C.J. v. G.K., 2015 NSSC 248

Supreme Court of Nova Scotia (FAMILY DIVISION) Citation: C.J. v. G.K. , 2015 NSSC 248 Date: 20150901 Docket: 1201-068545 Registry: Halifax Between: C.J. Petitioner v. G.K. Respondent Judge: The Honourable Justice R. Lester Jesudason Heard: August 21, 2015 Counsel: Leigh Davis, counsel for the Petitioner; Julia Cornish, Q.C., for the Respondent By the Court: Introduction [ 1 ] This is a motion for interim relief as part of a divorce proceeding involving the Applicant/Petitioner, CJ (“Mr. J.”) and the Respondent, GK (“Ms. K.”). It seeks a determination of where the parties’ five year old daughter, S, will begin school in September.

[2] Mr. J.’s primary position is that I should order that S be enrolled in the Saint Catherine’s Elementary School on ConnollyStreet in Halifax in the Early French Immersion Program. His alternative position is that S be enrolled in either of two other schools located in Halifax, namely; the LeMarchant St. Thomas Elementary School or the St. Joseph’s-Alexander McKay Elementary Schooleven if she is not able to be enrolled in Early French Immersion. He acknowledged that this would be the case at least with LeMarchantSt.

Thomas Elementary as he has been informed that the Early French Immersion Program for the upcoming year is full. [3] Ms. K’s position is that S should go to the Tantallon Junior Elementary School. While Tantallon Junior Elementary also offersEarly French Immersion, she does not believe it is in S’s best interests to be enrolled in Early French Immersion whether at the TantallonJunior Elementary School or at any other school.

In this regard, she has already enrolled S in the English Primary Program at TantallonJunior Elementary. [4] Irrespective of the outcome of my decision, both parents have asked me not to change their current parenting arrangementwhich has been in place by agreement since January 2014 without the necessity of any Court order. That arrangement provides for jointcustody of S and her having equal parenting time with them on the following schedule: Week 1: S is with Mr. J. on Wednesday from 9:00 a.m. until 9:00 a.m. on Friday. Week 2: S is with Mr. J. from 9:00 a.m. on Wednesday until 9:00 a.m. on Monday.

Issue [5] Where should S go to school in September 2015? Legislation and Law [6] Like any proceeding under the Divorce Act involving children, I am obliged to take into consideration the best interests of S asdetermined by reference to her condition, means, needs and other circumstances (s. 16(8) of the Divorce Act). [7] The concept of "best interests" has been the subject of much jurisprudence. In Young v. Young, (SCC),[1993] 4 S.C.R. 3, McLachlin J., as she then was, stated the following in paragraphs 202 to 206: 202 First, the "best interests of the child" test is the only test.

The express wording of s. 16(8) of the Divorce Act requires the court tolook only at the best interests of the child in making orders of custody and access. This means that parental preferences and "rights" playno role. 203 Second, the test is broad…it has been left to the judge to decide what is in the "best interests of the child", by reference to the"condition, means, needs and other circumstances" of the child. Nevertheless, the judicial task is not one of pure discretion.

Byembodying the "best interests" test in legislation and by setting out general factors to be considered, Parliament has established a legaltest, albeit a flexible one. Like all legal tests, it is to be applied according to the evidence in the case, viewed objectively. There is noroom for the judge's personal predilections and prejudices. The judge's duty is to apply the law. He or she must not do what he or shewants to do but what he or she ought to do…[emphasis added] [8] Guidance on applying the best interests concept has been provided in many cases from this province such as Foley v.

Foley, (NS SC), [1993] N.S.J. No. 347 and Burgoyne v. Kenny, 2009 NSCA 34. In the latter case, Bateman J.A., as she thenwas, stated:

25 …each case must be decided on the evidence presented. Nor is determining a child's best interests simply a matter of scoring eachparent on a generic list of factors. As Abella J.A., as she then was, astutely observed in MacGyver v. Richards (1995), (ON CA), 11 R.F.L. (4th) 432 (Ont. C.A.): 27 Clearly, there is an inherent indeterminacy and elasticity to the "best interests" tests which makes it more useful as legalaspiration than as legal analysis. It can be no more than an informed opinion made at a moment in the life of a child about what seemslikely to prove to be in that child's best interests.

