Court File and Parties
COURT FILE NO.: FC 125/23 DATE: 2024/07/03 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Raymond Den Boer, Applicant AND: Amanda Wynn Van Ittersum, Respondent
BEFORE: T. PRICE J.
COUNSEL: Michelle Retief - Counsel for the Applicant Marie A. Tukara - Counsel for the Respondent
HEARD: May 24, 2024
Endorsement
Overview
[1] There are two issues on these motions. The first is where the parties’ child should attend school for Junior Kindergarten commencing in September 2024. The second is a revised parenting schedule.
Background
[2] The parties married in 2011, separated in 2021 and were divorced in 2023. They have one child, L., born in December 2019.
[3] From the date of separation until May 2023, the parties resided approximately 2 km apart.
[4] The Applicant (Mr. Den Boer) resides with his fiancée and her 17-year-old son. They plan to marry in July 2024. Mr. Den Boer is a farmer, living and working on his family’s farm. When the parties were married, this is where they resided.
[5] The Respondent (Ms. Van Ittersum) has remarried and is currently pregnant. In May 2023, she and her husband moved into Tillsonburg to a residence which is approximately a 10-minute drive from the farm on which Mr. Den Boer continues to reside.
[6] Mr. Den Boer was subject to the terms of a no contact order with respect to Ms. Van Ittersum from December 2021 to July 2022.
[7] While Ms. Van Ittersum alleges that Mr. Den Boer abused her emotionally, mentally and physically during the marriage, according to Mr. Den Boer, a significant factor in the breakdown of the marriage was the parties’ disagreement over religion. Ms. Van Ittersum adheres to a religious faith of which Mr. Den Boer was formerly a member. Now, not only has he disavowed it, he is openly critical of it.
[8] I will address L.’s school attendance first, because its outcome will have an effect on how the parties’ parenting time will be allocated as of September 2024.
Registration for Junior Kindergarten
[9] Ms. Van Ittersum seeks to register L. for Junior Kindergarten at Oxford Reformed Christian School (hereinafter, Oxford Reformed C.S.), a private school affiliated with the church of which she is, and Mr. Den Boer formerly was, a member.
[10] That school is located north of the town of Tillsonburg, placing it northwest of Mr. Den Boer’s family farm. According to maps and information provided by both parties, the school is nearly equidistant from the homes of both parents, a factor relied upon by Ms. Van Ittersum as favouring L. attending Oxford Reformed C.S.
[11] Ms. Van Ittersum also points to the fact that, despite Mr. Den Boer having now withdrawn from the church, L. was baptized into it while both she and Mr. Den Boer were members of the congregation.
[12] She cites the church being a large part of her and Mr. Den Boer’s Dutch cultural heritage and their Oxford County communities. She claims that Oxford Reformed C.S. adheres to the values that the parties taught L. when he was younger. She claims that these same values continue to be followed in her home, both generally and, specifically, when L. is in her care.
[13] While alleging that Mr. Den Boer speaks derogatorily about her religion since they separated, Ms. Van Ittersum also acknowledged that some churches adhering to the religion she follows are more strict and “traditional” in their teachings. She indicated that neither the church that she attends nor the school she proposes that L. attend is amongst those with a more “traditional” application of their beliefs.
[14] She further claimed that Mr. Den Boer believes that Oxford Reformed C.S. is not subject to testing or a standardized curriculum, and that its teachers are not licensed. She denied those concerns.
[15] In responding to these concerns, Ms. Van Ittersum deposed about having communicated with and having received information from the principal of Oxford Reformed C.S. She also deposed that she “reviewed public documents and information posted on” the school’s website. Additionally, she claimed to have spoken on several occasions to “the school’s” [unidentified] “financial administrator.”
[16] Based upon the information she obtained from this mixture of sources, Ms. Van Ittersum deposed that:
a. Oxford Reformed C.S. is:
i. overseen by an elected Board consisting of parents whose children attend the school, and
ii. affiliated with several local churches, none of which are, according to Ms. Van Ittersum, affiliated with the more “traditional” churches which are of concern to Mr. Den Boer;
b. the teachers at Oxford Reformed C.S. are said to be licensed and registered with the Ontario College of Teachers; and
c. standardized testing is provided in odd-numbered grades yearly.
