Court File and Parties
Court File No.: FC-17-869 Date: 2018-08-29 Ontario Superior Court of Justice
Between: Susan Kumar, Applicant – and – Dennis Jackson, Respondent
Counsel: Robbie Loomer, for the Applicant Ian C. Vallance, for the Respondent
Heard: August 28, 2018
Reasons for Decision
Audet J.
[1] This is a motion brought by the applicant mother on an emergency basis seeking an order that the child, Xander Jackson, attend the Summit Alternative Program at Fisher Park Public School this coming September. The respondent father seeks an order allowing Xander to attend Cedarview Middle School in Barrhaven.
[2] For the reasons set out below, I order that Xander shall be registered in the Summit Alternative Program at Fisher Park Public School in September 2018.
Background
[3] Xander is 13 years old and will be attending grade 8 come September 2018. Since the parties separated in 2008, Xander has spent half of his time with each parent in a 2-2-5-5 parenting regime (Mondays and Tuesdays with his mother, Wednesdays and Thursdays with his father, an alternate weekends with each parent). There has never been an agreement or court order in place dealing with parenting, but both parties agree that they have shared de facto custody of Xander since their separation.
[4] In September 2009, Xander started junior kindergarten at École élémentaire St. François d’Assise. At that time, the parties resided in the same neighbourhood as the one the mother current lives in, in Ottawa. This school was within walking distance of the mother’s condo on Holland Avenue and the school offered bus transportation from the father’s home on Stevenson Avenue which was nearby. In January 2010, the mother started cohabiting with Mr. Kumar (whom she later married), who lived 8 kilometers away from the father’s home, but outside of Xander’s school catchment zone. Despite this, Xander remained in Saint-François d’Assise and the mother drove him to and from school when he was in her care. Xander’s extracurricular activities were all in this neighbourhood as well. It is not disputed that he has continuously had most of his friends in that neighbourhood.
[5] In early 2011, Xander was diagnosed with T-cell Acute Lymphoblastic Leukemia, and started treatment at CHEO. As a result, he missed an extensive amount of school throughout 2011 and 2012, but returned to Saint-François d’Assise in September 2012 to begin grade 2. Between 2011 and 2014, Xander underwent treatment for his leukemia, which included chemotherapy and cranial radiation. His treatments resulted in extensive amounts of missed school during that period.
[6] In January 2014, Xander’s third grade teacher noticed that he was having trouble reading and writing. She raised concerns that he might be dyslexic and suggested testing. A neuropsychological assessment was performed by Dr. Clarissa Bush, from CHEO, in May 2014, which confirmed that Xander had a “specific learning disorder with impairment in reading, written expression and mathematics.” As a result, the school designed an independent education plan to support Xander’s needs. Tutoring was arranged for that summer, as recommended by Dr. Bush; and the learning specialist teacher at Saint-François D’Assise applied from Xander to join a specialized learning class at another school come September.
[7] In September 2014, Xander transferred into a class of 12 students at École Saint-Rémi, in Kanata. He was nine years old at the time, going into grade 4. With the help of his teacher and a full-time learning specialist teacher, Xander worked with the class to develop stronger reading, writing, technology and math skills with the goal of helping him return to the regular educational stream for grade 7. The mother reports that Xander was very angry at first and would refuse to get on the special bus in the mornings to go to Saint-Rémi. He was upset about leaving his friends and teachers at Saint-François d’Assise. However, by the time of his grade 6 graduation, Xander had made good friends, respected his teachers, had joined the choir, was more confident giving presentations and using assistive technology, and was awarded “most improved student.” This evidence was not disputed by the father.
[8] The mother separated from her husband, Mr. Kumar, in October 2016. At that time, she returned to the father’s neighbourhood, at a walking distance from his home. She testified, and this is also not disputed by the father, that Xander could easily transition between both homes and that the friends and neighbours that Xander has known since birth were welcome at both homes. The father’s porch was continuously used as the place to exchange Xander’s school and sports gear, and the school bus stop for his grade 7 middle school (Franco-Ouest) was halfway between the parents’ two homes.
