COURT FILE NO.: FC-09-27511
DATE: 2012/08/02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MICHAEL POTTER
Applicant
– and –
VÉRONIQUE DHIEUX
Respondent
Carol A. Crawford and Linsey Sherman, for the Applicant
Mary Jane Binks and Jonathan Richardson, for the Respondent
HEARD: June 5, 6, 7, 8, 2012 (Ottawa)
REASONS FOR DECISION
KERSHMAN J.
Introduction
[1] The Applicant, Michael Potter (the “Father”), seeks an order pursuant to s. 16 of the Divorce Act, (R.S.C., 1985, c. 3 (2nd Supp.)), that the child, Lilli Angelique Potter-Dhieux (“Lilli”), born March 10, 2003, be registered and attend Elmwood School (“Elmwood”) in the fall of 2012. The Respondent, Véronique Dhieux (the “Mother”), is opposed to this and seeks to have Lilli continue at Lycée Claudel.
Factual Background
[2] Mr. Potter and Ms. Dhieux were married on July 9, 2003 and separated in January 2009. This was a second marriage for both parties. Mr. Potter has two children from his previous marriage, Michaela, 15, and Tennyson, 13. Mr. Potter has sole custody of Michaela and Tennyson who reside with him on a full-time basis.
[3] Lilli is the only child of the marriage between Mr. Potter and Ms. Dhieux. She is nine years old and attends Lycée Claudel.
[4] Mr. Potter is a Canadian citizen. Ms. Dhieux was born in France and is a French citizen. After coming to Canada, she became a Canadian citizen.
[5] The Father suggested and the Mother agreed that it was very important that Lilli have a connection with France and the French culture. The parents arranged for Lilli to be born in France. Mr. Potter bought an apartment in Paris so that the family could spend time there. Lilli was born in France and currently has dual Canadian and French citizenship.
[6] Prior to separation, the parties would go to France approximately five to six times per year.
[7] After the parties were married, they came back to Ottawa and lived together as a family with Michaela and Tennyson. Friction developed during the marriage and eventually the parties separated. Pursuant to a Separation Agreement (“Parenting Agreement”) and Minutes of Settlement, the parties have shared joint custody of Lilli. The Parenting Agreement governs the joint custody of Lilli and the regular care schedule for her, which equally divides Lilli’s time with both parents. At the present time, Lilli is graduating from Grade 3 at Lycée Claudel. She has attended Lycée Claudel for six years including pre-kindergarten, junior kindergarten, senior kindergarten, and Grades 1, 2 and 3. Both parents are financially well off and do not work. They both reside in the same neighbourhood in Rockliffe Park, Ontario.
Preliminary Issue – Violence
[8] The Father argues that the Court must consider any episodes of violence or abuse by Ms. Dhieux against Mr. Potter, especially when such episodes occurred in front of Lilli.
[9] Evidence of several incidents of abuse allegedly caused by Ms. Dhieux was described extensively at trial. The following are three examples.
(1) Cottage Incident
[10] In this incident, Mr. Potter, Michaela, Tennyson and Lilli were at Mr. Potter’s friend’s cottage on Grand Lake. Ms. Dhieux appeared and became intoxicated. During the drive home, Ms. Dhieux, while in the vehicle with Mr. Potter and the three girls, began yelling at Mr. Potter, Michaela and Tennyson. She called the two girls “assholes” and said that they were responsible for the breakup of her marriage to Mr. Potter.
[11] Mr. Potter testified that he made a point of remaining calm and not fighting with Ms. Dhieux. He said he encouraged Michaela and Tennyson to forget about the incident and not to encourage or inflame the matter further.
[12] Ms. Dhieux, in her evidence, confirmed that the incident did in fact occur. She said that she subsequently apologized to Michaela and Tennyson.
(2) Incident at Ms. Dhieux’s Home
[13] This incident was described by Mr. Potter on his examination and was confirmed in a letter from Ms. Crawford to Ms. Dhieux’s then counsel, Gordon Scheiner, in a letter dated June 3, 2010.
