Cordeiro v. Cordeiro, 2015 BCSC 1392

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Cordeiro v. Cordeiro, 2015 BCSC 1392 Date: 20150625 Docket: 13-1482 Registry: Victoria Between: Janelle Kimberley Cordeiro Claimant And John Pacheco Cordeiro Respondent Before: The Honourable Madam Justice Gray (Appearing via teleconference) Oral Reasons for Judgment Counsel for the Claimant: A. Duncan Counsel for the Respondent: G.N. Smith Place and Date of Hearing: Victoria, B.C. June 24 and 25, 2015 Place and Date of Judgment: Victoria, B.C. June 25, 2015 [ 1 ] THE COURT: The issues before me relate to the parenting of a four year old child.

My reasons for judgment following trial are indexed at 2015 BCSC 253 . [ 2 ] The first issue between the parties is where the child should attend kindergarten, and the real fight is whether he should go to a public school or a private school. [ 3 ] The claimant Mother is an elementary school teacher in the public system. The respondent Father works in government. He has displayed what he terms “interest in lifelong learning”, including obtaining diplomas following his Bachelor degree at university. [ 4 ] At trial, the Mother was living and working in Langford.

The Father was living in Fairfield and working in downtown Victoria, and the child was enrolled in a daycare in Langford. [ 5 ] There was a major issue at trial about the parenting hours and the commuting time. I held that the child would not attend a daycare in Langford, and that he was to move to a daycare at a mid-point between the two parties' homes. [ 6 ] What has happened very recently is that the Mother is in a new relationship and she has moved to what essentially is the mid- point between her former home and the Father's home. [ 7 ] The question of what school to send the children to is a difficult one.

Reasonable people can and do disagree about whether their children should attend public or private school. I would prefer this decision to be made by the parents. It is a difficult question for the court because it is so evenly balanced, but I have to look at this from the perspective of what is in the best interests of the child. [ 8 ] I am not going to go through a lot of detail because of the time available this morning, but I will say that, there are two schools in question. The public school is called “Eagle View” and the private school is called “St. Joseph”.

Both of them have before school and after school care on site, so that is not a factor. They are very close to each other, and so the location is no longer a factor. [ 9 ] I will also say that my view is that there are dedicated teachers in both the public and private system, and that what is most important for a child is to have access to dedicated teachers. However I must make the decision between the public and the private school. [ 10 ] The Father says that the private school will be better, and he says that there is a smaller class size. His evidence about that is in paragraph 12 of his affidavit.

I will not take the time to read it, but he says that St. Joseph's limits class size.

[ 11 ] The evidence about the public school system is set out in a fact sheet from the Ministry of Education.

It says that by provincial legislation, class size for kindergarten at public school cannot exceed 22 students; grades one to three cannot exceed 24 students under any circumstances; and for grades four to 12, the limit is 30, but there is flexibility to exceed that for designated subjects. [ 12 ] The Father also says that the teacher will be less distracted by children needing special attention in the private school. [ 13 ] I have been provided with a copy of what is called a “Report Card” for the two schools. It is at page three of the Mother’s exhibits. It says that the Catholic school, St.

Joseph's, has 0.7 percent second language students, in contrast to 12.2 percent for Eagle View. Regarding special needs, it says “not applicable” for St. Joseph's, and for Eagle View, 7.2 percent. [ 14 ] Based on that, it appears that there are likely to be more special needs and second language students at Eagle View than St. Joseph’s. Some might say that having more special needs and second language students would enrich the environment; other people would say that it would distract the teacher and provide an inferior education. [ 15 ] The Father says that the parents will be more active and involved at St.

Joseph's than a public school, in part, because the parents have chosen to spend their money to send the children there. [ 16 ] This child is only four years old and he appears to be flourishing. There have not been any special needs identified for him. [ 17 ] The other major factor is the expense, and I will go through that in a moment. [ 18 ] A less significant factor is the religious aspect of the education. The Father says that it is not a big emphasis at St. Joseph’s.

The Mother says she is concerned and would not choose Catholicism if she was going to introduce her child to religion. [ 19 ] I note that the material provided shows that there is a price for students who are not in the parish, which is consistent with the Father's evidence that there are children from all faiths who attend St. Joseph's. [ 20 ] The Father attended this private school, or a related one, for part of his schooling and so he says there is some legacy aspect. [ 21 ] The private school requires students to wear uniforms.

