Court File and Parties
COURT FILE NO.: FS-12-18015
DATE: 20120822
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Rand Abdul Kader Askalan, Applicant
AND:
Maher Taleb, Respondent
BEFORE: Justice Spies
COUNSEL: Ilana Zylberman and Giovanna Cacciola, for the Applicant
Steven Benmor, for the Respondent
HEARD: August 16, 2012
ENDORSEMENT
Overview and Issues
[1] The Applicant/Mother brings a Rule 14 motion within an application that was originally issued on April 30, 2012. She seeks an order that the oldest child of the marriage, Omar, who is currently 12 years old, be enrolled in a full time gifted program at John G. Althouse Public School (“Althouse P.S.”) in Etobicoke, commencing September 4, 2012, to start Grade 7. It is her position that now that it has been determined that Omar is an intellectually gifted student, this would be in his best interests. It is the position of the Respondent/Father that Omar should remain in the private school, Mentor College (“Mentor”), which he has attended for Grades 3 through 6 along with his younger brother. It is his position that the Mother is effectively seeking an order for summary judgment, that this motion should be considered as a motion to change the Separation Agreement that the parties entered into on May 9, 2011 and that a trial of an issue should be ordered before any decision is made to change schools for Omar.
[2] It is extremely unfortunate that the parents have not been able to come to an agreement as to what is in Omar’s best interests with respect to schooling, as contemplated by the Separation Agreement. Although as I will come to, the cost of this litigation is troubling, even more concerning is the fact that the failure of the parties to resolve this issue has left Omar in limbo as to where he will go to school this fall, since the spring of this year and this court with the challenge of making a decision that Omar’s parents are best suited to make
[3] It is also unfortunate that this issue has been dealt with on the merits for the first time less than three weeks before the start of the new school year. Rather than responding to the application, two days after being served with it the Father brought a motion to change in the Ontario Court of Justice. Time was lost in proceedings both in that court and this court determining which court had jurisdiction to deal with the issue. The jurisdictional issue was not resolved in favour of the Mother until July 12, 2012.
[4] There are two main issues on this motion. First of all, what is this court’s jurisdiction to determine the relief sought which includes a consideration of what onus the Mother must meet and whether or not a temporary order can be made and secondly, whether or not a temporary order should be made permitting the Mother to move Omar to Althouse P.S. for Grade 7.
The Undisputed Facts
[5] Although there have been no cross-examinations, a great deal of the evidence is not in dispute. The parties separated in January 2010 and executed a Separation Agreement on May 9, 2011. That Separation Agreement provides that the parents will have joint and shared custody of the two children of the marriage and will “jointly make important decisions about the children’s welfare, including decisions about the children’s education”. The agreement acknowledged that the children’s “current special or extraordinary expenses” included private school tuition at Mentor and the Mother agreed to be responsible for 100% of that cost. Paragraph 5.7 of the Separation Agreement provides that “Notwithstanding that Rand and Maher will jointly make decisions with respect to the children’s education, the parties agree that Rand may decide to withdraw the children from private school in the event she is no longer able to afford the expense and the parties will choose an alternate school together.” The terms of the Separation Agreement have never been incorporated into an order of the court.
[6] In May 2011, the Mother brought an Application for Divorce in the Superior Court of Justice in Newmarket, given her then place of residence, and she swore an affidavit in support that all issues were resolved in the Separation Agreement and that she was “fully responsible for the children’s private school tuition.”
[7] In December 2011, the Mother arranged for a psychological assessment of Omar’s cognitive-intellectual and academic achievement which was done by Michael Topa and his associate from Greenoaks Educational Services. Mr. Topa is a psycho-educational consultant with a Masters Degree in psychology. As the Director of Greenoaks he provides psychoeducational assessments and counselling services to children. The Father consented to this assessment being done but did not have any involvement in it.
