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Cross-Border Kid:  Where Should Kid with Dual Citizenship Live and Attend School?

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Cross-Border Kid:  Where Should Kid with Dual Citizenship Live and Attend School?

In a recent case called Stoughton v. O’Ney, the court faced a unique problem that it described this way:

Sarah and Jessica are the parents of Rory who is a 4 year old boy. Currently, they share parenting time with him on an equal basis … Sarah lives in Niagara Falls, Ontario and Jessica lives in Niagara Falls, New York.  Rory is a dual citizen of Canada and the United States.  Because of the international border, it is not practical for Rory to continue this schedule once he attends school full-time. He must have primary residency with one parent and attend school either in the United States or Canada.  As he should begin school in September 2019, this issue must be resolved.

The court also prefaced its ruling with a comment on the difficulty of the task:

From all of the evidence that I have heard, it was evident that Rory is a lovable, intelligent child and that Rory has two loving mothers who want only the best for him.   Both mothers acknowledge that the other mother only wants what is best for Rory.

This makes the issue of where Rory should attend school, and what the arrangement for his custody should be, very difficult.

The court explained that Rory was born in 2014 in Buffalo, New York after Jessica was impregnated with an anonymous sperm donor. The couple then lived in Ontario immediately after they were married in Canada that same years.

The court started with the observation that joint custody was not an option in this scenario;  it would have to make a sole custody determination, which would in turn dictate both Rory’s primary residence, and the school he would attend.

After emphasizing that the best interests of the child always govern such determinations, the court noted in passing that even for same-sex parents, Rory’s best interests are also the sole governing test.  The law also states that for children conceived through assisted reproduction, each of the spouse are considered to be parents for these purposes, and both have an equal right to custody.  Finally, the goal of maximum contact with each parent is a mandatory consideration, but if the parents are to have joint custody, then there must be a high level of cooperation and communication.

Both mothers gave evidence, as did various extended family members on both sides.  The court heard a litany of testimony around various issues, including the details of their same-sex marriage ceremony in both New York and Canada, how each parent characterized the parenting skills of the other, allegations of dishonesty and abusive conduct, issues and conflict with extended family members, and numerous aspects pertaining to the relationship with the child.

The court also heard the respective plan that each parent had for Rory, in the event that sole custody was granted to them, including the plans relating to schooling.

Sarah’s plan involved having him attend a small U.S. private school close to her work.  It had very small class sizes and the capacity to deal with Rory’s special needs, and could accommodate his weekly speech therapy sessions.

Jessica, in contrast, had done little research on Ontario schools, other than to look into what schools were in her neighbourhood.  She had not explored what services might be available to Rory in Ontario schools.  The court heard the unbiased evidence of the private school principal, over that of Jessica whose evidence appeared to be self-serving.

While noting that both proposed plans had advantages for Rory, the court found the plan proposed by Sarah was overall stronger, and in Rory’s best interests.  It also noted differences in the cooperation levels between the two parents.  In an almost 300-paragraph ruling, the court summarized its conclusion this way:

Because of Jessica’s actions in the past, I have grave concerns that if she were granted sole custody and primary residence of Rory, she would effectively cut Sarah out of Rory’s life.  Because of the inclusive way that Sarah has acted in the past, I have no such concerns if she were granted sole custody and primary residence of Rory. …

I find that Sarah is clearly able to meet, and has been meeting, Rory’s needs, both emotional and physical.  Very importantly she has been doing this in a way that is very inclusive of Jessica, ensuring that Jessica is a part of that journey.

I find that after a gap of over one year, Jessica has taken steps in New York to provide for Rory’s needs, but has done it in a way that totally excludes Sarah from that process.

The court ordered Sarah to have sole custody of Rory, and he would attend school in the Niagara Region of Ontario. Jessica was allowed stipulated access (including overnights), and was ordered to pay a set level of child support, and was entitled to participate in parent/teacher interviews, and to be given copies of his report cards, among other things.

For the full text of the decision, see:

Stoughton v. O’Ney, 2019 

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

 

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