The Father says that, long-term, it is likely to be cheaper to provide the child with uniforms than with other clothing, but that the requirement for uniforms also provides some equalization between students. In other words, the Father says that the wealthier students have to dress the same way as the poorer students and there is no distinction made between students based on how they dress. [ 22 ] The Father is also concerned about the labour disruptions that can occur in the public school. There was a recent strike where children were not attending public school whatsoever.

The Father says he is concerned about that happening again and even more concerned about lessor labour steps taken than a full strike, such as refusing to provide report cards and refusing to provide extra- curricular activities. [ 23 ] As I have said, the location is no longer a significant factor. [ 24 ] Another factor is that in Victoria, most schools have “middle” schools. Elementary schools provide grades one to five, and middle school is grades six to eight. St. Joseph's is, I believe, grades one to seven, so that if a child finishes St.

Joseph’s and goes to public school, the child will be joining a school where most students have already been at the school for two years, and this could make it more difficult to form new friendships. [ 25 ] The Father says there is more variety available in extra-curricular activities at St. Joseph's. The Mother says there is lots of variety available at Eagle View as well. [ 26 ] The Fraser Institute has ranked schools, and it ranks the private school higher. It appears to me the ranking appears to be based almost entirely on a test which is contentious.

Some of the public schools suggest that the children should not take the test. I will not say more about that. [ 27 ] The decision here boils down to whether the extra cost is worth the benefits, which appear to be a reduced class size, with fewer special needs and second language students. [ 28 ] I take note that the court decisions which are on their way up to appeal involve the Teacher's Federation’s concern about class size.

I think I can say that it is generally accepted that a smaller class size would be better for a child because each child is likely to get more attention. [ 29 ] The Mother is concerned about the ongoing costs.

I am being asked to make a decision right now about kindergarten, but it appears that both parents are approaching this in the expectation that if the child starts with public school, he will go to public school throughout his schooling, and similarly, if he starts with private school, he will continue private school throughout his schooling. [ 30 ] The difference now, on the father's calculations, is about $362 a month. That is because the child will require before and after school care, which is a bit more expensive in the public system, and so the total difference is less than the private school fees.

Of course, once the child is old enough, he will not require before and after school care, and so there would not be any schooling cost, if he attended the public system. As a result, when the child is older, the private school cost will be more than $362 a month higher than the public school cost. [ 31 ] The Mother's evidence about her financial circumstances was troubling to me. She referred to changes in her expenses, but she did not detail the changes resulting from the fact that she is now living with a new partner, and has moved to a new home with that new partner.

One would expect there may be some shared expenses, such as accommodation costs. [ 32 ] The evidence also shows that the Mother's salary is expected to increase, both because she will gain seniority, and because there

are automatic percentages increases. [ 33 ] I have to essentially weigh what is in the best interests of the child. The Father says that he is careful with money, but he thinks that it is a valuable investment in the child's education if he can go to private school. [ 34 ] The Mother has the objections that I have described, including the religious concern, and the concern about the ongoing costs. [ 35 ] It appears to me that most parents, in all the circumstances I just outlined, would prefer that their child would have private schooling with a smaller class size if they could afford it.

In light of the evidence before me, and the size of the expense that I can see for the Mother of the child attending private school, it appears to me that it is in the child’s best interest to go to the private school, St. Joseph's. [ 36 ] That will be my order. He shall attend the private school. [ 37 ] I turn now to the other applications before me. I will deal first with the question of the birthday parenting. [ 38 ] The order I made after trial did not deal with the child's birthday. I am not sure whether it was the subject of any submissions from counsel. I think it was not.

In any event, parenting on the child’s birthday has now emerged as an issue between the parties. [ 39 ] In my view, young children usually consider their birthday to be a special day and would like to share some of that time with both of their parents. [ 40 ] The order that I made following the trial essentially divided the summer into weeks. The parties must share the summer. That has the effect that the child's birthday, which is in July, would normally be spent entirely with the parent who had parenting time with the child that week. [ 41 ] I will adjust this. In my view, the preferred

schedule relating to the child’s birthday is to allow one parent to have parenting time on the night before the birthday and the morning of the birthday, and the other parent to have parenting time on the afternoon of the birthday and the evening of the birthday. [ 42 ] Children will sometimes have sleepovers. The child should not have two sleepovers in a row, and it will be better if he is better- rested on his birthday.

