COURT FILE NO.: 2131/11

DATE: 20120827

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: BENJAMIN JAMES VILLENEUVE, Applicant

AND:

CRYSTAL ELIZABETH VILLENEUVE (DORRANCE), Respondent

BEFORE: T. McEwen, J.

COUNSEL: T. Frederick Baxter, for the Applicant

Heather-Ann Mendes, for the Respondent

HEARD: August 23, 2012

endorsement

Introduction

[1] Both parties bring a motion to the court with respect to the issue as to which school their child Ashton James Villeneuve (“Ashton”), born September 8, 2008, shall attend in September, 2012 for his junior kindergarten year. The parties agree that this is the sole issue before the court. They further agree that any order I may make is an interim order, subject to a further order of the court subsequent to the junior kindergarten year.

[2] The applicant wishes to have Ashton attend school at F.H. Clergue Public School (“F.H. Clergue”), while the respondent wishes to have Ashton attend at Eastview Public School (“Eastview”).

[3] F.H. Clergue offers a French immersion program and an Aboriginal education program in junior kindergarten. Eastview does not.

[4] Neither of the parties is bilingual, although Ashton’s paternal grandmother is Métis and his paternal grandfather is bilingual.

[5] The Office of the Children’s Lawyer (“the OCL”) has conducted an investigation into the matter. Ms. Marion Mitchell, the clinical investigator for the OCL, has delivered a report recommending that Ashton attend F.H. Clergue for the junior kindergarten year noting it will work best with the present access schedule and also offers both French and Aboriginal content. Amongst other considerations, she also notes that F.H. Clergue offers busing to and from school while apparently Eastview does not offer busing. Furthermore, she also takes into account that Mr. Villeneuve would have difficulty transporting Ashton back and forth to school as he does not own a car and his work schedule would interfere.

Position of the Parties

[6] The applicant, of course, relies upon the report of the OCL and argues it is in the best interests of Ashton to have him attend at F.H. Clergue for the next school year. The applicant points out that he does not own a car, he works from 11:00 a.m. to 7:00 p.m., and that his parents do not have a work schedule that is amenable to them assisting with transportation. The applicant concedes, however, that if Ashton were to attend Eastview he could attempt to rearrange his work schedule and/or use public transportation to get Ashton to Eastview.

[7] The respondent submits that it is not in the best interest of Ashton to attend F.H. Clergue in the circumstances of this case and points out that the applicant enrolled Ashton at F.H. Clergue without consultation notwithstanding the existing joint custody.

[8] The respondent further emphasizes that neither parent speaks fluent French; there is no evidence that Ashton has an aptitude for the language; French immersion was never discussed between the parties before Ashton’s enrolment with respect to Ashton or his older two siblings, both of whom previously resided with the applicant; Eastview is a five-minute walk from the respondent’s home; his two older siblings and two cousins attend Eastview; and his mother volunteers at the school.

Analysis

[9] Notwithstanding my respect for the report of Ms. Mitchell, I do not agree with her conclusion that it would be in the best interests of Ashton to attend F.H. Clergue, on an interim basis, for the junior kindergarten year.

[10] Ashton is currently three years of age. He will turn four on September 8, 2012. If he is to attend F.H. Clergue he will be bused to and from both parties’ residences to F.H. Clergue on a daily basis while attending a full day junior kindergarten program.

[11] In my view, although undoubtedly the conclusions contained in Ms. Mitchell’s report are sincere, she has failed to adequately weigh the impact on Ashton if he were to attend F.H. Clergue and placed undue weight on the applicant’s difficulties with transportation. If Ashton were to attend F.H. Clergue he would spend somewhere in the neighbourhood of sixty minutes per day going to and from school on the bus as well as spending a full day at school. In my view, in the circumstances of this case, this is an onerous undertaking to impose on Ashton who has just turned four years of age and an acceptable neighbourhood school is available. The parties have exposed him to more than enough conflict in his young life. If Ashton attended F.H. Clergue he would not have any support from his siblings while traveling to and from school and each week his bus route, and perhaps his actual bus, would alternate. Further, although undoubtedly French and Aboriginal content is a positive feature of the F.H. Clergue school program, I cannot conclude that on the facts of this case that the programming itself outweighs the benefits of Ashton being able to attend a neighbourhood school, five minutes from his home, in the company of his siblings and cousins. His experience at Eastview would also be bolstered by the fact that his mother volunteered at the school last year and plans to continue her volunteer for the 2012/13 school year.

[12] I am mindful of the fact that my conclusion poses difficulty for the applicant with respect to the issue of transporting Ashton to and from school. The respondent has agreed to drive Ashton from Eastview to the applicant’s parents’ home on Goulais Avenue each day after school, when the applicant has access, if Ashton were to attend Eastview. The problem therefore largely surrounds Ashton being transported to Eastview each morning. The applicant was candid in advising the court that he could attempt to change his work schedule. Furthermore, both his parents have vehicles and notwithstanding their work schedules, I am confident some transportation scheme could be worked out if necessary. Lastly, the applicant advised that public transportation is available to him to get Ashton to Eastview each morning which would not result in him having to alter his work schedule.

[13] In all of the circumstances, therefore, it is my view that on an interim basis and pending a further order of the court after the junior kindergarten school year, it is in the best interests of Ashton to attend Eastview.

[14] This was not an easy decision and it appears that both parties have Ashton’s best interests at heart when considering his education.

[15] I stress that the order is interim and after the junior kindergarten year there may be several other factors that come into play that will either support Ashton’s continuing education at Eastview or a potential change, perhaps to F.H. Clergue.

Disposition

[16] Based on the foregoing, I therefore order, on an interim basis and pending a further order of the court upon the conclusion of the junior kindergarten year, that Ashton attend Eastview commencing September 2012.

[17] The respondent, if requested by the applicant, shall transport Ashton to his paternal grandparents’ home on Goulais Avenue at the end of each school day during the weeks that the applicant has access.

[18] Neither party sought costs of the motion. In my view, this was imminently reasonable and in keeping with the parties’ bona fide positions at the motion. There shall be no order concerning costs.

McEwen, J.

Date: August 27, 2012