[14] In summary, on June 2, 2010, at Ms. Dhieux’s home, Ms. Dhieux, while in Lilli’s presence, was physically and verbally abusive to Mr. Potter. She used vulgar language directed at Mr. Potter and sometimes directed at Lilli. Lilli was upset and crying. Mr. Potter was able to calm her down.
(3) Mother’s Day, May 2012
[15] This incident occurred at Mr. Potter’s home. It was confirmed by Dr. Bigue on her examination. Ms. Dhieux arrived at approximately 5 p.m. to drop off Lilli at her father’s home. She was invited into the home for a drink and she accepted. Ms. Dhieux had several drinks and became drunk and offensive. She disparaged Mr. Potter and his female friend, swore at them, called them names, made crude remarks and professed her love for Mr. Potter.
[16] Dr. Bigue and her husband attempted to get Ms. Dhieux out of the house to avoid conflict. Ms. Dhieux refused to leave the home when asked. She pursued Mr. Potter’s friend as she was trying to leave the room. Ms. Dhieux called her names and threw a glass of alcohol at her. According to the evidence, she continued to swear at Mr. Potter and his friend and yell about her role in the lives of Michaela and Tennyson. The children were not in the room at the time; however, it appeared that at least Lilli was able to hear what Ms. Dhieux had said. According to Dr. Bigue, the children did in fact hear Ms. Dhieux yelling and heard Lilli apologizing to the other children for her mother’s behaviour. She testified that Lilli began singing loudly to try to drown out Ms. Dhieux’ voice.
Mother’s Position
[17] In her evidence and on cross-examination, Ms. Dhieux confirmed that the incidents occurred. She also testified that she had apologized to the children for some of her outbursts shortly after they had occurred.
Analysis
[18] In the Court’s view, these incidents tend to show that Ms. Dhieux has been abusive to Mr. Potter, Michaela and Tennyson and sometimes in the presence of Lilli. Notwithstanding s. 16(9) of the Divorce Act and s. 24(4) of the Children’s Law Reform Act, in the Court’s view, these incidents, while unfortunate, do not have any significant bearing on the issue before the Court – that being, which school should Lilli attend in the fall of 2012.
The Issue
[19] The sole issue before the Court is whether Lilli should remain at Lycée Claudel for Grade 4 or whether she should be registered and attend Grade 4 at Elmwood.
[20] Both parents agree that Lilli should attend Elmwood at some point. On cross-examination, Ms. Dhieux was asked, “Do you want to send Lilli to Elmwood in the future?” The answer was “Yes”. Therefore, the real question is, when should she attend Elmwood? Should it be in Grade 4 or in a later Grade?
Father’s Position
[21] The Father’s position is that Lilli should attend Elmwood starting in Grade 4 in September 2012 for various reasons including the following:
Elmwood is closer to home than Lycée Claudel. Lilli can walk to school instead of driving between 15 and 20 minutes each way per day;
Grade 4 at Elmwood is a natural entry point for Elmwood’s extended French program;
Elmwood has a different method of teaching than Lycée Claudel. Since Lilli will eventually attend Elmwood in the future, it makes more sense for her to learn Elmwood’s method of teaching sooner rather than later;
Mr. Potter will be able to help Lilli with her homework because it will be in English instead of French. His command of English is far better than French;
She will be able to attend the same school with her sisters; and
She will have the same holiday schedule as her sisters and the family will be able to take more holidays together.
Mother’s Position
[22] The Mother’s position is that Lilli should remain at Lycée Claudel for various reasons including the following:
Lycée Claudel is the school where the majority of Lilli’s friends go;
Due to the dynamics of the divorce, Lilli has been through much stress and confusion due to her parents’ hostility, and therefore, she requires a place of stability which Lycée Claudel can provide;
Lilli does not like change;
Lilli’s performance at Lycée Claudel has been improving; and
Lycée Claudel will provide Lilli with the tools for her to be able to work in French and become bilingual.
Applicable Law
[23] This Application was made by Mr. Potter under s. 16 of the Divorce Act. The relevant subsections are:
(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.