[8] The assessors met only with Omar and his Mother. A report dated December 7, 2011 was prepared by Mr. Topa. Although some information from the Mother is referred to as part of the “relevant history” of the report, the assessment essentially focused on the results of various psychological tests which resulted in a finding, which is not disputed, that Omar is an intellectually gifted student. Mr. Topa’s assessment identified Omar as functioning in the Very Superior range. Omar’s general ability index was measured at the 99.8^th^ percentile and his full scale IQ results are at the 99^th^ percentile. Apart from spelling and numerical operations, Omar’s grade equivalent was Grade 12. These test results are not disputed. As I will come to, Mr. Topa’s opinion about Omar likely benefiting from a gifted program is contested by the Father.
[9] The Mother presented the results of Omar’s psycho-educational assessment to the Toronto District School Board’s (“TDSB”) Special Education Program Recommendation Committee who determined that Omar is eligible for a gifted program and identified his areas of need as being placed with a “like-minded peer group” and a “challenging curriculum”. As a result he was accepted into the gifted program at Althouse P.S. which is a middle school in east Etobicoke. This school is not located within either parent’s catchment area.
[10] The EQAO data for Althouse P.S. is all very positive. For Grade 6, the percentage of students at Althouse P.S. who are above the provincial standard is significantly greater than the numbers for the school board as a whole and the province.
[11] The Father arranged for Ms. Cory Meretsky to meet with him and the principal of Mentor College. She also reviewed Omar’s report cards. She did not meet with Omar or conduct any independent testing of Omar. Ms. Meretsky has a Masters Degree in education and social work and she operates a consulting practice which includes advising clients on selecting schools for the first time who are relocating to Toronto and evaluating current school placements. Her opinion is contested by the Mother.
[12] If Omar attends Althouse P.S., he will automatically be able to attend Martingrove Collegiate Institute for high school which has a full time gifted program. If Omar remains at Mentor, he could continue at that school until Grade 12. There has been no suggestion that Althouse P.S. is not a good school and there is no dispute that Mentor is a good school, the issue is whether or not it is the best school for Omar.
[13] Omar’s marks at the end of Grade 5 were mostly in the mid to upper 70’s with the exception of French where he scored an 86%. Term to term, Omar’s marks were fairly consistent with the exception of science which started off at an 86% and ended with an average of 78%. The only teacher comments that suggest that Omar is performing above grade level are that of his French teacher. Omar’s homeroom teacher’s conclusion by way of general comments was that “Omar met the requirements of the Grade 5 program each term”.
[14] Omar’s final report card for Grade 6 shows a significant discrepancy between results in Term 2 as opposed to the First and Last Term. Term 2 ended in early March 2012 and presumably was for the January/February period. The Father argues that the drop in marks shows that Omar was upset at the prospect of moving schools and the significant increase in his marks for Term 3 suggests that he worked hard to show that he can perform well at Mentor. This is speculation at this stage. The Final Term marks ranged from 75 to 81 % taking into account all three terms. The homeroom teacher comments that Omar must maintain focus in all subject areas so that he can obtain all the necessary information discussed in class. She also notes that Omar had worked hard to improve his overall marks and had attended extra help sessions in math.
[15] If Omar attends Althouse P.S., when he is living with his Father, which is every other month, it will take an additional ten minutes or so each way to get him to school. The distance from his Mother’s house is actually slightly shorter than the distance to Mentor. There is no evidence that the additional driving time has any real impact on the decision this court must make.
The Disputed Evidence
[16] It is the position of the Father that the Mother’s motivation for asking to remove Omar from Mentor is strictly financial so that she does not have to pay for his private school tuition. The Mother disputes this and submits that if she could not afford private school, the Separation Agreement gives her the right to withdraw the children. In addition she has set aside funds for Omar’s tuition for his Grade 7 school year at Mentor in her lawyer’s trust account, should this court order that Omar remain at Mentor. The Mother also points out that when she has attempted to discuss the issue of Omar changing schools, the Father has stated he will only consent if she pays him an additional $50,000.
