Court File and Parties

COURT FILE NO.: FC-15-2531 DATE: 2020/05/29 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Dana K. Burke, Applicant AND Bradley Bouzanne, Respondent

BEFORE: Justice A. Doyle

COUNSEL: Beverly Johnston, Counsel for the Applicant John Summers, Counsel for the Respondent

HEARD: May 28, 2020 by teleconference

ENDORSEMENt

[1] As a result of COVID-19 which has caused the suspension of regular Superior Court of Justice operations as set out in the Notice to the Profession dated March 15, 2020, this urgent matter was heard by teleconference. See https://www.ontariocourts.ca/scj/covid-19-suspension-fam/.

[2] This matter was rendered urgent by Justice Roger on May 6, 2020.

[3] The issue is what school should the parties’ two children attend in September 2020.

[4] As of December 2019, neither parent lives in the catchment of the children’s current school.

Brief Background

[5] The parties were married on August 27, 2004. They separated on November 17, 2012.

[6] They have two children Sophia born May 6, 2009 (11 years old) and Osker born August 5, 2011 (almost 9 years old). The parties’ separation agreement dated May 3, 2013 provided for the following:

• Shared/Joint custody of the two children whereby the parents would jointly make important decisions dealing with education, major non-emergency health care, major recreational activities and religious activities;
• Both parents are entitled to make inquiries and be given information by the children’s education, medical/dental providers, camp counsellors, etc.;
• The parents can attend all school functions, and attend parent/teacher meetings “preferably together, but if that is not practical, then individually”;
• The parents will live near each other so that the children can have frequent contact with both parties;
• Equal living arrangements for the children;
• Equal sharing of the children’s holidays; and
• The children will be picked up and dropped off directly at school and when they are not in school, the parent with the children will be responsible for dropping them off at the other parent’s home.

[7] During the marriage and post separation, the parents lived in the Manor Park area and within the catchment area of Manor Park Public School (“Manor Park”) where both children attended. Sophia is finishing Grade 5 and Osker is finishing Grade 3 at Manor Park which is a French immersion school.

[8] In 2016, the mother relocated to Blackburn Hamlet which is outside the Manor Park catchment and although the mother wished to change the children’s school, the father insisted that they continue at Manor Park. In late 2019, the father relocated to Orleans which is outside the catchment area of Manor Park.

[9] Osker’s psycho-educational report prepared by Dr. R. Masters notes that he experiences significant anxiety, worry and panic which manifests in anger, frustration, desire to control situations, defiance and aggression. To prepare this report, she met with Osker on December 3, 2019, December 10, 2019, December 17, 2019 and February 11, 2020. He has an Individual Education Plan (IEP) and has attended counselling in the past.

[10] Sophia has had anxiety issues and does not well in adapting to change. She also has attended counselling in the past.

[11] The custody/access assessment (“assessment”) completed by Chantal Bourgeois, M.S.W. dated June 3, 2019 outlined the children’s special needs and made the following recommendations:

• Despite history of conflict, the parents should continue sharing major decisions;
• The parents should use a communication program such us Our Family Wizard;
• Osker’s time with his mother should be increased so that he is with her 9 out of 14 days;
• Children should attend Good Shepherd (at the time, the father had planned to move to Blackburn Hamlet);
• The parents should attend information sessions at Emily Carr when they are ready to transition to Grade 7; and
• Osker should obtain a psycho-educational assessment due to his impulsivity, emotional regulation problems, high levels of activity, distractibility and inattentiveness.

Mother’s position

[12] The mother proposes that Sophia attend Emily Carr Middle School (“Emily Carr”) as it is well suited to her needs and strengths. The school is a short walk from the mother’s home and a short drive from the father’s home and along his commute to work.

[13] Emily Carr offers classes to Grade 8 permitting Sophia to attend there for 3 years. It is an open concept family oriented school which offers a team approach in learning and Sophia would thrive in that type of environment.

[14] It also offers musical instrumental training in Grade 6, unlike other schools where they start in Grade 7. Sophia is currently in the school band at Manor Park.

[15] The mother proposes that Osker attend Good Shepherd Catholic School (“Good Shepherd”) which has a strong athletic program and a structured approach to learning which fosters self-discipline. It is a close to Emily Carr and is a feeder school to it.

