COURT FILE NO.: FS-12-18242-00

DATE: 20120905
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: TAMMY RONEN, Applicant

AND:

DAN RONEN, Respondent

BEFORE: Justice Spies

COUNSEL: Esther Lenkinski, for the Applicant

Elliot Birnboim , for the Respondent

HEARD: August 28, 2012

SUPPLEMENTARY ENDORSEMENT RE SCHOOL MOTIONS

Introduction

[ 1 ] The Applicant Mother served a notice of motion on the Respondent Father on August 22 nd , 2012, returnable the next day. The notice of motion requested leave for the motion to be heard on an urgent basis and sought, among other things, interim sole custody of the three children of the marriage, namely Lielle, age 9, and the twin sons, Ariel and Oriel (the “Twins”), age 6. In the alternative the Mother sought an order that Lielle attend Associated Hebrew Day School (“Associated”) in Thornhill, for Grade 5 and that the Father be responsible for all costs of her attendance there and that the Twins attend West Preparatory Public School (“West Prep”) for Grade 1. The Mother also sought an order that the Father be prohibited from disclosing any of the court materials to her employer; Associated, where she teaches half-days.

[ 2 ] The Father brought a cross-motion for an order that all three children attend Associated, also returnable on August 23 rd . He served an affidavit dated August 22 nd but sworn August 23 rd . [1] In that affidavit he deposed that he had been served with the Mother’s affidavit after 5 p.m. and that he had “cobbled together a response as best as I possibly can in the sixteen hours since service, with the assistance of my counsel, who was also retained yesterday, prior to service of the motion.” He acknowledged, however, that there was urgency with respect to the schooling issue.

[ 3 ] In paragraph 9 of that affidavit the Father stated that he had not responded to what he believed were extraneous and irrelevant allegations for example, alleged infidelities and hidden income, given the brevity of time, but “suffice it to say that the entire affidavit is denied and my intention is to focus only on the issue of the best interests of the children as it relates to schooling.” During the course of oral submissions an issue arose concerning the ability of the Father to file an additional affidavit. Accordingly I will review the history of how this matter then proceeded to be heard by me on August 28, 2012.

[ 4 ] The parties were discussing the school issue over the summer and were clearly deadlocked as to what should happen. The Father’s former counsel was first given notice of the Mother’s intention to bring this motion on August 16, 2012. The Father’s former counsel advised the Mother’s counsel that the Father had not retained him. On August 17, 2012, counsel for the Mother then emailed the Father directly of her intention to bring this motion.

[ 5 ] The parties attended before Justice Czutrin on August 23, 2012 who adjourned the motions to August 28, 2012.

[ 6 ] On August 24, 2012, the Mother swore a responding affidavit which was served that day by fax on Mr. Birnboim at 1:41 p.m. No further response was filed by the Father to supplement his first affidavit or respond to this affidavit. During the course of oral submissions I questioned Mr. Birnboim about the fact that a few significant factual assertions made by the Mother in her affidavits were not specifically responded to. Mr. Birnboim submitted that he was unable to do so as the Father was out of town and had had no opportunity to review this further affidavit. He also submitted that I should give this further affidavit from the Mother less weight.

[ 7 ] I understand that the Father was at his cottage with the children in Ottawa. Although that is not an ideal time to have to deal with counsel, the Father had already conceded the urgency of the matter and there was no suggestion the motions should not be argued on the merits before me. I am not satisfied that the Father did not have sufficient time to respond in more detail to any of the Mother’s assertions that impact on my decision as to what is in the Twins’ best interests, particularly when he suggests that he was not able to address the issues fully in the one affidavit that he filed. The fact I have no specific evidence contradicting some of the Mother’s assertions on some important matters, which in my view have a direct impact on the best interests of the Twins, is a real concern.

[ 8 ] At the outset of the hearing of the motion, I made it clear, and the parties agreed, that the only issue I considered necessary to deal with was where the children would go to school for the next school year. As there is no dispute between the parties that Lielle should continue at least for her final Grade 5 year at Associated, the urgent issue to be determined by this Court was whether the Twins should also go to Associated, as the Father wishes, or attend West Prep, as the Mother wishes, for Grade 1.

[ 9 ] After hearing submissions, I advised the parties that I would reserve my decision but provide a short endorsement the next day setting out my disposition of the motions with further reasons to follow. Accordingly, in my Endorsement released August 29, 2012; a typed version is attached as Schedule A, I granted the Mother’s motion and ordered that the Twins go to West Prep for Grade 1 and that as agreed, Lielle go to Associated for Grade 5 and that the Father will pay those expenses. Additional relief was ordered with respect to the implementation of my order, as set out fully at the end of this decision.