[17] Through her “own research into what Oxford Reformed C.S. offers,” Ms. Van Ittersum reported that she “confirmed” that the same subjects as are taught in the public school are taught at Oxford Reformed C.S., with an “integrated Biblical worldview.” She also reported that, in addition to the usual academic subjects, Oxford Reformed C.S. provides music programs, competitive sports and after-school workshops and skill-building opportunities.
[18] She deposed that L., although “smart, caring, sensitive and inquisitive,” requires “a lot of attention and care” which, she asserted without attribution, he will receive in the smaller classes offered at Oxford Reformed C.S. Additionally, she indicated, without identification of the source of this information, that the schedule at Oxford Reformed C.S. is more flexible than in the public system, with kindergarten students attending school every other day, until grade 1. [1]
[19] Moreover, she claimed that L. would be attending Oxford Reformed C.S. with friends he already knows. Regardless of the accuracy of that statement, again, without attribution, she claimed that current enrolment at Oxford Reformed C.S. is around 360 students through 13 grades from kindergarten through grade 12, with class sizes in the elementary grades averaging between 25 and 30 students.
[20] According to Ms. Van Ittersum, Oxford Reformed C.S. charges an annual tuition of $7,800.00 for children in kindergarten. The annual tuition increases as a child progresses through higher grades. The tuition is said to be applied “per family” and not “per child.” None of this information is attributed to an identified source, but one might surmise that it came from the unidentified financial administrator of Oxford Reformed C.S.
[21] Based on this information, Ms. Van Ittersum reasons that, ultimately, when her yet-to-be born child begins to attend school, that child’s attendance will reduce the “per child” tuition cost for both children. She asserted that Mr. Den Boer would not have to contribute to the tuition.
[22] Ms. Van Ittersum also proposed, if her primary choice of Oxford Reformed C.S. were to be rejected at this time, that she be permitted to register L. for school at Annandale Public School in Tillsonburg (hereinafter, Annandale), which both parties agreed is a 3-minute drive from her home and an 11-minute drive from the home of Mr. Den Boer. She also claimed that many of L.’s peers from the neighbourhood where he resides in Tillsonburg will be attending Annandale.
[23] Mr. Den Boer’s opposition to Oxford Reformed C.S. appears to lie in his belief that children should not attend schools operated by religious organizations. More specifically, in this case, he does not agree with the teachings or policies of the church attended by Ms. Van Ittersum. This, he claims, causes him to fear that, if L. were to attend Oxford Reformed C.S., his “upbringing and education will be significantly different from and in conflict with” Mr. Den Boer’s beliefs. He further expressed concern that enrolment in Oxford Reformed C.S. has the potential to damage his long-term relationship with L.
[24] Despite his opposition to L. being educated at Oxford Reformed C.S., Mr. Den Boer expressed no opposition to L. attending church with Ms. Van Ittersum during her parenting weekends. Instead, he used the likelihood of this occurring to support his argument that L.’s education should not be tied to the teachings of his mother’s religion because he will be exposed to those teachings at church when in her care.
[25] Mr. Den Boer’s preference is that L. attend a public school where he will be surrounded by people of varied backgrounds, cultures and ideas. To that end, he proposed that L. attend Emily Stowe Public School (hereinafter, Emily Stowe) in the nearby community of Norwich.
[26] The rationale for his choice of school was based partially on information said to have been provided by his unidentified neighbours about the school’s reputation, especially when those neighbours compared it to the reputation of Annandale, and “public feedback.” The criteria upon which his neighbours relied in reaching their conclusions about the comparative reputations of the two public schools were not disclosed. The “public feedback” cited by Mr. Den Boer was neither particularized nor quantified.
[27] Mr. Den Boer further deposed that he had spoken several times to both the (unidentified) principal and the (unidentified) vice-principal of Emily Stowe. He indicated that he had sought written confirmation of the information that each had provided to him but none was provided.
[28] Consequently, without properly identifying the source or sources of his information, Mr. Den Boer claimed that Emily Stowe offers a “flexible “build your own” schedule in kindergarten,” one which eventually leads to full-time attendance. Relying on that claim, he further alleged that the plan allows parents to adjust their child’s schedule according to his or her specific needs, a feature he also maintained was not available at either Oxford Reformed C.S. or Annandale, the schools proposed by Ms. Van Ittersum.