[16] The mother submits that she has been the driving force to identify support and resources for the children including counselling, Osker’s psycho-education assessment and initiating the development of an IEP for him.

[17] As Osker has behavioural and emotional challenges, he would benefit from a school that fosters greater self-discipline.

[18] Both schools are small, community based schools and offer a French immersion program as well as extensive extra-curricular activities.

[19] She is requesting that the children also be registered at the extended day programs and that the Court set out the details regarding pick up and drop off of the children and the contact information with the school.

[20] These proposed schools will be a good transition from Manor Park. The children are familiar with the proposed schools and know students who attend there and live in the Blackburn area where they have resided 50% of the time since 2016.

Father’s position

[21] The father suggests the children attend Chapel Hill Catholic School (“CHCS”) which is also a French immersion school as:

• CHCS is in the top third of all elementary schools in Ontario with an overall ranking of 7.3 whereas Good Shepherd only has an overall score of 4.8 placing it in the bottom third of all elementary schools in Ontario. Emily Carr has not been assessed at all;
• It offers extracurricular activities such as chess club, library club, choir, environmental club, sports teams;
• It can continue with the implementation of Osker’s IEP;
• It is 200 metres from his home so children can walk to and from school;
• The children will not be required to attend an after-care program as his wife who arrives home between 3:50 p.m. and 4:00 p.m. could care for them. This would require Sophia to watch over her brother for 5 to 10 minutes (as school ends at 3:45 p.m.); and
• Both children want to go there.

[22] The father indicates that the children who are very close would be able to attend the same school although Sophia will be there for only one year for Grade 6.

[23] He is concerned that two different schools will have potentially different school year calendars.

[24] The father also wishes to maintain the children’s religious education through their schools. He is concerned that Sophia would not receive a religious education and in Grade 6 she would celebrate her Confirmation.

[25] The father indicates that he is an involved parent and he sought out counselling for Sophia to deal with her anxiety. Once the mother agreed to counseling she would not utilize his EAP program. He alleges that the mother unilaterally schedules meetings with teachers to discuss the IEP without notifying him.

Legal Principles

[26] Clause 28 (1) (b) of the Children’s Law Reform Act, R.S.O. 1990, c. C-12 as amended (referred to as “the Act”) grants the court the power to determine any matter incidental to the right of custody. The child’s school placement is incidental to or ancillary to the rights of custody and must be based on the children’s best interest. See Section 24 and the Act and Section 16 of the Divorce Act, R.S.C. 1985, c.3.

[27] In considering the best interests of the child, the court is to consider all of the child’s needs and circumstances. In making this determination, sub-section 24 (2) of the Act sets out a non-exhaustive list of factors that should be considered by the court pertaining to the child.

[28] At para. 37 of Thomas v. Osika, 2018 ONSC 2712, Justice Audet aptly summarized the law in this area:

37. The decision as to the choice of school that a child should attend, when the parents disagree, 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

[29] Custody cases and the choice of schools are fact driven.

[30] The schools proposed by the parents are established schools that offer the regular curriculum which meets the provincial standards and would meet the children’s educational needs.

[31] There is no evidence that any of the schools offers any specialized educational programs for children with special needs. However, the proposed schools can implement Osker’s IEP and provide him with the opportunity to participate in athletics. In addition, Sophia is an outgoing child who was part of the Manor Park school band and involved in other extra-curricular activities. Both schools proposed by the parents would assist her in that regard.

[32] The schools are French immersion and both parents are able to assist in the children’s homework.

[33] Both children are social and outgoing and enjoy activities. The proposed schools would provide the children with opportunities to continue their interests.

[34] I am not prepared to accept the mother’s argument that I consider the increased parenting time for Osker recommended by the assessment at this interim stage. It is inappropriate at this interim stage to speculate as to whether the mother will be awarded more parenting time. This will be explored at trial where the full cross-examination of the assessor will take place.

[35] The Court notes that there is some benefit in the father’s plan to have both children attend the same school which will allow the children to be together for at least one year. The school is Catholic and will allow both children to benefit from formalized religious studies. They will be in the same school board and this will obviate the possibility that there will be different P.A. days. In addition, when the children are with the father, they can walk to school.