Deciding what is in a child's best interests means deciding what, objectively, appearsmost likely in the circumstances to be conducive to the kind of environment in which a particular child has the best opportunity forreceiving the needed care and attention. Because there are stages to childhood, what is in a child's best interests may vary from child tochild, from year to year, and possibly from month to month. This unavoidable fluidity makes it important to attempt to minimize theprospects for stress and instability. ... 29 Deciding what is best for a child is uniquely delicate.

The judge in a custody case is called upon to prognosticate about a child'sfuture, and to speculate about which parenting proposal will turn out to be best for a child. Judges are left to do their best with theevidence, on the understanding that deciding what is best for a child is a judgment the accuracy of which may be unknowable until laterevents prove -- or disprove -- its wisdom. [9] Courts have often expressed reluctance in being asked to determine where children should go to school in situations involvingjoint custody. For example, in Larter v.

Guenther, 2013 SKQB 346, Schwann J. stated, after reviewing a number of authorities: …In situations of joint custody the court is most reluctant to dictate where a child should go to school and the parents should beencouraged to resolve this matter amongst themselves. If they cannot agree the best interests of the child will govern. [para. 18]. [10] At the outset of the hearing, I encouraged the parties to take some time to try to resolve the schooling issue with the assistanceof their respective counsel.

In doing so, I expressed concern about making a decision which added to the communication difficulties andconflict which clearly existed between the parties even based on my initial review of the material. I also did so because, as S’s parents,they are in a much better position than me to know her condition, means, needs and other circumstances.

Thus, I felt it important to givethem to chance to resolve this issue on their own especially when counsel indicated that they did not have much time to have any detaileddiscussions about potential resolution prior to coming to the hearing. [11] Unfortunately, after discussing the matter for several minutes, counsel advised me that the parties were unable to reach aresolution and wished to proceed with the hearing.

Consequently, the Court was placed in the unenviable task of proceeding with acontested hearing and then being asked, in a short timeframe, to render a decision as to where S will go to school later this week. Background [12] The parties began a somewhat roller coaster of a relationship when they started dating in October 2008. At that time, Mr. J.lived in his own residence at 42 Fathom Court in Halifax, and Ms. K. lived in a home in Timberlea which she had purchased with herfirst husband. [13] Ms. K. has a son, C, born on December 31, 2006, from her first marriage.

Her parenting time with C mirrors the parties’ currentparenting

schedule with S referenced in paragraph 4. Thus, both children are in her care during the same times. [14] After separating for a period of time in late 2009, and again in early 2010, the parties reconciled shortly before S was born onMay 5, 2010.

[15] In February 2010, Mr. J. purchased land and signed a contract to build a home at 51 Thyme Lane in Tantallon. At that time, the parties were not living together. Despite Mr. J.’s evidence that Ms. K. had “no

part in [his] decision to buy land and build a house at 51 Thyme Lane” [Exhibit 2, Rebuttal Affidavit of Mr. J sworn to on August 17, 2010, Paragraph 14], it seems abundantly clear that Ms. K. was involved in the purchase and building of same. Indeed, in the Addendum to the Agreement of Purchase and Sale, Ms. K.’s contact information was provided in one of the sections for “Purchaser’s Contact Information” and she also initialled the Addendum (Exhibit 5).

Furthermore, in an email dated February 13, 2010, from the realtor who was handling the sale of 42 Fathom Court and the purchase of 51 Thyme Lane, the realtor addresses his comments to both Ms. K. and Mr. J. (Exhibit 6). [16] In April 2010, Ms. K. and her mother, MK, moved in to the Fathom Court property on the parties’ understanding that MK would help the couple with childcare after their baby was born. [17] The parties’ plan was to move into the Thyme Lane property in Tantallon once construction of the home was completed. They did so in September 2010. [18] After S was born in May 2010, Ms.

K. took a maternity leave from her employment. MK also helped look after S and continued to do so after Ms. K. returned to work from her maternity leave in April 2011. [19] The parties married on March 24, 2012. However, they separated again in November 2012 after getting into an argument. Mr. J. moved out of the Thyme Lane home with his personal belongings into his parents’ home in Bedford while S remained with Ms. K. Mr. J. had access with her in his parents’ home which, according to him, consisted of two days per week and every second weekend. Ms. K., on the other hand, claims that there was no set access

schedule and that Mr. J. would “take S randomly, and often without much notice”. [20] The parties attempted to reconcile again in early 2013. During that time, Mr. J. would occasionally stay at 51 Thyme Lane although he kept the majority of his belongings in his parents’ Bedford home. [21] On May 5, 2013, Mr. J. indicated to Ms. K. that he wanted a divorce. He then moved back into his parents’ home in Bedford while S continued to live with Ms. K.. Mr.

