Court File and Parties
Court File No.: Kitchener 3179/06 Date: 2016-10-17 Ontario Court of Justice
Between: L.C., Applicant
— AND —
R.C., Respondent
Before: Justice K. Stacy Neill
Heard on: 12 October 2016
Endorsement inscribed on: 17 October 2016
Counsel
L.C. (Applicant) — on her own behalf
Michael Ferguson — counsel for the respondent
Endorsement
Introduction
[1] JUSTICE K.S. NEILL:— The sole issue before the court is whether or not the child, C.C. ("the child"), who is now 12 years of age, should be home schooled by L.C. ("the mother") as proposed by the mother, or attend R[...] School, which is a school for high-risk children who cannot be accommodated in the regular public school system, as proposed by R.C. ("the father").
Background and Prior Orders
[2] A final order was made on November 17, 2006 that the parents shall have shared custody of C.C. with the primary care to the mother. The father was ordered to have liberal periods of time with C.C. as agreed upon by the parties, including liberal periods of time during special occasions, holidays and summer. The father was ordered to pay child support in the amount of $600.00 per month.
[3] A final order of July 12, 2010 confirmed that the father's weekend access schedule with C.C. during the father's day shift was Friday at 4:30 p.m. to Sunday at 7:30 p.m. and during the father's afternoon shift was from Saturday at 10 a.m. to Sunday at 7:30 p.m. The order increased the father's child support payment to $710.00 per month.
[4] None of the final orders addressed decision-making relating to C.C.'s health, education or medical issues. However, it is not disputed that the mother has been the primary caregiver for C.C. What is in dispute is the amount of access that the father has had, as he indicates that he has consistently exercised his alternate weekend access and the mother indicates that he only exercises overnight access approximately once per month.
[5] In June, 2016, the mother commenced a Motion to Change the final order of July 12, 2010 to increase child support. The issue of support is not the subject of this motion as on October 12, 2016, the parties consented to a final order that the father pay child support in the amount of $845.00 per month, and that all other claims before the court on the Motion to Change be withdrawn, except for the issue of C.C.'s schooling.
[6] The father did not oppose an increase in child support, but in his Response to the Motion to Change, he requested an order that C.C. attend R[...] School.
Position of the Parties
[7] Both parties agree that there are only two options available for C.C.'s education: either to be home schooled by the mother, or to attend R[...] School, being the only option offered to the parents by the Waterloo School Board for C.C. at this time given his special needs.
[8] The child, C.C. has not been attending school since September, 2016 and the mother would like to continue to home school him. The mother is not opposed to C.C. attending school, but would like him to attend school close to her home and not at R[...] which is approximately 40 minutes away. However, this is not an option at this time.
[9] The father would like C.C. to attend R[...] School as recommended by the Waterloo School Board, even if for a period of time to determine if C.C. can manage in this setting.
Special Needs
[10] The child C.C. has special needs. When he was approximately 3 years of age, he was diagnosed with an Autistic Disorder, which has been clarified to be Autism Spectrum Disorders 2 ("ASD2"), as well as a seizure disorder.
[11] He has a limited ability to communicate verbally, and it is unclear if he understands requests made of him. He has a history of self-injurious behaviour and aggression towards others. C.C.'s episodes of self-injury and destruction can come on suddenly without a clear environmental antecedent.
[12] C.C. has been involved in Autism Services through Kidsability since May, 2012. The mother participated in monthly meetings, service plan reviews, workshops and coaching for parents. In a discharge report from the Autism Services dated September 12, 2014, many recommendations were made regarding C.C.'s care, including collaboration between home and school to provide consistency, generalized learned skills and maintain skill development. C.C. continued to receive services through Kidsability thereafter.
[13] C.C. had been attending Saginaw Public School in Cambridge. However, in May, 2014, he was asked to leave the school due to his behaviours resulting in injury to students and staff. It was noted by the school that C.C. had self-harming and unpredictable behaviours, physical aggression towards others and an inability to control his behaviour. Saginaw Public School advised that C.C. could re-enter the school, provided that he have a psychological assessment completed through the Child and Parent Resource Institute ("CPRI") in London, Ontario to better understand his needs and to provide recommendations to affect appropriate and safe programming at the school for C.C.
[14] C.C. was referred to CPRI for an assessment process. In October, 2014, C.C. returned to school for full days, with the assistance of a one-to-one educational assistant in the classroom. At that time, C.C. was in a specialized classroom with only six students, one teacher and four educational assistants. From October, 2014 to December, 2014, there were only 2 episodes of significant problem involving C.C. running away. The father noted significant progress in C.C.'s verbal language since returning to school, but his behavioural issues remained consistent, and an increase in the frequency in which he urinated and defecated in his pants, and pulling out his hair.