[29] Despite Ms. Van Ittersum’s claim that he would not be asked to contribute to L.’s tuition at the faith-based school, Mr. Den Boer, asserting that the tuition for attendance at Oxford Reformed C.S. ranges between $13,680 and $16,920 per annum, articulated his opposition to paying tuition for L.’s education when public education is available.
[30] In summarizing his opposition to Ms. Van Ittersum’s request on this issue, Mr. Den Boer indicated that he viewed the public schools available to L. as being “good schools that will equip L. with a solid foundation for learning and socialization with a varied group of peers” while also enabling his full participation in L.’s educational experiences.
[31] In responding to Mr. Den Boer’s claim about the ability to gradually increase L.’s attendance at Emily Stowe, Ms. Van Ittersum noted that, regardless of the accuracy of that claim, all children entering Junior Kindergarten there will eventually attend 5 days per week, a frequency that she “thinks” will be far too much of a change for L..
[32] Ms. Van Ittersum had also claimed that L.’s attendance at Emily Stowe would compel her either to drive him to and from school when he is in her care or to and from the nearest school bus stop, said to be located an 11-minute drive from her residence. Mr. Den Boer’s response was that, on her parenting days, Ms. Van Ittersum could simply drop L. off at the farm, where he can board the school bus. Ms. Van Ittersum’s reply was that if L. were to attend Emily Stowe, regardless of where he might be picked up by the school bus, his travel time both ways will be greater than that which will be required if he attends Oxford Reformed C.S.
[33] Lastly, while rejecting Mr. Den Boer’s claims about the cost of tuition at Oxford Reformed C.S., Ms. Van Ittersum reiterated that the cost would not be borne in any way by Mr. Den Boer.
Discussion
[34] Education and religion are two of the specifically identified realms related to a child’s well-being over which that child’s parents have been granted responsibility to make significant decisions pursuant to s. 20(1) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (hereinafter, the CLRA) and s. 2(1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) (hereinafter, the Divorce Act).
[35] Any such decisions must be made in the best interests of the child who is the subject of the decision. (CLRA, s. 20(2); Divorce Act, s.16(1))
[36] Because they have been specifically identified in the legislation, I find that the legislative bodies which enacted these provisions recognized the fundamental role that both religion and education play in a child’s development.
[37] Consequently, unless the parties agree explicitly, impliedly or by the acquiescence of one parent in favour of the other, or a court orders otherwise, separated parents remain equally entitled to participate in and make fundamental decisions about their children’s education and religion. (CLRA, s. 20(4))
[38] While such a statement is not made expressly in the Divorce Act, I find that it applies there equally because, until a court makes an order thereunder, some regime must exist for the making of significant decisions about the children of separated and divorcing or divorced parents. A test based on the principle specifically enumerated in s. 20(4) of the CLRA seems the most logical to apply.
[39] In this case, neither party has ceded decision-making responsibility pertaining to L.’s education or religion to the other. In fact, the parties are opposed in respect of where L. will be educated because they are also opposed in respect of matters pertaining to his religion.
[40] In her Notice of Motion, Ms. Van Ittersum sought an order that L. be registered in Oxford Reformed C.S. for the entirety of his elementary and secondary educational years. I informed counsel that no such order would be made because the longer-term issue of where L. might attend school is, in my view, an issue for trial, as will be the extent of his exposure to the religion practiced by Ms. Van Ittersum.
[41] Consequently, as I indicated to counsel at the time of the motion, my order will address only the school year commencing in September 2024, given the possibility that this matter could proceed to trial by September 2025. If that were not to occur, a party could, if so advised, seek to vary my order before the start of the school year in commencing in September 2025 if there were to be a substantial change in circumstances.
[42] Another matter of concern is the fact that much of the information provided to me by both parties on the motion in support of their positions about which school L. should attend for Junior Kindergarten was said to have been obtained from other sources.
[43] While both parties deposed to a belief as the truth of that information where it was obtained from identified third parties, in most instances the sources, if third parties, were not identified. The only exception was with respect to the information that Ms. Van Ittersum obtained from William Van Brugge, the principal of Oxford Reformed C.S. Unfortunately, she did not separate the information which she received from Mr. Van Brugge from the information which she obtained from the other sources.
