Court File and Parties

Ontario Court of Justice

Date: 2016-09-16

Court File No.: North Bay FO 174-16

Between:

Marc Deschenes Applicant

— And —

Sarah Medwayosh Respondent

Before: Justice L. J. Klein

Heard on: September 6, 2016

Reasons for Decision released on: September 16, 2016

Counsel:

• Joe Sinicrope, counsel for the applicant
• Sarah Medwayosh, on own behalf

Decision

Klein, J.:

[1] The Applicant father, Marc Deschenes (the "Father"), brought a motion dated August 17, 2016 seeking an order that the child, A.I.M.D. (the "Child") born 20 January, 2012 be enrolled in École Publique Héritage ("Héritage") in her first year in school.

[2] The Respondent mother, Sarah Medwayosh, (the "Mother"), responded by seeking an order that the Child be enrolled at Sunset Park Public School ("Sunset"), in an Early French Immersion Programme.

Background

[3] The parties commenced a relationship in June 2010 and began co-habiting in October of that year. The Child was born on January 20, 2012 well before the parties separated in January 2014. At separation the parties entered into a written agreement whereby they were to have a joint custody arrangement with the Child residing with each parent on a week about basis.

[4] The parties do not agree as to what plans they had for the Child's education. The mother was of the belief that the Child would be attending school at Sunset with her older sister, the offspring of a different father. The Father contends that both parents were of the view that the Child should attend Héritage as it is a French First Language School.

[5] In September of 2015, the parents attended Héritage with the intention of enrolling the Child in school for that academic year. She was ineligible to attend given her January birthdate meaning that she would have to wait until this September.

[6] By December 2015, the Mother advised the Father that she was no longer in agreement with the plan to enroll the Child at Héritage but thought it best to have the Child attend Sunset in the Early French Immersion Programme.

[7] The parties entered into further discussions and met with a mediator where they agreed to enroll the Child in Héritage. Soon thereafter, the Father made an appointment for that purpose but the Mother cancelled her attendance and advised the Father that she was not prepared to enroll the Child in a French First Language School Programme (Héritage) preferring a French Second Language School Programme (Sunset).

[8] Letters were exchanged on June 29, 2016 from Father's counsel and July 5, 2016 being Mother's reply. No agreement was reached and the matter was brought to this court for resolution.

[9] Each party produced lengthy affidavits with exhibits supporting their respective position while advancing detailed argument to the court. The Father produced a pamphlet provided by the principal at Héritage entitled "When Children Speak More Than One Language" while the Mother produced a fact sheet from the Near North District School Board entitled: "French Immersion Facts Welcome to our French Programme – The Best of Both Worlds". Both were informative but clearly designed to sell parents on the merits of either programme delivery model.

[10] Both sides also provided case law which they argued supported their position as to which school the Child should attend and this court has had the opportunity to review each case provided.

The Law

[11] The merits of any matter relating to custody, access or ancillary issues of custody must be determined on the basis of the child's best interests.

[12] Sub-section 28(1)(b) of the Child's Law Reform Act ("CLRA") specifically empowers the court to determine any matter incidental to custody rights. The issue of a child's enrollment in a school programme must be considered as being incidental to or ancillary to the rights of custody.

[13] Sub-section 24(2) of the CLRA sets out a non-exhaustive set of factors that the court should consider when determining the best interests of the child as they relate to the child's needs and circumstances. One of those considerations is the ability and willingness of each parent to provide the child with guidance and education as per s.24(2)(d) which necessarily involves an assessment of each parent's plan for the care and upbringing of the child including the respective parents proposal for the child's school placement.

[14] As Justice C. J. Jones of our court wrote in paragraph 16 of her decision in Bandas v. Demircloch, 2013 ONCJ 679:

[16] ….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.

[15] 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 programme.

[16] As Justice P. Rouleau of the Court of Appeal noted in Perron v. Perron, 2012 ONCA 811, the importance of a school placement or educational programme will promote and maintain a child's cultural and linguistic heritage. He further noted that "[h]omogeneous French language education brings many advantages. It promotes full mastery of the French language and the development of the child's cultural identity (para. 20).

[17] What is evident from my review of the case law provided is that 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.

Analysis

[18] The fact that the mother changed her mind on at least two occasions regarding her consent to have the Child educated at Héritage has no bearing on a "best interests" analysis. Any consideration by a parent as to what educational programme might best suit their Child can and may be subject to change as matters unfold.

[19] The Father's firmly held concerns that the Child may suffer a loss of her cultural and linguistic heritage by being denied a homogenous French language education in favour of a French immersion experience were clearly recognized by Justice Rouleau in the Perron decision. Those concerns can be somewhat distinguished in that the context for Justice Rouleau's comments was that the children were living and being educated in Hamilton which is a much different cultural milieu than that which presents itself in the District of Nipissing. It is also this court's determination that given the 50/50 nature of the parenting arrangements, the Father has a considerable opportunity to ensure that the Child is exposed to and enriched by her French Canadian heritage.

[20] The Mother has a legitimate concern that given that all communication from Héritage is provided in French including report cards and regular homework, she will be unable to participate fully in the Child's educational experience. By contrast she is well-versed on how the school works at the French Immersion Programme at Sunset which does not require her to have a facility in the French Language. The Father's sincere and well-intentioned offer to translate all written material sent by Héritage is not realistic as, by its nature, homework is extremely time sensitive and it is very difficult to fathom that he will be available at all times.

[21] It is not significant in this analysis whether the Father properly prepared the Child for entrance into a French First Language school. The Child's facility in the French language was a significant consideration for the Mother in her choice as to which educational programme might best meet the needs of the Child but this court does not have that same concern given that the Child has the advantage of living in a French first language house 50% of the time. In other words, this is not the same situation as a Child who is in the primary care of a unilingual English parent and where the French speaking parent is an access parent only.

[22] The fact that attending Sunset will mean that the Child will be in the same school as her older sister is significant. She can enter her school career with the added assurance that someone who knows her and loves her is close at hand. Further, she will continue her after-school care in the daycare attached to the school. To part these would not be in the Child's best interests. The reason for doing so, to provide her with a more intensive French language and culture experience does not warrant separating her from her sister.

[23] Unlike many of the cases referred to in argument, this matter is not a motion to change or vary a pre-existing educational regime and an analysis of how that might affect the Child. This motion is about a Child's first day of school and where that will be.

Order

[24] For the reasons set out above, it is in the Child's best interest to attend Sunset Park Elementary School in the Early French Immersion Programme.

Costs

[25] Given the unique and important nature of the issues canvassed in this motion there shall be no order as to costs.

Released: September 16, 2016

Signed: "Justice L.J. Klein"