L. M. T. v. J. C. T. Date:, 2012 BCPC 559

Citation: L. M. T. v. J. C. T. Date: 20120927 2012 BCPC 0559 File No: F1685 Registry: Powell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: L. M. T. APPLICANT AND: J. C. T. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A.E. ROUNTHWAITE Counsel for the Applicant: G. Reif

Counsel for the Respondent: S. McCausland Place of Hearing: Powell River , B.C. Date of Hearing: September 26, 2012 Date of Judgment: September 27, 2012 [ 1 ] LMT is the mother and JCT is the father of RET born August 15, 2006. The parents share joint custody and guardianship of their daughter under a consent order made July 28, 2010. The order provides that RET’s primary residence is with her mother and her father has access one weekday overnight each week and every second weekend, as well as specified holiday and vacation time. It also provides for child support and sharing extraordinary expenses.

However, it does not contain provisions such as those in the “Joyce model” spelling out how the parents should make decisions as joint guardians. [ 2 ] This is an application brought by the father under s. 32 of the Family Relations Act for directions concerning a question affecting the child. The Act says that when a guardian applies for directions, a court may make the order it considers proper. The parents were unable to agree on which of two public elementary schools in Powell River RET should attend for Grade One.

The mother changed the child’s school without the father’s agreement and he now seeks directions on which school RET should attend. [ 3 ] Before commencing the hearing I urged the parents to try to reach agreement, pointing out that they were better equipped to make a decision about their daughter’s education than a stranger who doesn’t know their daughter or the schools and would have to base a decision on the written evidence in their affidavits.

Unfortunately, the parents were unable to agree and I must do my best to decide which school it would be in RET’s best interests to attend. [ 4 ] I have considered the affidavits of the parents and of SA, a friend of the father’s, as well as brief cross examination of the mother. There is some urgency to the decision as we are three weeks into the school year. I therefore arranged to give my decision very quickly.

Because one or both parents might not have been present in court at the time scheduled for my decision, I decided to provide succinct written reasons instead of oral reasons delivered in court, in an effort to ensure that both parents understand the reasons for my decision. Events of September 3 and 4, 2012 [ 5 ] On the basis of the affidavit and oral evidence, I find that the following facts have been proven on the balance of probabilities. The mother is a teacher who works at JT School. The father operates a business in Powell River. RET attended kindergarten at GP School.

The mother had concerns about RET’s well-being at GP last year, met with the school principal and counselor, and discussed with the father her desire to move RET to JT both at the end of the school year and during the summer. He wanted to keep RET at GP. [ 6 ] RET’s longtime daycare provider would not be able to drive RET to and from GP this year; her own children attend JT. She told the mother she could not provide before and after school care if RET attended GP. The mother is not able to transport RET to and from school because of her teaching duties.

Although the father had previously driven RET to and from preschool after the mother delivered her to the father’s shop, during the kindergarten year he only attended to transportation and daycare on the Thursday afternoons and alternating Fridays when RET was in his care. The mother made unsuccessful efforts over the summer to find alternate daycare that could provide transportation to and from GP. [ 7 ] As of September 3, 2012, the day before school started, there was no agreement to change schools and the plan was for RET to return to GP for Grade One.

On September 3, the parents discussed the problem of transporting RET to and from GP. In particular, they discussed who would transport her the next day.

The father asked if the mother’s sister or father could pick RET up from school but they were not available, and the father eventually agreed to do it. [ 8 ] Whether or not the father said that transportation and daycare were the mother’s problem since she was the primary caregiver (and this is disputed), I accept the mother’s evidence that the father said “no” when she asked if he was prepared to take RET to school and pick her up and take her to daycare every day.

This is consistent with the father’s position in his first affidavit sworn September 18, 2012, when he said “ when RET is in my care I will do whatever is necessary to get her to and from school”, explaining that he would either transport her himself or hire a daycare service that would pick her up when she was with him ( underlining mine ). [ 9 ] Immediately after their conversation on September 3, the mother arranged with the principal of JT for RET to enter Grade One in the Eco French Immersion programme there, and notified the father by text message.

I understand that this seemed a precipitous, unilateral change of mind to the father. However, I accept that the mother took this action because she believed JT offered advantages to RET; she did not have satisfactory transportation and daycare arrangements if RET attended GP but could continue to use Ms. AH for these purposes if she attended JT; and she was frustrated by the father’s attitude which appeared to her to be intransigence without willingness to provide the help necessary to support his preferred option.

Decision [ 10 ] On the available evidence, I have decided that it is in RET’s best interest to remain at JT School, for the following reasons. First, there is no evidence about RET’s scholastic ability or learning-related needs. On the evidence I have, it appears that RET could do well academically at either school.

Although GP has a higher average score on reading, writing, and math than JT, and GP’s average score is higher than the District average, this may be offset by the facts that JT has developed new math and language programmes in the last year resulting in significant improvement in scores, and that RET is in a French immersion class with an ecological focus at JT that may attract parents with high interest and involvement in their children’s learning.

Most significantly, RET has two parents who are intensely interested in her education and can be expected to support her learning and provide enrichment at home, no matter which school she attends.

