Court File and Parties
COURT FILE NO.: FC-20-00000537-0000
DATE: 2024/02/12
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CAITLYN OFFER, Applicant
– and –
BRYCE LAMOREA, Respondent
Counsel: Ray Wrubel, Counsel for the Applicant Brent Balmer, Counsel for the Respondent
HEARD: February 6 and 7, 2024
BEFORE: THE HONOURABLE JUSTICE I.R. SMITH
REASONS FOR JUDGMENT
Introduction
[1] The parties have a daughter, now 4 years old. They separated before the child was born. To their credit, they have settled all issues between them except for one: which school should the child attend, the public school (and, in future, the middle and high schools) in the catchment area where the applicant lives, or those schools in the catchment area where the respondent lives.
Background
[2] The parties never married but had a relationship of several years’ duration. Before their daughter was born, the relationship ended. Initially, the child lived with her mother only but, over time, began to spend more time with her father, including being cared for by him when the applicant went to work. They have now agreed to an equal division of parenting time on a week about schedule. They have also agreed to joint decision-making for the child (except in connection with choice of school).
[3] Both parties live in Kitchener. Both are of modest means.
[4] The applicant is not working and lives in the area served by Prueter Public School, which is a 10 – 12 minute walk from her residence. In the period after the child’s birth, the applicant did not work and stayed home to care for the new baby. Eventually, for a time, she returned to work and, as I have said, the respondent cared for the child while the applicant was at work. She quit her job in early 2021, however, so that she could offer full time care to the child until she was in school. Her income today is comprised of the Ontario Works benefit and child support she receives for her older daughter, who is not the respondent’s child. She plans to find new employment when the child is in school. She does not have a car or a driver’s licence and travels by walking, or by bus, or when her mother (who does have a car) is able to drive her. She expects to get her licence but does not know if or when she will be able to afford to get a car.
[5] The respondent is also not working and lives in the area served by Queen Elizabeth Public School, which he can walk to in 3 – 4 minutes. The respondent is unable to work because of two serious medical conditions. His income comes from the Ontario Disability Support Program. At the moment, the respondent drives his mother’s car because she is recovering from a medical condition which prevents her from driving. When she is recovered and permitted to drive again, which the respondent expects will occur later this year, the respondent will have to return the car to her, and he will travel by foot and by bus.
[6] Each party has led evidence of the frailties of the other, including the respondent’s vitriolic text and email messages, the applicant’s abuse of alcohol (which led to the loss of her driver’s licence), the various failings of both as parents, the applicant’s alleged lack of respect for COVID safety rules, an instance when the respondent withheld the child from the applicant, which event required the intervention of the court and the police, and which was followed by a long period during which the applicant did not permit the respondent to see the child. Except to the limited extent to which I refer to it in these reasons, and especially given that the parties have already agreed to equal parenting time and joint decision-making, this body of evidence is of little or no relevance to the sole issue I must resolve.
[7] That issue crystallized as a point of dispute between the parties on September 5, 2023. The applicant had attended at Prueter Public School for the purpose of enrolling the child in junior kindergarten. She texted the respondent and asked if they could speak about school registration. The respondent responded that he was too busy to talk and that, in any case, he did not think there was anything to talk about given that the applicant intended to dictate that the child attend Prueter irrespective of the respondent’s views on the matter.
[8] The applicant responded that she needed the respondent’s “permission or a letter from the court/a lawyer saying it is okay.” She added, given the impending start of the school year, “also, I am sure we both would like to be there for her first day of school so we need to figure this out.”
[9] The respondent replied by text (which I quote verbatim except for the name of the child) as follows:
Well I am not signing anything because like I said before I don’t think it makes sense for [the child] to go to school by your house, when you start working again I will be her emergency contact and if something happens I can go across the street to the school and get her, or I can get her for lunch etc, and I am def not ok with you thinking that anyone and everyone will have access to [the child’s] school but me or yourself, and I am not going to settle for anything less, your mom and sister have no right or business picking up [the child] from school ever, and I know that’s what you have planned because you told me that, and also [the child] keeps telling me she wants to go to school over here by my house
So I will let the judge decide whenever that it going to be and if that means [the child] starts school later or next year then that’s what it will be […]
[10] The text exchange that day between the parties continued, the applicant urging that it was important for the child to go to school and the respondent agreeing but maintaining that it was more important that the right school be chosen.
[11] In the result, the child was not registered for junior kindergarten at either school for the 2023 - 2024 academic year, and the parties have resorted to having the court decide which school she should attend. The parties blame each other for this failure.
[12] The text exchanges capture the essence of the issues dividing the parties: the proximity of the schools to their respective residences, travel times, and concerns about availability in the event of emergency, who will drop off and pick up the child from school, and who will care for her after school.
