COURT FILE NO.: FC-19-2190 DATE: 2020-06-29 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Ilhan Hassan, Applicant AND Edwin Curtis Lloyd Jones, Respondent
BEFORE: The Honourable Mr. Justice Marc Smith
COUNSEL: Laura Pilon, Counsel for the Applicant Aaron MacKenzie, Counsel for the Respondent
HEARD: June 12, 2020, by telephone conference
Endorsement
M. Smith J.
[1] The Applicant Mother seeks an Order that Yasmine Hassan-Jones, born May 28, 2016 (“Yasmine”) continue to be enrolled at Woodroffe Public School in the west end of Ottawa or in the alternative that she be enrolled at Robert Hopkins Public School in Gloucester.
[2] The Respondent Father opposes the Motion and seeks an Order that Yasmine attend Convent Glen Public School in Orleans or in the alternative that she be enrolled at Heritage Public School in Navan. The Father also seeks an Order that the exchanges of the child take place at the school of choice, unless the exchanges take place on the weekend. If the exchange occurs on the weekend, he seeks that they take place at the maternal grandmother’s home in Gloucester.
[3] For the reasons set out below, I find that it is in Yasmine’s best interest that she attends Robert Hopkins Public School in Gloucester and that the exchanges take place at this school. During the weekend, the exchanges are to take place at the home of the maternal grandmother in Gloucester.
Background
[4] The parties were married on June 3, 2012 and separated on May 11, 2019. There are two children of the marriage, namely: Yasmine and Nasir Hassan-Jones. Nassir was born on August 14, 2018. Prior to the separation, the parties were living in Orleans.
[5] Following the separation, the Mother and the two children moved in with her sister in the west end of town. Yasmine was enrolled at Woodroffe Public School for the school year 2019-2020. Yasmine attended at this school until October 18, 2019.
[6] On October 18, 2019, the Father picked up Yasmine from school. A dispute arose between the parties regarding access to the children. Afterwards, Yasmine remained in the Father’s care. While in her Father’s care, Yasmine did not return to school. The Father resides with his parents in Cumberland, in the east end of Ottawa.
[7] On November 27, 2019, Master Fortier requested the involvement of the Office of the Children’s Lawyer (“OCL”). On April 30, 2020, the OCL completed a Report of the Children’s Lawyer.
[8] On June 8, 2020, the parties agreed to follow the OCL’s recommendations regarding the children’s schedule and access, being 50-50 parenting time.
Position of the Parties
The Mother
[9] The Mother says that, on agreement of the parties, Yasmine was enrolled at Woodroffe Public School for the 2019-2020 school year. The Father signed consent forms, but the Mother has not yet been able to obtain copies from the school.
[10] Yasmine attended Woodroffe Public School until she was removed, unilaterally by the Father in October 2019.
[11] Upon Yasmine being returned to her care on June 8, 2020, she attended her online courses and has resumed school work at Woodroffe Public School. Yasmine was excited to see her teacher and classmates. The Mother indicates that while Yasmine was in the Father’s care, Yasmine was not allowed to attend the online classes.
[12] The Mother argues that Woodroffe Public School has many advantages: a. It has a French immersion program. The parties had previously agreed that it was important for the children to receive an education in both French and English; b. It is in walking distance from her current residence. Yasmine would be able to walk to school with her cousins, whom she resides with; c. The school offers excellent support programs and staff; d. The school has an extended care program; e. The classes are of smaller size. The teachers are aware of the situation and would be able to provide Yasmine with extra educational support, if needed; f. The Father has worked in the area of the school.
[13] The Mother is concerned that Yasmine missed an entire school year. She is registered to attend for the 2020-2021 school year at Woodroffe Public School.
[14] The Mother does not wish to leave her sister’s home in the west end of town. The Mother is not receiving any financial support from the Father and she is residing at her sister’s home, rent free.
[15] The Mother says that her current residence is a good environment for Yasmine. Her sister’s home has a backyard where Yasmine can routinely socialize with her cousins who qualify as her best friends.
[16] Although not her first choice, the Mother is, however, prepared to move to Gloucester and live with her mother. In such an event, her mother’s home would be in the Robert Hopkins School catchment. She argues that this would be an appropriate alternative for the following reasons: a. Yasmine’s cousin attends the school. They have a close relationship and she would be able ride the bus with her cousin; b. The Mother is familiar with the school, having attended herself. She could assist Yasmine in the transition; c. The school has a French immersion program; d. The school offers extended care programs; e. This school had previously been discussed amongst the parties and the Father had agreed that it was a good school choice; f. The Father would always be commuting against traffic.