J. indicated that he resumed the two days per week/every second weekend parenting time with S until January 2014 when the parties agreed to the current equal parenting time arrangement. [22] In July 2014, the parties sold the matrimonial home at Thyme Lane. Ms. K. shortly thereafter purchased another home in the neighborhood. She claims to have done so on the expectation that S would attend Tantallon Junior Elementary, as had been the parties’ plan, and to keep C in the same school district. [23] Mr. J. decided to leave the Tantallon area and moved into an apartment on London Street in Halifax.

In late September 2014, he moved again into a residence on June Street, Halifax, owned by his current partner who is an anaesthesiologist. Mr. J. and his new partner are expecting their first child together in October 2015. [24] In October 2014, Mr. J. had a conversation with Ms. K.’s mother in which he advised her that he felt that the “best school in the Halifax Regional Municipality was downtown, close to his home”. According to Ms. K.’s mother, he did not provide the name of the school.

She advised him that she did not believe that her daughter wanted S to attend school other than in Tantallon, “as originally planned” (Exhibit 9, Affidavit of MK sworn to on August 13, 2015, Paragraph 17). [25] On January 30, 2015, Mr. sent an email to Ms. K. in which he stated: “I’m wondering if we should talk about the plan for S and School. She will go to school this year and due to this we need to register her now for a school.

I’m wondering what your thoughts are and if you’ve already registered her at a school. My concerns are, I need her to attend a school that has pre and after school excel programs preferably at a school with a French Immersion program”. [26] On February 6, 2015, Ms. K. provided a lengthy response in which she stated, inter alia: “ S should attend Tantallon Elementary . February is enrollment month…I am moving forward and enrolling her…for September, 2015. … Regardless, I do not agree we should enroll S in Early French Immersion. This is my position for any schooling district.

I believe it is best for our daughter to learn her primary schooling in English. S has no French heritage. There are no French speakers at my home. You do not speak French fluently. I want to fully participate with S in her school work. French immersion would prevent that. In future we may consider alternatives such as English Program with Intensive French to enhance her education. The decision should be based on S’s development and circumstances at the time. Consider there are other ways to expose S to the French language.

Speak to her in French at your home; listen to French radio and watch French educational children’s television; French camps are offered in the summer from Grade 4 onward. … S is happiest with family. She loves playing with her brother. C does not attend Excel but comes home after school and does homework with his grandmother or myself. Recommend the same for S. It’s a sin the two siblings are separated 50% of the time. I do not want to do anything to increase the children’s time apart… [emphasis added] [26] As she indicated she would do in her email, Ms.

K. subsequently went ahead and enrolled S in the English Program at Tantallon Junior Elementary. She also took S to the Primary Orientation at that school. [27] On May 26, 2015, Mr. J. filed the Notice for Motion for Interim Relief seeking the Court’s determination of where S should go to school in September 2015. Analysis [28] Generally speaking, given that interim orders are expected to be of relatively short duration, serious consideration should be given to maintaining the status quo provided that doing so is in the best interests of the child. For example, in Hewitt v. McGrath , 2010 NSSC

275, MacDonald J. stated: 1 This is an interim proceeding and, as is the case with all proceedings involving children, I must decide what is in the best interest ofthis particular child. However, the determination of this child's best interest is made understanding that an interim order is intended to beof short duration and is to deal with the immediate problem of where a child should live and what role each of the parents should playuntil a court has an opportunity to conduct a full investigation into the best interests of the child at a later hearing. 2 In Marshall v. Marshall, (NS CA), [1998] N.S.J.

No. 172, 1998 CarswellNS 183 (N.S.C.A.), the Court of Appealgave approval to a finding that it can be considered to be in a child's best interest to continue in the care arrangements put in place prior tothe interim application, in other words, to maintain the status quo.