[17] Given that the combined Bills of Costs submitted by the parties just for this motion total over $48,000, I fail to see how this could possibly be a financial issue for either party. That is enough money to cover three years of Omar’s tuition at Mentor. I have no doubt that in addition, the parties expended significant legal fees in determining the issue of which court has jurisdiction. In any event, in my view, the resources of the parties and this court ought not to be expended any further on this particular factual issue which is highly contested between the parties. As I will come to, the sole issue on this motion and application is what is in Omar’s best interests. As the Supreme Court of Canada said on the subject of the child’s best interests, in formulating this test, in Young v. Young (1993), 1993 CanLII 34 (SCC), 49 R.F.L. (3d) 117 (QL) (S.C.C.):
First, the “best interests of the child” test is the only test. The express wording of s.16(8) of the Divorce Act requires the court to look only at the best interests of the child in making orders of custody and access. This means that parental preferences and “rights” play no role. [emphasis added]
[18] I turn then to the contested opinions. Mr. Topa of Greenoaks concluded that “assessment results suggest that Omar should be viewed as an ‘intellectually gifted’ student who would, in all likelihood, respond positively to the challenges inherent in an enriched program. He exhibits the type of cognitive profile for learning that correlate well with high levels of academic attainment.” He recommended that to further strengthen “Omar’s development as an active, self-directed and highly successful learner” that the results of the assessment be shared with the TDSB to determine Omar’s eligibility for a gifted identification and placement. He also recommended certain strategies to encourage Omar’s academic growth, particularly in mathematics which is his weakest area.
[19] By letter dated April 10, 2010, Mr. Topa set out his professional opinion in part as follows:
In our professional opinion, the benefits of gifted programs in the public education system are substantial. Self-contained classes for gifted students and their Individual Education Plans are designed to:
(a) Allow students to be placed with peers of similar ability profiles and personal interests which create a positive and stimulating learning environment;
(b) Employ differentiated curriculum and thematic instruction to connect learning experiences to keep students well motivated;
(c) Foster creativity, self-direction, and risk-taking which are important attributes of the learning experience;
(d) Encourage students to explore concepts in great depth and engage in independent studies or investigations;
(e) Offer children and adolescents the opportunity to academically advance at their own rate of learning in important curriculum areas (reading, written language and mathematics);
(f) Stimulate "higher order" language-based thinking and problem solving abilities in preparation for the increased learning demands in high school and university."
[20] Ms. Meretsky opines that Omar does not require enrichment at Mentor as he is working within the expectations of the program and his learning is consistent with his peer group. She is of the view that he is functioning well and being challenged like the other students at Mentor. She does not set out the basis for this opinion and so I have no means to evaluate it. She also expresses concern about the distance Omar would need to travel, but she appears to have assumed the Mother was looking for a school in her neighbourhood, not the school in question.
[21] Ms. Meretsky states without explanation that there is some debate about gifted programs that segregate students. She goes on to opine that in addition to Omar’s identification as gifted that there are many other criteria to consider and that “[a] change of school environments, may adversely impact a child’s personality, confidence or self-esteem. Omar is being put through enough change with the separation of parents and the parents should, in my view, strive to maintain as much consistency in terms of other environments and routines, including school environment at Mentor College.” She is also of the opinion that there is a risk to take Omar out of Mentor as all evidence exhibits he is functioning well at this school. She refers in particular to risk of an adverse impact on Omar’s self confidence, academic focus or emotional state.
[22] The principal of Mentor College, Lori Girard, provided a letter to the Father dated February 1, 2012 that he also relies upon. In that letter she stated that she had reviewed Omar’s psychological assessment, his achievement on the January 2012 mid-year examinations, his CAT 4 scores and his Grade 5 and 6 report cards. She acknowledged that there appears to be a “slight discrepancy between Omar’s academic potential and his academic achievement.” According to Ms. Girard, Omar, although bright and articulate is like most of his classmates at Mentor College, even those who have not been identified as “gifted”. She notes that teachers have expressed concern at Omar’s success in any subject is contingent upon his interest and that he needs encouragement to focus and to complete assignments to the best of his ability if he does not consider the topic relevant. She added that socially Omar is beginning to develop several good friendships in his Grade 6 class. She stated that Mentor has a student-teacher ratio of 18:1.
