resuming school in Ingersoll or continuing school in Embro, but also sworn but conflicting evidence relating to suggested justifications for a change in school location; e.g., Respondent assertions that Noah was being bullied at his school in Ingersoll and that Adelyn was the subject of disciplinary proceedings at the Ingersoll school, and Applicant assertions that bullying of Noah at the Ingersoll school was never an indicated concern and that the concerns regarding school discipline in relation to Adelyn while at the Ingersoll school were dated, fleeting and resolved with finality long ago. In my view, the children are of an age whereby their views in relation to the location of their schooling, and the rationales offered for a change in that regard, can be obtained and provide helpful information to the court – albeit on the clear understanding that those views certainly will not govern or dictate the court’s determinations.

iv. For the above reasons, an Order shall go, (and be processed in a timely fashion by Respondent counsel, as the Respondent was the party formally requesting such relief), inviting the Office of the Children’s Lawyer to appoint counsel for the children pursuant to section 89 of the Courts of Justice Act, supra, with a view to providing the court with more objective and helpful indications as to the children’s independently expressed preferences regarding the location of their schooling, and the concerns and rationales for change or stability offered by the parties in that regard.

c. In relation to the relief sought by the Applicant and resisted by the Respondent, I am mindful of the approach generally mandated by the law in relation to such matters, having regard to the underlying circumstances. In that regard;

i. There was no dispute that, as the parties were married, and a final order was made pursuant to the Divorce Act, R.S.C. 1985, c.3, the provisions of that legislation governing the obtaining and amending of parenting orders in the present context.

ii. I accordingly am mindful of the provisions of that legislation and, in particular, the provisions of sections 16.1 and 17 of the Divorce Act, supra. For the sake of brevity, I will not reproduce those provisions in their entirety here; they instead should be considered incorporated herein by way of reference.

iii. As emphasized by the Divisional Court in S.H. v. D.K., 2022 ONSC 1203 (Div.Ct.), at paragraphs 16-19:

1. Subsection 16.1 of the Divorce Act permits a judge of the Superior Court of Justice, upon an application by either or both spouses, to make a parenting order in respect of a child of the marriage, and subsection 16.1(2) authorizes a judge to make an interim parenting order pending the determination of an application made under s.16.1(1).

2. Subsection 17(1) of the Divorce Act permits a judge of the Superior Court of Justice to make an order varying, rescinding, or suspending a parenting order. However, pursuant to s.17(5), an order under s.17(1) can only be made if the court first satisfies itself that there has been a change in circumstances. In particular, in the case of a parenting order, a change in the circumstances of the child since the making of the order sought to be varied, (or the last variation order), must be shown.

3. There accordingly are two routes to obtaining or amending a parenting order in the context of the Divorce Act, supra; i.e., an application for an original order, and an application for a variation order under s.17(1) of the legislation. In the case of the latter, while no statutory provision expressly authorizes the making of an interim order in that regard, numerous cases have confirmed that such authority is presumed to be available in appropriate circumstances.

4. Whether a parenting order (including an interim parenting order) is made pursuant to s.16.1(1) or varied pursuant to s.17(1), subsection 16(1) read together with subsection 16(7) provides that, in making the order, the court shall take into consideration only the best interests of the child. However, as noted above, before considering an application for variation of a parenting order under subsection 17(1), a court must first be satisfied that there has been a change in circumstances.

iv. In my view, the requisite threshold for the making of an interim parenting order effectively varying the existing final order made on consent by Justice King has been satisfied, based on the presented evidence. Since the making of that order, there clearly has been a change in the circumstances of the children. Without limiting the generality of the foregoing, the presented evidence indicates that:

1. the location of their school has changed;

2. relationships with the peers and friends they had developed during their time at their school in Ingersoll have been significantly interrupted and altered;

3. during the days when the children are to be in the care of their mother, they now are being subjected to much longer drives associated with getting them to and from school than they previously had experienced, along with increased logistical challenges and disruption to their daily routines as the Applicant and her aged parents have struggled to get the children to and from the school in Embro in a timely way; and

4. the children unfortunately have been involved in discussion of matters related to their change of schools in a manner reflecting, in part, the disagreement between their parents in relation to such matters.