[44] Consequently, much of the information upon which the parties relied for their motions was of little assistance to me because it did not rise to the level of being evidence that met the criteria for admissibility under Rule 14(19(a).
[45] As Justice H.A. McGee wrote in Children and Family Services for York Region v. N.A, [2018] O.J. No. 984:
20 Rule 14(19) of the Family Law Rules permits a deponent to state information learned from someone else, but only if the source of the information is identified by name, and the Affidavit states that the person signing it believes the information is true.
21 Rule 14(19) is permissive, not mandatory. Its primary function is to provide a controlled exception to the hearsay rule. A judge retains the discretion to refuse to admit the hearsay evidence based on information and belief when the information is being led for the truth of its contents.
22 For hearsay to be admissible, rule 14(19) requires the affiant to state the source of the information and belief, and to depose that he or she believes the information to be true. The requirements are conjunctive and necessary to furnishing a sufficient basis upon which evidence can be assessed as credible and worthy of belief.
23 In considering whether the formal requirements under rule 14(19) are met, a justice must also consider why the original source of the information did not swear her own affidavit, and the circumstances in which the hearsay evidence was obtained.
[46] I was provided with no reason why any of the persons spoken to by the parties to gather information, identified or unidentified, did not swear affidavits. Mr. Den Boer did seek to have some confirmation of the information provided to him verified but he was ultimately provided with no confirmation.
[47] I did make an exception for the distance to the different schools from each party’s home because they appear to have agreed on that issue.
[48] Additionally, some of the information provided by both parties, particularly Ms. Van Ittersum, was said to have been, or was clearly, obtained from the internet. The clearest statement that I was able to locate about the criteria that must be met before such information may be relied on by a court was that of Justice D.G. Price at paragraphs 87 and 88 of Sutton v. Sutton, [2017] O.J. No. 2648, where he wrote, citing the decision of Justice Tremblay-Lamer of the Trial Division of the Federal Court in ITV Technologies, Inc. v. WIC Television Ltd., [2003] F.C.J. No. 1335, 2003 FC 1056, aff'd. [2005] F.C.J. No. 438, 2005 FCA 96 (Fed. C.A.):
87 Justice Tremblay-Lamer held that internet information can be admissible if it is accompanied by indicia of reliability, including, but not limited to:
whether the information comes from an official website from a well-known organization;
whether the information is capable of being verified;
whether the source is disclosed so that the objectivity of the person or organization posting the material can be assessed.
88 Justice Tremblay-Lamer held that where the threshold of "admissibility" is met, it is still up to the trier of fact to weigh and assess the information to determine what significance, if any, it has on the issues to be decided. The court concluded, at para. 27, that the evidence in that case did not meet the threshold of admissibility and that it should be struck: Accordingly, I find that affidavit evidence, "on information and belief", including information taken from the internet, is potentially admissible in interlocutory applications, … and may be admitted "under special circumstances" where the "grounds for such information and belief" are adequately disclosed and the information is reliable. Here, the subjective basis for the reliability of the information has not been disclosed and, furthermore, there is no objective basis to believe that the various postings have any degree of reliability.
[49] The information cited by Ms. Van Ittersum in support of, apparently, the qualifications of the teachers at Oxford Reformed C.S., the churches with which it is and, equally important, is not, affiliated, and its adherence to provincial educational protocols and testing was, by her own words, taken in part from “public documents and information” posted to the school’s web site. Moreover, as to the courses said to be taught at the school, she cited her own “research”, without informing the court of what that research consisted or the sources upon which she relied.
[50] Absent better information about the sources of her “information and belief” based on what was posted to the school’s website, or which informed her own research, I must reject, for the purposes of this interim motion, the information that Ms. Van Ittersum provided on “information and belief” about the educational environment, including the religious teachings, L. will be exposed to were he to attend Oxford Reformed C.S.
[51] The information provided by Mr. Den Boer did not fare much better, as it also repeatedly failed to meet the test of admissibility set out in Rule 14(19(a). To the extent that he provided information taken from the website of Oxford Reformed C.S., I find that it does not meet the criteria for admissibility articulated by Justice Tremblay-Lamer in ITV Technologies, Inc., cited by Justice Price in Sutton.