[23] The Mother challenges the letter from the principal on the basis that Ms. Girard has a financial interest in keeping Omar at Mentor. There is no evidence to support that as a real concern. It is just as likely that since Mentor is acknowledged to be a good school, that it has no difficulty in filling its classes.
[24] Omar’s views are important to deciding this issue and must be considered. In the Father’s affidavit, he has set out some text messages received from Omar as late as July 14, 2012, stating that he wants to remain at Mentor. In a text to his Father on June 4, 2012, Omar stated:
I have had [too] many changes this year, everything in my life changed. I just want 1 or 2 things to stay the same. My friends, school. Everything is happening too fast. U r the only one who can help me, pls, stand up to protect my rights and my voice.
[25] The Mother’s affidavit of May 25, 2012, states that based on her conversations with Omar he is no longer “closed-minded” about changing schools. Both parents accuse the other of influencing or attempting to influence Omar with respect to this decision.
[26] On the evidence it seems that Omar would prefer to stay at Mentor as that is where his friends are. That is to be expected. That does not mean however, that had the parents approached this issue co-operatively, which is what should have happened had they both put Omar’s best interests first, that Omar would not have been willing to change schools if that is what his parents jointed determined is best for him. For the purpose of this motion however, I have proceeded on the basis that at this time Omar does not want to change schools.
Analysis
Jurisdiction/Test to be Applied
[27] Although Mr. Benmor submitted that this is in effect a Rule 16 summary judgment motion, and Ms. Zylberman initially suggested that I proceed on that basis, the motion was brought pursuant to Rule 14 of the Family Law Rules which provides for motions for temporary orders for claims made on an application. This motion was not brought as a Rule 16 summary judgment motion. I have therefore considered my jurisdiction to make a temporary order for the relief sought by the Mother.
[28] Mr. Benmor submitted that the Mother bears the onus of proof, on a balance of probabilities, to establish a material change in circumstances on this motion and that the Separation Agreement should be likened to an order of this court. I have reviewed the cases that he relies upon and I do not accept his position. Although it does appear that in a case before Justice Kiteley; Tumino v. Tumino, [2002] O.J. No. 4696, Kitely J. proceeded on this basis because of a concession from counsel, she referred to a decision of the Ontario Court of Appeal, Woodhouse v. Woodhouse (1996), 1996 CanLII 902 (ON CA), 29 O.R. (3d) 417, where the court held that at pg. 431:
Separation agreements are not binding on the court because it is the interests of the children rather than those of the parents which are at issue … nevertheless, it is reasonable to think that at the time separation agreement was made it reflected the parties’ views of the best interests of the children…. The trial judge therefore considered the prior agreement as well as the evidence of the proposed or changed circumstances.
[29] In my view, the Court of Appeal very clearly stated that Separation Agreements are not binding on the court. I am not aware of any case that provides that a Separation Agreement has the force of an order or that in making a change to a separation agreement the court must find a “material change” in circumstances. In fact in the case of a decision with respect to education, an incident of custody, given the provisions of section 56(1) of the Family Law Act, I am clearly not bound by the terms of the Agreement.
[30] In any event, I do not view this as an application by the Mother to change or vary the parties’ Separation Agreement. The Agreement does not provide that Omar stay at Mentor for Grade 7 and beyond. The parties agreed that decisions with respect to Omar’s education would have to be made and they agreed to make those decisions jointly. The parties have been unable to agree on which school would be in Omar’s best interest for Grade 7 and the Mother asks this court to decide the issue for them. The Separation Agreement does not contain any dispute resolution mechanism. Although the Mother is asking that the court make an order changing the status quo with respect to the school Omar should attend, she is not asking the court to change any term of the Agreement.