[36] However, in this case, I have determined that it is in the children’s best interests that, in September 2020, Sophia attend Emily Carr and Osker attend Good Shepherd. My reasons are set out below.

[37] Firstly, since 2019 Sophia has struggled with anxiety, sadness and expressing her emotions.

[38] Sophia has attended counselling. It is not in her best interests to add another change of school for Grade 7 which would occur if she attends CHCS. At page 16 of the assessment, Ms. Bourgeois indicates that Sophia was nervous about changing schools and being without friends.

[39] The Court is concerned that Sophia, under the father’s proposal, would have to change schools again for Grade 7 for the September 2021-2022 school year. That would mean three different schools in three years for Sophia.

[40] As noted by the mother, Sophia has issues in transitioning. The mother indicates that mid-year teacher changes because of sickness, etc. have been challenging for Sophia and she is slow to gain a rapport with new teachers. At page 16, the assessment describes Sophia as stating that she does like change.

[41] Therefore, I find that, due to Sophia’s anxiety and struggles with change, it is not in her best interests to be required to change schools again in September 2021 and therefore Emily Carr is a better fit for her.

[42] Secondly, in order to minimize contact between the parents, the Court will maintain the pick-up and drop off at the school, when it is in session. This will continue a neutral setting for the transitioning of the children as had been provided in the separation agreement.

[43] The father’s plan involves the mother picking the children up from his residence even during her parenting time. This is not a neutral location and could be a breeding ground for further conflict in the presence of the children. As stated in the assessment, the parties have not managed to insulate the children from their hostilities and inability to communicate. To further increase contact between the parents is not in the children’s best interests.

[44] Thirdly, with respect to proximity, I find that the children’s schools are a reasonable commute from either parent. Good Shepherd is 1.2 km from the mother’s residence and 3.9 km from the father’s residence. Emily Carr is 1.3 km from the mothers’ residence and 3.7 km from the father’s residence. Both schools would be on the father’s commute to and from work.

[45] There is flexibility in the transportation arrangements for the children. The mother intends to pick them up after school with Sophia being dropped off early at the drop off program and Osker will be at the before school program. The mother’s proposal to allow Sophia to arrive at 8:15 a.m. at Emily Carr as part of the early drop off program at no cost and Osker at the before school care at Good Shepherd is reasonable. She is able to pick up both children from school at the end of the school day.

[46] In addition, there is transportation available for the children. Since the parents are in the catchment area of both schools, bussing is available for both children pursuant to the policies of the Ottawa Student Transportation Authority called “Variable Transportation for Students in a Joint Custody Arrangement and having Two Homes”.

[47] The father does not have to avail himself of the mother’s proposed before and after school care if his wife can pick the children up after school.

[48] There is an advantage to the father’s proposed school in that the children can walk to and from school from his home. However, the father’s plan involves the supervision of Osker by 11 year old Sophia and there is evidence that Osker has had tensions with his sister and step-siblings from feelings that he is excluded. In addition, there is no evidence as to whether Sophia is well-equipped to deal with the extra burden of taking care of her little brother after school. She will have enough on her plate with a new school, new classmates and different transportation arrangements for her travel from and to school.

[49] The father has the option of allowing Sophia to take the bus to and from his residence to Emily Carr and Osker to and from Good Shepherd.

[50] The father has noted a concern that two different schools will have potentially different school year calendars. The mother provided the calendar for the Catholic Board and public board elementary board for 2019-2020 and they have similar schedules for the start and end of the school year and major holidays and similar PA days with some exceptions.

[51] Next, regarding religion, the mother admits that the children are Catholic and the parties had agreed that they would be raised in the Catholic faith.

[52] Despite the fact that Emily Carr is not a Catholic school, the mother has committed to ensuring that Sophia continue with her religion. In the past, both children met children in their neighbourhood when attending the sacramental preparation course at Good Shepherd Catholic Church in 2019. In fact, Manor Park was not a Catholic school and despite this, the children have had the experience of the Catholic religion.

[53] Father is concerned about religion but on page 8 of the assessment he told the assessor that he does not have an issue with the children praying or attending church with the mother and stated that “he is atheist and ultimately the children should decide the religion of their choice”. The father has not in the past been committed to any religion but rather was prepared to allow the mother to take a lead role in this regard.

