Court File and Parties

Court File No.: FS-19-14217-00 Date: 2024-08-09 Superior Court of Justice - Ontario

Re: Robert Tremblay, Applicant And: Kimberly Landry, Respondent

Before: Justice S.K. Stothart

Counsel: Jerome Gardner, Counsel, for the Applicant Kimberly Landry, appearing on her own behalf

Heard: August 8, 2024

Endorsement

[1] The parties were in a common law relationship from June 6, 2015 to July 7, 2018. They have one child, Ethan Lawrence Tremblay “Ethan” who was born May 9, 2016. Ethan is eight years old.

[2] On December 19, 2019, the parties consented to an interim parenting arrangement which involved equal parenting time with Ethan. This was incorporated into a temporary order by Justice R.D. Cornell. This temporary order sets out that the parties shall parent the child in a 2-2-3 schedule as this would foster a relationship between Ethan and his sister, Charlieze. The order notes that the access schedule follows, for the most part, the respondent’s work schedule however recognizes that there will be times where the respondent will be working, and the applicant will parent the child. The order provides that on those occasions, make up parenting time is to be provided to the respondent.

[3] On December 22, 2021, the parties agreed that there would be no child support payable by either party because their respective incomes were similar and that the parties should share s.7 expenses equally. This was incorporated into an order by Justice A.D. Kurke.

[4] When Ethan became old enough to enroll in kindergarten, the respondent enrolled him in school in Chelmsford, where she has lived since separation. The applicant objected and requested that Ethan be enrolled at Valley View Public School, which is in Val Caron, where the applicant lived. Ultimately the parties agreed that Ethan would attend Valley View Public school, and that the respondent would drive Ethan to school when she had parenting time and Ethan would take the bus when the applicant had parenting time.

[5] Ethan has been attending Valley View for four years and is scheduled to enter Grade Three this September.

[6] The applicant has been employed as a schoolteacher. Between January and June, 2024, the applicant worked out of town, as vice-principal of a school in Timmins, Ontario. The applicant has now taken on employment out of town as principal of a school in Parry Sound, Ontario. His employment commences in September, 2024 and is the main catalyst for this motion. The applicant intends to sell his home in Val Caron and move to the Alban/Noelville area. His current spouse has obtained employment in Noelville and the applicant plans to commute to Parry Sound.

[7] The respondent has resided in Chelmsford, Ontario since the date of separation. She has worked full time as a nurse at Health Sciences North since 2010. She currently has a special accommodation at work which allows her to work 12-hour nightshifts so that she can be available to care for Ethan during the day. The respondent lives alone and does not have family or other supports in the area to assist with daycare. Due to difficulties in co-parenting Ethan, the respondent has had to drop down to working 90% of her full-time hours.

The applicant’s motion

[8] The applicant has brought a motion seeking two changes to the current parenting arrangement:

a. He wants to have week about parenting during the summer; and b. He wants Ethan to move to another school located in the south-end of Sudbury which is closer to Alban/Noelville.

[9] The respondent opposes both requests.

Position of the parties

The applicant’s position

[10] The applicant wants week about parenting during the summer because it will coincide with the week about summer parenting arrangement he has with another child, Charlieze. He wants both children to spend parenting time with him at the same time and wants to engage in longer activities with them. He states that he suspects that if the respondent could change her shifts at work and use daycare for Ethan when she is working, that she could accommodate week about parenting in the summer.

[11] The applicant wants Ethan to move to a school in the south-end of Sudbury because this will accommodate his intention to move to the Alban/Noelville area with his current wife and her children. Charlieze attends high school in Hanmer and is able to bus to Alban/Noelville because she is in a special program. The materials do not indicate what parenting arrangement exists with respect to Charlieze during the school year.

[12] The applicant intends to commute between Alban/Noelville and Parry Sound each day for his new employment. The applicant proposes that Ethan be bused from Alban/Noelville to a school in the south end of Sudbury and that the respondent continue to drive Ethan to and from this new school during her parenting time.

[13] The applicant submits that the respondent could move to an apartment in the south-end of Sudbury to accommodate his request with respect to changing schools. The applicant further submits that if the respondent does not want to move, the change in school will only result in an additional 9 to 13 minutes of driving time for the respondent when she drives Ethan to and from the new school each day during her parenting time. Currently it takes the respondent 20 minutes to drive Ethan to school in Val Caron. The commute to the new school will therefore take (rounded up) 30 to 45 minutes each way.