[31] For these reasons, I conclude that it is section 16 of the Divorce Act and section 24 of the Children’s Law Reform Act that applies on this motion. The only consideration is the best interests of Omar. I do accept however that the terms of the Separation Agreement should be considered in determining what is in Omar’s best interests to the extent they show what Omar’s parents believed was in his best interests at the time the Agreement was entered into. Section 16(8) of the Divorce Act provides that when making an order respecting custody 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.” Similarly, section 24(2) of the Children’s Law Reform Act requires the court in making an order in respect of custody to consider all the child’s needs and circumstances including a list of factors set out in that subsection. Most of these factors are relevant to an ultimate decision about custody which is not the issue before me. The factors include, however, the child’s views and preferences if they can be reasonably ascertained.
[32] The Mother’s factum sets out a helpful summary of the law drawn from Travis v. Travis, 2011 CarswellSask 546 (Queen's Bench) at para. 16:
Where a court is asked to consider whether or not a child should change schools, the following considerations may be drawn from the case law:
(a) In situations of joint custody the court is most reluctant to dictate where a child should go to school and the parents should be encouraged to resolve this matter amongst themselves. If they cannot agree the best interests of the child will govern.
(b) In the event a parent suggests changing schools, it must be demonstrated the change will be in the best interests of the child.
(c) While each instance is very fact specific, 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 how many years the child has attended his or her current school; 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. 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. Any problems with the present school will be considered.
[33] I intend to apply this approach to the issue. Considering all of the evidence, the onus is on the Mother to demonstrate that changing Omar’s school now as she proposes will be in his best interests.
[34] The remaining procedural issue then is whether or not this issue must necessarily be dealt with only following a trial. The Father submits that the case is analogous to relocation cases where one parent seeks to move the child on a motion before trial. In those cases typically, the status quo is maintained until trial. I do not accept this submission. Moving a child’s place of residence is much more significant than a change in school where nothing else will change in terms of custody and access.
[35] The Mother relies on two decisions of this court where the issue of a change in school was determined on a motion. The first is Batista v. Ferry, 2010 ONSC 5146. In that case the Applicant father had been given leave to argue a motion on an urgent basis regarding registration of the children at school prior to the case conference. The motion was heard in mid-September after the children had already been registered by their mother for schools in Kanata. The father wished to have them change schools back to Orleans where the children had attended school for five to six months in the winter/spring of that year. Blishen J. concluded, based on the evidence on the motion, that she was not prepared to order that the children “be once again destabilized and change schools back to Orleans” (at para. 16). Part of the evidence before her was that the children were happy in their mother’s home and at school thus far and had been registered for activities and counselling. Blishen J. also relied on the fact that the children had only been in Orleans for a short period of time which had been intended as a temporary arrangement. She found on a balance of probabilities that it was in the children’s best interest pending the case conference and possible further argument on a custody motion that they reside with their mother during the week and that she make decisions with respect to which schools they attend. A temporary order was made to this effect. This was clearly a case where an order was required as the court was faced with two very different geographical locations for where the children would attend school.
[36] In Williams v. Lamoureux, 2011 ONSC 4939, after obtaining a temporary order granting the applicant mother sole custody of the children, mother brought a motion to change the children’s school. The respondent father opposed the change in school as it was his position the children had been through sufficient change since the parents’ separation and a further proposed change would not be in their best interests. The mother’s reason in requesting the change in school was so that the children would go to school close to her new residence. In that case, Warkentin J. found issues with the father’s conduct and was concerned that he was attempting to control the mother and alienate the children from her. Based on the evidence before her, she found that although a change to the children’s school would be another change they would have to deal with, that the mother was the appropriate person to determine which school the children should attend and that it was in the best interests of the children to change schools.
[37] Although both of these cases were very fact specific, I conclude, that I have jurisdiction to make a temporary order, as requested by the Mother, if I am satisfied on the evidence before me that such an order is in Omar’s best interests.