Therefore, the child should not have a sleepover on the night before his birthday. [ 43 ] I will provide that around dinnertime, and if the parties cannot agree, I will say 6:00 p.m., on the eve of the child's birthday, he is to be with one parent, and then delivered to the other parent at 1:00 p.m. on his birthday.

The child shall stay with that second parent from 1:00 p.m. on his birthday until the next morning at 9:00 a.m. [ 44 ] If there is to be a sleepover, unless the parties agree otherwise, it must begin on the actual birthday, rather than on the eve of his birthday. [ 45 ] This should alternate, unless the parties agree otherwise in writing. [ 46 ] This summer, the Mother will have parenting time on the eve of the child’s birthday and the birthday morning, and the Father will have parenting time on the afternoon of the birthday to the next morning.

Of course, if it is the Father’s parenting week, that parenting time would simply continue, and there would not be an exchange on the morning after the birthday. [ 47 ] That deals with the birthday parenting issue. [ 48 ] The next issue I am going to address is the commencement in the fall of the 2/2/5/5 schedule. One benefit of this

schedule is that the parties will have alternating weekends with the child, if the 2/2/5/5 commences with the first two-day on a Monday morning. That should be the case in the fall. [ 49 ] There is an issue about what time the exchanges should occur in the summer. The Father would like them to occur at 7:30 a.m. on Mondays through the summer. The Mother would like them to occur on Friday afternoons at the time preferred by the Father. [ 50 ] The Mother is prepared to do the driving on the Friday afternoon if that will assist the Father.

She is not working through the summer, because school is out of session and she is a school teacher. She says that this will have the benefit that any summer long weekend, such as the long weekend Monday in August this year, would be available to the parent, in this case the Mother. [ 51 ] In my view, the preferred

schedule will have the exchanges on the Fridays at a time that the father can select. If the parties do not agree on a different time, I will set that time at 4:00 p.m. on Fridays. [ 52 ] I do not know that I need to give any more detail. The

schedule for the summer should begin on the Fridays. I have said that the summer should be equally divided. If it does not work out to an equal number of weeks, then the parties should divide the end of the summer into shorter periods than a week to equalize the balance of the summer. [ 53 ] When the

schedule commences, it should commence on the Monday. The Mother suggests that it commences on Monday, Labour Day, September 7, 2015. [ 54 ] Ms. Duncan: Would be her two days, yeah, and then followed by his two days. [ 55 ] Mr. smith: I think that's what my client was advocating, anyways. They were both -- [ 56 ] Ms. Duncan: I think we're agreed on that.

[ 57 ] Mr. smith: -- they agree on that. [ 58 ] Ms. Duncan: Yeah. [ 59 ] THE COURT: Okay. Well that is fine, then. So the 2/2/5/5

schedule will start again on Monday, Labour Day, September 7, 2015. [ 60 ] I think I will have dealt with all the issues for the summer. [ 61 ] Is that clear? [ 62 ] Ms. Duncan : Yes. Can we just add to your order the consent piece with respect to the parenting coordination that I spoke to at the outset? [ 63 ] THE COURT: Yes, I thought I made the order yesterday, but -- [ 64 ] Ms. Duncan: I'm not sure. [ 65 ] THE COURT: -- if I did not, I will make it today. [ 66 ] Ms. Duncan: Okay, thank you. [ 67 ] THE COURT: So items six and seven in the notice of application are ordered by consent. [ 68 ] MR.

SMITH: The exchanges at 4:00 p.m. are fine with my client, it's just the Mother had said she could drive, she'll do the driving in the summer? [ 69 ] THE COURT: Yes. [ 70 ] Ms. Duncan: If that's necessary. [ 71 ] MR. SMITH: It's necessary for when he's working, absolutely. [ 72 ] Ms. Duncan: Unless they want to exchange later, and he can drive, but if necessary, she'll drive, I said that and -- and certainly that's not -- that was the submission. [ 73 ] MR. SMITH: Yes, then -- okay, I just wanted that clear, My Lady. [ 74 ] Ms. Duncan: Yes. [ 75 ] THE COURT: Okay, all right, thank you, counsel. “Madam Justice V.

Gray”