[14] The applicant states that the bussing time from Alban/Noelville will be approximately the same or less than what Ethan is experiencing now. The applicant’s evidence on this is inconsistent on this issue. He states in his first affidavit that the distance from the new school to the Alban turn off is a 45-minute drive. He states in his second affidavit that the bus drive would be 35 minutes with additional time for children to be dropped off along the way.

[15] The applicant also seeks that drop off and pick up for parenting time, which currently occurs in Chelmsford or Val Caron, be moved to the south end of Sudbury.

[16] The applicant submits that if he has to drive Ethan to school at Valley View every day, it will add an extra two hours of driving in each direction on a daily basis, for a total of four hours of commuting. The applicant states that if the court does not grant his motion, he will have no choice but to stop shared parenting with Ethan and Ethan will need to be primarily in the respondent’s care.

The respondent’s position

[17] The respondent submits that week about parenting simply does not work given she works shift work at the hospital.

[18] The respondent further submits that it is not in Ethan’s best interests to change schools. She states that Ethan has expressed to her that he does not want to switch schools because he has made friends at Valley View over the past four years. The respondent agrees with the applicant’s assertion that Ethan thrives on stability, and as such submits that the status quo with respect to schooling should continue.

[19] The respondent states that when the applicant took on employment in Timmins, Ethan only saw his father four times a month. The respondent states that she and Ethan’s teachers noticed a change in Ethan’s behaviour following Christmas 2023. The respondent fears that another large relocation and change will negatively impact Ethan.

[20] The respondent states that she cannot afford to move to the south end of Sudbury as the rental costs in that area are substantially higher than in Chelmsford. She as attached to her affidavit examples that support her assertion. She also states that the added driving to the south end of Sudbury will only increase the transportation costs she is already incurring in having to drive Ethan to Valley View.

[21] The respondent has approached her employer about another work accommodation that would permit the applicant to have parenting time with Ethan every weekend, and every long weekend. She has not yet received a response to her request. The applicant has rejected this option.

Applicable legal principles to be applied

Motion to vary an interim order or interim parenting arrangement

[22] Once an interim order is made, it is intended to be in place until a trial. There is a significant difference between applying to vary an interim order versus a final order. Interim orders are most commonly varied only in “compelling” or “exceptional” circumstances. Requests to change interim orders should be “rare”: Fatima v. Agha, 2024 ONSC 1441 at para. 19-20.

[23] While a court has jurisdiction to vary interim orders, motions seeking such relief are not to be encouraged. This is because parties are to be encouraged to proceed to trial in a timely fashion. Lipson v. Lipson, [1972] 3 O.R. 403 (Ont.C.A.) at para.3; Serryus v. Serryus, 1982 CarswellOnt 305 (Ont.C.A.) at para. 12.

[24] An important principle to be applied on an interim motion to vary an interim order is maintaining the status quo pending trial. This becomes even more significant when the parties consented to the present parenting agreement, and it has continued for some time. This factor applies whether the existing agreement is de facto or de jure: Greve v. Brighton, 2011 ONSC 4996 at para. 22; McEachern v. McEachern (1994), 5 R.F.L. (4th) 115 (Ont.Gen.Div.); Papp v. Papp, [1970] 1 O.R. 331 (C.A.)

[25] In the context of varying interim orders relating to children, there should be compelling reasons that the order should be varied to meet the children’s best interests: Greve v. Brighton, at para.22; E.N. v. S.N., 2023 ONSC 4480 at para. 34.

Best interests of the child

[26] The governing test for determining decision-making responsibility, primary residence and parenting time is the child’s best interests: Children’s Law Reform Act, R.S.O. 1990, c.C.12, s.24, as amended SO 2020, c.25, Sched 2, s.6 (“CLRA”).

[27] Respondent’s counsel has provided the decision of Grove v. Gahad, 2024 ONSC 2143, which summarizes the applicable law at paras. 8 to 11. I will set it out in its entirety:

8 The governing test for determining decision-making responsibility, primary residence, and parenting time is the child's best interests.: Children's Law Reform Act, RSO 1990, c C.12, s 24, as amended SO 2020, c 25, Sched 2, s 6 ("CLRA"). Sub-section 28(1)(b) of the CLRA specifically empowers the court to determine any matter incidental to custody rights which would include choice of school.