(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.
(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
[24] In addition, s. 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, also applies. That section reads as follows:
Merits of application for custody or access
- (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).
Best interests of child
(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(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;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.
Past conduct
(3) A person’s past conduct shall be considered only,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1).
Violence and abuse
(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person’s household; or
(d) any child. 2006, c. 1, s. 3 (1).
Same
(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse. 2006, c. 1, s. 3 (1).
Analysis of the Case Law
[25] The Mother has submitted various caselaw to support her position that Lilli should remain at Lycée Claudel.
[26] She argues that the case of Perron v. Perron, 2010 ONSC 1482, 91 R.F.L. (6th) 110 is applicable. In that case, Whitten J. said that for pedagogical reasons, homogeneous schools are the most effective and efficient way of educating a minority and, as such, they are the most important institution for the survival of the English language minority.
[27] At para. 132 of Perron, the trial judge found that “[t]here is no doubt that a fully French school would advance the French language capabilities of ... children more so than at French immersion school. Having said that, the French immersion school is still a viable way of introducing ... children to the language. It may not be as intensive, but the children will still have a significant exposure, which will no doubt assist them in the future.”
[28] In the Court’s view, the Perron case can be distinguished from this case because, in Perron, the Court found that the father could not be trusted to be balanced and objective with respect to the parental and cultural rights of the mother. In that case, the mother had custody with the father exercising access every second weekend and Tuesday overnights.
[29] The case before this Court is one of joint custody with equal timesharing and accordingly, while the principles in Perron are sound, they are not applicable to this case.
[30] In this case, if Lilli were to attend Elmwood, she would be involved in the extended French program.
[31] The Mother also cites the case of Chauvin v. Chauvin (1987), 1987 8336 (ON SC), 6 R.F.L. (3d) 403, in which the children were transferred by the father without the mother’s consent from a homogeneous French school to an English language school. The Court said, at para. 39, that, “if [the children] do not go back to a French language program ... they will lose their capacity to be operationally and functionally bilingual, in later years, in high school and beyond high school in their adult lives.” The Court decided on the facts of that case that the children would continue with their French language programs.
[32] While the Court in Chauvin decided to allow the children to continue in the French language program, the Court is not convinced that Lilli will lose her ability to become bilingual if she transfers to Elmwood in Grade 4, particularly in light of its extended French program.
[33] The Mother cited two other cases, namely Trudel v. Bidner, 2011 ONSC 4997 and Marchand v. Sander (1989), 1989 8776 (ON SC), 22 R.F.L. (3d) 177.
[34] In Trudel, the Father sought to enrol the child in a French immersion program where he felt he could more easily assist the child with homework rather than a French language school. The Mother sought to enrol the child in a French language school in Orléans, Ontario where she lived instead of the program in Chelsea, Québec.
[35] The Court held that while the Father might not be able to participate in the child’s homework, it was not a sufficient reason to trump the concerns of stability and culture. The Court ordered the child to attend a French language school in Orléans.
[36] Trudel can be distinguished on its facts. In that case, the Mother had de facto custody of the child while the Father had access. Furthermore, the Father had been charged with three counts of assault, breach of probation and mischief. He subsequently plead guilty to one of the assault charges and to the breach of probation and mischief charges. Based on those facts alone, that case is distinguishable from this case.
[37] Warkentin J. said at para. 20, “[u]nfortunately, Bidner’s actions have resulted in limiting his access to Talya. Notwithstanding his conduct, both parties had already recognized that the week and week about schedule for Talya was not in her best interests given the length of time apart from each parent.” In the circumstances of that case, the Court held that on a short-term basis and until the parties were able to develop a communications strategy, the child should reside primarily with the mother, with access to the father.
[38] In the case of Marchand v. Sander (1989), 1989 8776 (ON SC), 22 R.F.L. (3d) 177, the parties had joint custody. The mother had ultimate decision making power subject to arbitration. The mother wanted the child to attend a French school. The father enrolled the child in an English school while the child was with him contrary to an agreement.
