Court File and Parties

Date: August 29, 2018

Court File No.: D20927/18

Ontario Court of Justice

Between:

J.N.M.

Applicant

- and -

A.T.

Respondent

Counsel:

• Jerrod K. Grossman, for the Applicant
• James H. Herbert, for the Respondent

Heard: August 27, 2018

Justice: S.B. Sherr

Endorsement

Part One – Introduction

[1] The parties have both brought temporary motions to determine the school and daycare placements for their two children, P. (age 4) and M. (age 2) (the children).

[2] The applicant (the father) asks that P. attend Bialik Hebrew Day School (Bialik), and in the alternative, Dennis Avenue Community School (Dennis). The respondent (the mother) asks that she attend Bala Community School (Bala).

[3] The father asks that M. attend Super Kids Daycare. The mother asks that he attend Jubilee Daycare.

[4] The parties agreed to a process where they were permitted to cross-examine the other on their motion affidavits for up to one hour. They each conducted brief re-examinations. The parties both filed affidavits from their respective mothers and conducted brief cross-examinations of these witnesses. They then made submissions.

[5] The issue for this court to decide is what temporary school and daycare placements are in the children's best interests.

Part Two – Background

[6] The parties are both 37 years old.

[7] The parties are not married. They began living together in 2009. They lived during their relationship at a home owned by the father's parents.

[8] The mother moved from this home in February, 2018 to a nearby location. She continues to reside there with her mother (the maternal grandmother). The parties shared parenting time with the children after their separation.

[9] The father is Jewish. He was born in Israel and his extended family live there. He says that he is not religious, but that his culture and Hebrew language are very important to him. He deposed that he predominantly speaks Hebrew to the children in his home. He says that P. is almost fluent in Hebrew. The family has frequently travelled to Israel. The father estimates that P. has lived a quarter of her life there.

[10] The mother is not Jewish. She deposed that her background is mixed African Canadian and Irish Catholic. She said that she wants the children to equally know her culture and heritage. She has taken the children to church. She has celebrated Christmas and Easter with them. She stated that some of her ancestors were escaped slaves who lived in Nova Scotia. Other ancestors were from Ireland.

[11] The mother is a nurse and works full-time. The maternal grandmother, who is retired, assists her with the children.

[12] The father used to own a restaurant. He closed it in June, 2017 and is presently unemployed. He recently enrolled in an Applied Behavioural Analysis program at Humber College.

[13] The mother described a chaotic parenting situation after the parties separated. She says that the father once over-held the children for 10 days (the father's mother said it was for 8 days) and that the father would often race her to the daycare to pick up the children.

[14] The parties attended at mediation during April and May, 2018 and on May 22, 2018 they agreed to an equal timesharing parenting arrangement. The children spend half of the weekdays with each parent and alternate weekends between the parents' two homes.

[15] The parties could not agree to custodial terms or to what school and daycare the children would attend starting in September, 2018.

[16] Neither party pays child support to the other.

[17] The children have been attending daycare at Super Kids. P. has been there for two years – M. for one year. This is a very short walk from the father's home and a 15-minute walk from the mother's home.

[18] P. will be attending Junior Kindergarten starting in September.

[19] The father issued his Application seeking sole custody of the children and other relief on June 15, 2018.

[20] The mother filed her Answer/Claim seeking sole custody of the children, primary residence for them and other relief on July 16, 2018.

Part Three – Positions of the Parties

3.1 The Father

[21] The father deposed that the parties had previously agreed that the children would go to Bialik. He says that his parents have agreed to pay the entire private school fees.

[22] The father claims that Bialik is a much better school than Bala and an excellent educational opportunity for P.

[23] The father fears that if the children go to public school, they will not learn to speak adequate Hebrew and that they will lose an important part of their culture.

[24] The father says that M. has been attending at Super Kids for one year. He says that M. has had anxiety issues adjusting to daycare. He says that M. is just adjusting to the program now and it would be disruptive for him to move to a different daycare.

