Court File and Parties

ONTARIO COURT OF JUSTICE DATE: August 23, 2024 COURT FILE No.: Toronto DFO-24-44966-00

BETWEEN:

David Smaller Applicant

— AND —

Manon Moreau Respondent

Before: Justice Jennifer S. Daudlin

Heard on: August 22, 2024. Endorsement released on: August 23, 2024

Counsel: Yi Fang (Annie) Zhuang....................................................................... counsel for the applicant Richard Forget................................................................................... counsel for the respondent Nicole Beaudoin............................................................................................................ Interpreter

DAUDLIN J.:

Part One: Introduction

[1] The motion was heard on August 22, 2024.

[2] The only issue before the court on the motion was where the child would be registered in school: École élémentaire La Mosaïque (La Mosaïque), or École élémentaire Pierre-Elliott Trudeau (PET).

[3] Before the hearing of the motion, two preliminary evidentiary challenges were raised:

(1) The father sought to strike exhibit B of the mother’s affidavit, and (2) The mother sought to strike para. 23 of the father’s reply affidavit.

[4] For reasons given orally:

(1) Exhibit B is struck from the mother’s affidavit, in part. The letter of undated letter of Ms. Sothear is struck. The letter of M. Cole dated July 24, 2024, is admitted, but given no weight. (2) Para. 23 of the father’s reply affidavit is struck, in part. The second is struck.

Part Two: Background

2.1 General Overview

[5] The father is 53 years old. The mother is 34 years old.

[6] The mother is French. The father is anglophone.

[7] The parties connected in 2018 through an application called Just A Baby, which helps people seeking surrogates, sperm or egg donors, or like-minded co-parents to have a child.

[8] The parties spent some time getting to know each other, then agreed to conceive a child together. They did not sign any agreement related to any aspect of their arrangement.

[9] The parties were never in a relationship and have never cohabited.

[10] Their daughter, Katleen Moreau-Smaller, was born on […], 2020.

[11] Following Katleen’s birth, the parties disagreed on the intended extent of the father’s role in her life. The father believes that there was an understanding that they would co-parent and that he would be actively involved in Katleen’s life. In contrast, the mother claims that there was a prior agreement, made before Katleen was conceived, that she would have “full custody” and that the father would have a limited role in Katleen’s life. Each relies on their pre-conception text messages as proof of their positions.

[12] This disagreement forms the basis of the current litigation and lies at the heart of this motion.

2.2 Katleen

[13] Katleen is now 4 years old. She has always lived with her mother and had parenting time with her father as agreed to between the parties.

[14] Katleen is bilingual. While she is in her mother’s care, she is immersed in the French language, culture, and tradition, and when she is with her father, in the anglophone language and culture.

[15] Katleen’s current parenting schedule with her father involves parenting time every other weekend for the full weekend, and mid-week parenting time every Monday and Friday, from daycare pickup until drop-off at the mother’s residence around 8:00 p.m. He also has week-long vacations with Katleen during the summer. This schedule was informally structured after mediation in 2022.

[16] The father’s request to expand the parenting time is opposed by the mother.

[17] Katleen was enrolled in Grace Church Child Care Centre, an anglophone daycare, until the summer of 2024. She attended this daycare until she aged out, at which point she needed to be enrolled in an elementary school.

[18] Katleen is getting ready to start school in the September 2024, and will be enrolled in a homogenous French school to preserve her French identity.

Part Three: The Parties’ Positions

[19] The father wants Katleen to attend PET, which is close to his residence and offers support for English-speaking parents, allowing him to participate fully in her education. He argues that this choice is in Katleen’s best interests, both because of the school’s proximity and its location in a diverse neighbourhood.

[20] The father is concerned that the mother’s preference for La Mosaïque, which is farther from his residence, is driven by a desire to control decision-making rather than by what is best for Katleen. He also worries that the longer commute to La Mosaïque could disrupt Katleen’s routine and interfere with the current parenting schedule.