[39] The Court ordered the child to continue in the French school and said that it was improper for the father to alter the child’s education arrangements given the agreement between the parties.
[40] The Court specifically considered that:
The mother was the custodial parent and her decision was to prevail unless otherwise determined by an arbitrator. Since there had been no arbitration, the mother’s decision with respect to education and culture would prevail (para. 9);
There was some concern about the stability of the child given the recent separation, a recent change in homes, and the likelihood of a new babysitter (para. 7);
The father had never previously objected to the child being enrolled in French school (para. 9); and
The school proposed by the father was sufficiently far away that the child did not qualify for bussing (para. 8).
[41] The circumstances in the present case are unlike those in Marchand in that the parents share joint custody of Lilli and she resides with each parent equally. In Marchand, the child resided primarily with the mother.
[42] The last case cited by the Mother is Libbus v. Libbus (2008), 2008 53970 (ON SC), 62 R.F.L. (6th) 416. In that case, the parties had two children. After separation, the mother wanted to change the children’s school so that the children could be raised in the Jewish faith. The Court held that the children could change schools and that this change would not affect the children’s ability to move from one parent’s home to another.
[43] One major difference in the Libbus case from the present case is that two experts provided evidence which was reviewed extensively by the trial judge. Nelson J. ordered that the children attend the school near their mother’s home in order to better preserve their Jewish identity. That case can be distinguished from the present case based on the facts and the expert evidence adduced at trial.
[44] In this case, no expert evidence was adduced by Ms. Dhieux with respect to dealing with the issue of preservation of the French language and French culture. Furthermore, no evidence was adduced from Lycée Claudel. Accordingly, Libbus has no application to the present case.
[45] In conclusion, the Court finds that the caselaw presented by the Respondent is distinguishable as set out above.
Factors
[46] In this case, there are several factors which the Court will review in order to answer the question of which school Lilli will attend in Grade 4.
[47] These factors are:
Joint custody, guidance, and participation of the parents in Lilli’s education;
Lilli’s stability;
Lilli’s culture;
Lilli’s relationship with her sisters and her mother’s family in France;
Holiday schedules;
Lilli’s academic performance at Lycée Claudel; and
Elmwood School.
1. Joint custody, guidance, and participation of the parents in Lilli’s education
[48] The parties entered into the Parenting Agreement in January, 2009. Both parties were represented by counsel and they agreed to joint custody of Lilli. The parents agreed to make important decisions about Lilli’s welfare jointly including decisions about her education and other matters.
[49] Lilli resides with her mother and father on an equal time shared basis, according to the following schedule:
| Week | Monday | Tuesday | Wednesday | Thursday | Friday | Saturday | Sunday |
|---|---|---|---|---|---|---|---|
| 1 | Véronique | Véronique | Michael | Michael | Véronique | Véronique | Véronique |
| 2 | Michael | Michael | Véronique | Véronique | Michael | Michael | Michael |
[50] Minutes of Settlement were entered into in action number FC-09-2751 dated February 16, 2011. These Minutes of Settlement dealt with, among other things, the holiday schedule for 2011.
Father’s Position
[51] The Father argues that Lilli should have the benefit of both custodial parents’ contributions to and guidance of her education. In determining the question of whose proposal for Lilli’s education should be given more weight, he argues that the Court must consider the maximum contact principle and each party’s ability and willingness to provide Lilli with guidance and education.
[52] Mr. Potter argues that by allowing Lilli to continue at Lycée Claudel, he will not be able to help her with her homework because of his limited understanding of French. He also testified that he had difficulty communicating with the teachers as most of them spoke only French and, at one point in time, he had to use an interpreter.
Mother’s Position
[53] Ms. Dhieux, on the other hand, argues that both parties have a right to be involved in Lilli’s education. Should Lilli attend Elmwood, Ms. Dhieux argues that she would be marginalized and would have difficulty assisting Lilli with her homework. Ms. Dhieux takes the position that Mr. Potter has a great deal of influence at the school since he was on the Board of Trustees, he has donated approximately 1.5 million dollars to the school, and his daughters, Michaela and Tennyson, attend there.