[ 11 ] Second, neither GP’s “central” location nor the relative ages of the schools is a significant factor. Powell River is a small community. Both schools are within 10, or at a maximum 15 minutes’, drive of the parents’ homes and workplaces. Although the School Board advocates for children to go to the school closest to their home, neither school is RET’s “home school”, but JT is closer to the mother’s home than GP.

The mother lives in a rented house that is listed for sale, so she may have to move, but she may be able to stay in her present house after a sale, and if not, she intends to make her home within the JT catchment area. GP students will soon transfer to a new “state of the art” building and JT is an old building, but JT has been fully renovated and upgraded.

Moreover, new buildings are not immune from physical plant problems; and the age of the building is not determinative of the quality of education within its walls. [ 12 ] Third, the father and SA, a teacher’s assistant, believe that JT has a high rate of bullying as well as behavior problems and repeated head lice infestations.

However, the mother and Cindy Lessard Mitchell, a Strong Start Facilitator with a diploma in Early Childhood Education, say the number of students with lice is within a typical range and is improving; and the school is “the most multi- cultural” in the district, with bullying not tolerated. As a teacher at the school, the mother will be aware of any problems RET might encounter and able to take appropriate action. As the parent with primary residence, she will have primary responsibility for treating RET for head lice if she acquires them.

I accept that the mother has firsthand knowledge of conditions at the school and have no evidence to suggest that she would expose RET to a school situation she believed to be unsafe or unhealthy. [ 13 ] Fourth, the father complains that the mother didn’t try hard enough over the summer to find a daycare provider who would transport RET to and from GP. However, the father did not do anything during the summer to assist her with that challenge; he did not make efforts to find daycare until after the mother changed RET’s school in September.

I accept that Kids Come First, a programme with 30 to 40 children, is not the most desirable option for RET’s before and after school daycare, and should not be used simply because they provide transportation. On the evidence, AH is the best daycare provider for RET. She began caring for RET when she was one year old, and treats her like one of her own children. The father agrees she provides “wonderful care” for RET. Particularly if there is tension between RET’s parents, I consider it to be her in best interests to have the security, continuity and stability of spending time before and after school with Ms.

AH and her family. An additional benefit is the fact that the mother would have to transport RET to and from daycare before school most days and Ms. AH lives near the mother. [ 14 ] Fifth, although 75% of the children from BB, the preschool RET attended for two years, attend GP and she is familiar with GP staff and students after attending kindergarten there, I consider the social benefits to RET of attending JT to outweigh those of attending GP.

I accept the mother’s evidence that RET came home from kindergarten at GP crying and saying she didn’t like school on numerous occasions because she was in a three person group of friends with two girls from BB who excluded her from most activities. While the father was not aware of this, the mother spent more time with RET and had more opportunity to observe her mood and discern her feelings. Girls can be cruel to one another and a three person group invites pairing off.

I accept that this is a negative social aspect of GP for RET. [16] RET can maintain friendships with BB alumni at either school because she sees these children in extracurricular activities. She knows staff at JT through their friendships with her mother; her mother teaches there; she knows other children at JT including EH, the other children who travel on the French immersion bus, children with whom she shares extracurricular activities, and children of teachers; and it is not likely to take her long to feel comfortable there.

In fact, there is evidence that RET appears happier this year; she is best friends with Ms. AH’s son EH and enjoys attending school with him; and she is making new friends at JT. [17] Finally, in this family’s circumstances, the decision about which school RET attends will affect her before and after school care as well as her transportation to and from school. I am satisfied that the mother’s arrangements for RET’s school days are better for RET than those proposed by her father.

If RET attends JT, her mother will take her to the nearby AH home in the morning; she will take a small French Immersion school bus to school in company with EH and other neighbourhood French Immersion students; she will return to the AH home by the same bus and be picked up by her mother at the end of the day. This arrangement provides the parents with the security and stability of childcare they know to be excellent, and with hassle-free transportation. [18] During the hearing, the father offered to drive RET from his shop to GP in the morning and from school to Ms.

AH’s in the afternoon, but he wanted to have discussions with the mother about finding alternate daycare that could pick her up after school. Thus, if RET attends GP, she and her mother would have to leave home earlier in order to drive to her father’s shop so he could drive her to school, leaving his store to do so, and he would pick her up after school and take her to daycare, again leaving the store. Due to his work commitments, the father’s obvious preference is to find a new daycare provider who would pick RET up after school.

However, the mother would have to pick her up at the end of the day from any daycare provider, and it may not be possible to find one who offers transportation and is located conveniently for the mother. In any event, as indicated above, I consider maintaining daycare with Ms. AH to be in RET’s best interest, and far better for her than some new, untried, and unfamiliar daycare. I am satisfied that RET will have a better day at Ms.

AH’s and JT than she would if she returned to GP. [19] For these reasons, I make a direction under s. 32 of the Family Relations Act that RET attend JT elementary school unless the parents agree otherwise. I expect them to continue to monitor her progress as time goes on and to make a decision as joint guardians on whether the French Immersion programme meets her educational needs. The Honourable Judge A.E. Rounthwaite Provincial Court of British Columbia