[52] As a result, what I am left with is this: three schools that I need to consider for L. to attend in September 2024 – Oxford Reformed C.S., Annandale and Emily Stowe.
[53] According to Ms. Van Ittersum, L. has friends who will be attending both Annandale and Oxford Reformed C.S.
[54] I can take judicial notice of the fact that both Annandale and Emily Stowe are not only public schools, but that they are each under the jurisdiction of the Thames Valley District School Board. As such, each will be subject to both the educational policies of the provincial Ministry of Education and the Board. Accordingly, I find it difficult to accept the assertion of Mr. Den Boer that the process for slowly integrating a child into Junior Kindergarten at Emily Stowe would also not be available to that same child at Annandale.
[55] The parties clearly disagree on how many days per week L. should be attending school. Despite each knowing their child far better than I ever could, they cannot agree on this issue, and have asked me to make that decision.
[56] In that circumstance, I must fall back on the educational prerogatives of the Minister of Education, who is empowered by various provisions of the Education Act, R.S.O. 1990, c. E.2 and regulations thereunder, to issue guidelines and directives with respect to kindergartens and Junior Kindergartens. [2]
[57] At present, as I understand it, children who are registered to attend either Junior Kindergarten or Kindergarten are expected to attend all day, every day, five days per week. However, I do not know if that expectation is inflexible since, subject to limited exceptions, school attendance is mandatory only for children 6 years of age and older. [3]
[58] As both counsel noted in their Statements of Law, my decision is not about what is best for children, generally, but what is best for L..
[59] In considering L.’s best interests, I am required, in accordance with s. 24(2) of the CLRA and s. 16(2) of the Divorce Act to “give primary consideration to [his] physical, emotional and psychological safety, security and well-being.”
[60] If I were to require L. to attend Oxford Reformed C.S. at this juncture, without having heard all of the evidence that each party could assemble as for a trial, it is not hard to conclude that such an order could place him in the middle of ongoing disputes between his parents about what he is being taught there, especially given Mr. Den Boer’s negative views about the religion in which L. is being raised. This prospect is hardly conducive to his emotional and psychological security and well-being. It could also foreseeably negatively impact his relationship with Mr. Den Boer, which could be equally damaging to him.
[61] I accept Mr. Den Boer’s comment that L. will still be able to attend church with Ms. Van Ittersum when he is in her care on weekends, as I also accept her evidence that, regardless of where L. attends school, he will be exposed to the values of her religion whenever he is in her care, values that he has been exposed to and taught since his birth. My acceptance of the parties’ evidence in this regard, in my view, addresses the requirement of CLRA s. 24(3)(f) [also, Divorce Act, s. 16(3)(f)] that, in making the decision that I see as being in his best interests at this time, I must consider L.’s “religious and spiritual upbringing and heritage.”
[62] As a result, it is my view that, at this time, prior to a trial, and on the admissible evidence that the parties have placed before me on this motion, it is in L.’s best interests to attend a public school.
[63] That said, I also reject the position of Mr. Den Boer that L.’s best interests would be served by having him bused to a different community to attend a school where, on the evidence, it seems that none of his friends will be attending, simply because of the opinions of unnamed and, quite possibly, unqualified individuals about the relative merits of two different schools both under the jurisdiction of the same school board.
[64] In the result, I conclude that, commencing in September 2024 and, preferably, until this case is tried, L. is to be registered to attend Annandale Public School in Tillsonburg. The fact that his attendance there will mean a longer drive for Mr. Den Boer than it will for Ms. Van Ittersum, for whom Annandale is a local community school, should not matter to Mr. Den Boer, who provided ample evidence about the time that he will have available to care for L. because of the increased automation of his farming operation and the increased number of persons working there. Surely, with all the increased time available to him by these advances, Mr. Den Boer should have no difficulty transporting L. to and from school when L. is in his care, if a school bus is not available to transport L. from the farm to Annandale and back at the end of the school day.