v. In making that finding regarding a change in circumstances, I do not disregard the potentially offsetting considerations and/or benefits of such changes suggested by the Respondent; e.g., transfer to a school said to be preferred by the children, (although that is very much disputed by the Applicant), an end to bullying and/or disciplinary concerns at the children’s former school, (although the existence and/or importance of such concerns also are matters disputed by the Applicant), the alleged forging of new relationships between the children and friends at their school in Embro, and significantly less school-related transportation on the days the children are in the Applicant’s care. However, such proffered justifications for the change in the circumstances of the children does not alter the reality that material changes have occurred in that regard.

vi. While the above would suffice in my view to justify the ability of the court to make an interim parenting order pursuant to s.17(1) of the Divorce Act, supra, my views in that regard are buttressed by what I perceive to be another important and material change affecting the circumstances of the children; i.e., what appears to be a clear demonstration of the Respondent’s intention to depart from the clear provisions of the party’s negotiated agreement and corresponding final order made by Justice King, whereby the parties were to make decisions regarding the children’s education via the exercise of joint decision making responsibility, and the Respondent clearly was to have and exercise sole decision making responsibility in that regard only after the making of good faith efforts to discuss such matters for a period of at least 14 days in an effort to arrive at a joint parental decision in relation to such matters. In that regard:

1. Joint decision-making responsibility in relation to such educational matters clearly was of considerable importance to the parties. Indeed, it is the very first thing addressed by the party’s agreement and the corresponding final order that was made on consent.

2. Similarly, in my view, it was abundantly clear that the “exception” to such educational matters being decided by the parents jointly was to apply only after the parties had engaged in good faith discussions for a period of at least 14 days resulting in an unfortunate impasse in that regard that would have to be resolved via the Respondent making the final decision in that regard. Certainly, if there was no intention that such discussions would take place, and take place in good faith, (i.e., without one or both parties simply “going through the motions” or merely paying lip service to such a requirement to “run out the clock” before implementing a decision already made and intended to be implemented regardless of what the other parent might say), there would have been no point in structuring the provisions of the party’s agreement and resulting court order in the manner employed. In particular, if there had been any such intention, the agreement and resulting final order could and would simply have skipped what would then have been unnecessary verbiage about primary joint decision-making responsibility in relation to matters relating to the children’s education, and simply provided the Respondent with sole decision-making responsibility in that regard.

3. I agree with Applicant counsel’s submission that the Respondent, in changing the location of the children’s school from Ingersoll to Embro, clearly violated both the letter and the spirit of the party’s agreement and resulting final order made by the court. In particular:

a. In relation to the Respondent’s violation of the “letter” of that agreement and final order, the Respondent clearly, on any view, took steps to implement a decision to change the children’s school, (a matter clearly relating to their education), without satisfaction of the clearly stated prerequisite for his exercise of sole decision making authority in relation to such matters; i.e., a demonstrated inability of the parties to jointly make an important decision pertaining to the children’s education within 14 days after the last of the Respondent and the Applicant became aware of the important decision at issue. In this instance:

i. The Applicant was the “last” of the parents to become aware of the important decision at issue, (i.e., the location of the school to be attended by the children), and I find on the evidence presented that the Applicant became aware of that important decision at issue on August 27, 2023.

ii. The condition precedent for the Respondent exercising sole decision-making authority in that regard on an exceptional basis, (i.e., pursuant to the stated and circumscribed/limited exception to the parties making such decisions jointly through exercise of their joint decision-making responsibility in relation to such matters), accordingly could not possibly have been satisfied until September 13, 2023, at the earliest.

iii. The Respondent nevertheless clearly proceeded in violation of the provisions of the final court order by purporting to exercise sole decision-making authority and implementing an important change in relation to the educational lives of the children, before September 13, 2023. Without limiting the generality of the foregoing, before September 13, 2023, the Respondent already had registered the children at the school in Embro, already had told the children they would be changing their school from Ingersoll to Embro, and already had started taking the children to school in Embro rather than Ingersoll.

b. In relation to the Respondent’s violation of the “spirit” of the party’s agreement and the corresponding final court order:

i. I begin by again noting my view that a duty of the parties to discuss such important educational decisions pertaining to the children in good faith, in a bona fide effort to arrive at a joint decision pursuant to an exercise of the parties’ joint decision making responsibility in such matters before any resort to the exceptional exercise of sole decision making responsibility by the Respondent in that regard, is clearly implicit if not explicit in the party’s agreement and final court order for the reasons outlined above. My reference to the “spirit” of that agreement and order should not suggest otherwise; i.e., that I am in any way suggesting that the duty to have such good faith discussion somehow existed in a manner that was entirely independent of that agreement and court order.

