2017 ONSC 5226, 2017 ONSC 5226

CITATION : Andrade v. Di Pietro, 2017 ONSC 5226 COURT FILE NO.: 908/16 DATE: 2017-09-01 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Antoinette Andrade, Applicant AND: Anthony Di Pietro, Respondent BEFORE: The Honourable Mr. Justice A. Pazaratz COUNSEL: Mr. T. Charuk, Counsel, for the Applicant Ms. D.

Ditchfield, Counsel, for the Respondent HEARD: September 1, 2017 ENDORSEMENT [ 1 ] This is the last Friday motions list before school starts on Tuesday, and the only issue before me is to decide whether three year old Siana is to commence Junior Kindergarten in Waterdown (where the Applicant mother resides) or in Ancaster (where the Respondent father resides). [ 2 ] If it’s any consolation to the unsuccessful parent – and it likely won’t be – I have no hesitation in saying that the choice is extremely difficult. Both proposals have significant merit.

I have no doubt that each parent is acting in good faith. [ 3 ] I just wish they hadn’t left it to the very last minute to force a judge to make this difficult and important “either/or” decision. [ 4 ] The background:

a) The Applicant mother is 31.

b) The Respondent father is 50.

c) The parties were married January 3, 2008 and separated March 23, 2016.

d) Following separation they retained Michelle Hayes to conduct a

section 30 assessment.

e) On June 12, 2017 Hayes set out her recommendations at a disclosure meeting.

f) The parties continued to address issues through experienced counsel, and on August 30, 2017 – just two days ago -- the parties filed comprehensive minutes of settlement on parenting issues, which were incorporated in a final order of Justice Brown.

g) The 61 paragraph minutes are extremely comprehensive. The parties will share “joint and equal custody”, and time-sharing shall be on an equal basis, on a 2-2-3 day rotation.

h) The overwhelming theme of the minutes is equality. In every respect the parties are to have equal decision making authority on all issues.

i) Notably – and regrettably – in paragraph 34 of the minutes the parties carved out the single issue they couldn’t resolve: the selection of Siana’s school for September 2017. [ 5 ] The parties filed lengthy materials touching upon not only the merits of each party’s school proposal, but also interspersing historical allegations for “context.” I made it clear to counsel that I am not prepared to consider historical allegations about relative parental involvement or motive.

The minutes make it clear that these parties have made excellent and commendable progress in moving forward in a child-focussed manner. [ 6 ] As with all decisions concerning children, the choice of school must be based on the best interests of the child, to the extent that they can be ascertained or anticipated. I am confident that the parenting arrangement the parties have agreed to is in the best interests of Siana. I am also confident that whichever school option is selected, Siana would be well served.

Perhaps equally well served. [ 7 ] But a choice has to be made, so I will explain the very narrow basis for my decision. [ 8 ] There is merit to the mother’s short-term argument that since she lives near the proposed Waterdown school; and since she only works part-time; she will be available to walk Siana to school (during those 50% of the days that Siana goes to school from the

Applicant’s residence). I am mindful that Siana is quite young, and she’s experienced significant disruption during the course of what appears to have been a high conflict separation. The mother may well have some more immediate availability (although the father’s

schedule is also quite flexible, and logistical concerns about him living in Ancaster and working in Brantford are overblown). [ 9 ] I also accept that Siana has developed new and important friendships in Waterdown during the 50% of the time that she resides there. But she appears to be a child who is capable of making friends with ease. [ 10 ] There are equal strengths to the Respondent father’s plan. The parties resided in Ancaster until separation. During her brief life, Siana has been more connected to Ancaster (not that this is an overwhelming consideration given her age).

She has significant extended family in Ancaster both on the maternal and paternal side. [ 11 ] Either way, Siana will be spending 50% of her life residing with the Applicant and 50% residing with the Respondent. [ 12 ] While some very short-term dynamics may slightly favour the mother’s position, any decision about enrolling a child in a particular school must also consider longer term dynamics in terms of stability and minimizing (to the extent possible) future changes which might require a child to transfer from one school to another. [ 13 ] In this respect, I find that the Respondent father’s proposal entails more stability (or less potential for future disruptions).

a) The Respondent owns and resides in the former matrimonial home in Ancaster. He has no intention to relocate and there is no apparent reason why he might be required to relocate.

b) In contrast the Applicant leased a home in Waterdown and moved there approximately 8 months ago. Her lease comes up at the end of October 2017. She has stated that she intends to renew the lease. But this residential arrangement still lacks the permanence of the Respondent’s home. Financial issues are still to be resolved between these parties, and presumably once property issues are resolved the Applicant will be in a position to purchase a residence. Even if the Applicant indicates she intends to remain in the same school district, it is impossible to be certain that this will occur.

The Applicant says she selected Waterdown as a choice of residence partly as a result of affordability. It may well be that affordability and market conditions impact on her future selection of a residence. There is more potential that future changes in the Applicant’s residence may impact on whether a future change in schooling would be required.

c) Similarly, the Respondent is steadily employed in a management position in a family business. In contrast, the Applicant is employed on a part-time basis. It was only during the course of submissions that some particulars as to the current part-time employment were identified. The Applicant had previously held another part-time position.

d) Much of the Applicant’s argument centers on her superior availability to be with the child as a result of her current part-time employment status. But few particulars have been provided about her current or future employment plans. It is entirely foreseeable that there will be changes to her employment situation, likely with a view to full time employment. Those changes may have significant impact on the Applicant’s current availability and flexibility.

Again, there are more uncertainties at the Applicant’s end than at the Respondent’s. [ 14 ] On balance, the Respondent’s personal and residential situation appears to be more stable and less likely to be subject to changes which might affect Siana. [ 15 ] As I say, this is a difficult decision. [ 16 ] The child Siana shall be enrolled in school in the Respondent’s school district, at Holy Name of Mary Catholic School in Ancaster. [ 17 ] The Respondent seeks $4,500.00 costs, on a less than full indemnity basis.

The Applicant proposes that there be no costs. [ 18 ] This is also a very difficult decision because the Respondent was clearly successful on this “either/or” issue, but there was merit to both positions. I am mindful of the overall reasonableness the parties have shown in addressing and resolving difficult parenting issues. [ 19 ] I return to my opening comment. This was a last minute “choice of school” motion, brought 17 months after these parties separated. I realize that significant efforts were made to resolve issues prior to today’s date.

But the bottom line is that both parties have to assume responsibility for the fact that it was unreasonable to leave this decision to be determined at the last minute like this, in a bitterly contested motion. [ 20 ] Paragraph 34 of the minutes provided that the school issue could be determined through a parenting co-ordinator or if necessary by the court.

But the parties left it so late there was no time to utilize the more appropriate parenting co-ordination route. [ 21 ] Both counsel did an excellent job, but both parties should have addressed this very predictable issue much sooner. [ 22 ] I have also considered the overall financial circumstances of the parties. [ 23 ] On balance, considering all of the Rule 18 (the Respondent did not file an offer) and Rule 24 considerations, there shall be no order as to costs.

Pazaratz, J. Date: September 1, 2017