The law
[13] The court’s authority to choose which school the child will attend is found in section 28(1)(b) of the Children’s Law Reform Act, R.S.O. 1990, c. C-12 (“CLRA”) which permits the court to “determine any aspect of the incidents of the right to decision-making … with respect to a child.” The governing principle in making that determination is that the decision be in the best interests of the child (CLRA, s. 24). In this respect, it is important to emphasize that the interests of the parents are relevant only insofar as those interests influence the best interests of the child. The parents’ self-interest is otherwise not relevant. As Black J. put it in Al-Naib v. Shnyin, 2023 ONSC 3125, at para. 33, “it is [the child’s] commute time, and not of the applicant, that matters for the purposes of the court’s analysis.”
[14] Section 24 of the CLRA provides guidance about factors relevant to finding the child’s best interests. For present purposes, the most germane of those factors are the child’s safety, security and well-being (s. 24(2)), her need for stability (s. 24(3)(a)), the nature and strength of her relationships with her parents and other family members (s. 24(3)(b)), plans for the child’s care (s. 24(3)(g)); the ability of the parents and others to care for the child (s. 24(3)(h)); and the ability of those people to co-operate on matters affecting the child (s. 24(3)(i) and (k)).
[15] Specifically with respect to decisions relating to choice of school, the courts have found a variety of factors to be relevant. Audet J. provides a helpful summary of those factors in Thomas v. Osika, 2018 ONSC 2712, at para. 37 (see also Hamid v. Hamid, 2016 ONSC 5013, at paras. 10 – 11). In the circumstances of the present case, the most relevant of those factors is ensuring stability in the child’s life, as I explain below.
[16] It is not the case that the other factors listed either in s. 24 of the CLRA or at para. 37 of Thomas v. Osika are not important or relevant, it is simply that they do not assist in resolving the particular problem presented to me because they apply equally well or equally poorly to the competing proposals of the parties.
Discussion
Neutral factors
[17] Among other factors, the parties have asked me to consider their respective efforts to prepare the child for school, the differences between the two schools proposed, and the travel times involved depending on which school is chosen. On these matters, in my view, there is little if anything to choose from between the positions of the parties.
[18] Both parties assert that they have done much to prepare the child for school, including reading to her, playing educational games with her, and helping her learn the basics of numbers and letters. Both parents are willing and able to participate in the child’s education, and to support her by, for example, helping with homework when homework is eventually assigned to her. The respondent has taken the child to play in the playground at Queen Elizabeth School, where she has met other children who attend the school. The applicant says that the child knows children who attend Prueter. These factors favour neither school, or favour both equally (Terpstra v. Terpstra, 2023 ONSC 4302, at paras. 39 – 44).
[19] Both parents claim to have investigated the schools involved. Although the applicant worries that the child may be autistic or have a learning disability, a worry not shared by the respondent in the absence of a proper diagnosis, there is no evidence that such special needs could not be managed by both schools. The applicant says that she specifically inquired of Prueter and was assured that the school would be appropriate for such a child, but she made no similar inquiries of Queen Elizabeth. The respondent says that he was advised by both schools that they could accommodate special needs students.
[20] Both parents have led evidence of the rankings of the two schools. The applicant has led dated evidence from the Fraser Institute. The respondent has led evidence from the Education Quality and Accountability Office. These rankings are of little use to me in the present circumstances. First, the scores achieved by the two schools are not materially different and, second, the question before me is not how the schools fare in independent testing, it is which one is best for this child. This body of evidence tells me nothing about what is best for the parties’ daughter (see Thomas v. Osika, supra, at para. 37(j); Wilson v. Wilson, 2015 ONSC 479, at paras. 110 – 118).
[21] Both parents testified about the travel times involved between their respective homes and the two schools. Although it may be that the walk or bus trip from one parent’s house might be slightly longer or shorter than the walk or bus trip from the other parent’s house, those differences are not material enough to govern the decision in this case. Both parents are able to manage the trip with the child from their own residence to the school of choice of the other parent but, for both, that trip would be inconvenient without access to a car. As I have said, although the respondent has access to a car now, that access is expected to come to an end. Although the applicant’s mother is sometimes able to drive the applicant and the child, she is not always available. Whichever party is not successful on this matter will at some point be required to travel with the child by bus and by foot to get to school in the morning, and to retrieve her in the same way in the afternoon. Each one-way trip will consume 45 minutes or more. This is a significant burden with a small child, especially on the week about schedule the parents have agreed upon (Mokhov v. Ratayeva, 2021 ONSC 5454, at para. 61).