Parenting Schedule
[65] Following the parties’ separation, they attended mediation. Both were represented by “senior experienced counsel.” The mediation resulted in a parenting schedule which afforded each of them parenting time with L. consisting of a mixture of full or partial days, evenings and overnight periods. Mr. Den Boer was also to have L. in his care each weekend from Saturday at 4:30 PM until Monday at 7:30 AM. Under the schedule, L. has been moving back-and-forth between the parties 10 times per week.
[66] While Ms. Van Ittersum claimed that she has never really been satisfied with the current parenting schedule, and that it was the result of Mr. Den Boer consistently and constantly bullying her, that is not an issue for this motion. Whether true or not, the fact is that there was a mediated agreement as to the parenting schedule and both parties were represented during the mediation.
[67] The schedule now presents them with a number of difficulties, particularly with L. about to begin school in September 2024. Moreover, with L. now being older, the parties agree that a new parenting schedule with fewer exchanges per week is in his best interests.
[68] The parties differ on what that schedule should be.
[69] Mr. Den Boer seeks a 2-2-3 schedule, which he claims that he has requested since 2021 and which Ms. Van Ittersum has resisted. He advises that, ultimately, his goal is to achieve a week-about parenting schedule.
[70] His position is that a 2-2-3 schedule will reduce the frequency of transitions for L. and provide him with more quality time with each of the parties while also allowing for Ms. Van Ittersum to take L. to church on her parenting weekends.
[71] He further asserted that the improvements to the farming operation previously identified enable him to structure his time so that, when L. is in his care, he will be able to devote the majority of his time to parenting him.
[72] For those times when he may be unable to care for L. because of work commitments, he reports that his fiancée, who is known to L., will be able to care for him.
[73] Ms. Van Ittersum, similar to Mr. Den Boer, finds the current parenting schedule to be “onerous and inconvenient,” deposing that L. becomes extremely upset at the multiple exchanges which occur during the week with the current schedule.
[74] She seeks a schedule pursuant to which L. will reside primarily in her care and have parenting time with Mr. Den Boer on alternating weekends and during one midweek overnight each week.
[75] She doubts Mr. Den Boer’s ability to be consistently available to care for L. to make a 2-2-3 schedule practical, pointing to her experiences with Mr. Den Boer’s work schedule while she was residing with him on the farm. She alleges that her schedule is more flexible, while also acknowledging that she works part-time cleaning houses and that she has taken L. with her in the past while she has done so.
[76] Mr. Den Boer is concerned that the schedule proposed by Ms. Van Ittersum will reduce his parenting time with L. - a result with which he does not agree. His position is that it would be preferable to continue to adhere to the existing schedule pending the trial if a 2-2-3 schedule does not result from the motions.
[77] As is often seen in disputes between parents about their children’s behaviours in the context of parenting time, both parties allege that L. voices objections at leaving their care and returning to the other parent, and that the actions or behaviours, both current and past, of the other parent are the cause of L.’s objections.
Discussion
[78] According to a chart provided on the motion by counsel for Mr. Den Boer, and not objected to by counsel for Ms. Vam Ittersum, under the current parenting schedule, L. is in the care of Ms. Van Ittersum 59.82% of the time and in the care of Mr. Den Boer 40.18% of the time.
[79] Mr. Den Boer now seeks to have L. in the care of each party 50% of the time.
[80] According to Mr. Den Boer, if the schedule sought by Ms. Van Ittersum were to be implemented, L. would be in the care of Ms. Van Ittersum between 71.43% and 75.74% of the time and in the care of Mr. Den Boer between 24.26% and 28.57% of the time depending, in each instance, on whether the weekend periods proposed by Ms. Van Ittersum end on Sunday or extend to Monday.
[81] As I see it, Mr. Den Boer’s proposal would increase his parenting time with L. by roughly 25%, and Ms. Van Ittersum’s proposal would increase her parenting time with L. by 20.33% and 27.12%, again depending on how weekends are defined.
[82] Both s. 24(6) of the CLRA and s. 16(6) of the Divorce Act require a court which is allocating parenting time between the parents of a child to “give effect to the principle that a child should have as much time with each parent [4] as is consistent with the best interests of the child.”
[83] It has been held that the “principle” articulated in these sections does not establish a presumption of equal parenting time. [see, for example, R.H. v. J.S., [2024] O.J. No. 747 at para. 118 (S.C.J.) and the cases cited therein.]