The "existing situation", often referred to as the status quo, is generallythe parenting arrangement in place while the parents were living together and not any short-term or strategic arrangement made afterseparation unless those parenting arrangements had previously been agreed upon or had existed for significant periods of time or wereotherwise considered to be in the child's best interest. 3 There are many reasons why the status quo should be maintained. Interim hearings do not provide the quality or volume of evidencethat is provided at a final hearing.

To change the child's living arrangements on the evidence usually presented during an interim hearingrequires clear and convincing evidence that maintaining the child's status quo would not be in the child's best interest. [emphasis added] [29] Similarly, in Webber v. Webber, (NS FC), 90 N.S.R. (2d) 55 (F.C.), Judge Daley stated: 11 Given the focus on the welfare of the child at this point, the test to be applied on an application for an interim custody order is:what temporary living arrangements are the least disruptive, most supportive and most protective for the child.

In short, the status quo ofthe child, the living arrangements with which the child is most familiar, should be maintained as closely as possible. [emphasis added] Schooling Plans

a) Mr. J.’s Plan [30] Mr. J. is a Lieutenant Commander in the Canadian Navy. His hours of work are generally on Monday to Friday from 7:50 a.m.until 4:00 p.m. although he acknowledged that there are times when he is required to work overtime. He also indicated that, at varioustimes, he may get deployed to travel elsewhere for extended periods. Typically, he gets two to three weeks advance notice of any suchdeployments. He indicated, however, that he did not anticipate any such deployments in the immediate future. [31] As noted earlier, Mr.

J.’s preferred position is that S be enrolled in the Saint Catherine’s Elementary School in Halifax in the EarlyFrench Immersion Program. His alternative position is that S should be enrolled in any of the other Halifax Schools which he hasproposed even if it means being enrolled in an English Primary Program. [32] In support of his position, Mr.

J. points to a number of factors which, amongst others, include the following: • He believes enrollment in Early French Immersion will open doors with respect to S’s future choices of employment and chancesof advancement; • The schools in Halifax begin at 8:50 a.m., as opposed to the earlier start time of 8:25 a.m., at the Tantallon Elementary School. Thus, because his workday begins by no later than 7:50 a.m., in order not to be late, he would have to wake S up around 6:00 a.m. andleave his residence between 6:30 to 6:40 a.m. to take her to Tantallon. He would then have to leave her with Ms.

K. who would arrangefor S to be taken to school;

• He has made arrangements to register S in before and after school Excel or YMCA programs at the Halifax schools which he is proposing. He believes attending these programs is in S’s best interests and will allow her to meet and play with other children; • Since May 2014, S has regularly attended the Apple Bee Academy Preschool located on London Street, Halifax, and is used to travelling from Tantallon to Halifax; • He indicated that, due to the nature of his employment, he could face military charges resulting in significant docketing of his monthly pay should he be late for work even on a single occasion.

He acknowledged, however, that whether such penalties are imposed are in the discretion of his commanding officer and would usually be reserved for chronic lateness situations. • Ms. K. and her mother have considerably more flexibility than he does in terms of their respective work situations. Thus, between the two of them, they can make the necessary school drop off arrangements for both S and C when the children are staying with Ms. K. in Tantallon without being unduly inconvenienced.

b) Ms. K.’s Plan [33] In support of her position that S should go to the Tantallon Junior Elementary School in the English Program, Ms.

K. also points to a number of factors which include, but are not limited to, the following: • The parties specifically chose to live in Tantallon after researching the neighborhood and potential schools for S; • After the matrimonial home was sold in July 2014, she purchased her current residence in Tantallon on the expectation that S would attend Tantallon Junior Elementary as the parties originally planned; • C attended the school for three years which gave her the opportunity to get to know the teachers and staff at the school.

S would also be familiar with the school as she regularly would come with her to pick up C at the school and attend school events; • S and C have a very close relationship. While C will be going to a different school in September (i.e. the Tantallon Senior Elementary School), the two schools are located next to each other on the same grounds. Thus, S and C could travel on the bus together to their respective schools in the morning. • One of S’s two best friends, as well as a number of her other friends who reside in the area, will also be going to Tantallon Junior Elementary in September. • Ms.

K. is self-employed as a web designer and illustrator and works out of her home. She typically works Monday to Friday between 8:15 a.m. and 4:30 p.m., and some weekends and evenings when S and C are not in her care. If S attended school in Tantallon, Ms. K. would generally be able to easily pick her up if she was sick, school was cancelled for some reason, etc.; • Her mother has a very close relationship with S and has been a constant caregiver in S’s life since birth. If S attended school in Tantallon, she would not require any outside childcare because Ms.

