This is a case analysis of a client of mine, who became a hybrid client between Lion and Mouse, and Feldstein Family Law Group so it could be professionally litigated with appearances with massive savings.
This was held in Barrie Ontario that touched on several topics and asks several legal questions to be answered by the Court. This was not a case changing access or moving households, it was narrowly focused on changing the children's school from one parents area to the other.
How much weight should be given to adverse views and preferences of an older child?
Does the degree in which each parent can assist the child in homework have a factor?
Do you have to prove that the proposed school is better than the original?
Is proximity of the school to the parent a factor (convenience to the parent)?
Background History
The decision is attached to this post, that has the significant history behind this case; so I'll just hit the high points here.
Family originally in Orillia.
Kids 50/50 on paper, but Dad worked as helicopter pilot which took him out of province for long stretches of time, and Mom picked up the slack.
Mom allowed Data to underpay ~50% to "keep the peace".
Dad made significantly more money than Mom and there was a stark difference in the quality of life between the two households.
Mom moved to west of Barrie, the move was not contested probably because kids were not changing schools. Mom made it known that that she can't drive up to Orillia forever, she needs to get back into the workforce.
Both have re-partnered.
They had a very effective coparenting relationship.
Mom finally got subsidy for day care, contingent that she works 6 hours a day. There was no way she could afford to keep doing the driving and logistically even do the almost 4 hours of driving every day she had the kids (2 round trips of 2 hours), which was more than 50/50.
Mom suggest the same school in Barrie that Dad's new partners kids went to and was already commuting to. This also allowed her to work in Barrie close to school, etc.
Dad refused and preemptively called the schools to block any attempts.
Court battle ensued.
There was a 14b motion seeking emergency leave for a full motion.
That was not only granted but Mom was allowed to just proceed with registering the children in a new school.
Dad lawyered up and they stayed that order and got an emergency case conference.
Because there was no final order (just a filed separation agreement and divorce), this was not a motion to change but rather a fresh application with an urgent motion.
Mom brought on Rachel Zweig and the process began.
Dad immediately started paying more child support. Retroactive support was still on the table however.
Dad's position was :
The kids were settled and should not be forced to endure a change of schools
They had 50/50 so no weight to Mom should be given over his
Kids had expressed a desire to remain in school, one a very strong desire
Dad had never objected to Mom's move
Mom was not a great parent for having to suggest this was a self serving move based on her convenience.
This, calling Mom out and criticizing her, was probably one of the worst blunders the opposing side could have made. Mom has sacrificed everything for years, and even picked a school that was not convenient to her, but rather one more in town that had ties to Dad's new family. The Judge took notice of this.
Mom's position
Kids had moved several times in the past, mostly in part to accomodate Dad.
Mom had at least 60% if not more actual time and had always supported Dad's ability to work by picking up the slack, and now she wanted to go back into the workforce and expected the same.
Her financial position was in dire straights, that the needs of the family outweighed the arguments that the kids should remain in the school (for a variety of reasons that she relied on caselaw for)
Dad never did anything but support her move (they were friendly for years), but drew the line at changing schools.
Mom acknowledged the children's preference, so she didn't object to a private Voice Of The Child (VOC) report paid for by Dad ($1500), so long as it didn't delay the scheduled motion date. The report confirmed what everyone knew.
I think this was a strategic move on Mom's part. She never had a credibility fight to overcome. She accepted the facts that were not her friend, took the hits as they were appropriate, and retained credibility for when she had to draw attention to issues that required a judgement call reliant on credibility, like motivations behind the move.
Caselaw
Not all of these were relied on during the hearing, but they may aid you, and were used as a starting off point to refine the arguments and to build a factum and book of authorities. I've structed this in 3 parts, the legal question to be determined, the proposed answer, and the caselaw to back it up.
Q : Should the increased economic benefits and opportunities for a parent, convey additional beneficial interests onto the child?
Yes. A parent’s solvency directly affects their ability to be the best possible parent for their child.
In Y.T. v. J.K.1, 2006 CanLII 4908 (ON SC) in para 53, the Court recognized that a parent with better economic and support infrastructure makes for a better parent.
In McCullough v. Smith, 2007 NSFC 23 in para 43, the Court recognized the importance of empowering parents to be self-sufficient with a prosperous career; and by not doing so could result in disadvantaging the child from having the best possible parent.
In O’Brien v. Chuluunbaatar, 2019 ONCJ 490 in paras 140-143, which cited multiple supporting cases in the footnotes, the Court tool a more encompassing view, looking at the financial, self-confidence, emotional, and psychological benefits of a parent directly impact the child’s environment. This was upheld on appeal in O'Brien v. Chuluunbaatar, 2021 ONCA 555, citing Gordon v. Goertz.