[15] An initial psychological assessment report dated December 18, 2014 by Dr. Ross recommended that C.C. have a full assessment completed at CPRI. Both parents agreed to this plan as it would be helpful in addressing C.C's needs.
[16] This full psychological assessment was completed by Dr. Ross. The father was involved in this assessment while the mother chose not to be involved. In his report dated April 21, 2015, Dr. Ross indicated that:
At times during the assessment process, C.C. was temporarily non-responsive and would "freeze" and some significant self-injury (i.e. hand biting) and aggression (i.e. hitting others) would occur after these periods of non-responsiveness.
C.C.'s nonverbal IQ was within the moderately impaired range at less than 0.1st percentile.
C.C.'s adaptive skills rated in the low range. His spontaneous phrases are generally limited to one word, and he can only inconsistently recognize and copy his own name. Reading and writing skills were generally absent. C.C. is dependent on caregivers for daily hygiene activities such as showering and brushing his teeth, and requires adult support to clean himself after toileting. C.C. has limited interest in other people but does have a preference for familiar caregivers. His play skills are impaired. C.C. does not transition well and cannot control his emotions if plans change.
Dr. Ross confirmed a diagnosis for C.C. of intellectual disability (severe).
Dr. Ross found that the level of C.C.'s social impairment is significantly greater than would be predicted by an intellectual disability alone.
C.C.'s profile indicates that he will continue to require support for the rest of his life.
In order for C.C. to be successful, predictable routines and daily schedules will be more effective in organizing his day than will be verbal requests and novel activities.
Dr. Ross recommended that the results of this psychological assessment be shared with his school for educational designation and individualized educational programming.
[17] In May, 2015, C.C. had a speech-language pathology assessment completed by CPRI. The father participated in this consultation and there was no information that the mother participated. In this assessment completed by Joan Gardiner, she noted that:
At home, C.C. will rarely use words and will access pictures of things that he wants and will bring these pictures to his caregivers. When pictures are unavailable or when his environment is less familiar, he seldom initiates with language for any purpose. C.C. exhibits problem behaviour in situations that exceed his concrete expressive communication abilities.
C.C. experiences challenges for understanding spoken language, and testing suggests a profile of ability that is more like a very young child (toddler).
Detailed strategies to assist C.C. with language and communication skills were suggested.
As C.C. is unlikely to understand the social, emotional or physical impact of his behaviour on others, he may not stop doing things that cause harm to another person.
It was recommended that a formal teaching program be implemented to help him learn to wait, and teaching this abstract concept will require a structured and specific teaching hierarchy.
[18] In September, 2015, a behavioural assessment was completed on C.C. by Ms. Petersen, a Board Certified Behavior Analyst. Again, the father participated in the assessment but the mother did not. In her assessment, Ms. Petersen noted that:
C.C. does best when he is kept busy in a variety of activities of short duration to avoid him becoming bored.
C.C. must be closely supervised and his environment should be set up to restrict running.
When in class, C.C. should have frequent breaks such as trampoline and activities for other gross motor skills.
[19] Saginaw Public School provided information to CPRI regarding the frequency of self-injurious behaviours, unsafe behaviours and aggressive behaviours toward others for the period from January, 2015 to May, 2015. All of these behaviours were on a downwards trend since January, 2015. Ms. Petersen concluded that it was important for C.C. to:
Be treated with dignity.
Have interactions with others that are at his level.
Be offered choices in his day that are matched to his learning and preferences.
Reach as much independence as possible within his abilities.
Have a variety of leisure activities to enjoy.
Have learning opportunities throughout his lifetime.
[20] An integrated report from the ASD2 Clinic was provided in June, 2015 summarizing all of the information from the reports outlined above from all of the professionals involved with C.C. This report highlighted that C.C.'s problem behaviours have been challenging and exhausting for his family. It was recommended that as a result of C.C.'s multiple and complex needs:
C.C.'s parents require ongoing clinical support, community services, and case management for navigating the system and assisting them when problems arise.
For C.C. to succeed, the plan for him requires a high degree of consistency, behavioural input from a local, skilled service provider to assist with teaching and maintaining a structured schedule of activities for C.C.
Caregivers involved with C.C. should review the ASD2 assessment reports on an ongoing basis.
[21] The integrated report from the ASD2 Clinic provided very detailed recommendations for C.C.'s caregivers and educators, who will require a certain skill to be able to manage C.C. so that he can work at his greatest potential.
[22] Following receipt of all of the reports from CPRI, the Waterloo School Board recommended that C.C. be transferred to R[...] School in Kitchener. R[...] is a specialized school where the recommendations from CPRI can be implemented. The School Board will provide daily bus transportation for C.C. directly from his home and a meal service.
[23] The mother has refused to permit C.C. to be enrolled in R[...]. Since September, 2016, C.C. has not attended any school.