[25] The father says that he is agreeable to driving and picking up the children from Bialik and daycare each day, since the mother does not drive. He was very critical of her for not learning to drive. He does not feel that the children's educational opportunities should be compromised due to her limitations.

[26] In the alternative, the father asks that P. attend at Dennis. This is a public school located a few minutes from his home. He says that many of P.'s friends from Super Kids will be going to Dennis and that will help her adjustment to school.

[27] The father deposed that the mother told him that she does not like her present residence and believes that she will move again. This, he said, would result in another school change for the children, if the orders sought by the mother were granted.

3.2 The Mother

[28] The mother says that the parties never agreed that the children would go to school at Bialik. She says that the father did not even raise this possibility until April, 2018.

[29] The mother is opposed to the children going to a Hebrew Day School. She fears that if the children attend Hebrew Day School, she will be marginalized as a parent. She does not speak Hebrew and will not be able to help P. with her homework. She says that her culture and heritage are equally important to her and she doesn't want this to be relegated to "second best" in the eyes of the children.

[30] The mother says that she has always been supportive of the children learning the father's culture and heritage, but feels that their respective cultures and heritages should be treated equally. She is not opposed to the children going to a private school – "but it has to be a neutral school".

[31] The mother wants P. to go to school at Bala. She wants P. exposed to many cultures and religions – not just the Jewish culture and religion. She believes that Bialik has a religious component that will further exclude her from the children's lives. She says that Bala has a program with a heavy emphasis on Indigenous culture that she wants P. to participate in.

[32] The mother says that she cannot take P. to Bialik each day. She does not drive and works full-time. She is of very modest means. She says that it is an hour trip each way from her home to Bialik by TTC. The transportation problem would be compounded by M. going to a different daycare.

[33] The mother is very frightened about the prospect of the father driving the children to school every day. She says that the father is a dangerous and reckless driver who often has road rage. She says that he consumes marijuana to excess and that he drives while impaired.

[34] The mother believes that the father is disrespectful of her and her heritage. She described him as being aggressive and demeaning to her.

[35] The mother describes her relationship with the father as very conflictual. She says that the children have been frequently exposed to this conflict at exchanges. She wants to limit her interactions with him.

[36] The mother wants the children to attend at a school and a daycare in her area. Her schedule is very busy and she states that convenient school locations will assist her in better meeting the children's needs. She often relies on the maternal grandmother to walk the children to daycare. She says that her proposed school and daycare for the children are close to her home – about a 7-minute walk. P. would be able to attend at a before and after school program at the same daycare that M. would attend. It has a safe walking program for P. to go from the daycare to the school.

[37] The mother says that she has no plans to move from her present residence.

[38] The mother says that the father's alternative school plan is much less convenient for her. She says that since the father isn't working, it is easier for him to take the children to the school and daycare near her than for her to take the children to the school and daycare near him. She also doesn't know if there is a safe walking program at Dennis for P.

[39] In her reply affidavit, the mother suggested, in the alternative, that the children attend at Etobicoke Montessori School – if the father's parents pay for it. She said that it is a similar distance from her home as Super Kids (a 15-minute walk) and that she would be able to transport the children there during her parenting time. She has looked into this program. She was told that the children can be placed on a wait list and there will likely be a spot available for them.

Part Four – Legal Considerations

[40] Subsection 24(1) of the Children's Law Reform Act (the Act) sets out that any parenting decision must be made in the best interests of the children.

[41] Subsection 24(2) of the Act sets out criteria for the court to consider when determining a child's best interests. The court has considered those criteria that are relevant to this case.

[42] Justice Julie Audet recently reviewed the jurisprudence on school placement issues in Thomas v. Osika, 2018 ONSC 2712, at paragraph 37 as follows:

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);

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);

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);

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);

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);

h. Any problems with the proposed schools will be considered (Askalan v. Taleb, 2012 ONSC 4746);

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);

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).