Should a temporary order be made that Omar change schools?
[38] In considering the best interests of Omar, it is important to start with the fact that when Omar was moved from a public school to Mentor for Grade 3, his parents jointly decided that this was in his best interests. In an email to the Father on July 26, 2011, the Mother was still of the view that Mentor was a school that the children loved and that taking them out of Mentor was the last thing she wanted to do. It is therefore clear, that apart from Omar’s identification as a gifted student, the Mother intended to keep him at Mentor. In fact, the Mother does not suggest that Mentor is not a good school for Omar. It is submitted that when comparing schools, I must determine the “best” plan for Omar, not just a “good” plan. It is the Mother’s position that the “best” plan for Omar is to attend a public school with a gifted program so that he can excel and meet his academic potential.
[39] There is no dispute that Omar is an exceptionally intellectually gifted child. Ms. Meretsky does not challenge the results of the tests administered by Mr. Topa. Although Ms. Meretsky does suggest some debate exists about full time gifted programs, she does not provide any information to assist the court. Furthermore, Ms. Meretsky does not directly challenge Mr. Topa’s opinion that because Omar is an intellectually gifted student he who would, in all likelihood, respond positively to the challenges inherent in an enriched program. I accept that considering only Omar’s academic needs, an enriched program is likely in his best interests to ensure that he performs at his full academic potential.
[40] Ms. Meretsky states that Omar is being challenged at Mentor but she did not meet with Omar and I have no means of evaluating her opinion. On the other hand, Mr. Topa does not say that Omar is not performing as expected at Mentor. As I understand the evidence, what prompted the Mother to have Omar assessed was a concern about his marks, but in comparing Omar’s marks from Grade 6 to Grade 5, apart from the term right after the assessment was done, Omar’s marks are not that different. There is no evidence before me of dramatic decline in Omar’s marks from the time that he started at Mentor College. It would be speculation on my part to find that given Omar’s intellectual abilities, he should be getting higher marks in the 90s, although that could well be the case. All I have is the admission of Ms. Girard, Mentor’s principal, that there is a “slight discrepancy” between Omar’s academic potential and his academic achievement.
[41] Furthermore, even if I accept that Omar is not performing at Mentor at his full academic potential, there is no opinion evidence before me considering whether or not there may be other issues contributing to the fact that he is not obtaining marks in the range one might expect given his intellectual ability. Given the significant change in marks term to term in Grade 6, it may well be that there are other issues contributing to any academic underachievement that would not be addressed by an enrichment program.
[42] In addition, although Mentor does not have a gifted program, there is no evidence before me as to whether or not, particularly in light of the low student to teacher ratio, enrichment could not be incorporated into the curriculum for Omar. That question does not appear to have been asked of Ms. Girard. Furthermore, she has not been asked whether or not the learning strategies recommended by Mr. Topa to encourage Omar’s academic growth, particularly in mathematics, could be implemented at Mentor. I note that Mentor did provide Omar with extra help sessions in math.
[43] Although Ms. Meretsky did not meet with Omar, I do accept her general opinion, that in addition to Omar’s academic needs resulting from his identification as a gifted student, other criteria must also be considered including the predicted impact a change in school could have on Omar’s personality, confidence, and self-esteem. I would add how such a change would impact on his stability and emotional health. In this regard, the fact Omar does not want to switch schools is important, particularly as this issue is being considered on a motion.
[44] I realize that from the Mother’s perspective this is an urgent issue as Grade 7 starts in September and as a middle school, this is a natural time for Omar to start at Althouse P.S. as it is the first year of a two year program. It may be more difficult for Omar to change schools part way through the year if that is determined at trial. I have also considered the fact that it is not uncommon for children to change schools and the evidence suggests that Omar does not suffer from any anxiety or social issues that would cause particular difficulty.