K. or her mother would be available to provide both before and after school care. Furthermore, during times when S was in Mr. J.’s care, he could drop her off at her home until it was time for S to go to school. She could also pick S up after school and keep her at her home until Mr. J. was able to come get her after his work. During that time, S would get to spend extra time with her brother C; • Ms. K. could

schedule breaks in her work day when S came home from school to find about how her day at school went and discuss any issues which came up during the day;

• S attended a Primary Orientation at Tantallon Junior Elementary on May 27, 2015, and was able to meet teachers and students who would be in her class; • CJ chose to relocate in Halifax knowing the impact this could have on S’s schooling arrangements; • Both she and her mother have the intention to be volunteers at Tantallon Junior Elementary. For example, her mother has already signed up to read to Primary students at the school; and • She does not speak any French. Thus, if S was enrolled in Early French Immersion, Ms.

K. is concerned that she would have very limited ability to assist S with her schooling or participate in her school activities. Evaluation of Parties’ Plans [34] As evident from the case law referred to earlier in paragraphs 7-8, when making an interim decision, the Court is placed in the position of having to make an informed prediction as to what arrangement is in a child’s best interests largely based on a snapshot of the situation in time, without having the benefit of any crystal ball to gaze into the future to determine the ultimate wisdom of its prediction.

Furthermore, in engaging in this exercise, I must base my decision on the evidence before me and solely consider the best interests of S, as opposed to letting the determinative factor be the “parental preferences” of the parties.

In doing so, my focus must be on S’s condition, means, needs and other circumstances, as opposed to making any generic determination on issues such as whether or not an Early French Immersion Program education is somehow superior to an English Program education. [35] In engaging in my required analysis, I cannot help but comment on the fact that the parties, in their affidavits, provided the Court with much information relating to issues such as the somewhat volatile history of their relationship, issues they had with the other party’s parenting style, verbal altercations they had, etc.

While some of that information is arguably relevant to what schooling arrangement is in S’s best interests, it would have been helpful to have received more information with respect to S’s condition, means, needs and other circumstances, as they relate to her proposed schooling arrangement.

Specifically, the parties provided me with little to no information with respect to the following: • S’s emotional and intellectual development as well as her current needs in these areas; • Her general aptitude with respect to reading and linguistic abilities; • Her prior level of exposure, if any, to the French language, as well as her interest in same; • Mr. J.’s plan to assist S with her educational needs if she was enrolled in Early French Immersion in light of Ms.

K.’s evidence that she believes her ability to do so would be extremely limited given that she does not speak French; • Any independent evidence with respect to the potential benefits of enrolling S in Early French Immersion versus her being enrolled in an English Primary Program and getting exposure to the French language in other ways (e.g. enrolling in French Immersion down the road, participating in French camps, getting exposed to French in either parents’ home, etc.); and • Her general ability to adapt to new situations given that entering primary will be yet another change in her life. [36] Notwithstanding these limitations in the evidence which have made this task somewhat more difficult for me, when I carefully consider all the evidence and arguments which have been presented to me under the overall umbrella of what schooling arrangement is in her best interests, I conclude that it is in her best interests to continue to be enrolled at the Tantallon Elementary School in the English Program.

In arriving at this conclusion, there are a number of reasons which, in my view, tip the scale in favour of this result.

[37] First, I am satisfied that, when the parties were together, it was their mutual intention to raise their family in Tantallon and have S go to school there. That plan never changed until well after the parties separated when it appears that, in October 2014, Mr. J. first raised with Ms.

K.’s mother, the idea of S going to school in the Halifax Regional Municipality “close to his home”. [38] In my view, the fact that the parties chose to build a home in Tantallon, and raise their daughter there, demonstrates that they both concluded that doing so would appropriately promote and foster S’s needs including her educational requirements. Both parents presumably would have familiarity with the type of education offered at the Tantallon Junior Elementary School given that S’s older brother, C, went there. [39] On the other hand, the schools recently proposed by Mr.

