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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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  #1  
Old 08-18-2010, 11:31 AM
Simcoe Simcoe is offline
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Default Primary residence and school enrollment

My Ex and I have an unusual custody arrangement as he works midnights. Our agreement states that he has her from after school until 7 Mon-Fri and every other weekend. It was supposed to be essentially the same this summer while DD went to camp, but she went and got herself kicked out (ADHD). There has been some contention regarding schedules for the past 3 weeks as I don't agree that it's a good idea for him to pick her up at 7:30 a.m. for her to just sit around for 3-6 hours while he sleeps. She is 11.

Additionally, she WAS in the gifted program but behavioural issues forced us to take her out. I had moved based on the school she was attending which had a greater catchment area because of the gifted program. I would drop her off at school in the morning and she was bussed to her dad's after school. Now she has to attend a local school and, as primary parent, I believe it should be the one in my area.

My Ex is blowing a fuse because it means he will have to drive 50 km round-trip daily to pick her up and it will cost him an additional $200/month. It doesn't matter to him that I do this drive daily to pick her up from his place and am asking no more of him than what I already do. After all, I was the one who moved so far away.

I offered for him to have her for longer periods so he only has to pick her up 3 days/week instead of shorter periods every day. He doesn't like that either.

We have joint custody and he will NOT agree that she attend my local school even though her counsellor agrees it's in her best interests to do so.
I am listed as primary residence. However, he snuck a clause in the final minutes of settlement stating that neither party shall make decisions regarding DD without the express written consent of the other or court order for:

i) residence outside of XXXX County
ii) change of school
iii) education
iv)Travel outside Ontario - not to be reasonably withheld
v) Important health issues
vi) Change of name

School starts in 2 1/2 weeks and I have no idea where she's going to go. We need to get a plan in place re her newly diagnosed ADHD.

I just found out my lawyer is on vacation until after Labour Day. I don't know what to do!!!!!
  #2  
Old 08-18-2010, 12:04 PM
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Rioe Rioe is offline
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I'm thinking of two things about your post that you may not be able to notice from your perspective.

First, you are the one who chose to move away from her original school neighbourhood. You were willing to do a lot of driving her around because of this, but he did not make that choice, and it's not really fair to enforce it on him now. If she's going to attend a different school, it should be one that approximates the current arrangement. Why don't you pick a school near her father, and then move closer to it yourself? That's as reasonable as asking him to do a bunch of driving now because of your original choice to move away.

Secondly, she's of an age where she can be alone more, and will soon want to spend more time with her friends instead of parents, and so on. Where does she want to live? Does she have friends from her old school that she'd like to stay in touch with? Where do they live? Closer to her father? And if she spends more after school spare time at his home, perhaps it would be better for her if her new school, where she'd presumably meet new friends, would be in the neighbourhood where she would be able to more easily spend time with those new friends. Forget what's easier for you or your ex, what would be best for her?

Does your lawyer have a back-up person you can consult for this? Does the gifted school have a program for non-gifted children that she could be transferred to, to give her some consistency?
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Old 08-18-2010, 12:45 PM
Simcoe Simcoe is offline
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She lives with me and wants to attend the school near my place so she can have a fresh start. There is nothing available in his school area for us to move to. Our agreement states I remain in XXXX County, and I have done so.

We are just out of the catchment area of her most recent school and it is full. Therefore she can't go back there. Additionally, it's a huge school (over 600 students) and, with her ADHD, she didn't do well there at all. The new school near my place had 152 students as of last April.

We met with DD's counsellor last night to discuss this and come to an agreement. He wouldn't budge. For various reasons, the counsellor agrees with me that it is DD's best interests to attend the school near my house and stated that what DH wants is in his best interests, not DD's.

My biggest concern is my DD's best interests. If she wanted to attend the school in his area and I believed it best for her, I would move heaven and earth to make it happen. But she doesn't and it isn't. So I need to know where I stand legally.
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Old 08-18-2010, 01:30 PM
KeepSmiling KeepSmiling is offline
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No lawyer here - but have experienced similar situation.

If your agreement states that your daughter's primary residence is with you, then the school she should attend is the school in her catchment area. There are always cases where the school board will agree to move a child to another school based on certain circumstances, but that would definitely require the agreement of both parents.

