Fehr v. Biloski, 2025 ONSC 2407

Fehr v. Biloski, 2025 ONSC 2407

Court File No.: FS-24-100-00
Date: 2025-04-17
Ontario Superior Court of Justice
Between:
Patrick James Fehr, Applicant
– and –
Kristie Rose Biloski, Respondent

Applicant Counsel: F. Pottinger
Respondent Counsel: Self-represented
Heard: March 20, 2025, at Thunder Bay, Ontario
Justice: C.M. Brochu

Decision on Motion

Overview

1Both the Applicant, father, and the Respondent, mother, have brought motions.

2Prior to the hearing of the motions, the father and mother consented to a temporary, without prejudice order for joint decision-making responsibility and for the involvement of the OCL.

3The only issue left to determine on both motions relates to parenting time and where the children should attend school.

4The parties have two children. They are 11 and 7 years of age.

5The main issue for the father is the children’s lack of attendance at school while in the mother’s care. Consequently, he is suggesting that the children remain in his care during the school week and that the mother have her parenting time during the weekend. In the alternative, it is suggested that they resume the week on/week off parenting time with some consequences for the mother should the children continue to miss school.

6On the other hand, the mother indicates that the children want to attend a different school, and that they do not want to live with their father. She is seeking an order that the children change schools, and that the parenting time consist of a rotating schedule of 3.5 on/off days instead of a week on/week off schedule.

Background and History

7Until February 2024, the parties continued to reside in the same home with the children. The mother left the home with the children in May 2024, and moved to Armstrong.

8The mother returned to Thunder Bay with the children in the summer of 2024. From her return until January 14, 2025, the parties had shared parenting time on a week on/week off basis. The mother withdrew the children from school and withheld them from seeing the father from January 14, 2025, to February 13, 2025. This prompted the father to bring this motion.

9It is noted that, on January 14, 2025, the parties were to attend a settlement conference before Nieckarz J. In the endorsement from that day, it is indicated that the mother did not attend. The father raised concern that the mother may remove the children from school and potentially from Thunder Bay as well. In her endorsement, Nieckarz J. warned the mother of the potential consequences of unilaterally removing the children from school and the jurisdiction.

10Regardless, that is exactly what the mother did; she removed the children from school and withheld them from having parenting time with the father.

11The first appearance on this motion was before Newton RSJ on February 13, 2025. At that time, the mother was seeking an adjournment, as she needed time to retain counsel. The requested adjournment was granted, subject to an order of this court that the children return to school and that the father’s parenting time resume.

12I was informed at the motion hearing, that the parties subsequently agree to a 4-day rotation period for the parenting time schedule.

13The motion was once again adjourned on February 27, 2025, to afford additional time for the mother to retain counsel and file materials. Once again, an order was made that the children continue to attend school.

14On March 12, 2025, the mother served and filed her own motion, which was heard on March 20, 2025, together with the father’s motion.

Analysis and Discussion

Parenting Time

15As is often the case in family motions, the parties have filed competing affidavits. They both make negative and disparaging comments regarding the other parent. They both indicate that the children would be better in their respective care. Despite the foregoing, neither one of them are taking the position that they should not share parenting time with the children.

16The main issue is the lack of attendance at school when the children are in the mother’s care. This is evident from the father’s position that the children should be in his care weekly when in school and with the mother on the weekends. The father suggests that the schedule should revert to the week on/week off shared parenting time when the children are out of school for the summer and on holidays.

17The mother advanced that the children do not like their school. She clearly indicated that the children do not want to go to this school and that she would not drag them there.

18It is noted that the children were in the mother’s care the week this motion was heard, and they failed to attend school that Monday, March 17, 2025, despite the many orders from this court that they needed to attend school. When I questioned the mother as to the reason for their absence that Monday, she referred to an incident having occurred over the weekend and many other issues experienced by the children at school. She eventually indicated that they did not want to go, and she could not get them to go.

19The father appended to his affidavit letters dated January 29, 2025, from the Attendance Counsellor/Child and Youth Worker at Lakehead Public Schools regarding each child. The letters indicate that the children have been absent for 24 days and 23.5 days, and have arrived late 10 times and 7 times, respectively, during the 92 academic days since the beginning of the school year in September 2024. These absences equal, for both children, 26% of their available learning time.