[45] However, I have a real concern about whether an order compelling Omar to switch schools now would be in Omar’s best interests given his preference to stay at Mentor. I am particularly struck by his text to his Father of June 4, 2012 about too many changes in his life and his plea that at least his school and friends not change. Without more information about how strongly this view is held and whether or not Omar might be open to changing schools, if the issue were properly dealt with, I am concerned that forcing the issue by court order could have an adverse impact on Omar and outweigh any benefit of Omar attending a gifted program.
[46] I have already identified some of the evidence that in my view is needed to make a decision on this issue. More information about Omar as a learner and why he may be underachieving academically at Mentor is needed. More information about what Mentor can do by way of enrichment and learning strategies is needed. More information about how Omar in particular would benefit from a gifted program and in particular the one at Althouse P.S. is needed. In my view the key evidence that is lacking in this case, in order to make a decision now, is an opinion from someone who is familiar with both schools and can meet with Omar to consider not only the results obtained from the testing administered by Mr. Topa and the questions that have not been answered as set out above, but also the non-academic factors i.e. how would Omar react to a change in schools at this time and in the longer term how would it impact him emotionally.
[47] Because this evidence is not available to the court now, I am not satisfied that the Mother has established on the evidence before me, that switching schools would be the only way or best way to address the fact Omar has been identified as a gifted learner. Furthermore, given the concern about how Omar might react to an order compelling him to change schools, I am not satisfied that an order providing that he attend the gifted program at Althouse P.S. this fall is in his best interests. Given that he wants to stay at Mentor which is clearly a good school, the risk of harm resulting from such a decision is not clearly outweighed by any likely benefit. For these reasons I am not prepared to make a temporary order granting the Mother’s motion.
[48] My decision however should not be viewed by the Father as a victory. I want to make it clear to Omar’s parents that in my view it is extremely unfortunate, that once Omar was identified as a gifted learner, and accepted into a gifted program, that the positions of the parties became polarized immediately. Whatever their motivations, there is no evidence of the parents attempting to work together to determine what in fact is in Omar’s best interests in light of this new and important information. The Father in particular did not respond with an open mind to consider whether or not the Mother’s proposal might in fact be in Omar’s best interests. Instead it appears that even though he consented to the assessment by Mr. Topa, when he did not like the results, he proceeded to obtain his own opinion. Unfortunately, although I have no doubt both parents love Omar very much, they clearly forgot that they must put their differences aside and focus only on his best interests. The fact the dispute between the parents focused instead on whether either or both were motivated for financial reasons and the fact that Omar became caught in the middle of this dispute, was very unfortunate and not in his best interests.
[49] In my view, the Mother’s position, considering only Omar’s academic potential, likely has considerable merit. Depriving him of the opportunity of a full time enrichment program may be detrimental to his long-term progress academically. It certainly appears Omar is not performing at his full potential. The Father should have put Omar’s best interest first and considered the proposal of the Mother that Omar be enrolled in a gifted program and change schools with an open mind. Had the parents approached this jointly and cooperatively, as they were meant to pursuant to the terms of their Separation Agreement, and worked together considered all of the information available to them, they may have been able to come to a joint decision. Both parents working together with the common goal of Omar’s best interests could have involved Omar in that process in a non-threatening way. His views are obviously important as it is only if he is happy that he can do well academically. It is natural he would want to stay in a school that he has been at for a number of years and where his friends are. However, had he not felt caught in the middle between his parents, and had he been involved in considering the issue and had an opportunity to learn more about Althouse P.S. he might well have concluded that moving to Althouse P.S. is a good idea. Instead it appears that the Father seized on the fact that not surprisingly Omar wanted to stay with his friends and decided to become his “voice” on this motion. Unfortunately, at least as things stand now, we don’t know how Omar would feel about changing schools if the parents had approached this decision cooperatively and jointly come to such a decision.