[9] In September 2017, Xander started grade 7 middle school at Collège catholique Franco- Ouest. This was the school agreed upon by both parties. It is the mother’s evidence that Xander soon began to complain about his new school (saying he thought he was stupid, that everyone at school hated him, that his teachers were mean, that he hoped he got sick before morning). He frequently complained that Saint-Rémi had been “too easy” and had not prepared him well for grade 7. Not only did he began experiencing difficulties at school, he started lying about not having any homework or having completed it all at school, despite his teachers emailing both parents the opposite. As a result, a meeting was arranged between the mother and the learning specialist teacher at his new school to discuss these concerns. During that meeting, the mother discovered that Xander’s individualized educational plan had never been transferred from his previous school to Franco-Ouest. None of Xander’s teachers were even aware that he had been identified with a specific learning disorder and no accommodations were being made for him.
[10] At that time, the mother suggested to the father hiring a private tutor to help Xander organize his school work and work on projects. She found a potential tutor, Ms. Christine Caissie, and offered to the father to interview her. While the father agreed with the suggestion of tutoring, he disagreed with the idea of paying for a tutor privately when free options such as the homework clubs at school were available and, in his view, sufficient to address Xander’s needs. As a result, Xander started to attend his school’s homework club twice per week.
[11] However, by January 2018 it became clear that the homework club was not sufficient to help Xander. As a result, the mother hired Christine Caissie, a learning strategist with 14 years of experience working with students with learning disabilities, including traumatic brain injuries. The mother paid for Ms. Caissie’s services on her own since the father did not agree that private tutoring was needed. It is the mother’s evidence that Xander has expressed that he really likes to work with Ms. Caissie, and that he wishes he could work with her every day. It is also the mother’s evidence that with the help of Ms. Casey, projects were completed more successfully, handed in on time, and resulted in less stress from Xander about school.
[12] Nonetheless, Xander continued to have difficulties throughout the rest of the school year accepting needed help from the learning specialist teacher at his school. He would not ask for extra time on tests, refused to use his laptop in class and resisted getting extra help over the lunch hour out of concern and embarrassment that this was making him stand out from his peers. In his February 2018 report card, Xander’s teachers confirmed his lack of initiative, poor comprehension of assignments, and overall disorganization.
[13] At the request of the parents, a new neuropsychological report was completed in March 2018 by Dr. Bush. In her assessment, she reports that from a cognitive perspective, and while Xander continues to have average abilities in most domains, his development has been slower than expected in the areas of auditory attention and working memory, longer term memory, visuospatial skills, some aspects of cognitive executive skills and fine motor coordination. Whereas in 2014, the majority of scores were in the upper portion of the average range (with a few very strong), current scores tended to fall in the lower to middle portion of the average range, including in areas where Xander had previously excelled. While Xander’s academic achievement had been good in some areas, and his ability to read single words aloud had significantly improved, among other things, he continued to struggle enormously with most aspects of written expression.
[14] Dr. Bush expanded Xander’s diagnosis to include “mild neurocognitive disorder due to the effects of treatment for leukemia, with mild behavioural disturbance” and informed the parents that his life-saving treatment had had long-term side effects affecting his cognition, motor skills and emotional maturity. She made many recommendations, but the most important one was probably that Xander be switched to an English school. Up to that point, Xander had pursued his education in the French school system. Since his first and only language at home was English, she felt that, in light of his learning disabilities, he should pursue his education in the English language. She also recommended individual tutoring for Xander focusing, in particular, on helping him develop cognitive executive skills, and a referral to the clinical psychologists on the oncology team at CHEO for help managing his anxiety.
[15] It is the mother’s evidence that she repeatedly contacted the father to discuss Xander’s schoolwork, anxiety, and negative self-talk, but that the father repeatedly dismissed her concerns about Xander and blamed her parenting as the cause of his anxiety. In his evidence, the father states that he has been sensitive to the mother’s concerns about Xander suffering from anxiety, and acknowledges that it figures prominently in Dr. Bush’s report, but based on the information provided by the mother herself and nothing else. It is his evidence that he has never observed the anxious tendencies and behaviours described by the mother, despite specifically watching for them. Following the receipt of Dr. Bush’s second report, the father took Xander to see Dr. Sirois-Leclerc, a psychologist in the oncologic department at CHEO. In a report released on June 11, 2018, she concluded that Xander was not meeting criteria for any DSM 5 mental health diagnosis, and did not require follow-up mental health services at that time.