20These letters are dated January 29, 2025. As a result, the above noted absences do not include the entire the period from January 14, 2025, to February 13, 2025, when the mother withheld the children from the father and kept them out of school.

21The father also obtained the children’s attendance records while they were enrolled in school in Armstrong. These records indicate that from May 13, 2024, to June 28, 2024, a period that would contain 34 days of school, the children were absent without explanation 12 and 13 times, and late 4 and 3 times respectively. This means that the children were absent for approximately 40% of the days they attended school in Armstrong. They were in the sole care of the mother during this period.

22The father relied on the above evidence to advance that, even in another school setting, the children did not attend school regularly while in the mother’s care.

23It is therefore submitted that the children should be primarily in the father’s care during the academic year to ensure their attendance at school.

24Counsel for the father submitted that, should the parenting time remain on a week on/week off basis, that the Court should provide some consequences for the mother should the children not attend school while in her care.

25Any proceeding with respect to children is determined with respect to the best interests of the children before the court, in accordance with the considerations set out in s. 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12. The court has considered these factors, where relevant.

26On a motion for interim relief, status quo will be maintained in the absence of compelling reasons indicative of the necessity of a change to meet the children’s best interests: McDevitt v. McDevitt, 2023 ONSC 4750 at paras 18-22.

27The only compelling reason in this case to change the shared parenting schedule that has been in place, at least since the mother has returned to Thunder Bay, is related to the children’s poor attendance at school.

28The mother needs to understand the importance of ensuring that the children attend school. She is the parent and needs to assert her role as a parent and bring the children to school, whether they want to go or not.

29It remains that, despite the issue of school attendance, the parties are not necessarily at odds in their position, which reflects a shared parenting time schedule. Where they are not ad item is in regard to the rotation; the mother is suggesting 3.5 day rotation, the father is suggesting a weekly rotation, and they recently settled on a 4-day rotation. Despite the attacks on each other’s character, their position recognizes the benefits of shared parenting.

30Consequently, I am reluctant to bring any change on a temporary motion to the existing shared parenting arrangements that would significantly impact the current schedule and the equal sharing of parenting time between the parties. However, it may become necessary to intervene, even on a temporary basis, to ensure that the children are attending school.

31There is a certain appeal to the proposition of counsel for the father that, should the shared parenting arrangements continue, consequences be imposed should the mother fail to send the children to school.

32I find that it is in the best interest of the children that the week on/week off schedule continue, subject to any subsequent agreement between the parties. However, should the mother fail to send the children to school without justification, the schedule will be changed to the children being in the care of the father during the week and in the care of the mother on the weekends.

33This means that shared parenting on a schedule of one week on/one week off will continue, unless otherwise agreed to by the parties. While the children are in the care of the mother, they shall attend school. If the children are sick and are unable to attend school, the mother shall communicate to the father and the school the children’s absence prior to the start of school, providing an explanation for the absence. Furthermore, the absence shall be justified with a written note from a health practitioner confirming any illness and/or justification for the children to be absent from school. The written explanation for any absence shall be provided to the father and to the school immediately upon receipt and no later than on the day the children return to school, or on the first day of the child’s absence should the illness be for more than one day.

34In the event the children are absent from school and the mother fails to signal their absence and/or fails to provide a reasonable justification for their absence, the parenting time schedule shall be modified, and the children shall remain in the care of the father during the week and in the care of the mother on weekends.

35This, in my view, will allow the shared parenting arrangement to continue, for so long as the children’s education needs are being met by the mother.

Choice of School

36In Piper v. Hare, 2021 ONSC 2139, Tobin, J. confirmed the following at paras. 19-24:

(a) where a child will attend school is an incident of parental decision-making responsibility;

(b) in a case like the case at bar, where there is no temporary or final order granting either parent this responsibility, the court may be called upon to determine the particulars of the children’s education;

(c) the jurisdiction to make this decision is found in the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”) s. 28(1)(b) which provides that the Court “may by order determine any aspect of the incidents of the right to decision-making responsibility”;

(d) This decision is to be made by taking into account only the best interests of the children: CLRA, s. 24.

37It has been established that compelling and cogent evidence must show that a change in schools is in a child’s best interests: J.E.S. v. S.S., 2020 ONSC 6064. Although this matter was a decision stemming from the many matters that were determined during the pandemic, Faieta J. provides a great overview of the case law on the issue of the court’s role in a matter involving a change of school.