[54] With respect to Emily Carr not being assessed by the Fraser Institute, the mother states that this is due to the fact that some schools were excluded as the Fraser Institute did not receive enough data from the provincial ministry of education to fairly rate the school. As referred above in Wilson, the Fraser Institute rankings are not determinative of the issue of the choice of schools.

[55] Next with respect to the schools themselves, in her tour with the principal of the school, the mother observed Good Shepherd during a normal school day. She noted that there was a good atmosphere and the principal had a familiarity with the students. Osker could attend there for Grades 4, 5 and 6 and then attend Emily Carr.

[56] Since the mother has resided in Blackburn Hamlet since 2016, the children have peers who attend these proposed schools and the mother has spoken to the school to ensure that Sophia knows some of the students in her class.

[57] Osker knows two children on the mother’s street that attend Good Shepherd.

[58] As stated in Bandas at para. 15:

……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.

[59] I am very concerned with respect to Osker’s education and note that he has special needs. His grades are good and there are good remarks regarding his progress. Of note in Osker’s report card is that the comment that “he requires support when resolving conflicts” (June 2018 report card) and “he is encouraged to remain calm when advocating for his own rights and those of others”.(November 2018 report card) In his June 2019 report card, he shows satisfactory results in the collaboration segment of his report which includes working with others to resolve conflict. He has energy and good humour. He struggles with competing tasks and managing his time.

[60] His reports are replete with comments that he needs a structured environment to support him and needs to be redirected to from lack of attention to details. These observations were also noted by Ms. Bourgeois when she found him distractible and a tendency to rush answers when more attention was need. One of his teachers reported behavioural issues including shouting at others, hitting and defiance with teachers.

[61] The Court does not have evidence that would suggest that either GS or CH would better suited for his special needs noted above. However, the mother has shown some initiatives with respect to Osker’s education including the obtaining of the psycho-educational assessment, I.E.P. and counselling.

[62] There is a dispute whether Osker should resume counselling at the Centre but unfortunately the parties cannot agree. This issue is not before me but does raise concerns as to whether Osker is receiving all available support from the community resources. I would encourage the parents to resolve this important issue.

[63] Finally, I am not in a position to consider the children’s independent views and preferences. The issue of the choice of the proposed schools was not formally part of the assessment although the change of schools was discussed. As noted above, it is a stressful topic for Sophia. She indicated that she wished to attend Emily Carr. However, her first choice was to remain at Manor Park until Grade 6. This is no longer an option as the parents are not in the catchment area of that school. The choice of the two proposed schools was not put to her as the father just recently moved to Orleans.

[64] Also, I give no weight to the father’s contention that the children have told him that they wish to attend Chapel Hill. There is no evidence regarding the circumstances of that statement made by the children, the reliability of those statement and whether that statement was independently made without influence.

[65] In conclusion; the court orders the following:

• Sophia will be registered at Emily Carr Intermediate School, 2681 Innes Road, Gloucester and will attend that school in September 2020;
• Osker will be registered at Good Shepherd Catholic Elementary School 110 Bearbrook Road, Blackburn Hamlet and will attend that school in September 2020;
• The children shall be registered for the before and after school care at the extended day program at the above schools;
• Either parent who has care of the children may pick up the children at the end of classes;
• Both parents may attend all of the children’s school events outings and parent-educator/teacher interviews;
• If so desired, each parent may schedule individual parent-teacher interviews;
• If both parents wish to volunteer for a class outing and they do not agree on who may attend, the parent who has parenting time that day will have the first choice on whether or not to attend. In cases of transition days, the parent to whom the children will transition will have the first choice. Once a request has been made, the other parent will reply or provide an answer within 24 hours.
• Both parents shall provide their email and contact information to the school so that they may both receive copies of Sophia and Osker’s report cards and important notices/school events directly. They shall each ensure that school has up-to-day emails, phone numbers and addresses so that they may be kept informed by the school;
• Each parent shall ensure they have access to and regularly check any learning management system used by the school.

[66] If the parties cannot agree on costs, the mother will provide her two page costs submissions along with any offers to settle and Bill of Costs by June 11, 2020 and the father will provide his two page costs submission along with offers to settle and Bill of costs by June 18, 2020. The mother is entitled to a one page reply by June 24, 2020.

Justice A. Doyle Date: May 29, 2020