[43] In Perron v. Perron, 2012 ONCA 811, the court wrote at paragraph 40:

40 The question of the children's language of education must take into account all the factors set out in s. 24(2) of the Children's Law Reform Act as a whole. Linguistic and cultural considerations alone cannot dictate the result.

[44] The ability of a parent to assist the child with homework and the degree to which the parent can participate in the child's educational program is an important factor for the court to consider in determining school placement. See: Madore v. Babuder, 2018 ONSC 4817.

[45] The status quo -- and avoiding reckless creation of a new status quo -- are important considerations on a temporary school placement motion. See: Cosentino v. Cosentino, 2016 ONSC 5621.

[46] In Anderson v. McIntosh-Anderson, 2018 ONSC 4688, the court found no compelling reason to change the children's school when they had been in a settled and stable school environment.

[47] Exposure to conflict has been called the "single most damaging factor for children in the face of divorce": per Backhouse J., in Graham v. Bruto, 2007 O.J. No. 656 (S.C.), aff'd 2008 ONCA 260; Mattina v. Mattina, 2018 ONCA 641.

Part Five – School Test Scores

[48] The father attached provincial school test scores to his affidavit to argue that Bialik and Dennis are better schools than Bala.

[49] To his credit, in closing submissions, the father's counsel said that he would not rely on this evidence. His legal research had established that courts will not take judicial notice of this form of evidence. Expert evidence should be provided to the court. See: Wilson v. Wilson, 2015 ONSC 479; Thomas v. Osika, supra; Children's Aid Society of Toronto v. T.M., 2018 ONCJ 543, per: Justice Roselyn Zisman.

[50] The test scores attached to the father's affidavit illustrated the frailties of evidence presented in this form. The Bala test scores were from a small sample size. This means that it would take a small number of students scoring either very high or very low to skew the results. The test scores show a small difference between Bialik and TDSB schools as a whole. The test scores are also presented in a vacuum and don't inform the court about how a school may be able (or unable) to meet the particular needs of the child before the court. A school might offer a child many benefits beyond what test scores reveal. There was no one available for the mother to cross-examine about these concerns when the evidence was presented in this form.

Part Six – Findings of Fact

[51] These are temporary motions. Any findings of fact that are made in this decision are subject to change when there is a complete testing of the evidence at trial.

[52] The court was assisted in making the necessary factual determinations to make this temporary decision by the focused cross-examinations of the parties and the two witnesses. This procedure gave the court more insight into the parties and the issues presented.

[53] However, there are still many factual disputes that require further exploration. These include: the mother's allegations against the father of substance abuse and controlling and abusive behaviour; any agreements of the parties about the children's education; and whether Bialik has a religious component and the extent to which the mother may be excluded in participating in the children's education if they attend at school there. The court needs to know much more about the respective education programs of the proposed schools and should have first-hand evidence about these programs – not the brochures and test scores that were attached to the parties' affidavits.

[54] The court makes the following findings regarding contested facts that are relevant to these motions, for the purpose of this temporary decision:

a) There was no agreement that the children attend Bialik. On the contrary, the father sent the mother an email in February, 2018, stating that he planned to enrol P. at Dennis in September, 2018 if the mother did not come up with another option. He spoke highly about Dennis in this email. In cross-examination, the father acknowledged that he did not push the Bialik option until the mother refused to permit the children to travel to Israel in 2018. He described Bialik as one option – not the only option.

b) The mother has historically supported the father teaching the children his language and culture. She has agreed to P. traveling to Israel on five occasions. Her refusal to allow the children to travel to Israel this year was understandable. There was no custody agreement. The separation was acrimonious. The father had recently over-held the children for 8 to 10 days and she feared that the children would not come back.

