Court File and Parties

Court File: 72/12 Date: 2012-08-28

Ontario Court of Justice

Re: Melissa Rivers and Robert Bernard

Before: Justice R. Zisman

Counsel:

• Catharine Haber, for the Applicant
• Taryn Simionati, for the Respondent

Endorsement

Background and Procedural History

[1] This is a motion by the applicant ("mother") for a temporary order that Aiden Bernard ("Aiden") born August 13, 2001 attend Springfield Preparatory and Nursery School ("Springfield") commencing September 2012.

[2] The parties were married on July 17, 1999 and separated on November 19, 2004 and divorced in 2007.

[3] Subsequent to the separation, the parties attended for closed mediation but they never entered into a separation agreement.

[4] The parties have shared custody of Aiden on a joint custodial basis with Aiden residing with each parent for half of the time.

[5] Both parties are employed. In 2011, the mother's income was $57,920.00 and the Respondent's ("father") income was $79,461.00.

Medical and Educational Assessment

[6] A psychological assessment of Aiden was conducted by Dr. Stephen Barker in August of 2010. In his report dated August 19, 2010 he concluded as follows:

Given that Aiden has a learning disability and is showing a significant delay in the development of basic academic skills his name should be presented to the appropriate IPRC ("Identification Placement and Review Committee") for identification.

[7] Dr. Barker also identified that Aiden has ADHD-combined type which was mild in severity. He identified that Aiden had difficulty regulating both his behaviour and emotions.

[8] Subsequent to the identification of Aiden as a child with learning disabilities, he was assigned an IEP ("Individual Education Plan") at his current school, Ecole Pine Grove Public School.

[9] The mother had also arranged an education assessment of Aiden at a private tutoring company, Oxford Learning, which came to very similar conclusions as Dr. Barker.

[10] Despite the mother arranging for private tutoring for Aiden at Oxford Tutoring in 2010 and 2011 and despite the school providing Aiden with an IEP, his report card indicates that he continues to struggle in school.

Proposed Educational Options

[11] As a result the mother began to research various private schools that might better meet Aiden's needs. The mother proposed Aiden attend Springfield as she believed that Aiden would benefit from its smaller class sizes (maximum 14 students). Also the program is structured so as to allow more breaks and lessons are taught using a "program of inquiries" which compliments Aiden's learning style. Springfield also encourages students to identify what they need to help them learn and the school then accommodates, if possible such requests.

[12] The father does not dispute that Aiden is struggling at his current school but believes this is based on the fact that he is in a French immersion program. He has researched a public school in his area, River Oaks and believes that it would better meet Aiden's needs. The school has three special education resource teachers who have a combined total of over 64 years of teaching experience and seven teaching assistants. The father believes that Aiden's current IEP can be modified so that he receives some accommodation in Math as he notes Aiden has done well in the modified English program offered by the school. He has also researched River Oaks School and noted that for Grade 6, the grade Aiden will be entering, the school's website indicated that three of the four teachers were male. He believes that Aiden who relates well to his male coaches would relate better to a male teacher.

[13] Although the father agrees that Aiden suffers from both a learning disability and ADD, [1] he points out that both are of a mild severity. He also notes that his common-law spouse is a teacher for another school board and both of them have spent time helping Aiden with his homework.

Expert Opinion: Dr. Barker's Assessment

[14] As the case management judge I had recommended at the case conference that the parties and counsel arrange a telephone conference call with Dr. Barker to obtain his opinion as to whether or not Aiden would benefit from the smaller class size available in a private school and whether or not being in a French immersion program impacted on his learning disabilities.

[15] A summary of that conference call was included in the evidence on this motion. Dr. Barker made the following relevant observations:

• The assessment was two years old and any statement he made was based on his testing and observations at that time
• Aiden had a mild learning disability that impacted only written language and math at the time
• Aiden had mild ADD that he expected would have a bigger impact on his daily functioning in the classroom
• He anticipated that since both issues were mild they could be managed in a regular classroom with some support
• Aiden does not need a smaller class, although he may benefit from it as would most children
• Research suggest that class size is not as big a variable as most people believe; research suggests that for children who have ADD the teacher plays a bigger role than the class size
• Aiden needs a teacher who is emotionally supportive, reasonably well-structured and provides a lot of feedback
• Aiden does not have a language processing problem but when he has difficulty he does not handle it well; it is more of an emotional and personality factor than a cognitive and neurological issue
• Aiden does not need specialized programming but rather needs someone who can support him and respond in a positive way to the difficulties he is having
• IEP's look nice on paper but you need to know what is happening day to day
• This is more of a teacher approach issue than a private versus public school issue.

[16] In my review therefore of this discussion with Dr. Barker, it appears that he does not support the father's view that the issue is French immersion or the mother's view that smaller class size is essential for Aiden. Although Dr. Barker does acknowledge that smaller classes would benefit most students.