Analysis
[54] The Court notes that the largest donation of one million dollars by the Potter family was made by both Mr. Potter and Ms. Dhieux when they were together.
[55] While the Court has some sympathy with Ms. Dhieux in that she would have difficulty assisting Lilli with her homework, at a certain point in time, both parents will have difficulty helping Lilli with homework by virtue of the subjects being taught and the complexity of the homework being given. This occurs in every school with many parents.
[56] Therefore, with respect to the issue of participation by the parents in Lilli’s education, the Court does not accept the evidence that Ms. Dhieux would be marginalized by having Lilli attend Elmwood. Furthermore, the evidence is that Lilli is being tutored at Lycée Claudel. The Court expects that whatever school she attends, she will continue to use tutors, whether because she is having difficulty with a subject or because she is seeking to excel in that subject.
2. Lilli’s stability
Father’s Position
[57] The Father describes Lilli as a smart child with no learning disabilities. She is very sociable and makes friends easily.
[58] The evidence of Dr. Bigue, a neighbour of the Potter family who both herself and with her family has spent considerable time with the family including Lilli, describes her as a “sociable, outgoing and adaptable child who has loving and affectionate relationships with her father and her siblings.”
Mother’s Position
[59] Ms. Dhieux, in her evidence, testified that Lilli is very smart and picks up concepts easily. She has a very warm personality and she is very affectionate. Her health is described as good. Her main interests are biking, swimming, water sports, singing and performing.
[60] She says that Lilli hates change and that she has been subject to much change because of the divorce and the current custody schedule. The Mother says that all of Lilli’s friends go to Lycée Claudel.
Analysis
[61] Stability in Lilli’s life is extremely important. It is the foundation that will help her succeed. The evidence before the Court shows that Lilli is very happy, for the most part, sociable, active and adaptable. The reason the Court believes she is adaptable is because she is able to:
Travel back and forth between two homes on a very regular schedule;
She enjoys outdoor activities;
She currently goes to Paris two to three times a year; and
She vacations in different places on a regular basis, many of them outside of Canada.
[62] In the Court’s view, if Lilli was unstable, she would be unhappy, withdrawn, unsociable and not willing to participate in the many activities that she is currently involved with.
[63] All people, whether children or adults, have certain times in their lives where they are unhappy. Although evidence has been given that Lilli has run into some difficulty with the incident on Mother’s Day and others, the Court does not find that this is sufficient evidence to show that Lilli’s current life is unstable. She appears very stable in a lifestyle with lots of activity and diversity. As to the concern that her friends go to Lycée Claudel, the Court is of the view that people adapt to different situations and moving. It is inevitable. People do it when they move from grade school to high school and from high school to university or college. The Court is confident that Lilli will adapt well in a new school and will make new friends easily. Therefore, the argument that changing schools from Lycée Claudel to Elmwood will destabilize Lilli is not persuasive.
3. Lilli’s culture
Father’s Position
[64] Mr. Potter testified that Lilli has a French culture as well as an English culture. He tries to ensure that she maintains both cultures. His housekeeper is bilingual and interacts well with Lilli.
[65] It is his position that transferring to Elmwood for Grade 4 will not affect her culture. It is Mr. Potter’s evidence that he observes Lilli speaking French without difficulty.
[66] In addition, Dr. Bigue, whose first language is French, confirmed that she and her children speak French with Lilli and that Lilli is bilingual.
Mother’s Position
[67] Ms. Dhieux argues that if Lilli changes schools now, living in Mr. Potter’s home with her two sisters, which is a unilingual English-speaking home, she will lose her French culture.
[68] Ms. Dhieux believes that the challenge is to maintain Lilli’s bond with the French culture. She believes that Lilli needs to study in French and have constant use of the French language.
Analysis
[69] The Court acknowledges that Lilli has two cultures. Her French culture is available in her mother’s home. Her English culture is available in her father’s home. The Father’s housekeeper is fluently bilingual. She has friends some of whom speak English and some of whom speak French. She is able to communicate in both languages.