[17] In terms of the schools proposed by the Father (Convent Glen Public School and Heritage Public School), the Mother opposes these suggestions, arguing that: a. Convent Glen only offers core French until grade 5; b. Both schools are far from her current residence in the west end, thereby increasing the commute for Yasmine; c. The Mother does not have family support in these schools’ communities. She would be the only one responsible for the pick up and drop off, limiting her ability to find suitable work; d. The Father will be moving shortly. The Mother relies upon a text from the Father where he states “…we ll [sic] be there likely at least a year and stay in those areas”.
The Father
[18] The Father says that prior to the separation, the parties were living in Orleans. He notes that the Mother’s move to her sister’s home was to be temporary. It was always the Mother’s intent to move to the maternal grandmother’s home in Gloucester. This would facilitate the exchanges with the children.
[19] At the time of separation, the Mother severely restricted his access to the children. There was an incident involving Yasmine that was taken out of proportion. The Children’s Aid Society (the “Society”) and Police investigated the incident and concluded that there was no evidence of wrongdoing. Despite these findings, the Mother continued to withhold access.
[20] The Father denies that he consented to the enrollment of Yasmine at Woodroffe Public School for 2019-2020. During the Society and Police investigations, he was not in a position to oppose the Mother’s unilateral decision of enrolling Yasmine at Woodroffe Public School. Yasmine only attended this school for a 4-week period. It was not required that she continue as she was only 4 years old.
[21] In his affidavit, the Father deposes that it has always been important for his children to attend a school that had a French immersion program. In argument, he says that a school offering core French would meet his expectations.
[22] The Father argues that the location of the school is an important factor to consider for Yasmine. He opposes the Mother’s choice of schools as it is a long commute and not in Yasmine’s best interest: a. Woodroffe Public School is approximately 36.5 km from his residence, with a commute of 31-44 minutes each way. The commute time would increase upon the start of school and resumptions of businesses; and b. Robert Hopkins Public School is approximately 19 km from his residence, with an estimated commute time of 19-25 minutes to/from school without traffic. The time would increase with traffic.
[23] The Father proposes two alternatives: Convent Glen Public School and Heritage Public School.
[24] Convent Glen Public School is approximately equal distance between the residences, assuming the Mother moves to Gloucester. It is a smaller school, offering core French up until Grade 5. The school hours are 8:30 a.m. until 3:00 p.m., providing ample time for the parents to drop off Yasmine and commute to work. The Father notes that this school is not in the catchment area of either parent, thereby requiring special permission from the school board.
[25] If Yasmine is not accepted at Convent Glen Public School, the Father proposes Heritage Public School. This school falls within the Father’s district, offering junior kindergarten to Grade 8. It also has a bilingual two-year kindergarten program, with grade 1-8 dual track early French Immersion and English programs. This school is 19.1 km from the maternal grandmother’s residence (assuming the Mother moves to Gloucester) with a commute time of 23 minutes, while it is located at 12 km from the Father’s residence, with a commute time of 11 minutes. The school starts at 8:00 a.m., which would give the Mother sufficient time to start work at 8:30 – 9:00 a.m., without any concerns.
[26] The Father indicates that the Mother is currently not employed, and it is unknown when she will be returning to work. She currently has the flexibility for pick ups and drop offs.
[27] Conversely, the Father has an established work history in a care facility, working full-time hours, but not Monday to Friday. The agreed upon parenting schedule takes into account his work schedule, meaning that on his days off, he is with the children. When he has the children during the weekend, he is not working the first half or second half of the week.
[28] The Father mentions that the OCL has found that Yasmine is thriving in his care. She has been visible in the community, has visited her pediatrician, and the Children’s Aid Society has no protection concerns regarding his parenting.
Analysis
[29] Section 28(1)(b) of the Children’s Law Reform Act provides that the Court may determine any aspects of the incidents of the right of custody and access.
[30] The child’s school placement is incidental to and ancillary to the rights and custody and must be based on the children’s best interests. When there is disagreement amongst the parents as to the choice of school for the child, it remains a matter of judicial discretion (see Thomas v. Osika, 2018 ONSC 2712, 13 R.F.L. (8th) 191).
[31] In Thomas v. Osika at para. 37, Justice Audet reviewed the factors and jurisprudence on school placement issues:
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).
[32] The evidence provided by the parties regarding the educational and support programs offered by the proposed schools, consists of first-hand knowledge (a party having attended the school) or information that was taken from the internet. On the limited information presented, I am only able to conclude that the quality of education being offered by each of these schools is equivalent, in that each school offers similar levels of education and support programs that would meet Yasmine’s educational needs.
[33] Both parents agree that learning French must be part of Yasmine’s education. It has always been important to the parents that their children attend a school that offers a French immersion program.
