Waddle v. Carr, 2012 ABQB 499

Court of Queen ’ s Bench of Alberta Citation: Waddle v. Carr, 2012 ABQB 499 Date: 20120731 Docket: FL03 09649 Registry: Edmonton Between: Nicole Carmen Waddle Applicant - and - Dustin Wayne Carr Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ Introduction [ 1 ] These parties are the parents of one child of their brief relationship who is currently about to turn 7 years of age. The parties are presently caring for the child on a

schedule that has the father seeing the child less than approximately 30% of the time, and this arrangement has been in effect since 2008. The parties are presently dealing with a pending special chambers application by the father to change the status quo to a 50/50 shared custody situation. The issue in the present application solely involves which school the child will attend next month in the upcoming school term. The child has been accepted into a visual and performing arts school beginning in September 2012 for grade 2 classes, and can begin attending daycare there on August 1, 2012.

The child has been attending a local Catholic school, where it is acknowledged by both parties that she is doing well in.

[ 2 ] The mother submits that the child was not however excelling in her present school, and that she is a highly artistic child who must be fostered, encouraged, and nurtured. Additionally, the mother points out that the child ’ s best and only friend is moving to the same visual and performing arts school this coming term. The mother submits that the child ’ s report cards indicate that her area of excellence in particular is painting and drawing skills, and the visual and performing arts school is where she would improve and excel in these skills.

The current school that the child attends is a Catholic school that offers French immersion and “ moral values ” , but neither party is a practicing Catholic so it is submitted that religion is not an issue in this case. It is argued by the mother that the move to the visual and preforming arts school would be the best choice for the child, and therefore in is the child ’ s best interest. [ 3 ] The father says that the child is doing very well in her current studies, the child is enriched in the moral education received at the Catholic school, and by the French immersion program it offers.

The current school is also much more conveniently located to each parent ’ s residence. [ 4 ] The mother responds that the proposed school also has a French immersion program, and in addition has an international baccalaureate program. The mother responds that the father is more concerned with his convenience than the best interest of the child.

Conclusion [ 5 ] The existing 2008 order in this matter consented to by counsel for both parties deems educational decisions, including the nature, extent and place of education and any participation in extra-curricular activities as being joint decisions that the parties will make together.

The proper legal test then before the Court with respect to the mother ’ s application to change schools at this time is not solely what is in the best interest of the child, but what is in the best interest of the child assuming the Court satisfies itself that there has been a change in the needs or circumstances of the child. [ 6 ] Section 34(3) of the Family Law Act reads as follows: “ Before the court makes a variation order in respect of a parenting order, the court shall satisfy itself that a change in the needs or circumstances of the child has occurred..., and in making the variation order, the court shall consider only the best interests of the child... ” . [ 7 ] It is not clear to me that the mother has demonstrated a change in the needs or circumstances of the child, but even if we were to assume there has been such a sufficient change in circumstances it is at best difficult to choose between these two schools for the child. [ 8 ] The mother is very thorough, having produced amongst other things, a 100 plus page affidavit sworn May 29, 2012, and she obviously feels very passionately about the need to transfer the child to the visual and performing arts school at this time.

There is nothing wrong with that school, it obviously has many enriching and well developed programs that will serve the child very well. It is a school that could provide the child with 11 years of continual education from elementary to highschool. [ 9 ] However it is difficult to understand that at this stage of the child ’ s development entering grade 2 as to the present value of the performing and visual arts school for example and it ’ s international baccalaureate program. It is also difficult to assess for anyone what the child ’ s real interests are at 7 years of age.

For example this child seems to have received a balanced education to date and done well. She seems to have various interests, including those that the mother identifies in the preforming and visual arts field. [ 10 ] The mother has introduced the issue of the child ’ s best friend also transferring to the visual and performing arts school by way of the written submission letter, which is not in fact before me in evidence. The Court reserved in this matter on July 13, 2012

because the mother did not wish to have the decision with respect to her application to change schools dealt with in the special chambers hearing scheduled for late August, as the child could start in the school ’ s daycare program August 1, 2012. The father had applied to adjourn the matter of the change of school to the special chambers date because he was not prepared to proceed on July 13, 2012. The mother had just started a new job when this matter was heard July 13, 2012 and did not also want to take any further time off of work as it would lead to her dismissal of her new employment.

Accordingly, I accepted the responsibility of dealing with this matter by way of further written submissions earlier than the special chambers date, but this is not reason to allow new information not before the Court in evidence. [ 11 ] In any event the child with or without her current classmates has been doing well in school as is conceded by both parties. The mother argues that the child has not excelled in school, but it is difficult to assess the concept of excellence with respect to a 7 year old entering grade 2. The child does have familiar surroundings within her present local school.

The school being more conveniently located to each parent ’ s residence is also a factor that goes to the child ’ s best interest. It is a much longer daily commute, although achievable, to the new visual and preforming arts school proposed by the mother.

This longer daily commute however is not as favourable as the conveniently located local school. [ 12 ] Accordingly even if the Court were to find that there has been a change in the needs or circumstances of the child which I have not been able to definitively ascertain, on the evidence before me it is not clear what the child ’ s best interests are served in moving the child to the visual and preforming arts school. The child ’ s interests seem well served by her remaining at her present school surroundings. Accordingly the mother ’ s application to change schools at this time will not be granted.

Heard on the 13 th day of July, 2012. Dated at the City of Edmonton, Alberta this 30 th day of July, 2012. Donald Lee J.C.Q.B.A. Appearances: Norman G. Galarneau The Family Law Firm for the Plaintiff Marilyn Sheckter Legal Family Crisis Clinic for the Respondent