ii. In my view, the Respondent’s complete disregard for any requirement of good faith discussion in that regard, and his obvious and deliberate intention not to engage in any such good faith discussion are made clear by his conduct and his preserved contemporaneous communications. Without limiting the generality of the foregoing:

1. In my view, there is nothing in the presented evidence to suggest that discussion of a possible relocation of the children’s school from Ingersoll to Embro could not have been initiate well before August 27, 2023, when the children’s return to school was imminent. In my view, the timing of the Respondent’s communication gives rise to a strong inference that the Respondent intended to present the Applicant with an effective fait accompli; i.e., whereby a new status quo in relation to the children’s schooling effectively would be created, in the Respondent’s favour, before the Applicant had any practical ability to forestall and preclude such a change through the civilized method of a court proceeding if and as necessary, rather than precipitous unilateral action.

2. The Respondent’s text sent to the Applicant on August 28, 2023, rhetorically asking why the Applicant was “going to ‘discuss’ this for 14 days and then have to let them switch anyways”, (with the word “discuss” put in quotation marks by the Respondent himself), is completely revelatory of the Respondent’s intentions in relation to such matters. The Respondent already had made up his mind that the change he intended to make in location of the children’s school would be implemented, regardless of what the Applicant might say in that regard in an effort to discuss the matter and arrive at a jointly made decision as required by the court order. In his view, any communications in that regard would be a “discussion” in form only, and it was pointless to embark on such “discussion” for 14 days when he regarded the outcome as a foregoing conclusion. Such an approach is the antithesis of a good faith effort, as required by the party’s agreement and court order, to discuss such matters with the other parent in a meaningful way, in an effort to arrive at a joint parenting decision if possible.

3. In my view, a clear indication and demonstration that the children’s father that he did not intend to engage in agreed and court ordered exercise of joint decision-making responsibility barring specified exceptional circumstances, but instead engage directly in sole decision-making authority in any event, was another demonstrated change in the children’s circumstances that has had and will have a significant impact on their lives.

vii. For the reasons outlined above, I think the court has the ability, in the circumstances, to make a temporary parenting order pursuant to s.17(1) that effectively varies the final order made by Justice King, with the court then approaching the matter through the lens dictated by the provisions of s.16.1 of the Divorce Act, supra; e.g., taking into consideration only the best interests of the children.

d. In my view, having regard to the best interests of the children, and determining those best interests as well as I can in the current context of conflicting affidavit evidence:

i. Although the children should be permitted to complete their current school year at their school in Embro, for the reasons outlined above, a temporary without prejudice order nevertheless should be made, (and apply pending party agreement or further court order to the contrary), whereby the children thereafter should return to their previous school in Ingersoll starting in September of 2024, with the parties being directed to co-operate fully in any and all steps required to complete the corresponding changes to school registration in that regard.

ii. I think that such a temporary without prejudice order is in the best interests of the children for reasons that include but are not limited to the following considerations:

1. The children had attended that school without interruption from September of 2021 to June of 2023, (i.e., at least two academic years), prior to the change unilaterally implemented by the Respondent. In my view, their attendance at their school in Ingersoll, (along with the children’s familiarity with that school, established peer and friend relationships at that school, and pattern of daily routine and transportation associated with attending that school), accordingly was the status quo ante until that was unilaterally disrupted and altered by the Respondent’s conduct.

2. While a new status quo arguably has been established through the Respondent’s conduct, (i.e., insofar as the children will have completed an academic year at their school in Embro, and no doubt will have forged new relationships there), this is not a situation whereby a return to the status quo ante will be significantly disruptive or traumatic for the children – especially if the transition back to their school in Ingersoll does not occur immediately, but only when school resumes in September. That will allow for the current school year in Embro to conclude in an orderly way and provide the children with an extended period to prepare for return to their school in Ingersoll. Again, in that regard, they will be returning to familiar surroundings, and renewed contact with the peers and friends they already had at their school in Ingersoll. Moreover, as the children will continue to spend alternating weeks in Embro, it seems likely that they also will be able, during parenting time with their father and appropriate arrangements, to maintain social contact with the new friends they have made in the Embro area.