[34] The Mother is prepared to move into her mother’s home in Gloucester. This concession will significantly reduce the driving time that will be required for Yasmine’s school attendance, which puts Yasmine’s interests ahead of the Mothers’.
[35] The task of choosing a school for Yasmine is difficult but it is fact driven. In exercising my judicial discretion, I must consider and emphasize Yasmine’s best interests above those of the parents. The four schools proposed by the parents would meet Yasmine’s educational needs but when considering other factors and the evidence, I have determined that it would be in Yasmine’s best interest that she attend Robert Hopkins Public School in 2020-2021. My reasons are set out below.
Woodroffe Public School
[36] On the evidentiary record before me, I am unable to conclude whether the Father consented to Yasmine’s enrollment at Woodroffe Public School or whether the Mother unilaterally decided to enroll her. The Mother contends that the teachers at this school are aware of Yasmine’s situation (emotionally and academically speaking) and they will be able to assist her upon her return. I do not find this to be a compelling argument. Yasmine attended at this school for a short period of time (4 weeks in September 2019) and the teacher’s involvement in Yasmine’s life and education has been quite limited.
[37] I acknowledge the Mother’s reasons for moving to the west end of the city (financial and family support) but in light of the most recent parenting time agreement (50-50), the distance between both residences is a significant issue. The evidence discloses that by driving on the highways (174 and 417), this school is located at 36.5 km from the Father’s current residence, with a commute time of 31 minutes, each way. I accept that in traffic, this time would increase to possibly 45-50 minutes. Considering the agreed upon 50-50 parenting time for September and October 2020, if Yasmine attended this school, she would be traveling between 124 to 200 minutes (146 km) weekly, when residing with her Father in Cumberland. Not only is this impracticable but more importantly, it is tiring and too much travel time for a 4-year-old during the span of a school year. This is not in her best interest.
Convent Glen Public School
[38] Convent Glen Public School does not offer a French immersion program. Selecting this school would be contrary to the parents’ initial wishes and desires. A more important factor to consider is that this school does not fall within the catchment area of either party. A special request would have to be made for Yasmine’s enrollment and there is no certainty that she would be accepted at this school. Yasmine requires stability and not knowing whether she will be attending a specific school is not in her best interest. Further, without being in the catchment area of one of the parents, Yasmine’s ability to establish friendships close to her home would be difficult. I therefore find that Convent Glen Public School is not a suitable option for Yasmine.
Robert Hopkins Public School / Heritage Public School
[39] Both these schools offer French immersion programs. The additional factors that favour Robert Hopkins Public School over Heritage Public School are: a. Cumulatively speaking, traveling to/from Robert Hopkins Public School (22 km) as opposed to Heritage Public School in Navan (31.1 km) is a shorter commute for Yasmine; b. Yasmine has family that attends Robert Hopkins Public School. She will be accompanied by her cousin, making it an easier transition for Yasmine in attending a new school. She has a close relationship with her cousin; c. At present, the Mother is staying at home. Being at close proximity to Robert Hopkins Public School (3 km), she is able to quickly assist Yasmine if something happens at school. Once the Mother obtains employment, the maternal grandmother will be able to provide the necessary support as well as getting Yasmine on/off the school bus as she is currently doing with her nephew; d. The close proximity of the Robert Hopkins Public School to the home facilitates creating friendships for Yasmine in the neighbourhood; e. The Father has no particular objection to Robert Hopkins Public School. I accept the Mother’s evidence that this school was previously discussed with the Father as a good choice for the children. The Mother is familiar with the school, having attended as a young child; f. Heritage Public School offers education up to grade 8 but I do not find that this is a factor of significant importance; and g. The maternal grandmother does not drive. She would be unable to offer support to the Mother if Yasmine attended at Heritage Public School in Navan.
[40] In terms of the parental exchanges, I agree with the Father that when the school is open, they should take place at the school, and while on weekends, they should take place at the maternal grandmother’s home in Gloucester.
Conclusion
[41] Based on the above, there shall be an Order as follows: a. Yasmine will be registered at Robert Hopkins Public School, 2011 Glenfern Avenue, Gloucester, for the 2020-2021 school year; and b. The parenting exchanges shall take place at Robert Hopkins Public School unless they are to take place during the weekend. In such an event, the parenting exchanges are to take place at the maternal grandmother’s residence in Gloucester.
Costs
[42] If the parties are unable to agree on costs, the Mother shall serve and file written submissions of no more than three pages, exclusive of her Bill of Costs and Offers to Settle, within 30 days of the date of this Order. The Father shall then serve and file written submissions of no more than three pages, exclusive of his Bill of Costs and Offers to Settle, within 10 days thereafter.
M. Smith J
Released: June 29, 2020