[70] According to the evidence, she goes to France with her mother at least two to three times a year to visit with her grandparents and her aunt. The evidence is that she is able to communicate with them in French very easily.
[71] Her mother reads to her in French regularly. She visits with her grandparents on a regular basis. She has friends who speak French and if she attends Elmwood, she will be enrolled in the extended French program.
[72] The Court does not believe that the fact that a child attends a unilingual English-speaking school in an extended French program will cause her to lose her French culture.
[73] Therefore, the Court does not find that Lilli will lose her culture if she moves from Lycée Claudel to Elmwood. Furthermore, it was Ms. Dhieux’ evidence that Lilli would attend Elmwood at some point in time. Accordingly, the Court is of the view that the factor favours Elmwood.
4. Lilli’s relationship with her sisters and her Mother’s family in France
Father’s Position
[74] The Father addresses the importance of the bonds that Lilli shares with her sisters. She has a small extended family with no other siblings or cousins. He argues that the bonds among the three sisters need to be fostered, preserved and strengthened in order to last them a lifetime.
[75] Mr. Potter’s evidence is that Lilli and her sisters share a close and loving relationship and enjoy each other’s company. Michaela looks out for Lilli and gives her sisterly advice and support. The relationship between Tennyson and Lilli is an active one and they share a passion for drama and performing.
[76] He argues that if Lilli attends Elmwood now, the sisters will be able to protect and strengthen their bonds by sharing in daily school life, weekly assemblies, shared lunch times, learning opportunities and events, and a school life organized to promote sisterly relationships.
Mother’s Position
[77] Ms. Dhieux acknowledges that the relationship between Lilli and her sisters is very good and that it might be enhanced by her attendance at Elmwood.
[78] On the other hand, she argues that there is a concern that she will not be able to communicate with her, and the grandparents and aunt in France.
Analysis
[79] The Court believes that creating strong bonds in families between siblings is extremely important. As emphasized in s. 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, where it says:
(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(ii) other members of the child’s family who reside with the child[.]
[80] There is no evidence of major conflict between Lilli and her two sisters. Based on the evidence of the Mother, the Father, and Dr. Bigue, Lilli and her sisters get along well together.
[81] As to the argument that Lilli may not be able to communicate with her grandparents, her aunt and her mother, the Court rejects this argument. Lilli spends equal time with her mother and father. Ms. Dhieux speaks French to Lilli when she is at her home and reads to her in French. This will continue unless Ms. Dhieux decides to stop speaking French to Lilli, which the Court doubts.
[82] According to the evidence, Lilli is bilingual at her current level. The Court believes that she will be able to communicate quite easily with her grandparents and her aunt notwithstanding the fact that she may attend an English-speaking school in an extended French program. Therefore, in relation to the question of Lilli’s relations with her sisters and her mother’s family in France, this Court finds Lilli is and will be able to maintain a good and strong relationship with her sisters while, at the same time, maintaining a good positive, close relationship with her mother, her grandparents and her aunt; even if she transfers to Elmwood. Accordingly, the Court is of the view that this factor favours Elmwood.
5. Holiday schedules
Father’s Position
[83] As stated previously, Mr. Potter is independently wealthy and no longer works. As a result, he has the time and financial resources to provide Lilli and her sisters with educational and travel opportunities. According to the evidence, Lilli loves to be part of the travels and activities with her sisters and did so prior to the parent’s separation.
[84] There is constant ongoing conflict over the holiday schedule in part because Lilli does not attend the same school as her sisters.
[85] Specifically, Lycée Claudel follows the French international curriculum. It begins its school year prior to Labour Day, while Elmwood starts after Labour Day. Lycée Claudel has a different holiday schedule from Elmwood. The following are examples of the differences in the holiday schedules:
Lycée Claudel had a fall vacation in 2011 from November 1 - 6, 2011. Elmwood had a break from November 11 - 14, 2011;
In December 2011, Lycée Claudel had holiday vacation between December 17, 2011 and January 2, 2012. Elmwood had holiday vacation between December 23, 2011 and January 9, 2012.