J. are somewhat unknowns to either parent, particularly Ms. K.. Indeed, according to Mr. J. in paragraph 32 of his Rebuttal Affidavit of August 17, 2015 (Exhibit 2), his preferred choice of Saint Catherine’s Elementary School only came to his attention when it was brought up in discussions he had with the Principal of LeMarchant St. Thomas Elementary School. [40] Second, S has lived in the Tantallon area since she was an infant. For all intents and purposes, Tantallon is her community, or at least the one which she would be most familiar with during her young life.

Furthermore, as alluded to earlier, she has some prior familiarity with the school from accompanying Ms. K. there for events involving C and has been to its Primary Orientation Session. Thus, as Mr. J.’s counsel suggested in her questioning, sending her to an entirely new school now in Halifax could be confusing to her. I also note that S has a number of good friends in the community who will be entering Primary at Tantallon Junior Elementary and that during the 50% of the time when C is in GK’s care, S will be able to travel to school on the bus with him.

I see this latter point being particularly important in terms of S’s transition into Primary given that, even as CJ candidly acknowledged, S and C have a very close relationship. [41] Third, at various times when the parties separated, it appears that Ms. K. had de facto primary care of S until the parties agreed to the current equal parenting arrangement in January 2014. By purchasing her current residence in Tantallon after the parties’ final separation and sale of their matrimonial home at 51 Thyme Lane, Tantallon, Mr. J. should have had a very clear indication that Ms.

K. intended Tantallon to remain her and S’s community. Since that time, it is clear that both Ms. K. and her mother have arranged their respective work

schedule and lives around the idea that S would be attending Tantallon Junior Elementary in order to provide S with a situation whereby they can provide all the necessary before and after school care without depending on third party providers to do so. On the other hand, Mr. J.’s proposal requires third party before and after school care for S. While the Excel and/or YMCA Programs he enrolled S in may be excellent programs, I am concerned that they would represent yet another change and adjustment to this young child’s life which is not necessary or in her best interests. [42] Furthermore, unlike Ms. K., Mr.

J. seems to have largely based his living arrangements on his own preferences first, and S’s educational needs second. A telling example of this is his evidence in his Rebuttal Affidavit of August 17, 2015, in which he indicates that his decision to purchase 51 Thyme Lane, a mere few months before S was born, was “because [he] wanted a big property on a lake with a lot of privacy” and that “This was the only thing I had in mind when purchasing the land.” (Exhibit 1, Paragraph 14). Furthermore, Mr.

J. has subsequently chosen to relocate to Halifax, and has changed residences twice for what appear to be professional and personal reasons, as opposed to reasons driven by S’s needs. While those decisions may be completely valid ones, he cannot expect, on account of his choices, to have S’s life, and that of Ms.

K. and her mother, unduly disrupted to accommodate same. [43] Fourth, as alluded to earlier, I have very little to no evidence before me which could comfortably lead me to the conclusion that enrolling S in the Early French Immersion Program now would be in her best interests by reference to her condition, means, needs and other circumstances. While Mr.

J. subjectively asserts this to be the case, again I find it telling that, his alternative relief sought in this motion is to have S enrolled in the English Primary Program in any of the Halifax schools he has proposed near his home as opposed to having her enrolled in the Early French Immersion Program at the Tantallon Junior Elementary School. [44] Given the very limited evidence before me on the issue of how Early French Immersion would be in S’s best interests, I give very little weight to Mr. J.’s subjective preferences on this issue especially in light of Ms.

K.’s evidence that she wants to fully participate in assisting S with her school work and believes that enrolling her in Early French Immersion would prevent her from meaningfully doing so. I note that a parent’s inability to assist a child with their educational needs in another language has sometimes been a factor considered by courts when determining schooling arrangements (e.g. Champagne v. Brodie, 2002 BCSC 910 and Bamford v. Peckham, [2013] O.J. No. 3851 ). [45] As an aside, I am not convinced that, even if I were so inclined to grant Mr.

J.’s primary request that S be enrolled in the Early French Immersion Program at the Saint Catherine’s Elementary School, that there is any guarantee that this could happen. While Mr. J. indicates that he received “verbal confirmation” from the Principal at the School that S could attend in September 2015 (Exhibit 2, Rebuttal Affidavit of Mr. J. dated August 17, 2015, Paragraph 33), this must be considered hearsay evidence at best which I do not find

to be necessary or reliable. Indeed, if this was important evidence which Mr. J. wished me to consider, he presumably could have easily presented me with an affidavit from the principal giving me firsthand evidence on this point.

