Court of Appeal for Ontario

Date: 2021-06-17 Docket: C68897

Before: Gillese, Tulloch and Roberts JJ.A.

Between: Yakov Eitan Berman, Appellant and Alissia Berman, Respondent

Counsel: Aaron Franks, Michael Zalev and Courtney Wile, for the appellant Dani Z. Frodis and Arin Tint, for the respondent

Heard and delivered orally: June 15, 2021

On appeal from the order of Justice Peter A. Douglas of the Superior Court of Justice, dated November 5, 2020, and from the costs order, dated December 1, 2020.

Reasons for Decision

[1] The appellant father appeals from the dismissal of his motion to prevent the parties’ daughter from changing elementary schools and the motion judge’s costs order against him. The parties’ daughter has been raised in the Jewish faith. The respondent mother, the custodial parent with sole decision-making authority, wishes to enrol their daughter in the local Catholic school.

[2] The appellant raises the same main issue on appeal as he argued before the motion judge: he says their daughter’s attendance at a Catholic school is in breach of paragraph 3 of the final order of Fryer J. that she be raised in the Jewish faith. Paragraph 3 reads as follows: “Eliana shall be raised in the Jewish faith, however, she shall not be prevented from participating in Catholic holidays with the respondent and her family.”

[3] The motion judge rejected the appellant’s argument. He accepted that the respondent’s decision to change the daughter’s school was within the respondent’s sole decision-making authority and the daughter’s best interests in the circumstances that included the unchallenged facts that the daughter was being bullied at her present school and the local Catholic school was academically superior. Importantly, he also found that the respondent was committed to raising the daughter in the Jewish faith and had confirmed with the Catholic school that she would be exempt from attending religious instruction and practice. He did not accept the opinion proffered by the appellant’s expert because he found that the expert was unaware of the accommodations that the Catholic school was prepared to make which, significantly, the motion judge included in his order. As a result, he found no breach of paragraph 3 of Fryer J.’s order. He ordered the appellant to pay the respondent costs of $4,500.

[4] We see no error warranting appellate intervention. The motion judge carefully considered the evidence before him. He was not required to accept the expert’s opinion and explained why he did not. Absent reversible error, it is not this court’s role to reweigh the evidence, as the appellant is inviting us to do. Similarly, we see no error in the motion judge’s costs award, which was reasonable, fair and proportionate.

[5] Accordingly, the appeal is dismissed.

[6] As agreed, the respondent is entitled to her costs of the appeal, fixed at $7,500, all inclusive, payable by the appellant within 90 days.

“E.E. Gillese J.A.”

“M. Tulloch J.A.”

“L.B. Roberts J.A.”