9 The best interests of the child framework requires primarily consideration of the children's physical, emotional and psychological safety, security and well-being: CLRA, ss 24(1) and (2). However, s. 24(3) lists additional factors that must also be considered: CLRA, ss 24(3).

10 Sections 24(1) and 24(2) of the CLRA state as follows: Best interests of the child

24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. 2020, c. 25, Sched. 1, s. 6.

Primary consideration (2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child's physical, emotional and psychological safety, security and well-being. 2020, c. 25, Sched. 1, s. 6.

Factors (3) Factors related to the circumstances of a child include,

(a) the child's needs, given the child's age and stage of development, such as the child's need for stability; (b) the nature and strength of the child's relationship with each parent, each of the child's siblings and grandparents and any other person who plays an important role in the child's life; (c) each parent's willingness to support the development and maintenance of the child's relationship with the other parent; (d) the history of care of the child; (e) the child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained; (f) the child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; (g) any plans for the child's care; (h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; (i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child; (j) any family violence and its impact on, among other things, (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and (k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.

11 Where parents disagree, the decision as to the choice of school that a child should attend is a matter of judicial discretion to be determined in accordance with the child's best interests. As explained by Audet J at para 37 of Thomas v. Osika, 2018 ONSC 2712, the following principles have emerged to assist a judge in making such decisions:

a. Sub-section 28(1)(b) of the Children's Law Reform Act specifically empowers the court to determine any matter incidental to custody rights. The issue of a child's enrolment in a school program must be considered as being incidental to or ancillary to the rights of custody (Deschenes v. Medwayosh, 2016 ONCJ 567); b. It is implicit that a parent's plan for the child's education, and his or her capacity and commitment to carry out the plan are important elements affecting a child's best interests. In developing a child's educational plan, the unique needs, circumstances, aptitudes and attributes of the child, must be taken into account (Bandas v. Demirdache, 2013 ONCJ 679 (Ont. C.J.)); c. When considering school placement, one factor to be considered is the ability of the parent to assist the child with homework and the degree to which the parent can participate in the child's educational program (Deschenes v. Medwayosh, 2016 ONCJ 567); d. The emphasis must be placed on the interests of the child, and not on the interests or rights of the parents (Gordon v. Goertz, [1996] S.C.J. No. 52 (S.C.C.); e. The importance of a school placement or educational program will promote and maintain a child's cultural and linguistic heritage (Perron v. Perron, 2012 ONCA 811 (Ont. C.A.)); f. Factors which may be taken into account by the court in determining the best interests of the child include assessing any impact on the stability of the child. This may include examining whether there is any prospect of one of the parties moving in the near future; where the child was born and raised; whether a move will mean new child care providers or other unsettling features (Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.)); g. The court will also look to any decisions that were made by the parents prior to the separation or at the time of separation with respect to schooling (Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.)); h. Any problems with the proposed schools will be considered (Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.)); i. A decision as to the choice of school should be made on its own merits and based, in part, on the resources that each school offered in relation to a child's needs, rather than on their proximity to the residence of one parent or the other, or the convenience that his attendance at the nearest school would entail (Wilson v. Wilson, 2015 ONSC 479); j. Third party ranking systems, such as the Fraser Institute's, should not factor into a Court's decision. These systems of ranking do not take into consideration the best interest of the particular child in a family law context (Wilson v. Wilson, 2015 ONSC 479); k. If an aspect of a child's life, such as school placement, is to be disrupted by an order of the court, there must be good reason for the court to do so. Thus, before a court will order a child to transfer schools, there must be convincing evidence that a change of schools is in the child's best interests (Perron v. Perron, 2012 ONCA 811 (Ont. C.A.)); l. Custodial parents should be entrusted with making the decision as to which school children should attend. When a sole custodial parent has always acted in the best interest of a child, there should be no reason to doubt that this parent will act in the best interest of the child when deciding on a school (Adams v. Adams, 2016 ONCJ 431); and m. Those cases are very fact-driven. The courts are not pronouncing on what is best for all children in a general sense but rather deciding what is in the best interests of this child before the court (Deschenes v. Medwayosh, 2016 ONCJ 567).