Certainly, it would be a great disservice to both parties and, more importantly, to S, if I ordered her to be enrolled in the Early French Immersion Program at Saint Catherine’s Elementary and it subsequently turned out that she was unable to be enrolled in same given that the academic school year begins later this week. [46] Thus, in conclusion, while I have weighed all the factors presented to me in the evidence, primarily on account of the above factors, I conclude that it is in S’s best interests that she attend the English Primary Program at the Tantallon Junior Elementary.

Such a determination would also, in my view, best maximize consistency and stability for S, while minimizing disruption for her at this stage of her life. [47] Notwithstanding the above, I appreciate that my decision may cause some potential hardship to Mr. J. and may require him waking up S earlier in the morning on days when she is staying with him in Halifax. Again, however, I consider those factors to be of lesser importance when I weigh all the factors which I am required to do when arriving at my decision. Furthermore, given that Mr.

J. has already demonstrated a willingness to move on a number of occasions, it may be that, to the extent these are serious concerns for him, he can consider relocating closer to Tantallon to minimize the impact of same. [48] In closing, I wish to state that simply because I have ruled in Ms. K.’s favour on this interim motion this should not be taken that I agree with some of the actions she has taken. Indeed, I have considerable concern that, despite the parties having agreed to a joint custodial arrangement involving S, Ms.

K. went ahead and enrolled S in the Tantallon Elementary School in the English Program over Mr. J.’s stated preferences and desire to have a conversation about the upcoming schooling arrangement as outlined in his email of January 30, 2015. Ms. K.’s response in her email of February 6, 2015, clearly suggests she was not open to discussing the matter any further and had made up her mind on the schooling issue. [49] With respect, given that the parties’ agreed to a parenting arrangement in which they agreed to make major decisions such as schooling issues together, one would have expected Ms.

K. to at least be prepared to show more openness to discussing the matter of S’s upcoming schooling arrangements with Mr. J.. While I may be prepared to give her the benefit of the doubt that her unwillingness to discuss the issue further with Mr. J. may, in part, be due to her own frustration and disapproval of some of the decisions made by him in the past, this does not give her the right to unilaterally make major decisions with respect to S. Furthermore, by taking actions which she acknowledged during her cross-examination she knew were against Mr.

J.’s wishes, this no doubt would only exacerbate the unhealthy amount of conflict and mistrust which exists between the parties and was apparent to me even at this interim stage of the proceedings. [50] Furthermore, had I decided against Ms. K. in this motion, and/or decided that it was in S’s best interests that she should be enrolled in an Early French Immersion Program at one of the proposed schools, her actions may have effectively prevented that from happening.

Needless to say, this would have been most unfortunate for all and would have left S in limbo on the eve of the academic year. [51] Thus, to the extent the parties have, at least for the time-being, agreed to a true equal parenting arrangement with respect to S, and both clearly love their daughter, the Court expects them to take measures which would improve their communication and minimize conflict. Again, they, not the Court, are the ones most uniquely positioned to foster S’s future healthy development by making good decisions on issues such as her schooling arrangements.

Thus, the Court would hope that they can put aside whatever differences they may have had in the past and work together to ensure that this latest transition in their daughter’s life is a smooth one. If they do this, they can help shape her future development in a positive way and provide her with the consistency and stability she needs as opposed to pulling her in opposite directions and creating uncertainty for her.

Indeed, it is most troubling to the Court that this young child is on the eve of beginning her academic career and still does not know where that journey will begin, let alone what language it will be conducted in. Costs [52] At the conclusion of the hearing, I invited counsel to make comments on the issue of costs. Ms. Davis indicated that Mr. J. thought it appropriate that each party bear its own costs but still wished to be heard on costs after I rendered my decision. Ms. Cornish, on the other hand, indicated that Ms. K. would like costs to be awarded in the cause.

I would therefore direct counsel to attempt to reach agreement on costs and notify me of whether or not I am required to issue a ruling on this issue within a week’s time. [53] Finally, in terms of housekeeping, I would ask that Ms. Cornish prepare an Order which reflects my decision and sent it to Ms. Davis for her consent as to form only. Furthermore, unless I hear any objection, I will also advise the Scheduling Office that they should contact counsel to set a 30 minute conference before me to set trial dates for a final hearing of all issues raised in the Petition for

Divorce. _____________________________ R. Lester Jesudason, J.