You are totally within your rights to register her at the school in her catchment area.

I know that it is a difficult situation, but you did not withdraw her from her previous school, he has to understand that it's not your fault that she does not attend the school that can bus her to his house.

That being said, good luck with finding a schedule that agrees with him.
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Old 08-18-2010, 03:18 PM
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Which is it? Did you withdraw her from the school due to behavioral issues or is she unable to attend because you live outside the catchment area?

If you withdrew her from the school due to behavioral issues (and your ex would have had to be involved with that according to your listed clauses) then it's a tough call.

IF on the other hand she wasn't withdrawn from the school, but rather does not have the option of attending this year due to the area you are in...then that's a restriction imposed by the school district, NOT you, and you can enroll her into the school you are zoned for. That's the whole reason for primary residence.

YOU aren't making her change schools, the district is.

Though admittedly it was probably a bad move on your part to move to an area so she could attend a gifted program...without making sure that you were ZONED for that school. (Even with those kind of programs, kids in the zoning area are giving first spots....THEN if there are any left they go to children out of zone). Otherwise, you could have run into this issue at any time, regardless of whether she was still in that program or not.
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Old 08-18-2010, 03:42 PM
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It sounds like her daughter only went to the school last year because of the "gifted" program that it offered. But now that the daughter is no longer in that program (due to behavioural issues), she has to enroll in the regurlar program that is at the school in her catchment area.

So NBDad is correct, if the move had been to within the catchment area of the school that had the gifted program - there would be no problem. BUT ...

It doesn't sound like it's the fault of Mom that the child isn't going to the school that conveniently offered busing to the father's house.

As primary residence dictates, the child should now be registered in the school that has a "regular" program, in her catchment, and unfortunately, does not bus to the father's house.
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Old 08-18-2010, 04:02 PM
Simcoe Simcoe is offline
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It was a joint decision made by both her father and I to remove her from the gifted program AFTER I moved to where I currently reside. This move was carefully considered as the location was a 10 minute drive to school from my residence and she was still bussed to her father's (our previous residence) afterwards. There was no way of knowing ahead of time that DD would be basically asked to leave due to her behavioural issues. I made every effort to ensure DD's access to her father with minimal disruption of routine.

If she had remained in the gifted program, she would have been entitled to stay at that school regardless of enrollment numbers as it is the only area gifted program. However, as she's no longer in the gifted program, she is required to attend a local school.

Thank you for the information. I will be visiting the local FLIC office tomorrow morning to try to get more information on my rights.
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Old 08-19-2010, 12:38 PM
Simcoe Simcoe is offline
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So I went to the FLIC it was suggested that I allow her to attend the school in his area with the provision that I drop her off in the morning to minimize transitions and he return her to me at my residence at 7 pm. Funny, he made sure to include that he had to give written permission for DD to change schools, but neglected to put in any stipulations as to who does the driving. According to the lawyer I talked to, he is responsible for pick-up and drop-off for his access time.

I will put forward these reasonable 3 options that are in the best interests of DD:

-my area school - he pick up daily;
-my area school - he pick up 2-3 times week for longer access periods;
-his area school - I drop her off at school in a.m. and he return her to my home at 7 p.m.

If he doesn't choose one of these options, the judge will likely go with one of them. I can get her counsellor to agree (either in-person or affadavit) that him picking her up at 7:30 a.m. just to sit at his place and wait for the bus (hurry up and wait) is NOT in her best interests.
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Old 08-19-2010, 01:24 PM
HammerDad HammerDad is offline
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Quote:
Originally Posted by Simcoe View Post
According to the lawyer I talked to, he is responsible for pick-up and drop-off for his access time.
That response will vary from lawyer to lawyer and from client situation to client situation. Generally, each telling the client pretty much what they want to hear.

All the family lawyers in my firm (three of them) all agree that it should be the parent who is getting custody of the children should be responsible for picking them up. So he drives to get them when he is going exercise his access, and you pick them up when his access is done.
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Old 08-19-2010, 02:44 PM
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That's the way mine works too. The ex picks them up to start her access, I pick them up to end it. (Basically "beginning" mine)

But really it's whatever works. Most of the time the access transportation should be split equally by default, barring exceptional circumstances of course.
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