Lycée Claudel had winter vacation between February 18 and February 26, 2012. Elmwood had vacation between February 17 and February 20, 2012.
In terms of March break, Lycée Claudel had time off from April 6 - 22, 2012. Elmwood’s break was from March 10 - 22, 2012.
[86] The aforesaid holiday schedule challenge continues throughout the whole year and does so in each and every year.
[87] In order to try and resolve some of these issues, the parties try to work out make-up time and also try to determine whether Lilli can be taken out of school for a period of time so that she can spend time with her sisters. Mr. Potter says that this creates a lot of conflict.
Mother’s Position
[88] The Mother’s position is that despite there being conflicts with respect to the holiday schedule in the upcoming year; there will not be as many conflicts. In addition, she indicates that even when there are holidays, the holidays have to be shared between the parents.
Analysis
[89] In the Court’s view, Lilli is living a busy enough life with the joint custody arrangement as it currently stands and her extracurricular activities. Having holidays at different times and trying to have holidays with her sisters makes this even more challenging. There are two sets of conflicts involved with respect to school holiday schedules:
If Lilli is at a different school, when can she go away with her sisters?
Whether Lilli is at the same school or a different school, which parent will spend which holiday weeks with Lilli?
[90] If Lilli were to attend the same school, only the second conflict would continue to exist.
[91] The Court’s sole interest is the best interests of Lilli. It is the Court’s view that Lilli should have as much regularity in her life as possible notwithstanding the current situation. As such, the Court believes that it would be far better for Lilli to have the same holiday schedule as her sisters as opposed to the holiday schedules that currently exist.
[92] Therefore, this factor favours that she attend Elmwood.
6. Lilli’s academic performance at Lycée Claudel
Father’s Position
[93] Mr. Potter argues that Lilli is not thriving at Lycée Claudel and that she continues to struggle academically.
[94] The Father argues that Lilli’s standardized test results and report cards, in particular the comments made by her teachers, speak to a child who is not thriving and who is performing below the standards set by Lycée Claudel.
[95] In the standardized testing results released in May 2011, she ranked in the bottom five percent of her grade in French and in the bottom 10 to 20 percent in mathematics.
Mother’s Position
[96] Ms. Dhieux argues that Lilli’s world rankings are far better than her actual standing in her class. In ‘Kangourou des Mathématiques’ for the class of CE2, Lilli ranked 10,306 out of 22,639 in the world. In the standardized math tests in 2012, Lilli ranked 35th out of 43 students from her class. In standardized testing in CE1, she achieved a score of 25 out of 60 in French. She received a score of 22 out of 40 in mathematics.
Analysis
[97] Lycée Claudel is a school of approximately 1,000 to 1,200 students. It provides a good quality of education and provides certain limited extracurricular activities in the area of sports.
[98] As stated previously, Lilli is a smart child and there are no concerns about learning disabilities.
[99] The Court has reviewed the various report cards provided by Lycée Claudel. The marking system is different from the marking system at Elmwood and other area schools. An ‘A’ in Lycée Claudel means that a skill has been mastered; a ‘B’ means ‘it needs to be reinforced’; a ‘C’, ‘in progress’; and a ‘D’ is ‘not mastered.’
[100] In Lilli’s 2010/2011 report card, the comments in the third trimester were as follows:
Les résultats de Lilli sont insuffisants ce 3ème trimestre notamment en langue française. Lilli devra fournir davantage d’efforts en CE2 afin de palier à ses difficultés. Un soutien extérieur lui est conseillé afin de renforcer sa langue française. Je l’encourage par ailleurs, à beaucoup lire durant cet été. Courage, Lilli.
The second trimester had similar comments.
[101] In Grade 3, the comments for the first trimester are as follows:
Lilli est une enfant très gentille, polie et affectueuse. Elle ne s’exprime pas assez en classe et doit être exposée davantage à la langue française.
Lilli doit lire quotidiennement afin d’améliorer sa compréhension qui demeure faible jusqu’à présent. Une meilleure concentration lui permettrait de mieux comprendre les consignes.