[84] I begin with the observation that, when the parties settled on the current schedule in mediation, they must have concluded that it afforded each of them as much time caring for L. as was in his best interests at the time. Under that schedule, Ms. Van Ittersum clearly had the time advantage with respect to L. being in her care.
[85] Now, with both agreeing that the existing schedule has L. moving between their respective homes too many times per week, the question is whether the parenting schedule proposed by either of the parties affords L. as much time with each as is in his best interests.
[86] The parties also differ on which of them provided care to L. before they separated. That is an issue for trial. Whatever the arrangement, they settled that difference with the existing, mediated parenting schedule. It does, however, remain an issue on the motion because each of them presents a different version of facts as to L.’s comfort being in the care of the other. For Ms. Van Ittersum, L.’s alleged discomfort in the care of Mr. Den Boer forms a component of her rationale for decreasing that time.
[87] Another of the drivers of the requested changes to the parenting schedule is the fact that L. will be starting Junior Kindergarten in September 2024. Clearly, the exchange times set out in the existing schedule will no longer work.
[88] I am not able, on a motion, to assess credibility of the parties, or make findings of fact other than those upon which the parties agree. In this case, they both agree that the existing schedule will not work once L. begins school.
[89] If I were to increase Mr. Den Boer’s parenting time with L. by any substantial amount, I might be exposing L. to increased discomfort on the barest of untested evidence. Conversely, if I were to reduce Mr. Den Boer’s parenting time by a substantial amount, I might deprive him of quality parenting time based on the same bare, untested evidence.
[90] By the same token, I have difficulty seeing the resolution of parenting time at this time being a 50/50 schedule, thereby reducing Ms. Van Ittersum’s time as L.’s caregiver, simply because Mr. Den Boer claims to have wanted such a schedule since 2021. That, it seems to me, focuses on his interests rather than L.’s.
[91] I am also swayed by the reasoning of Justice J.S. Fregeau in Chapates v. Hamilton, 2013 ONSC 461, that a 2-2-3 parenting schedule is potentially problematic in cases where the parents have been in conflict, as is the situation here with respect to post-separation parenting decisions and possible power and control issues and could lead to increased conflict between them.
[92] As was the case in respect of where L. is to attend school in September 2024, in making a decision with respect to parenting time that is in L.’s best interests, I am required to give primary consideration to his physical, emotional and psychological safety, security and well-being.
[93] L. has lived with a schedule that has had him in the shared care of his parents since September 2021. The current schedule is said to be confusing to him because of the frequency at which he moves back and forth between his parents, thereby causing him some anxiety. A new schedule should, as much as possible, seek to reduce, if not eliminate, that anxiety, a result that would hopefully improve his emotional and psychological well-being.
[94] The schedule proposed by each of the parties reduces the number of exchanges per month for L. from 40 to 12. Reducing the number of exchanges per month is a good start. However, with L. going to school, exchanges can also change, moving from parent-to-parent exchanges to ones effected through the school. The schedule I have devised includes, in a bi-weekly period, 2 parent-to-parent exchanges and 6 exchanges effected through the school, by which I mean school days where L. begins school in the care of one parent and ends the school day in the care of the other. While the total number of exchanges in a four-week period under my order slightly exceeds the number proposed by the parties under their preferred schedules, it is still substantially reduced from the 40 exchanges that are occurring under the current schedule.
[95] However, pending trial, it is my view that a new schedule should maintain as much as possible the current quantities of time that L. is in the care of each of his parents. Such a result, in my view, respects the agreement the parties reached in mediation as to how much time L. spends in the care of each of them is in his best interests.
[96] However, an equivalence of time with each parent under a new schedule will not be fully capable of being achieved because L. will be in school during the week, and will, therefore, be unavailable to each parent for the time that he is in school each day. As to that point, both parties must recognize and acknowledge that, once he begins attending school, L. will simply be available less time per week during the school year to be in their care.
[97] The only way to account for a similar temporal outcome, as I see it, is to allocate the time that L. is in school between the parties, and to count that allocated time as a component of the time that each is caring for L.