In Shipton v. Shipton, 2023 ONSC 1342, the court did not allow Mom to relocate to Ireland. However, the court gave considerable effort in examining if there were economic benefits in allowing the relocation. The court decided that there was no increased economic benefit for an eye doctor to relocate to Ireland from Toronto given Toronto’s need for those specialists. Despite this decision not allowing relocation, paras 4 and 6 provides this court with additional insight both into this case and the overall cultural implication a wrong decision could impress upon the child.
Q : Should the Court give deferential weight to the views and opinions of the primary care giver?
Yes. While Jessica and Tom on paper are equal care givers, their agreement designates that Jessica is has Primary Residence, and on analysis of the actual schedule they have operated under, Jessica is also the Primary Caregiver having at least 60% of the actual custodial time.
In Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 SCR 27 in para 113, which may be the leading authority in balancing the questions of relocation, the Court made these findings with citations to other cases, given deference to the custodial parent, in which this case the moving party Jessica is the primary care giver. “Because of the ordinary needs for both parents after a marital dissolution to secure or retain employment, pursue educational or career opportunities, or reside in the same location as a new spouse or other family or friends, it is unrealistic to assume that divorced parents will permanently remain in the same location after dissolution or to exert pressure on them to do so.”
In Adams v. Adams, 2016 ONCJ 431 at para 73, the Court found that the custodial parent should be given the presumption of making school placement decisions as being one based on the best interests of the child. [73] I find that the mother has always acted in the best interests of her children, and I have no reason to doubt that she will do so in considering whether or not it is in Kayesha’s best interests to continue at Whitefield or a transfer to public school. If the mother feels it is in Kayesha’s best interests to continue to attend Whitefield and the only impediment is the transportation issue, then the father should be responsible for arranging all transportation to and from school for her at his expense such as by a private bus service.
Q : Is it appropriate for all the driving expectations to be undertaken by the primary parent, or alternatively should the non-Primary Parent be saddled with all, or a majority of the transportation undertakings?
Either by way of Jessica being the Primary Residence by way of their separation agreement, or this Court finds that Jessica has been the primary parent, and therefore has acted in the best interests of the child with school selection, then the following authority applies, which hold Thomas in this case should bare all of the responsibility of transportation, instead of Jessica historically having done so.
In Adams v. Adams, 2016 ONCJ 431 at para 73, the Court found that the non-primary parent should be responsible for all of the transportation needs. “If the mother feels it is in Kayesha’s best interests to continue to attend Whitefield and the only impediment is the transportation issue, then the father should be responsible for arranging all transportation to and from school for her at his expense such as by a private bus service.”
Q : Should Dad’s historical underpaying of child support be a factor when considering his ability to make decisions in the best interests of the child?
Yes. When a parent fails to see how economically disadvantaging the other household is not conduct enshrining the best interests of his children, it would be fair to say other decisions undertaken by the parent “in the best interests of the child” should undergo scrutiny. Tom’s failure to pay only 64% of his monthly child support obligation, until the eve of this motion, warrants scrutiny.
In Horner v. Horner, 2004 CanLII 34381 (ON CA) at para 85, the Court draws a direct line between failure to pay and acting against the child’s best interests. [85] A second consideration is whether the payor parent engaged in "blameworthy" conduct. I take blameworthy conduct to include conduct that seeks to put the payor parent's own self- interest, as opposed to the child's interests, first. The overall purpose of the Guidelines, putting the child's interests first, must be considered in combination with the clear direction in the Guidelines that parents have a duty to pay financial support for their [page587] children in accordance with their ability. The effect of the payor parent's failure to pay support in accordance with his or her ability is to penalize the children. It also has the effect of placing a disproportionate burden of support on the parent with the day- to-day care of the children. The decision to order retroactive support in such circumstances is consistent with the requirements of S. (L.), supra: see Tedham v. Tedham (2003), 2003 BCCA 600 (CanLII), 44 R.F.L. (5th) 204, 20 B.C.L.R. (4th) 56 (C.A.).
In J.W.K. v. E.K., 2014 BCSC 1635 (CanLII) at para 50, the court took notice on the appellant’s inability to see the connection between financially supporting and ability to act in the best interests of a child, although failing to draw a direct line. “It is troubling that he professes to understand the importance of acting in his children’s best interests, yet fails to meet his financial obligations to them and appears content to let others assume those responsibilities” .. “The fact that he has yet to make any maintenance payments, despite the fact that he has been working for almost a year now, militates against an ability to put the children first.” … “While maintenance and guardianship/parenting are not directly linked, that does not prevent the court from drawing inferences from his failure to pay support.”