Analysis of Academic Performance

[17] I have reviewed Aiden's final grade 5 report card that was attached as an exhibit to the mother's affidavit. The following entries are of significance:

• Aiden needs improvement in taking responsibility for and managing his behaviours and he needs improvement in working independently; these concerns did not improve during the year
• Aiden did improve this semester in being able to self regulate himself such as persevering and making an effort to respond to challenges and monitoring and making progress towards his goals
• Overall, Aiden was encouraged to have a more positive attitude, accept redirection and make responsible choices when managing his own behaviour
• Aiden's final grades in language improved from mostly Cs to Bs and one B+ but I note that this was in a modified program
• Aiden's French marks were Cs and Ds in both terms with no improvement
• Aiden's marks in math decreased from Cs and Ds to almost all Ds although his marks in Data management and probability increased from a D+ to A-
• Aiden's mark in social studies decreased from a C+ to a C

[18] What is most concerning about this report card is that it must have been clear to the classroom teacher, the special education teachers and the teaching assistants after the first term that Aiden was struggling in most of his subjects and having difficulties with managing his behaviours and yet nothing seems to have been done and worst still his grades actually got worse.

Court's Analysis and Decision

[19] These parties, who for the last almost eight years, have been successfully able to jointly parent Aiden and to work co-operatively in making decisions in his best interests are now unable to agree on a fundamental parenting issue namely, what school would best address Aiden's needs.

[20] All decisions made by a court concerning a child are governed by what is in the best interests of the child. Both parents love Aiden and wish him to reach his full potential. Both parents sincerely believe that the school they are proposing will best meet those needs.

[21] The court has no particular expertise regarding such a choice and the decision can only be based on the evidence before the court. This is particularly problematic on a temporary motion where much of the information before the beginning of a school year is not available. For example, the father could not advise the court of the number of students at River Oaks Public School, the number of students who require a special education teacher or teaching assistant, how quickly a IEP could be arranged, the expected class size, or if Aiden would have a male teacher. Although I note that Dr. Barker did not express the opinion that Aiden would do better with a male teacher. What he did note was that Aiden required a teacher that was emotionally supportive and available to provide feed-back. Even though Dr. Barker indicated that a smaller class size was not required, it is reasonable to assume that in a smaller class the teacher would be more available to be supportive, provide feedback, encouragement and would be able to more closely monitor and supervise the students.

[22] I am also concerned that the evidence before me does not indicate that Aiden has a cognitive disability and therefore simply providing him with a modified program through an IEP may not permit him to reach his full potential. I also note that Dr. Barker indicated that just because a school offers an IEP or special education is not particularly useful information, it is how the program is implemented day to day that is relevant. I have no basis for assuming that the public school suggested by the father would have more resources or be better able to meet Aiden's needs that the public school he is currently attending.

[23] Based on the evidence available on this motion and the fact that historically the public school system has not been able to address Aiden's educational and emotional needs, I find that it is in Aiden's best interests to attend Springfield.

[24] In the mother's motion material she suggested as an alternative to Springfield she would consider sending Aiden to a new private school in Burlington, Blyth Academy. The parties should immediately make inquiries with both schools to determine which school would best meet Aiden's needs. If there is a dispute, then Aiden will attend Springfield commencing this September 2012 for the academic year 2012 to 2013.

[25] If the parties do not agree as to where Aiden should attend school for the following year, either party may return this issue to court before me.

Ancillary Matters

[26] The mother agreed that she would be solely responsible for make the necessary transportation arrangements for Aiden to and from school.

[27] The parties will also be required to pay their proportionate share of the tuition fees of $10,440.00. The father will be saving some money as Aiden will not require before and after school care, as Springfield offers before and after school care at a nominal cost.

[28] Counsel advised me during submissions that they were confident that they could resolve the ongoing child support which would be in accordance with the Child Support Guidelines on a set-off basis.

Order

[29] Order as follows:

1. The Applicant and Respondent shall have joint custody of Aiden Bernard, born August 13, 2001 and he shall reside in their shared custody on a schedule to be agreed upon.

2. The child shall attend Springfield Preparatory and Nursery School for the academic year commencing September 2012 unless the parties agreed upon another suitable private school. The Applicant shall be responsible for arranging all transportation for the child to and from school.

3. Either party may request that there be a review of the issue of the child's future attendance at Springfield Preparatory and Nursery School. Such a review shall be before me, if necessary, on proper notice to the other party.

4. The Applicant and Respondent shall share the cost of the tuition for Springfield Preparatory and Nursery School, namely $10,440.00, in proportion to their respective incomes. Any other incidental costs for the school shall be paid by the Applicant.

5. If the Applicant and Respondent are able to resolve any other financial issues a Form 14B motion can be submitted, otherwise this matter is adjourned December 5th, 2012 at 10:00 a.m. to be spoken to.

6. If the Applicant, as the successful party on this motion is seeking costs, brief cost submissions with a Bill of Costs attached shall be submitted within 14 days of the release of this decision. The Respondent shall have 14 days to submit his reply. No other materials shall be filed without leave of the court.

Justice R. Zisman

Date: August 28th, 2012

Footnote

[1] Dr. Barker's report diagnosed Aiden with ADHD but in the conference call with the parties and counsel he referred to Aiden having ADD.