38In the case at hand, the children have always attended Five Mile Public School, except for the short period of time they were enrolled in school in Armstrong. The decision to enroll the children in this school was made jointly by the parties while they were still living together.

39The mother made several submissions as to why the children should change schools. Her submissions lacked any evidentiary basis to convince this court that this change would be in the best interest of the children.

40The parties have agreed to an order for shared decision-making responsibility and, ultimately, this decision should be made by them. However, it is a live and contentious issue at this time which, in my view requires, in these circumstances, intervention from this court.

41It would make no sense to change schools in April when the school year is only a few months from being completed. I am not prepared to make any temporary changes to the children’s schooling. They have already missed way too much school this academic year, it would not be in their best interest to now have to complete the school year in another school. There are no valid reasons for that to occur. They will continue to be enrolled at Five Mile Public School.

Police Enforcement

42The father seeks a police enforcement clause. He argued that it was justified in the circumstances given that the mother has, in the past, withheld the children.

43It is an accepted principle that police enforcement clauses ought to be granted rarely and only in extraordinary circumstances. It should only be granted in very serious cases where there is solid evidence that such interference by the police is necessary. It is an order of last resort to be made sparingly and in exceptional circumstances. It can frighten children and polarize a difficult situation: see Bouchard v. Sgovio, 2021 ONCA 709.

44I acknowledge that there is a history in this matter of the mother withholding the children from the father and from school. I would hope that the mother has learned from these proceedings that such behaviour will not be tolerated by the court and that there will be serious consequences should she not comply with this order.

45Currently, I am not prepared to order that the police enforce this order. There is already ample conflict between these parties, it does not need to be heightened by the potential constant threat of police implication.

46In the event the mother runs afoul this order, the father can bring an emergency motion for the return of the children and, at that time, request the assistance of police for its enforcement. It can be decided at that time, should it be necessary, whether the matter has escalated to the level of exceptional circumstances.

OCL Involvement

47The parties have consented to an order for the involvement of the OCL.

48The only information available to the court on this motion as it relates to the views and preferences of the children were submitted through the parties. The information provided was not aligned. The mother made several allegations against the father. She also indicated the dissatisfaction of the children. The mother was self-represented at the hearing of this motion and, as a result, some of the information and allegations were improperly communicated to the court orally as opposed to being contained in her affidavit.

49It is important for the court to be informed of the views and preferences of the children. It will assist the court in determining and considering matters in their best interest. I highly doubt that it can be achieved without the involvement of the OCL.

Order

50The following temporary, without prejudice, orders are made on consent:

a. The parties shall have joint decision-making responsibility for the children, Kalee Fehr born March 16, 2014, and Emma Fehr born July 27, 2017.

b. Involvement of the OCL.

51I make the following temporary orders:

a. The children shall remain at Five Mile Public School located at 2025 Dawson Road, Thunder Bay, Ontario until further Order of the Court or the written agreement of both parties.

b. The parenting time for each party shall be on a week on/week off rotation schedule, subject to the conditions of this order.

c. The Respondent, mother, shall ensure that the children attend school while in her care.

d. While in the care of the mother, if the children are sick and are unable to attend school, the mother shall communicate to the father and the school the children’s absence prior to the start of school, providing an explanation for the absence. The absence shall be justified with a written note from a health practitioner confirming any illness and/or justification for the children to be absent from school. The written explanation for any absence shall be provided to the father and to the school immediately upon receipt and no later than on the day the children return to school, or on the first day of the child’s absence should the illness be for more than one day.

e. In the event the children are absent from school and the mother fails to signal their absence and/or fails to provide a reasonable justification for their absence, the parenting time schedule shall be modified as follows:

i. The children shall reside in the primary care of the father;

ii. The mother will have parenting time as follows:

1. During the school year, on alternating weekends from the end of school on Friday until Sunday at 7:00 p.m.; and,

2. From the last day of school to the Friday immediately before the start of school in September, the children shall reside with the parties equally.

Costs

52If the parties cannot agree on costs, any party seeking costs shall serve and file brief costs submissions within 20 days of the release of these Reasons. The other party will then have 10 days to respond. The submissions are not to exceed three pages, not including any offers to settle or bills of costs.