[22] These factors do not sway the analysis in either direction.
The applicant’s attachment to Prueter Public School
[23] The parties’ plans for their daughter are in most respects effectively identical, or mirror images of each other. They both want her registered in kindergarten this coming fall, and they both want her to continue on in middle school and then high school at the schools that are in the catchment area of their respective residences. The applicant, however, attempts to distinguish her plan by leading evidence of her – and her family’s – deep connection to Prueter Public School. The applicant attended that school as did her siblings, her nieces, and her older daughter. In addition, the applicant’s mother, now retired, worked as a library assistant at the school for 17 years.
[24] I accept that the applicant has a strong sentimental connection to Prueter, but, apart from the fact that the applicant, her mother and her sister all live near the school (a point to which I will return), it is unclear to me how that connection bears on the best interests of her daughter given that none of her family members are attending the school now. To be sure, the school is in the neighbourhood where the child has been growing up, and that is important (Al-Naib v. Shnyin, supra, at para. 49), but she has also been growing up in the care of the respondent, and in his neighbourhood, and has become familiar with Queen Elizabeth by playing in its schoolyard (Terpstra v. Terpstra, supra, at para. 44). There is simply no evidence that her family’s connection to Prueter will advance the child’s best interests in any way. In determining the best interests of the child, I attach no weight to the applicant’s connection to Prueter.
The parties’ plans for employment and for before and after school care
[25] At least one issue distinguishes the parties’ plans. The applicant expects to return to the work force when the child is enrolled in school. If her work makes it difficult or impossible to take the child to school in the morning, or to pick her up after school in the afternoon, she plans to enlist the assistance of her mother or her sister, both of whom live near Prueter. In addition, the applicant’s niece (20 years old) lives with her sister, and is available to help, and the applicant’s older daughter (16 years old), who is in high school, can also walk with the child to and from school.
[26] By contrast, the respondent lives very close to Queen Elizabeth School and, because he does not work, he says that he will always be available to take the child to school and bring her home in the afternoon. He does not need to rely on any assistance[^1] and is available to provide assistance to the applicant on weeks when she has parenting time with the child.
[27] The parties make competing arguments about these issues. The respondent says that his unfettered availability and proximity to the school of his choice is a significant benefit to the child no matter where the parties are on their week about parenting time schedule. This is especially important in case of an emergency.
[28] The applicant says that the respondent’s objections to her having other family members help out with the care of the child is simply an effort to control this situation and to prevent her from getting what she wants. She says that the respondent dislikes her family, especially her mother, and does not want them to have a role in the child’s care. Further, she argues that it is important for her to have employment and that whatever order I make should allow her as much flexibility as possible to find a position and to be able to get the child to and from school, sometimes with the assistance of other family members. Having the child at Prueter would allow her to do that. Having the child at Queen Elizabeth would dramatically increase the travel times involved, would decrease the ability of others to help her with the child’s care, and would put a geographic limit on her job search, since she would need to find an employer with a location that takes into account the added travel time to Queen Elizabeth. The applicant says that the respondent has none of these restraints because he is not working and there is no foreseeable prospect that he will be able to return to work. It is the respondent who has the extra time to travel to school, so he should be the one who is required to travel.
[29] Although there are valid points to be made in favour of both plans, I agree with the applicant that this factor weighs in favour of choosing Prueter Public School. It is very much in the child’s interests that her mother be employed. Her father cannot be employed and neither of her parents is wealthy. It would be an obvious benefit to the child’s security and stability for her mother to improve her financial position. If the applicant is employed, she will have to get herself to and from work and, on weeks when she has parenting time with the child, will have to get the child to and from school. Especially given her lack of a car, time will be at a premium. I accept that choosing Prueter will allow the applicant greater flexibility in finding a new employer because she will not have to account for travel time to Queen Elizabeth (Mokhov v. Ratayeva, supra, at para. 58; Piper v. Hare, 2021 ONSC 2139, at para. 30). Again, I emphasize that these benefits to the applicant are important not because they are benefits to the applicant, but because they are directly beneficial to the child.
[30] I also agree with the applicant that requiring the respondent to be the parent who must travel further to get the child to and from school is less detrimental to the child than it would be to require her to travel the extra distance. The tax on the respondent’s time simply does not have the same impact on this child precisely because he is not working (Mokhov v. Ratayeva, supra, at para. 58).
[31] I further accept the applicant’s submission that the respondent’s position is motivated at least in part by his antipathy for her family, especially her mother. It suffices to say that the respondent’s own text messages provide strong support for this submission. Although the applicant testified that he now has no objection to having the applicant’s mother and sister pick up the child from school,[^2] he voiced that objection in the past in the clearest terms, and there is no evidence that his dislike of the applicant’s mother has diminished.