[21] The father feels that the mother has consistently made unilateral decisions, such as registering Katleen at La Mosaïque and attempting to relocate to Ottawa and now to a new residence, without consulting him. He views her insistence on La Mosaïque as part of a broader pattern of behaviour that marginalizes his role in Katleen’s life. He asserts that they had a shared goal of co-parenting and that his involvement was always intended to be significant, not secondary.

[22] The father believes the decision about which school Katleen attends is closely tied to his ability to be engaged in her upbringing. He argues that PET aligns with Katleen’s best interests and cites legal precedents to support his position.

[23] The mother insists that Katleen should attend La Mosaïque, a French school closer to her workplace and to an apartment she plans to move to. She believes this school will provide the stability and consistency Katleen needs, especially as it offers before and after-school care, which is important given her expectations for a second child who would attend the same school and daycare as their sister.

[24] The mother is also concerned about preserving Katleen’s French identity and preventing assimilation into anglophone culture. She emphasizes that her role as the primary caregiver, that she says is supported by a text message agreement with the father, justifies her making the final decision regarding Katleen’s schooling. The mother argues that La Mosaïque is better suited to Katleen’s needs and preserves her upbringing in a French-language environment.

[25] In response, the father contends that allowing Katleen to attend La Mosaïque would further marginalize his role and condone the mother’s unilateral decision-making. He argues that PET offers adequate comparable French-language daycare programming, but also provides French-language support for anglophone parents and would better facilitate both parents’ involvement in Katleen’s life, though he concedes that La Mozaïque may offer similar services.

[26] The father also highlights his willingness to cooperate in decision-making and asserts that language should not be the sole factor in determining Katleen’s best interests. Both parents reference legal cases to support their respective positions, with the mother emphasizing stability and cultural heritage and proximity to her work, and the father focusing on proximity, involvement, and a shared parenting role.

Part Four: Choice of School

4.1 The Law

[27] In Piper v. Hare, 2021 ONSC 2139, Tobin J. confirmed that choosing a child’s school is a component of parental decision-making responsibility. If no temporary or final order grants this responsibility to either parent, the court may need to resolve educational matters for the child.

[28] Section 28(1)(b) of the Children’s Law Reform Act (the Act) grants the court authority to decide on aspects of decision-making responsibility, with decisions based solely on the child’s best interests, as defined in section 24 of the Act.

[29] In Thomas v. Osika, 2018 ONSC 2712, Audet J. provided guidelines for determining a child’s school placement when parents disagree. The court considers factors such as the parent’s educational plan, their ability to support the child’s education, and the child’s best interests.

[30] The court evaluates each school’s merits and available resources, avoiding reliance on third-party rankings like the Fraser Institute.

[31] Parents with decision-making responsibility are generally trusted to decide on schooling, especially when acting consistently in the child’s best interests.

[32] The choice of school should prioritize the merits and resources of each institution in meeting the child’s needs rather than the school’s proximity or convenience.

[33] The primary goal is selecting a school that offers the best competitive advantage, boosts the child’s confidence and motivation, facilitates relationships, and promotes overall development.

[34] The court also considers the child’s cultural and linguistic heritage, stability, and any prior parental agreements on schooling.

[35] In Perron v. Perron, 2012 ONCA 811, the court emphasized the importance of determining whether a child of a French minority parent should attend a French-language school as an incident of custody.

[36] The language of a child’s education is crucial in assessing their best interests, given the special status of the French language in Canada and Ontario, as protected by section 23 of the Charter.

[37] Judges must be sensitive to the language of education, particularly when one parent is Francophone.

[38] The court found that education in a homogeneous French-language school offers distinct advantages, such as enhanced language skills, cultural understanding, and maintaining a bond with the French-speaking parent, unlike French immersion, which is tailored for English speakers.

[39] In a linguistic minority context, French-language schools are generally preferred for ensuring proficiency in both French and English.