c) The mother's allegations about the father's substance abuse were not supported by the evidence – at this stage. The father admitted using marijuana on occasion, but said that he never drove impaired. The father has no driving offences and no criminal record. The mother frequently went on driving trips with the father. There is no independent evidence that she raised this concern before this litigation. The mother agreed to an equal time-sharing arrangement with the father. There is no indication that the children have ever been harmed or neglected in his care.

d) There has been a high level of acrimony between the parties that the children have been exposed to.

e) The mother has no plans to move from her present residence.

f) The father has been disrespectful of the mother and dismissive of her concern that her culture and heritage will not be given equal respect as his. He unilaterally enrolled P. in Bialik in March, 2018 without prior consultation with the mother. His disrespectful attitude was also reflected in texts and emails he sent to her and his presentation at court. During the hearing, he referred to her as delusional. He commented in his affidavit that he isn't even sure what her family heritage is. An example of his disrespectful behaviour is a text he sent to the mother on August 15, 2018 (when he should have known that the eyes of the court would be on him) where he writes comments such as:

"Go see a therapist already. Until you understand the work that has been done on you, you'll never understand how to avoid doing the same to her."

"You're trying to deny your children a quality education so they can work shitty jobs they hate. So they can be miserable like you and have to live with their mom forever."

"And I don't care about your obsession with clothes just try to send the kids to daycare in clean clothes."

"Its just like your claiming you were abused by your nonexistent babysitter in court documents. As if your mom would have ever let a "stranger" (as you call babysitters) into her shopoholically cluttered dirty alcoholic house. How stupid could you be?

"I suggest you stop acting like I'm your enemy. I honestly don't care enough to even hate you. If anything I pity you for getting yourself stuck in a job you hate and living in the same house with your mom, with no exit strategy from either predicament. That's why education is important. It gives you options. That's what the kids will have whether you like it or not."

[55] It did not escape the court's notice that the father is demeaning the mother about her career and living situation, when she is working 12 hour shifts to support her family, while he is choosing not to work and living in a home owned by his parents.

Part Seven – Analysis

7.1 M.

[56] The court finds that it is in M.'s temporary best interests to continue to attend Super Kids.

[57] The parents agree that M. has had difficulty adjusting to daycare and has often cried when he is dropped off. There may be many reasons for this. It could just be M.'s personality or his stage of development. However, the conflict and tension between the parties certainly can't be helping him.

[58] The evidence indicates that M. is slowly becoming comfortable with his daycare providers and has friends at Super Kids. The mother acknowledged that the daycare providers are very caring and doing their best with M. It is not in M.'s best interests to disrupt this placement and have him move to another daycare and have to adjust to new people.

[59] The court is aware that Super Kids is not as convenient for the mother as Jubilee. However, her convenience should not be the determining factor in this decision. Given their equal-parenting agreement, the convenience of the mother and the father merits equal consideration.

[60] The mother testified that she was willing to send the children to a Montessori school that would require the children to travel the same distance as they presently travel with her to Super Kids (15 minutes). This informs the court that this distance, while not as convenient for the mother, is not an obstacle for her, provided that she approves of the school.

7.2 P. and Bialik

[61] The court finds that it is not in P.'s best interests to go to Bialik on a temporary basis.

[62] The court's decision has nothing to do with the quality of the respective schools. It is not a negative commentary on the merits of Bialik.

[63] The court's main concern is that the father's plan to send P. to Bialik will expose the children to more adult conflict on a daily basis and runs the risk of causing both children to emotional harm. On a temporary basis, and in the particular circumstances of this case, the importance of protecting the children from parental conflict takes priority to the respective merits of the proposed schools and daycares.

[64] The option of the father driving P. to school each day will result in daily contact between the parties - twice each day. The court has no confidence that the parties will refrain from conflict in front of the children. At a minimum, these interactions will create a stressful daily situation that the children will be exposed to. This is not in their best interests.