[16] Upon receiving Dr. Bush’s report, both parents agreed to transfer Xander to the English School Board. It is the mother’s evidence that she immediately started researching all of the English public and catholic school options in the parties’ catchment area. When she discovered that Fisher Park Public School had an open house on April 5, she suggested to the father that he take Xander to visit the school since she was working that night. In an email dated April 4, the father agreed to take Xander on the tour, but advised the mother that he had purchased a home in Barrhaven with his girlfriend, and that he would like to consider Cedarview Middle School as an option for Xander as well. Up to that point, the mother had never been notified by the father that he was moving.
The Position of the Parties
[17] The mother wishes to register Xander in the Summit Alternative Program at Fisher Park Public School. She is of the view that this program is especially tailored for children like Xander, and is the best option to ensure his academic success and readiness to start high school in 2019. She states that the Summit Alternative Program benefits from the extensive facilities at Fisher Park Public School, offers a full range of extracurricular activities and is recognized for its commitment to innovative approaches to teaching and learning for students with learning disabilities. She states that there will only be three Summit Alternative grade 8 classes at Fisher Park in September 2018, and that half of Xander’s peers will have an individualized education plan, resulting in students being very accepting of differences. Finally, she emphasizes that going to this school would allow Xander to remain in the same neighbourhood that he has lived in all of his life, close to his friends and community.
[18] The father wishes to register Xander in the regular English program of Cedarview Middle School, which is located in the catchment of his new home in Barrhaven. Not only is this school a better option, in his view, to meet Xander’s academic needs, he states that it is also the school in which Xander wishes to be registered. He emphasizes, in particular, that Cedarview has more resources available and will provide Xander with more support (which is what he needs) and a less self-directed learning environment (which is not his strength). The father feels that this school will provide Xander with a more gradual transition to high school both socially, geographically and in terms of learning approach. Finally, he feels that allowing Xander to go to Cedarview will improve his self-confidence and engagement in school by respecting his views and preferences.
Legal Principles
[19] In Thomas v. Osika, 2018 ONSC 2712, I summarized the legal principles that a court must take into account when called upon to decide in which school a child should be registered. I stated:
37 The decision as to the choice of school that a child should attend, when the parents disagree on the issue, is ultimately a matter of judicial discretion. However, a number of general principles have emerged from the caselaw to assist the decision-maker in making the decision in the child’s best interests. They can be summarized as follows:
a. Sub-section 28(1)(b) of the Children's Law Reform Act specifically empowers the court to determine any matter incidental to custody rights. The issue of a child's enrollment in a school program must be considered as being incidental to or ancillary to the rights of custody (Deschenes v. Medwayosh, 2016 ONCJ 567);
b. It is implicit that a parent's plan for the child's education, and his or her capacity and commitment to carry out the plan are important elements affecting a child's best interests. In developing a child's educational plan, the unique needs, circumstances, aptitudes and attributes of the child, must be taken into account (Bandas v. Demirdache, 2013 ONCJ 679 (Ont. C.J.));
c. When considering school placement, one factor to be considered is the ability of the parent to assist the child with homework and the degree to which the parent can participate in the child's educational program (Deschenes v. Medwayosh, 2016 ONCJ 567);
d. The emphasis must be placed on the interests of the child, and not on the interests or rights of the parents (Gordon v. Goertz, [1996] S.C.J. No. 52 (S.C.C.));
e. The importance of a school placement or educational program will promote and maintain a child's cultural and linguistic heritage (Perron v. Perron, 2012 ONCA 811 (Ont. C.A.));
f. Factors which may be taken into account by the court in determining the best interests of the child include assessing any impact on the stability of the child. This may include examining whether there is any prospect of one of the parties moving in the near future; where the child was born and raised; whether a move will mean new child care providers or other unsettling features (Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.));
g. The court will also look to any decisions that were made by the parents prior to the separation or at the time of separation with respect to schooling (Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.));
h. Any problems with the proposed schools will be considered (Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.));
i. A decision as to the choice of school should be made on its own merits and based, in part, on the resources that each school offered in relation to a child's needs, rather than on their proximity to the residence of one parent or the other, or the convenience that his attendance at the nearest school would entail (Wilson v. Wilson, 2015 ONSC 479);
j. Third party ranking systems, such as the Fraser Institute’s, should not factor into a Court’s decision. These systems of ranking do not take into consideration the best interest of the particular child in a family law context (Wilson v. Wilson, 2015 ONSC 479);
k. If an aspect of a child's life, such as school placement, is to be disrupted by an order of the court, there must be good reason for the court to do so. Thus, before a court will order a child to transfer schools, there must be convincing evidence that a change of schools is in the child's best interests (Perron v. Perron, 2012 ONCA 811 (Ont. C.A.));
l. Custodial parents should be entrusted with making the decision as to which school children should attend. When a sole custodial parent has always acted in the best interest of a child, there should be no reason to doubt that this parent will act in the best interest of the child when deciding on a school (Adams v. Adams, 2016 ONCJ 431);
m. Those cases are very fact-driven. The courts are not pronouncing on what is best for all children in a general sense but rather deciding what is in the best interests of this child before the court (Deschenes v. Medwayosh, 2016 ONCJ 567).