[40] While a parent’s request for French-language schooling does not automatically prevail, the cultural significance of the issue warrants thorough consideration in the "best interests" analysis, with linguistic and cultural factors being important but not solely decisive under section 24(2) of the Act.

4.2 Analysis

[41] After careful consideration of the evidence and arguments presented by both parties, I find that it is in Katleen’s best interests to be registered at La Mosaïque for the 2024-2025 school year, because:

(1) Both La Mosaïque and PET are homogeneous French-language schools that offer the necessary environment to preserve Katleen’s French identity, along with French-language daycare and support for English-speaking parents. Since both schools meet Katleen’s linguistic and cultural needs, the other factors outlined in Thomas v. Osika, including the practical advantage of La Mosaïque’s location becomes the deciding factor, providing a better option for maintaining her routine. (2) Despite the self-help measures employed by the mother, including planning and registering the child in a school without consulting with the father, and planning a change of residence that will move the child further away from her father, Katleen continues to be primarily resident with the mother, and the proximity of La Mosaïque’s to the mother’s intended residence and work will provide Katleen with the continued stability of her consistent daily routine, which is crucial as she begins her formal education. (3) While current parenting schedule may be less convenient for the parties to facilitate, the court does not find that the additional distance between the father’s home and La Mozaïque will necessarily disrupt the current parenting schedule, and orders shall be made to preserve the existing schedule pending a determination of the parenting issues by agreement or court order. (4) The father’s concerns about being marginalized in decision-making are acknowledged, but as both schools being within the same school board are likely to provide the same support for English-speaking parents, allowing him to remain actively involved in Katleen’s education.

[42] While the mother is successful in her choice of school, her conduct cannot be condoned.

[43] Irrespective of the role the parties may have understood the father would play in the child’s life after her birth, the father has had a clear and undisputed involvement in the child’s life since at least September 2022.

[44] The child shares both parents’ last names. The father spends meaningful time with the child and is actively pursuing more time her. He seeks out information about the child. He pays child support.

[45] Both parents have a positive obligation to consult with the other about decisions relating to the child, to keep one another informed about the child, and to advise of events that could change the child’s routine, including the routine of time spent with the other parent.

[46] The mother does not do this. She makes unilateral decisions seemingly without consideration for the effects they could have on the child’s relationship with her father.

[47] The court does not accept that the mother was ignorant of her obligations in this regard as she has had the advice of counsel since at least 2022 and has continued with this conduct notwithstanding.

Part Five: Conclusion

[48] For the reasons outlined herein, the following temporary orders shall issue:

(1) Katleen shall have parenting time with her father alternating weekends from after school on Friday (pick-up from school/daycare) until Sunday at 7:30 p.m., intervening Fridays from after school (pick-up from school/daycare) until 7:30 p.m., every Monday from after school (pick-up from school/daycare) until 7:30 p.m., and one overnight monthly to be arranged between the parties. (2) Both parents shall share responsibility for transportation, with the mother required to pick-up Katleen at the father’s residence at the end of his parenting time, except as otherwise agreed by the parties, in writing. (3) Both parents must consult each other on significant issues related to Katleen’s education, extracurricular activities, and health care. Without agreement, either party may seek leave to bring a motion to determine the issue. (4) The mother shall register the father as a parent and emergency contact at the school, and name him as a person who can pick-up the child from school (and daycare). (5) Both parents must be equally informed and involved in school-related matters, including receiving school communications, attending parent-teacher meetings, and participating in school events. (6) Both parties shall have the same rights to make inquiries and to be given information about the child’s well-being, including in relations to the child’s health and education. (7) The child shall attend school at La Mozaïque for the 2024-2025 academic year. Where the child shall be registered in school going forward, remains an issue for trial. (8) If there is no agreement on costs, costs submissions are to be filed within two weeks of the date of this order, limited to four pages, double-spaced, 12-point font. Offers to Settle and Bills of Costs shall be attached and will not count towards page limits.

Released: August 23, 2024 Signed: Justice Jennifer S. Daudlin