[65] The mother is unable to take P. to Bialik. This is not a convenience issue. It is reality. The mother does not drive. She works full-time and has a busy schedule. She cannot spend over two hours each day taking P. to Bialik and M. to daycare. It is also not in P.'s best interests to spend this amount of time traveling to and from school. This will exhaust a young child. The father's suggestion that the mother should learn to drive and get a car is unrealistic in making this temporary decision.

[66] The court shares the mother's concern that if the father is transporting the children each day, this will deprive her of significant parenting time with the children.

[67] There is also evidence, at this stage, based on the father's dismissive and disrespectful behaviour towards the mother, that the father will treat her culture and heritage as subordinate to his own.

[68] The mother has a legitimate concern that she will be unable to participate in P.'s homework, as half of the children's school day at Bialik is spent speaking Hebrew. If the father was respectful of the mother's culture and heritage, this would go a long way to ameliorating this concern – but that is not the case at this time. The father suggested that the mother leave the Hebrew homework to him and the teachers. He said that "Hebrew is not that difficult, to be honest".

[69] The father made the argument that if, after a trial, P. is permitted to go to Bialik, she might be behind other students in her Hebrew. The court seriously considered this factor, but it is outweighed by the factors against sending P. to Bialik. The issue of lagging behind her classmates in Hebrew should also be less of a concern for P., as she is already well ahead of most Canadian children her age in her Hebrew proficiency.

[70] The father fears that the children will not be able to speak Hebrew if they do not attend Bialik and that they will lose this important aspect of their heritage. However, the ability of the children to speak Hebrew is only one component of the school placement analysis and cannot overwhelm all other factors. The court notes that P. has already been described as being proficient in Hebrew without attending Bialik. The father will continue to have the opportunity to teach the children Hebrew.

[71] The father's request for Bialik arose in large part due to the mother's refusal to let the children travel to Israel this summer. He acknowledged this in his testimony, saying that he assumed that most of the children's Hebrew education would be picked up when they traveled annually to Israel. When this was frustrated, he felt that Hebrew Day School was their best option. However, the evidence indicates that the mother will likely be cooperative about future trips to Israel once the litigation settles down. She has supported these trips in the past and testified that she plans to support them in the future.

7.3 P. and Public School

[72] The court finds that it is in P.'s best interests, on a temporary basis, to attend public school at Dennis.

[73] Dennis is in the same catchment area as Super Kids. It is the local school for the area that P. has lived in for most of her life. Many of her friends from Super Kids will be attending Dennis. This will make the school transition easier for her.

[74] It also makes sense for P. to go to a school close to where M. will attend daycare. She will be able to attend the before and after school program there. The mother expressed a concern that Dennis might not have a safe walking program – this should have been researched and determined by her before this motion was argued and the court places little weight on this argument.

[75] The court repeats its comments set out in paragraphs 59 and 60 above regarding the mother's concerns about distance and inconvenience. In particular, if the mother was willing and able to make the Montessori placement school work for the children, she can make the Dennis school placement work – they are the same distance from her home. The mother's ability to transport the children to Super Kids since the parties' separation is indicative of this.

Part Eight – Conclusion

[76] A temporary order shall go on the following terms:

a) P. shall attend the Dennis Avenue Community School.

b) M. shall attend the Super Kids Daycare.

[77] The father testified that he was open to the children attending Montessori school. Nothing in this order precludes the parties from agreeing in writing to a different school placement.

[78] If either party seeks their costs of these motions, they shall serve and file written costs submissions by September 12, 2018. The other party will then have until September 26, 2018 to serve and file a written response to the other's costs claim. The submissions shall not exceed 3 pages, not including any bill of costs or offer to settle. Any submissions should be filed at the trial coordinator's office.

[79] The case shall return for a case conference on October 29, 2018 at 10:00 a.m. If a party is not available, the matter can be rescheduled by Form 14B through the trial coordinator.

[80] The court thanks counsel for their excellent presentation of these motions.

Released: August 29, 2018

Justice S.B. Sherr