Analysis
[20] I have concluded that it is in Xander’s best interest to attend the Summit Alternative Program at Fisher Park Public School for his grade 8, for the following reasons.
Xander’s Academic Needs
[21] The evidence is clear that Xander experiences significant difficulties in his academic learning and achievement. There have been two neuropsychological assessments performed to help determine the source of his difficulties and how to best address them. He was diagnosed with specific learning disorder with impairment in reading, written expression, and math. He requires an individual education plan covering all academic subjects and modified expectations for written work, extra time for tests and exams and likely a reduced amount of homework. It was recommended that he be permitted to use a computer for all written work. According to Dr. Bush, it will be important that Xander’s willingness to undertake academic work be fostered by giving him work that he can do, and by carefully monitoring his performance. She expressed the view that failure by Xander to hand in homework likely means that the level or amount of work is more than he can handle. She confirmed the need for individual tutoring to help him achieve academic success.
[22] Given Xander’s significant academic needs, I do not believe that his being registered in the regular English stream program, albeit under an individualized education plan, will satisfy his significant needs at this time. I have thoroughly reviewed both parents’ accounts of what each school has to offer for Xander in terms of facilities (library, gyms, resource rooms etc.), technology, extra-curricular activities and other such amenities, and I find that both schools have similar services to offer to Xander. What makes the Summit Alternative Program at Fisher Park stand out is the fact that it is specifically tailored for children like Xander who have specifically identified learning disabilities with particular educational needs. Since the good majority of the students registered in that program have specific learning needs, they are encouraged to use technology and other learning tools in the classroom rather than having to go to a resource room, which avoids them being singled out by their peers.
[23] Ms. Casey, Xander’s tutor, also supports him being registered in a specialized program such as the Summit Alternative Program, pointing out that Xander had much success when he attended such a program at St-Rémi. She stated that alternative programs such as the Summit Alternative Program have proven to be quite successful with many of her special-needs clients.
[24] While many factors are relevant in the choice of school which will best meet Xander’s interests, in the particular facts of this case, I find that this factor (Xander’s education needs) is the most important.
Xander’s Wishes and Preferences
[25] While the father insisted on the point that Cedarview was the school in which Xander wanted to be registered, I do not find that the evidence establishes Xander’s wishes and preferences in a clear and conclusive manner. The father’s evidence contains several statements to the effect that he “wishes to make sure Xander’s wishes are respected.” I find there is very little evidence of statements Xander would have made to his parents or others clearly stating what his wishes are.
[26] Most of the evidence in that regard comprises of negative or positive comments Xander would have made to his mother about each school. For instance, the mother says that Xander has made negative comments about Fisher Park after he visited that school with his father, and positive comments about Cedarview even before he actually visited that school with his dad. The mother suggested that Xander was simply repeating his father’s own comments and “misinformation” about those schools, rather than expressing his own views about the matter. I find myself having great difficulty in concluding whether Xander’s expression of any wishes and preferences with regards to either school is based on his own experience or whether he was unduly influenced by his father.
[27] In that regard, I am troubled by the fact that while the mother was prepared to allow the father to go visit Fisher Park with Xander in her absence (which he did), she was not invited or welcomed to attend the visit at Cedarview or to be present during a private meeting between the father, his girlfriend and Mr. Sainis, a learning resource teacher at Fisher Park. Because the father’s evidence is entirely hearsay, and because he repeats statements purportedly made by Mr. Sainis which are questionable given the documentary evidence provided by the mother (emails between her and Mr. Sainis), I do not give much credit to the father’s assertions that Mr. Sainis did not recommend the Summit Alternative Program from Xander, that the regular grade 8 English program would be a better choice for Xander, that that program had “bad apples”, as well as many other negative statements purportedly made by Mr. Sainis with regards to his own school.