Ses résultants sont assez moyens en français mais satisfaisants en mathématiques. Il faut être encore plus persévérante Lilli !
[102] A letter was written by Mr. Bruno Bigi, the Headmaster at Lycée Claudel, dated September 8, 2011. The Court did not consider this to be an expert report. The letter was admitted as evidence to the extent that it was received by Ms. Dhieux and nothing further.
[103] In the Court’s view, Lilli appears to be struggling at Lycée Claudel at least in the French and the mathematics programs. There is evidence that she is making good progress in the English program.
[104] Lilli’s parents have employed tutors for her and that appears to be providing positive results.
[105] Lilli has been at Lycée Claudel for six years. While the Mother argues that students in Grade 3 enter a new cycle at the school which ends in Grade 6, the Court is not persuaded that this fact would be a detriment to her switching schools. Accordingly, the Court is of the view that this factor favours Elmwood.
7. Elmwood School
Father’s Position
[106] Ms. Katherine M. Angell, the Deputy Head of Elmwood and the Vice-Principal of the Junior School, testified to the following items, all of which were uncontradicted:
Elmwood is a small school of approximately 350 girls, where 100 percent of the graduates go on to university. The school goes from Kindergarten through to Grade 12;
Elmwood focuses on educating the whole child by providing individual attention to each girl;
Elmwood offers a world-class international baccalaureate diploma, which incorporates an inquiry-based model of teaching that is introduced to the girls in primary school;
It offers a high quality extended French program on the externally graded International Baccalaureate French Exams;
Elmwood’s teaching approach and small class size allow French teachers to tailor instructions to meet the needs of each girl based on their differing abilities. Teachers can also provide advanced workbooks, novels and converse in French at a higher level for students who excel in this area. For the 2012 French class, there will be ten students in the grade;
There are many additional opportunities for students in Elmwood to engage in French;
Grade 4 is a natural entry point for students transferring to Elmwood; and
Elmwood places significant emphasis on sister relationships and mentoring opportunities.
Mother’s Position
[107] The Mother does not deny that Elmwood is a good school. She just does not believe that Lilli is ready to go there or is fluent enough in French.
Analysis
[108] Based on the evidence before the Court, the Court believes that Elmwood is a good school and that considering all of the factors involved in this case, it is an appropriate place for Lilli to go to for Grade 4. She will have the opportunity to enter into an extended French program which will provide 50 minutes of French per day and an additional 100 minutes of French-related interaction.
[109] Since Grade 4 is a natural entry point for students transferring to Elmwood, this Court believes that it is better for her to transfer now than wait until later. She will have the benefit of her two sisters at the school that can help her with a successful integration.
[110] Class sizes are smaller at Elmwood than they are at Lycée Claudel. The student population at Elmwood is approximately one-third of the size of Lycée Claudel, which will provide for more individual attention for Lilli. This can only benefit her.
Conclusion
[111] Considering all of the evidence before the Court and the analysis of the aforesaid factors, this Court is satisfied that it is in Lilli’s best interest that she be registered and go to Elmwood School for Grade 4 starting in September, 2012 in the extended French program.
Costs
[112] The parties are encouraged to settle the issue of costs of this application. If they are unable to do so within 21 days after the release of this decision, counsel for Mr. Potter shall deliver written costs submissions, including a Costs Outline within 14 days. Thereafter, counsel for Ms. Dhieux shall deliver written costs submissions, including a Costs Outline, within 14 days. Thereafter, counsel for Mr. Potter will have the right to reply within 14 days. Each costs submission shall be no longer than five pages, excluding the Costs Outline. The parties shall comply with rule 4.01 of the Rules of Civil Procedure.
[113] Order accordingly.
Mr. Justice Stanley J. Kershman
Released: August 2, 2012
COURT FILE NO.: FC-09-27511
DATE: 2012/08/02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MICHAEL POTTER
Applicant
– and –
VÉRONIQUE DHIEUX
Respondent
REASONS FOR DECISION
Kershman J.
Released: August 2, 2012