Q : Should the views and opinions of a child be the sole deciding factor for parenting decisions?
No. While the weight of those preferences increases with age, it is common knowledge that parenting requires sometimes coercive measures; that the parents are the ones with the tools to make good decisions for a child, not the child. Many of these decisions revolve around access and medical decision making; nevertheless the logic holds true here.
Villeneuve v. Wilson, 2022 ONSC 2886 (CanLII) at para 26 deals with forcing compliance with an order, as opposed to decisions around school selection; nevertheless, it touches on the importance of not relying on wishes of the child. Jessica asserts that Tom is inappropriately hiding behind the issues of a child for convenience, without properly considering the impact of long commute or alternatively the reduction in time between the boys and their Mom due to the logistical impossibility of the commutes in question. “A parent cannot hide behind the child’s purported wishes as a reason not to comply with a parenting order. A parent who does this abdicates his/her role to the child because the parent does not want to be responsible for the violation of the order, or to suffer the consequences of breaching to order.”
In H. v. H., 2023 ONSC 1933 (CanLII) at para 11, the Court strikes an uncompromising tone to convey that its important top not succumb to the preferences of children in sacrifice of the greater good. Tom has demonstrated that he puts the preferences of the children, above the logistical and needs of their Mother that must be undertaken so she can be the best possible parent for the children. [11] The first is that we are dealing with children, not adults. As I have tried, (unsuccessfully, it would appear) to explain, the views and preferences of children are not treated the same way in family proceedings as those of adults. As s. 24(3)(e) of the CLRA makes clear, the wishes and preferences of children are but one factor to consider and will vary in importance with the age of the children. These children are 11 and 13 years of age. Contrary to the submissions of counsel, there are circumstances in which reasonable people, indeed I would say responsible people, would require that children have contact with adults who make them anxious. Medical professionals administering necessary but unpleasant treatment come to mind. The Hospital for Sick Children is full of them. Ms. Fitzpatrick's submission ignores completely any consideration of the value of the relationship, which leads me to a discussion of the second crucial fact forming part of the context in this case.
In A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181 at para 89, in a case contending with a medical treatment consent question. the Supreme Court of Canada held that the views and preferences of the child should not carry any additional consideration over the other factors; that all factors should be considered equally. “That section sets out the primacy of the child’s best interests and delineates a number of considerations to be included in making such a determination. These considerations include the mental, emotional and physical needs of the child; his or her mental, emotional and physical stage of development; the child’s views and preferences; and the child’s religious heritage. No priority is given to one factor over the other.”
In Wang v Tang, 2023 ONSC 3609 (CanLII), the father wanted access between their 15 year old daughter and her mother (after a period of no contact) to be based on the views an preferences of the 15 year old. The Court rejected that claim, and ordered the child to be delivered to Mom on an every other weekend schedule.
Q : Is being in the car for long periods of time detrimental to the child.
Yes, in extreme circumstances. Since Jessica has the children most of the time, reducing the commute time while the children are in Jessica’s care is the only factor to consider when reviewing commute time for Tom versus commute time for Jessica.
In J.L. v. D. L., 2021 ONSC 4997 (CanLII) at para 62, the Court took notice that an adults capacity for a commute, is not the same for young children. Owen and Quinten are not very young children, but they are not adults; the logic still stands. In this case it was not deemed reasonable to subject the children to long commutes. “Next, the proposed move places the burden of long car rides on two small children. They will be required to sit in a car for approximately 1.5 hours most Fridays after school and again on Sundays. The Mother is more equipped to bear the burden of the travel than the children, and she can opt to stay in St. Catherine’s for some or all of the 2-2-5-5 schedule when the children are not in her care.”
Q : Should the increased expenses of a commute for a parent to facilitate a schedule be a factor for consideration?
Yes, within the limited context of the incurred expense affects the family resources. The financial impact of the change of schools to Tom’s family is zero, as the stepchildren in the house are already making the commute to Barrie. There is a large financial savings to be had with the proposed change for Jessica’s family.
In J.L. v. D. L., 2021 ONSC 4997 (CanLII) at para 62, the Court took notice of the financial considerations of a long commute. “While the travel expenses (gas as well as vehicle maintenance) are not significant, they are added costs that one or both parents would need to incur. In the absence of these expenses, the funds can be applied to the costs of caring for the children.”
The Decision
The decision is a great read. It starts out not looking good for Mom. But this is a balanced approach, and the judge is innoculating the order from appeal by demonstrating a fair and reasonable approach to all the issues.
I'll pull out some of key parts of the decision :
[94] The mother does acknowledge that when the father is home he is a “hands-on” parent who is very involved with their sons. He is also good about ensuring that they get to school on time.