[28] Even if I was prepared to conclude, based on the overall evidence before me that Xander would prefer to go to Cedarview rather than to Fisher Park, I am far from convinced that Xander has enough maturity to understand, or choose, the school that is best for him from an academic perspective. Although he is 13 years old, the evidence before me points to him being a shy and cautious child who does not like change, and who has significant difficulty advocating for himself. Up until this summer, Xander did not accept that he had a learning disability. In her very recent report, Dr. Sirois-Leclerc stated “although Xander looks his stated age, he did present as somewhat younger in some interactions.”
[29] I find that Xander’s choice of school, even if I were to accept that he has independently formed an opinion in that regard and clearly voiced same to others, is based on many factors, little of which have anything to do with his ability to achieve academic success. To 13 year old teenager Xander, remaining with his friends is his main priority. To that effect, he has made very clear his wish to remain at Franco-Ouest. Unfortunately, this is not a choice that is available to him at this time.
[30] For these reasons, Xander’s wishes and preferences, even if they could be ascertained clearly from the evidence, which I find they cannot, do not weigh very much in my decision.
Logistics
[31] Another very important factor in my decision is the logistics of the plans proposed by each parent. The mother lives on Viscount Avenue, which is roughly at the corner of Carling Avenue and Island Park, in Ottawa’s west end. Her home is five minutes away from Fisher Park, but 20 minutes away from Cedarview (without traffic). She works as a massage therapist in three different clinics in Ottawa as well as making house calls.
[32] The father lives on Roberta Crescent in Barrhaven, which is roughly 20 minutes south from the mother’s home (without traffic). It is approximately 25 minutes away from Fisher Park (without traffic) and five minutes away from Cedarview. The father works for the federal government on St-Joseph Boulevard, in Gatineau.
[33] If Xander was to go to school at Cedarview, on the days that he is in the care of his mother, she would have to drive 20 minutes south of Ottawa (much longer due to traffic during peak hours) to take Xander to school, then drive back in rush hour to go to work, then again at the end of the day. If Xander was to go to Fisher Park, the father could simply drop him at school on his way to work without having to take any lengthy detours. The father states that this plan is not workable because he starts work between 7:15 a.m. and 7:30 a.m. every day, and Xander starts school at 9:00 a.m. In response, the mother offers to allow the father to drop Xander off at her home on his way to work in the morning when Xander is in his care, and also to pick him up from her home should he finish work after Xander is done school in the afternoon.
[34] I find that it would be unreasonable to impose on the mother the obligation to drive over an hour in traffic, twice a day, to take Xander to school when there is a reasonable alternative which would not add to either parent’s daily commute to and from work.
[35] This particular factor, although not conclusive on its own, had an important weight in my decision.
Community and Status Quo
[36] Each party made significant argument with regards to the necessity (or not) to allow Xander to remain in a school located in his neighbourhood and community. This factor did not weigh very heavily on my decision in the particular circumstances of this case because no matter what school Xander attends (Fisher Park or Cedarview), the evidence before me makes it clear that none of his existing friends will be attending the same school. The reality is that, whether Xander is attending at Cedarview or Fisher Park, he will be in an entirely new school, with an entirely new group of students, and he will be required to adapt to completely new surroundings and make new friends. Whether or not his school is located in his neighbourhood has very little relevance in light of this reality.
[37] This said, Xander will continue to be involved in sports and extracurricular activities in his neighbourhood. I find that it will likely be easier for him to make new friends in his school if there is a chance that some of them will also be part of the same extracurricular activities in his neighbourhood, where his school is also located.
Order
[38] Based on the above, an order shall issue that the child, Xander Jackson, born August 16, 2005, shall attend grade 8 at the Summit Alternative Program at Fisher Park Public School commencing in September 2018.
Costs
[39] The mother is the successful party in this case. If the parties cannot agree on costs, I will accept brief written submissions from the parties not exceeding two pages (exclusive of Bills of Costs and Offers to Settle). The mother will have 15 days from the date of this decision to provide her submissions and the father will have 15 days thereafter to do the same.
[40] The applicant will be allowed a brief reply if deemed necessary, not exceeding one page, which shall be provided within 5 days from receipt of the father’s submissions.
Madam Justice Julie Audet Released: August 29, 2018