[50] There is very little the court can do if the parties insist on dealing with this issue in a high conflict manner. A final decision will be made by the trial judge. I urge them however, to consider Omar and what is best for Omar. Considerations of finances should be put aside as they have absolutely no bearing on what is best for Omar. Which school is best for Omar should be assessed by someone the parties can jointly agree upon, to determine whether or not Mentor can meet his needs or whether or not he would in fact likely do better in a gifted program such as the full-time gifted program at Althouse P.S. considering all of the relevant factors. If the conclusion of such an assessment is that he likely would, it behooves both parents to work together to involve Omar in the decision and hopefully persuade him to agree to a change in schools. It is not uncommon for children to change schools, and that may well be in Omar’s best interests. His parents are the best people to decide that, if they can put aside their differences and focus only on their son.
[51] If the parties are not prepared to proceed as I urge them to do, the issue will have to be decided at a trial. To expedite the final resolution of this issue the parties are directed to contact Justice Czutrin forthwith and request the appointment of a case management judge.
[52] For reasons already stated, if this matter must continue to trial Omar should be assessed once, by someone who with the necessary professional skills to consider all of the relevant factors in deciding which school is best for Omar. In my view the best way to ensure the court has the information it will need to properly determine this issue, is as independent assessment pursuant to s. 30 of the Children’s Law Reform Act. Accordingly I order that pursuant to s. 30 a person with the necessary professional skill to address this question be appointed and report to the court on whether or not, in all of the circumstance, an order requiring Omar to attend a full time gifted program at Althouse P.S. is in his best interests. The cost of the assessment shall be shared equally between the parties and the implementation of this order, including who shall be appointed, will be made by the direction of the case management judge, if appointed, or this court.
[53] Pursuant to Rule 14(7), subject to any further direction from a case management judge, if one is appointed, I give the following direction with respect to the trial:
(a) The motivation of the parents and in particular whether or not they are acting for financial reasons, is not to be explored further either through questioning or at trial. It is absolutely irrelevant and the fact this issue has arisen has caused the parties to lose sight of what is really at issue, Omar’s best interests.
(b) The results of the psychological and other tests administered by Mr. Topas as set out in his report of December 11, 2011 shall be accepted as accurate. Omar shall not be subject to further psychological testing unless required by the assessor.
(c) At the trial, the affidavits of the parents shall stand as their evidence in chief save for those portions that refer to financial motivation which should be redacted. They will each be subject to cross-examination.
(d) Mr. Topas must be available at trial for cross-examination. If there is to be any further evidence from experts retained by the parties, disclosure shall be as directed by the case management judge or as provided by the Rules.
(e) More information from Mentor College is required to determine whether or not it can meet Omar’s needs. Ideally, this will be done by the parents jointly before the start of the school year so that he is not disadvantaged by the court’s decision. Evidence about if and how Mentor can meet Omar’s needs should come at trial from the assessor although either party is at liberty to call Ms. Girard as a witness. If so, an affidavit of her anticipated evidence should be provided by the party who intends to call her and that affidavit shall stand as her evidence in chief at trial, subject to cross-examination by the opposing party.
(f) The parties are order not to involve Omar in this dispute and shall not provide him with any details about this decision save that the court has decided he shall go back to Mentor at this time. He should not be told, if possible, that there will be a further decision from the court that could change this. At the appropriate time he may be told about the assessor, but only that this is something the parties jointly want him to do.
[54] There is one more issue I should address. Mr. Benmor submitted that another reason why this matter should be heard as a trial is that the Children’s Lawyer could then be asked to represent Omar and put his views before the court. I do not believe the Children’s Lawyer would agree to assist in this case and even though the parties could afford to hire a lawyer for Omar, in my view, given his age and the nature of the issue, that would not be wise. To have Omar take a formal position within this court proceeding through his own counsel, in my view, would be extremely detrimental as it would force him to advocate for a position that is being asserted by one of his parents, putting him in the middle of this dispute. In my view the best way for the court to receive Omar’s views would be from an interview conducted by the s. 30 assessor.
[55] Cost submissions are to be provided in writing within 15 days of the release of this decision, limited to no more than three pages in addition to copies of any Offers to Settle.
SPIES J.
Date: August 22, 2012