3. In my view, a school located between the two residences of the children’s parents makes sense, particularly insofar as it inherently minimizes the necessity for the children having to endure transportation of an extended nature associated with their schooling and the “rotating week” parenting arrangement agreed upon by the parties. In that regard, I appreciate that a school in the immediate vicinity of one parent’s residence or the other means that the children would have minimal inconvenience on school days when they are in the care of that parent. However, that would come at the expense of the children regularly having to spend a considerable and, in my view, excessive time in transit on days when they are in the care of the other parent.

4. I am not satisfied that the justifications and/or rationalizations proffered by the Respondent for changing the children’s school from Ingersoll have any merit or raise any countervailing concerns that a return of the children to their school in Ingersoll would not be in their best interests. Without limiting the generality of the foregoing:

a. As noted above, the evidence of the parties is conflicting as to whether or not Noah was experiencing any bullying at his school in Ingersoll. The Respondent says he was. The Applicant has no knowledge of any concerns in that regard. As noted above, the objective input of the Children’s Lawyer would assist in making any final determinations in that regard. For present purposes, however, I am inclined to doubt the existence of any such bullying concerns. In particular, if there were any noted or significant concerns in that regard, I think it remarkable that the Respondent would not have mentioned them to the Applicant prior to offering the existence of such concerns as an after-the-fact justification for changing the children’s school, or that the Respondent would not have taken demonstrable steps to raise such concerns about bullying with the teachers and staff at the Ingersoll school. However, there is no evidence that the Respondent engaged in any such communication with the Applicant or took any steps to raise such matters with those at the Ingersoll school who could, and no doubt would, have intervened on Noah’s behalf had any such bullying concerns been brought to their attention.

b. As noted above, the evidence of the parties is conflicting as to whether disciplining of Adelyn at the Ingersoll school was a serious or ongoing concern. However, in her affidavit evidence, the Applicant provides detailed and compelling indications, not contradicted by the Respondent, that the concerns giving rise to such discipline were dated and fleeting, that they were addressed to the satisfaction of all via restorative measures, (i.e., with minimal “discipline”), and that all concerns in that regard effectively had come to an end. Again, the reality that such concerns apparently were proffered by the Respondent as a justification/rationalization for the change in Adelyn’s school only after the fact makes me inclined to believe that they were not serious concerns, or the real motive for the Respondent implementing the change. Moreover, I am inclined to agree with the submission of Applicant counsel that, if there were any ongoing behaviour concerns relating to Adelyn in that regard, there is no obvious correlation between the location of Adelyn’s school and the need to address such behaviour concerns by focusing directly on Adelyn and her relevant behaviour, regardless of where she might be attending school.

c. In determining what might or might not be in the best interests of the children, as far as the location of their schooling during the course of this proceeding is concerned, I place little or no weight on the Respondent’s stated desire to have all of his children, (i.e., Noah and Adelyn, but also the Respondent’s two younger children from his current relationship), to attend the same school. At the moment, the Respondent’s two younger children apparently are very young; i.e., a child who has yet to celebrate a second birthday, and a relative new-born who is less than one year old. Neither will be attending public school for years to come, and the fact that any reliance is being placed on such considerations reinforces my impression that the Respondent is “stretching” to find added justifications for the change he unilaterally implemented.

d. Reliance was made by the Respondent on an indicated change in employment of the Respondent’s new partner, who has participated in transporting the children to and from their school in Ingersoll. In particular, the Respondent indicates in his responding affidavit that his new partner is now working as a house cleaner and is unable to drive the children to their school in Ingersoll. However, no further details were provided in that regard; e.g., in relation to the new hours work hours, whether or not those hours are flexible, whether or not the Respondent himself has any ability to participate more directly in the school-related transportation of his children, or whether or not the Respondent has the resources and ability to make alternate arrangements for the school-related transportation of the children if neither he nor his partner are capable of performing that task. Conversely, I was provided with very detailed information concerning the significant challenges being experienced by the Applicant in managing the school-related transportation associated with the children’s attendance at school in Embro; i.e., having regard to the current scheduling and resource challenges being faced by the Applicant in that regard given her ongoing part time education at Conestoga College and part time employment as an educational assistant in Ingersoll, her limited finances, and the risks associated with necessarily having to rely upon her parents, (currently aged 78 and 76), to repeatedly drive the children 28.6 km each way to and from school, (a drive taking 23 minutes in the best of conditions), in all weathers. Looking at such transportation challenges and related party disputes through the lens of the best interests of the children, I think the children unnecessarily are being subjected to an excessively complicated, logistically challenging and potentially dangerous routine of school-related transport during days while they are to be in their mother’s care but attending their school in Embro. In my view, it is in the best interests of the children for that to stop, and it will stop if and when the children return to attending their school in Ingersoll, instead of their school in Embro. Once the children return to that school, division of responsibility for school-related transportation between the parties should return to the status quo ante that prevailed while the children were attending that school.