[98] Any significant increase or reduction in the time that either parent is permitted to care for L. is more appropriately determined following a trial by a judge who has heard all of the evidence bearing on the issue, with each party being exposed to cross-examination on their proposal.
[99] Having regard to these principles, the parenting time order that I have made, each party’s share of the non-school time available over a bi-weekly period remains close to what it is at present: Mr. Den Boer will have L. in his care 43.17% of the time, which is a slight increase, and Ms. Van Ittersum will have L. in her care 56.83% of the time, which is a slight decrease.
[100] However, when all time (school time and non-school time) available in a bi-weekly period is accounted for in accordance with the terms of the order as to who has deemed care of L. when he is in school, Mr. Den Boer will have L. in his care or deemed care 40.18% of the time and Ms. Van Ittersum will have L. in her care or deemed care 59.82% of the time – exactly as it is at present.
Order
Commencing on the next Sunday following the release of this decision on which Mr. Den Boer would have had care of L. under their mediated parenting schedule, the parties shall begin to have parenting time with L. according to the following schedule:
a. Week 1 (beginning at midnight Sunday) i. Mr. Den Boer has care of L.: Sunday until 7:00 p.m.; ii. Ms. Van Ittersum has care of L.: Sunday at 7:00 p.m. until Wednesday at 9:00 a.m. (or school start); iii. Mr.. Den Boer has care of L.: Wednesday at 3:30 p.m. (or end of school) until Friday at 9:00 a.m. (or school start); iv. Ms. Van Ittersum has care of L.: Friday at 3:30 p.m. (or end of school), for all of Saturday, at which time week 2 begins, with Ms. Van Ittersum continuing to have care of L. into Week 2. b. Week 2 (beginning at midnight Sunday) i. Ms. Van Ittersum has care of L.: all of Sunday, until Monday at 9:00 a.m. (or school start); ii. Mr. Den Boer has care of L.: Monday at 3:30 p.m. (or end of school) until Tuesday at 9:00 a.m. (or school start); iii. Ms. Van Ittersum has care of L.: Tuesday at 3:30 p.m. (or end of school) until Wednesday at 3:30 p.m. (or end of school); iv. Mr. Den Boer has care of L.: Wednesday from 3:30 p.m. (or end of school) until 7:30 p.m.; v. Ms. Van Ittersum has care of L.: Wednesday at 7:30 p.m. until Friday at 9:00 a.m. (or school start); vi. Mr. Den Boer has care of L.: Friday at 3:30 p.m. or end of school) and all of Saturday, at which time Week 1 begins again, with Mr. Den Boer continuing to have care of L. into Week 1.
For those days when L. is in the care of the same parent at the beginning and end of the school day, he is deemed to be in the care of that parent the entire time that he is at school.
For those days on which L. begins his school day in the care of one parent and ends it in the care of the other parent, his care is deemed to be transferred from the before-school parent to the after-school parent at noon.
For the school year commencing in September 2024, L. shall be registered to attend and, barring a substantial change in circumstances, shall continue thereafter to attend Annandale Public School in Tillsonburg pending a final order, whether made following a trial or achieved by other means.
The parties are strongly urged to settle the issue of costs, particularly if neither served an offer to settle the motions. If they cannot, they may direct written submissions on costs to me, through the Family Court Trial Coordinator at St. Thomas, by July 17, 2024. Submissions shall not exceed 3 pages, double-spaced, in 12-point Times New Roman font, and be accompanied by a Bill of Costs.
Each party making costs submissions shall advise specifically what they have invoiced or intend to invoice their client for the motions.
If no written submissions are received from any party by 4:30 p.m. on July 17, 2024, there shall be no order as to costs, meaning that each party shall bear their own costs of these motions.
Justice T. Price Date: July 3, 2024
Footnotes
[1] Under the Education Act, a child is not required to attend school until he or she reaches the age of 6 years, which usually aligns with a student entering or being enrolled in grade 1 in the public system.
[2] See, for example, the Education Act, R.S.O. 1990, c. E.2, ss. 8(1) (3.0.0.1), 11(1) (6.1) and 170(1) (6.2); O.Reg. 224/10
[3] Education Act, R.S.O. 1990, c. E.2, s. 21(1)
[4] The word “parent” is replaced by “spouse” in the Divorce Act.