[32] While the respondent says that it would better for the child if he picked her up from school when the applicant is unable to on her parenting weeks, in the circumstances of this case, I cannot agree that this is so. As I have said, there is evidence to support the submission that the respondent seeks to undermine the child’s relationships with members of the applicant’s family. Given that is important that the child’s positive relationships with her grandmother, aunt, cousins, and older sister be fostered, it seems to me that allowing them to be involved in the child’s before and after school care is very much to be encouraged. Having the child attend Prueter will further that objective. In addition, there will be substantial practical benefit to have members of the child’s extended family close by and available to assist in her care, including in case of emergency (Al-Naib v. Shnyin, supra, at paras. 50 – 51).
[33] Relatedly, the parties have significant difficulty communicating civilly and the lack of trust between them was palpable during this trial. Much of that mistrust flows from the fact that the respondent withheld the child from the applicant in December of 2020 and the applicant then prevented the respondent from seeing the child for a period of almost three months.[^3] To minimize the possibility of exposing the child to adult conflict, it is in her interests that her delivery to and from school be managed by the applicant during weeks when it is her parenting time and by the respondent when it is his parenting time.
Conclusions
[34] For these reasons, I have concluded that it is in the child’s best interests that the child attend Prueter Public School.
[35] At the request of the parties, and to minimize future litigation, it will be ordered that the child attend the schools in the catchment area in which the applicant now lives. In this way, it will be clear to all that the child is to attend the middle and high schools in the applicant’s catchment area when the time comes. However, the child may at any time attend a different school with the parties’ mutual written consent.
[36] Should the applicant move to a new catchment area, the parties will be free to agree on a new school for the child, or, failing agreement, to apply to the court to resolve the issue. Of course, as she gets older, the child’s own opinions on the question will become important.
[37] Given the evidence before me (including but not limited to the text messages quoted earlier in these reasons), I consider it necessary to order, so that it is clear both for the parties and for school officials, that the applicant will have the decision-making authority to designate for the school those family members apart from the respondent who are authorized to pick up the child from school on her parenting weeks, and the respondent will have similar authority on his weeks.
[38] Finally, as noted at the outset of these reasons, the parties have agreed on all issues except the one considered here. Those agreements are captured in a draft order which was filed with the court. That draft order leaves blank at para. 2 the order to be made respecting the child’s schooling.
Order
[39] For the foregoing reasons, an order will go in the form of the draft order filed with para. 2 of the draft reading as follows:
- The child shall attend school at Prueter Public School in Kitchener, Ontario, and at the middle school and high school in the same catchment area as Prueter Public School. The child may attend any other school with the parties’ mutual written consent. For the parties’ respective parenting-time weeks, each party will have the authority to designate which people other than the parties are authorized to drop off or pick up the child to or from school.
Costs
[40] If the parties are unable to agree on costs, the applicant may serve and file brief written submissions respecting costs within 10 days of the release of this judgment. The respondent may serve and file brief responding submissions within 7 days of the service of the applicant’s submissions. The applicant may serve and file reply submissions, if any, within 4 days of the service of the respondent’s submissions.
I.R. Smith J.
DATE: February 12, 2024
COURT FILE NO.: FC-20-00000537-0000
DATE: 2024/02/12
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CAITLYN OFFER, Applicant
– and –
BRYCE LAMOREA, Respondent
REASONS FOR JUDGMENT
I.R. Smith J.
Released: February 12, 2024
[^1]: I note that the respondent’s parents and one of his brothers live in Guelph. Another brother lives in Arthur. The respondent says that his mother and his brother in Guelph are available to assist him in caring for the child when necessary, but that he believes it will never, or almost never, be necessary. He also has a neighbour to whom he is close upon whom he can call. The respondent’s father has dementia and lives in a care home.
[^2]: The respondent does object to the applicant’s niece and older daughter, especially the latter, being responsible for getting the child to or from school. While the respondent asserts that the applicant’s older daughter is irresponsible, on the evidence before me, there is no reason to believe that she is not capable of walking her younger sister to and from school, and caring for her until their mother arrives home.
[^3]: On December 18, 2020, Gordon J. ordered (i) the return of the child to the applicant, (ii) that the police assist in the apprehension of the child, and (iii) that on an interim basis the respondent have no access to the child except at the discretion of the applicant. On March 3, 2021, on consent, Piccoli J. varied this order such that the respondent was afforded parenting time every other weekend and overnights on Wednesdays, and on such further occasions as the parties agreed. Following a contested motion, on October 20, 2021, Walters J. ordered that parenting time be shared equally on a 2-2-3 schedule.