The Law and Analysis
School Choice and Custody
[24] The choice of school has been deemed to be an incident of custody and a day-to-day decision that should be left to the custodial parent. [Laird v. Laird [2015] O.J. No. 798 (Ont. S.C.)]
[25] However, this is not a decision of choosing between two competing schools, but a decision regarding whether or not C.C. will attend a school for special needs children or to be home schooled. Therefore, the provisions of the Education Act must also be considered.
Compulsory Education Requirements
[26] Section 21(1) of the Education Act, R.S.O. 1990, c. E.2, ("the Act") makes it mandatory for children from ages 6 to 18 years to attend elementary or secondary school unless they are excused under the provisions of the Act.
[27] A child may be excused from school attendance on the grounds enumerated in s.21(2) which include:
(a) the person is receiving satisfactory instruction at home or elsewhere;
(b) the person is unable to attend school by reason of sickness or other unavoidable cause.
(c) transportation is not provided by a board for the person and there is no school that he or she has a right to attend situated,
(i) within 1.6 kilometres from the person's residence measured by the nearest road if he or she has not attained the age of seven years on or before the first school day in September in the year in question, or
(ii) within 3.2 kilometres from the person's residence measured by the nearest road if he or she has attained the age of seven years but not the age of 10 years on or before the first school day in September in the year in question, or
(iii) within 4.8 kilometres from the person's residence measured by the nearest road if he or she has attained the age of 10 years on or before the first school day in September in the year in question;
(d) the person has obtained a secondary school graduation diploma or has completed a course that gives equivalent standing;
(e) the person is absent from school for the purpose of receiving instruction in music and the period of absence does not exceed one-half day in any week;
(f) the person is suspended, expelled or excluded from attendance at school under any Act or under the regulations;
(g) the person is absent on a day regarded as a holy day by the church or religious denomination to which he or she belongs; or
(h) the person is absent or excused as authorized under this Act and the regulations.
[28] The fact that a person is blind, deaf or has a developmental disability is not of itself an unavoidable cause under clause (2)(b). [s. 21(3)]
[29] Section 21(5) indicates that a parent or guardian of a person who is required to attend school shall cause the person to attend school as required by s.21 unless the person is at least 16 years old and has withdrawn from parental control.
Home Schooling and Satisfactory Instruction
[30] While s. 21 does not compel the attendance of a child at a public school, it does mandate compulsory education, provided that the child is receiving satisfactory instruction at home or elsewhere. [Wynberg v. Ontario, [2006] O.J No. 2732 (Ont.C.A.)]. However, the term "satisfactory instruction" is not defined under the Education Act. [Durham Children's Aid Society v. B.P. [2007] O.J. No. 4183 (Ont. S.C.)]
[31] The father filed a policy memorandum from the Ministry of Education dated June 17, 2002, which clarified the direction regarding home schooling. According to this policy, parents providing home schooling shall:
Notify the school board in writing of their intent to home school, which letter should be signed by the parent(s).
The board should accept this letter as evidence that the parents are providing "satisfactory instruction" at home.
The board should also send a letter to the parents acknowledging this notification.
If there are reasonable grounds to suspect that the child is not receiving satisfactory instruction at home, the board should take steps to investigate the situation. Such situations may include the refusal of a parent to notify the board in writing of the intent to provide home schooling.
Determining whether instruction is satisfactory should focus on:
- (a) A plan for educating the child, including if the parent's instructional program is based on the Ontario curriculum or on a different curriculum
- (b) Plans to ensure literacy and numeracy at developmentally appropriate levels
- (c) Plans for assessing the child's achievement.
[32] In May, 2014, the Waterloo School Board advised the parents that they would provide funding for home instruction for C.C. should there be a letter from a physician supporting the need for home instruction.
Mother's Arguments for Home Schooling
[33] In support of home schooling C.C., the mother argues that:
C.C. would have to take a bus to R[...], which is between 30 and 45 minutes from her home, and would have to be strapped into his seat.
R[...] is a school for special needs children and C.C. would miss out on the opportunity to integrate with non-disabled peers. At minimum, there should be a plan for C.C. to be reintegrated into his local school district.
It would be easier for the mother to develop relationships with the teachers at C.C.'s school if the school was closer to her home. The mother argues that she is not a comfortable driver, and needs a school closer to her home so that she can drive to the school quickly to respond to any emergencies.
It would be easier for C.C. to develop relationships with peers if he attended a local school.
If there are any work-related opportunities within the school, it would not be offered in C.C.'s community.
R[...] is a school for high-needs children and C.C. proved that he did not do well in this type of environment at the special program at Saginaw School in an ASD class. The mother argues that C.C. needs to be in a setting with children without special needs so that he can learn life skills.
The mother was concerned that as the public school system could not deal with C.C.'s complex needs, and R[...] may still not be able to deal with his needs.