Analysis

Summer parenting time

[28] The parties have been, by agreement and court order, exercising parenting time on a 2:2:3 basis since at least 2019.

[29] I am not satisfied that there has been a compelling change in circumstances related to the child’s best interests that warrants varying the interim order related to summer parenting time that has been in place for over four years.

[30] In my view, the applicant’s request to vary summer parenting time is simply to accommodate his preference and does not relate to any significant factor that relates to the best interests of the child. The applicant states that he wants to maximize his time with Ethan and do activities for long stretches of time. He states that his other child, Charlieze, is on a week about parenting time during the summer and he wants his parenting time with both children to be at the same time. I do not find these to be compelling or substantial circumstances that warrant an interim variation to an interim order.

[31] Further, I find that week about parenting time during the summer is not in Ethan’s best interests because it will decrease his parenting time with his mother. The respondent works 12-hour night shifts and does not have any feasible or reliable options for overnight care. The current parenting arrangement provides that Ethan is with his mother when she is not working.

[32] The applicant does not work during the summer, and while he has more flexibility with respect to parenting time the respondent does not. The applicant’s suggestion that the respondent seek an accommodation from her employer to change her shifts during the summer to accommodate his preference for week about parenting is not reasonable.

[33] I am not satisfied that there should be a change to summer parenting time.

Change in school

[34] I am satisfied that the applicant’s decision to work out of town is a compelling or substantial change in circumstances that warrants review of the interim arrangement related to schooling.

[35] In determining whether Ethan should change schools, my sole focus is on what is in Ethan’s best interests, not his parents. I must give primary consideration to Ethan’s physical, emotional and psychological safety, security and well-being. In this regard I have considered:

a. Ethan is eight years old. He remains a relatively young child; b. Ethan has a strong relationship with both his mother and his father, who have shared equal parenting time with him. For the months of January to June 2004, Ethan had less contact with his father who was working out of town during the school week; c. Ethan has attended Valley View for four years, starting there in Kindergarten and is now entering Grade Three; d. The decision to enroll Ethan at Valley View was made by both parents, to accommodate the applicant’s circumstances at the time; e. Ethan has become comfortable with this school setting, including teachers and staff. He has made friends. There is no evidence that attendance at Valley View has been detrimental to Ethan in any way; f. Both parties state that Ethan thrives on stability; g. Ethan has expressed that he does not want to change schools; h. Ethan comes from a bilingual family. His father speaks both English and French and his mother speaks English. He is currently enrolled in French immersion; i. There is no issue taken with respect to the level of education provided at Valley View, R.L. Beattie or Holy Cross. They are all good schools that offer French immersion programs; j. Both parents are committed to ensuring Ethan’s success in school and are supportive of him in his education; k. The distance between the south end of Sudbury and Alban/Noelville will involve a significantly long bus ride for Ethan, likely in the area of one hour; and l. A change from Valley View to R.L. Beattie or Holy Cross will involve a longer commute for Ethan from his mother’s home to school.

[36] I am mindful that the issue of moving schools arises because the applicant has decided to take on employment out of town in Parry Sound. There is no suggestion in the materials that the applicant’s change in employment was due to necessity. Rather, his decision is related to advancing his career in education.

[37] I found that many of the applicant’s assertions in this motion focus on his own interests, and not necessarily Ethan’s.

[38] For example, I find the applicant’s suggestion that the respondent move to the south end to accommodate his decision to work out of town be unreasonable. The respondent has lived in Chelmsford since separation in 2018. This has been Ethan’s home with his mother for almost six years. It is not in Ethan’s best interests to uproot him from his home. Further, if the respondent moved to the south end, with higher rents, she would have fewer financial resources to support Ethan.

[39] The applicant has chosen to take on employment out of town. It is not surprising that such a choice results in consequences to his parenting time with his children. His choice to work in Timmins earlier this year impacted his ability to spend time with Ethan during the school week. His choice to work in Parry Sound this fall will result in longer commuting times to see his children who reside in the Sudbury area. In my view, it is not in Ethan’s best interests to uproot him from his school, his friends, and his community in order to accommodate the applicant’s choice to work out of town.

[40] When I consider all of the factors in this case, I am not satisfied that it is in Ethan’s best interests to change schools. As such, the applicant’s motion is denied.

The Honourable Madam Justice S.K. Stothart Date: August 9, 2024