iii. In relation to school-related transportation for the balance of the current academic year – i.e., while the children continue to attend their school in Embro until the end of June:

1. For reasons already outlined, I do not think it is in the best interests of the children that they routinely continue to be driven significant distances to and from school by their aged and aging maternal grandparents during school days when the children are to be in the Applicant’s care. In my view, that practice should be brought to an end as soon as possible and, as the Applicant lacks the ability and financial resources to implement alternative transportation arrangements in that regard, in my view such school-related transportation during days when the children are to be in the Applicant’s care henceforth should fall exclusively on the Respondent, for the remainder of the current academic year.

2. While my decision in that regard is in accordance with the best interests of the children for the reasons I have outlined, I also think it is buttressed from a fairness perspective by the reality that the current situation and logistical difficulties were brought about by the Respondent’s unilateral decision making, in apparent bad faith contravention of the party’s agreement and resulting court order, for the reasons I also have outlined.

[5] For the above reasons, a temporary without prejudice order shall go whereby, pending party agreement or further court order to the contrary:

a. The Office of the Children’s Lawyer shall be invited to appoint counsel for the children, pursuant to section 89 of the Courts of Justice Act, supra, with a view to objectively ascertaining the views of the children in relation to their preferred school location, (including concerns suggested by the Respondent concerning possible bullying of the child Noah and school discipline of the child Adelyn), and reporting/providing those views to the court. The Respondent shall forthwith complete the steps necessary to process that order.

b. For the balance of the current academic year, (i.e., until the end of the current school year in June of 2024), the parties’ children shall continue to attend school at their current school in Embro.

c. In subsequent school years, (beginning with the academic school year starting in September of 2024), the children shall attend their former school in Ingersoll, and both parties shall cooperate if and as necessary to the fullest extent possible to complete all necessary school registration procedures in that regard.

d. For the balance of the current academic year, (i.e., until the end of the current school year in June of 2024), the Respondent shall bear responsibility for all school-related transportation during days when the children are to be in the Applicant’s care pursuant to the existing court order.

e. In subsequent school years, (beginning with the academic school year starting in September of 2024), school-related transportation responsibilities shall be divided between the parties in the manner that prevailed prior to the children’s school being relocated from Ingersoll to Embro.

[6] I note in passing that, while the parties provided me with the specific names of the children’s schools in Ingersoll and Embro, I deliberately have avoided express reference to those specific school locations in this decision, bearing in mind that the decision may be reported, and the information therein may be publicized accordingly. When preparing the necessary court order, however, counsel should employ the specific school names for greater certainty.

[7] Finally, in relation to costs:

a. It is always preferable and sensible for parties, especially in family law litigation such as this where parties are of limited means, to discuss and settle upon a mutually agreed cost disposition without having to direct more time and money towards such issues.

b. However, if the parties are unable to agree on costs:

i. The Applicant may, within two weeks of the release of this decision, submit written cost submissions limited to three pages in length, not including any bill of costs or settlement offers in that regard.

ii. The Respondent thereafter may, within two weeks of receiving the Applicant’s written cost submissions, submit responding written cost submissions, similarly limited to three pages in length, not including any bill of costs or settlement offers in that regard; and

iii. The Applicant thereafter may, within one week of receiving the Respondent’s responding written cost submissions, submit reply written cost submissions limited to one page in length.

c. If no written cost submissions are received within two weeks of the release of this decision, no costs of the parties’ motions shall be awarded.

Justice I.F. Leach Date: April 22, 2024