[98] The mother’s affidavit explains the careful consideration that she has given to the potential schools in Barrie. While I have not placed much weight on some of her considerations, I do accept that she has given much thought to the issue of which schools are best suited to each child. If it were a matter of her convenience alone, she would ask that they be moved to the school closest to her residence, which is not the case.
[114] One of the father’s suggestions for resolving this problem is for the boys to live at his home during the week, every week, with an increased time to the mother on weekends and during the summer. By implication, they would be in the care of the father’s partner when he is away for work.
[115] The applicant, quite understandably, does not find it to be in their best interests to be placed in the primary care of a step-parent when she herself is available to continue the care that she has always given.
[119] The mother’s affidavit summarizes her situation: “The Respondent returned to the province right before the first day of school and left again a week later, leaving me with the burden of travel completely. I had negative $700 in my bank account, two maxed out Visas, and a ¼ tank of gas in my car”.
[120] Her evidence is that this is in contrast to the father’s home, as he is not only more affluent due to working full time, but because he has been underpaying child support for years. When the separation agreement was negotiated in 2018, the child support payment was $900 per month. A change has never been negotiated even though the agreement provides for annual financial disclosure and an adjustment of the Table amount of support. Neither party has explained why an adjustment has not occurred, even though there is evidence that the father’s income has increased considerably over the years. His 2022 Notice of Assessment shows total income of $127,177; when the separation agreement was made he was earning $83,586.
[127] It is valid that the mother, as the most constant caregiver, seek to change the schools so that she can put in place arrangements to remain financially viable while providing care for the children. It is in their best interests to not have a significantly different standard of living in each household, and strongly in their best interests to not have a mother who is constantly stressed by financial concerns. An improvement to her physical, emotional and financial circumstances can only benefit the children.
[134] It is particularly unfortunate that the father seems to have devolved to alleging that the mother’s lifestyle has been unstable and that she has been motivated by her own priorities instead of those of the children, after all of the years in which she has so patently done what was necessary to accommodate the father’s work-related absences.
Jessica's Take
It's been an intense 3 months. We've been in front of a judge 3 times since the end of Sept!
After a decade of positive coparenting and genuine friendship with my ex, he sort of went off the rails at my request to move the children closer to me. He stonewalled communication with me and actively blocked the transfer to their home district (I'm the primary!) by calling the schools. I was forced to seek an urgent case conference, which is what I applied to the court for (with David's help!). shockingly, the judge awarded an emergency endorsement on the spot (we didn't expect this).
My ex lawyered up and filed his own emergency motion a few days later with a lot of....well....lies. (Stating we had 50/50 care, that I promised to always drive them to school as an agreement to my move last year, etc...) Due to this confusion, the judge stayed his order and ordered an emergency motion hearing.
Again, my ex submitted a tonne of false info for this conference and I wasn't properly prepared to argue a few points (I was so nervous and did a poor job, to be honest). The judge ordered an emergency case conference. (Which did nothing BUT the judge said if he was hearing the case, he would order for the children to stay at their schools, but said it could go either way depending on the judge). I was given leave to file a long motion, to be heard urgently at the Nov. sittings, but it wasn't promised. At this point, his lawyer was a bit of a bully, not letting me speak and spouting blatant lies to the judge. I knew I needed some advocacy, knowing this was my last chance. So David set me up with a newish lawyer from Feldstein. She was AMAZING. So clever and grasped everything, and put things together so well. She was VERY mindful of costs (knowing I didn't have money to spare) and would delegate tasks to myself or David to save. We really won the case with the affidavit.
We unexpectedly got heard within the first few days of the sittings because it was deemed high priority. My ex paid for a VOC report, which both children stated they wanted to stay in their schools. I knew they would say this and I admitted it multiple times, we didn't need the report, but c'est la vie. Ex paid for it. But everything was hinging on my 15 YO's preference and there was so little case law about the courts going against a child that old's preference. (For what it's worth, they didn't really seem to take into account my 12 YO's preference nearly as much).
I was able to successfully prove that my ex had lied a tonne. I kept it classy and did not do any character digs at him a all along the way. And the judge stated that a child's preference doesn't necessarily reflect their best interests and deemed the move (starting with the new semester) in their best interests!
Now that I've seem my ex's legal bill, I can tell you that his was 3X as much as mine (at least!) and I was the moving party, which means mine should have been more expensive! And now he has to pay me back a HUGE chunk of my legal fees as well! HUGE win. I know everyone involved was a little emotional about it and I really feel like this is going to be a case that is referenced in the future because there is no doubt going to be an abundance of cases requiring moves to be able to financially support families.
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