[34] The mother further argues that she knows her child better than anyone and can meet his needs. However, her only plan for his education is that she has spent $200 in materials; that she is a stay at home mother; that she has supports in place; and will be spending time in the community to teach C.C. life skills.
[35] In her affidavit, the mother states that she "could not deal with the issues with the school up the street from me because of the stress, so I know this will be even more stressful dealing with a school 40 to 45 minutes away". She indicates that "having a special needs child is stressful and heartbreaking, and having C.C. home schooled would relieve some of that stress". The mother indicated in her affidavit that if the court ordered that C.C. attend R[...] School that the court should also order that the father be granted primary custody of C.C. In submissions, the mother clarified that she did not want to give up custody of C.C. but wanted more support from the father. For example, she was very concerned about how she would physically get C.C. on the bus if he did not want to go to school.
[36] Many of the mother's arguments focus on her stress in having C.C. attend a special needs school a distance from her home, and do not address the potential benefits that C.C. may have from attending R[...].
Father's Proposed Support
[37] Although the mother's primary position was that C.C. be home schooled, both parties agree that should the court order that C.C. attend R[...], the father would have access on alternate weekends from Friday after school until Monday morning. Therefore, on alternate weeks, the father would be responsible for getting C.C. off of the bus on Fridays and putting C.C. on the bus on Monday mornings. As the father is advocating that it is in C.C.'s best interests to attend R[...], and this is a minimum support that he can offer.
Statutory Compliance and Home Schooling Requirements
[38] By law, all children under the age of 18 years of age must have some form of education, and it is the responsibility of the parents to ensure that this occurs. Although a parent may provide satisfactory instruction to a child by home schooling, there are conditions for such plan for education, including notifying the school board of the intention to home school, and presenting a plan for educating the child. None of these conditions were met by the mother. In C.C.'s case, the Board requested a letter from C.C.'s physician supporting the need for home instruction to provide funding to the parents. No letter was obtained by the mother.
Best Interests of the Child Analysis
[39] Any decision regarding the best interests of a child must consider the factors outlined in s. 24(2) of the Children's Law Reform Act. The court does not have evidence of C.C.'s views and preferences, and given his needs, appointing counsel for him through the Office of the Children's Lawyer would likely not assist. The court is not required to specifically enumerate and analyze the specific criteria set out in s. 24(2) of the Act, but rather must consider all of the factors that are relevant to the analysis in the particular case that it is called upon to decide. [Walsh v Walsh, [1998] O.J. No. 2969]
[40] In considering s. 24(2), and specifically subsections (b), (d) and (e), being:
(b) the child's views and preferences, if they can be reasonably ascertained;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing
and as the decision of the school is an incident of custody, as well as the facts outlined above, I find that it is in C.C.'s best interests to attend R[...] School, for the following reasons:
The mother has been home schooling C.C. since September, 2016 but there is no evidence of her plan for his education, how she will enhance his gross motor skills, or how he is doing at this time.
The psychological reports indicate that structure, routine and being involved in multiple activities is in C.C.'s best interests. This is what R[...] can offer.
In a school setting, there will be multiple caregivers to supervise and assist C.C. It is noted in the assessments that C.C. requires adults to closely supervise his daily schedule of activities. If C.C. were only at home, this responsibility will fall solely on the mother, who is already overwhelmed with dealing with an autistic child.
C.C. will be able to socialize with other children and be involved with multiple caregivers. It was recommended in the behavioural assessment that C.C. have interactions with other children who are at his level.
C.C. will be involved with skilled teachers which will give him the best chance to develop his verbal skills. It is noted that his verbal skills improved when he returned to school in October, 2014.
The assessments from CPRI recommended that a formal teaching program be implemented for C.C. specific to his needs.
[41] C.C. needs the opportunity to reach his maximum potential, and R[...] is the best option for him at this time that will be able to implement the recommendations from CPRI.
Order
[42] Therefore, there will be an order as follows:
The child, C.C., d.o.b. [...], 2004 shall attend R[...] School in Kitchener, to be enrolled at such time as there is a spot available for him at that school.
All assessments completed on C.C. shall be disclosed by the parents to the staff at R[...] School.
The order of July 12, 2010 shall be amended to provide that the father shall have access with the child, C.C. on alternate weekends from Friday after school until Monday morning. The father will make arrangements with the Board to have C.C. dropped off and picked up from his home for transportation to school on the weekends that C.C. is in his care.
Costs
[43] If costs are an issue, I would encourage the parties to come to an agreement, as neither party wanted to prolong this litigation. However, should either party wish to pursue the issue of costs, they may file written submissions of no more than 3 pages in length by November 4, 2016.
Released: 17 October 2016
Signed: "Justice K. Stacy Neill"