Background

[ 10 ] The parties were married in August 2000 and separated in June 2006. They were divorced in September 2007. The Applicant Mother has since remarried to Marden Paul and they have had a son together who is now two years old.

[ 11 ] During the marriage the parties resided in Thornhill. The Father deposes in his responding affidavit of August 22 nd , 2012, that after separation, he moved to a house in Thornhill in order to be closer to the children’s school and to the Mother’s residence. In August 2010, the Mother moved to the Bathurst and Eglinton area where she now resides with Mr. Paul. The Father continues to live in Thornhill, near Bathurst and Clark, north of Steeles.

[ 12 ] The parties entered into a Separation Agreement on November 26, 2007 which includes a Parenting Plan as Schedule A dated May 12, 2008; it took a year to negotiate even with the help of Dr. Barbara Jo Fiddler.

[ 13 ] Pursuant to paragraph 7 (9) of the Separation Agreement, the Father agreed to pay 100% of Lielle’s school fees at Associated to July 2010. Paragraph 7(11) provides that the Twins would not attend nursery school at Associated unless both parties mutually agree. Section I of the Parenting Plan sets out a number of provisions with respect to decision making. Part IV of that section deals with education and provides as follows:

(a) We shall come to a mutual agreement regarding the children’s schools.

(b) Lielle shall continue to attend Associated Hebrew.

(c) Ariel and Oriel shall commence half-day, five days a week daycare/nursery school (not necessarily one program/school/daycare) no later than September 2009.

[ 14 ] Part V(b) requires the parties to come to mutual agreement regarding the children’s enrollment in extra-curricular activities that overlap both parent’s time. Part L (II) provides that the parties agree that their two residences should be in reasonably close proximity to the children’s schools and not more than 30 km from Associated. The Mother’s move was well within that distance.

[ 15 ] This is the third time the parent’s have not been able to make a joint decision as to where the children should go to school without the assistance of a third party, although it is the first time they have brought the matter to court.

[ 16 ] Following the separation, the parties engaged five different mental health and legal professionals all with significant expertise, to assist them in resolving parenting and financial issues. This included Dr. Fiddler who acted as a mediator/arbitrator on the parenting issues and Mr. Philip Epstein, an experienced family lawyer who, in addition to financial issues, dealt as a mediator/arbitrator on parenting issues, including which school the children would go to, both for the Fall of 2010 and 2011. All of these professionals have resigned and, in fact, Mr. Epstein reported this matter to Jewish Child and Family Services (“JCFS”) as a high conflict situation. In the Mother’s affidavit of August 24 th she sets out a conversation between her counsel and Mr. Theoduloz of JCFS. Although no objection was made to this part of the affidavit, it is double hearsay. In any event there is no evidence that JCFS takes any position on this motion; I understand their investigation has just begun.

[ 17 ] Both parents allege that the other is responsible for the impasse that they have reached again this year concerning where the Twins should go to school. I am not in a position to decide who is at fault, but the reality is this motion was urgent and was brought on the eve of school commencing. It is yet another example of the many cases flooding the court in the weeks before September, where parents are unable to reach an agreement as to what is in the best interests of their children as to where they should attend school. Rather, they leave that difficult and complex decision for the court to make on an urgent and contested basis. Unlike the other professionals involved in this case, the court cannot “resign”, but rather must make the best decision possible considering all of the relevant factors.

[ 18 ] In his reasons dated September 7, 2010 for his Arbitral Award dated September 2, 2010, Mr. Epstein noted that during the 2009/2010 school year the Twins attended Chabad Hebrew School for a half-day nursery school program at a cost of $8,000 which was paid by the Mother. In his award he explained his reasons for his decision that the Twins would attend West Prep commencing September 7, 2010 and that Lielle would continue at Associated for Grade 3. He added “I am mindful that there are logistical problems created by this decision which have been compounded by the mother’s relocation to the Bathurst and Eglinton area”. He did not make a determination of what the Twins would do after school and in the morning. He stated that he was fully aware of the distance between Bathurst and Eglinton and the Atkinson Campus and the travel times and aware of traffic flows in the morning and after school and that he had considered all of this in making this decision. He made a number of other findings that are relevant as follows:

It is not so clear that even if the parties had remained in Thornhill that the twins would have gone to Associated. …regrettably, I find that the plans put forward by both parties are actually intended to meet their convenience, given their current residences. (at p. 5)

While the parties may well have intended private Jewish Day School education for their children prior to separation, that is no longer the case. (at p. 6)

I am satisfied from the evidence that I have that both Associated Hebrew School and West Prep would meet the children’s education needs. (at p. 7)

If the school [for the Twins] is to be a public school then, at the present time, the public school closest to the mother’s home where the children primarily live makes the most sense. … I appreciate that the consequence of this decision is that the children will be in separate schools. There is, however, a significant gap in their ages and Lielle is already comfortable at school with the presence of her siblings. The boys will be together at West Prep and will not miss their sister’s presence at school. … It follows that if the [Twins] are going to attend West Prep, any aftercare program will also be in the Bathurst and Eglinton area. (at p. 8, emphasis added)

[ 19 ] As a result, the Twins attended West Prep for Junior Kindergarten. The Mother deposes that in light of Mr. Epstein’s recommendations she enrolled the Twins in the Kids Count Program at Beth Shalom so that they would continue to benefit from exposure to Jewish cultural and religious information, that she paid 100% of this cost and that the Father refused to contribute to the cost.

[ 20 ] By memo dated September 1, 2011, Mr. Epstein set out an agreement of the parties with respect to support and other issues including schools for the 2011/2012 year. The parties were to mutually advise the principal of West Prep that they consented to have the boys go to the afternoon program. Mr./ Epstein added “If “West Prep” can commit to the afternoon program, then the boys for the school year 2011/2012 will attend Associate school, Kamin branch in the mornings.”

[ 21 ] I do not accept the position of Mr. Birnboim that Mr. Epstein decided that the Twins would split their time in Senior Kindergarten between the two schools. There was clearly a resolution made that the Twins would go to West Prep again and that it was only if they could do so in the afternoon, that they could also go to Associated.

[ 22 ] There is no dispute that both West Prep and Associated are good schools. The difference is that one is public and the other is a private school that includes Judaic studies and Hebrew literacy. The Twins attended West Prep for half days for both Junior and Senior Kindergarten. In their Senior Kindergarten year they also attended Associated for half days. There is no dispute that the Twins have been thriving at both schools although they have spent twice as much time at West Prep as they have at Associated.

[ 23 ] Lielle has been at Associated since nursery school in September 2005. During the marriage there is no evidence of any issue with Lielle attending Associated, although it is the position of the Mother that in this regard she acquiesced to demands by the Father. There is no dispute that Associated only goes to Grade 5 and so Lielle will have to change schools after Grade 5. In her affidavit of August 24 th , the Mother makes it clear that although she has compromised her position for Grade 5 for Lielle because she believes that completing her time at this school with her known classmates is in her best interests, she does not want Lielle continuing in a Jewish Day School after Grade 5. She wants Lielle to transition to public school as well. The Father states that he wishes Lielle to transfer to the Associated Middle School at Finch and Bathurst which is closer to the Mother and that for Grade 2 the Twins move to another Associated Branch at Bathurst / Wilson which is closer to her as well. What happens after the next school year is not an issue that I need to deal with now, although I note that the Father is proposing yet another change for the Twins for Grade 2.

Analysis

[ 24 ] The issue in this case is the same as the one I recently dealt with in Askalan v. Taleb . [2] For the reasons set out in that decision, in my view, there is no need to consider whether or not there has been a material change in circumstances. In fact counsel agreed that the only consideration for this Court is what is in the best interests of the Twins. Section 16 of the Divorce Act and section 24 of the Children’s Law Reform Act apply on this motion.

[ 25 ] As already stated I do not propose to comment on the allegations going back and forth as to the considerable conflict between the parties and who is at fault for the fact the parents have not been able to agree on a school for the Twins. That is not something I can determine at this time. I expect that this issue may be explored at the trial, however, given the history of such a high level of conflict since the Separation Agreement was signed, I would expect a future court hearing this matter to have a concern about maintaining the joint custody order. I hope the parents appreciate that notwithstanding the terms of their Separation Agreement, they may well face a court decision that one of them have sole custody and decision making power so that these conflicts every year, which are no doubt very distressing to the children, not continue.

[ 26 ] The Mother also includes other allegations about the Father illustrating what she suggests is daily conflict that he has created and she alleges that the Father has been paying $2,000 per month for child support for three children which is less than the Table amount of child support based on an income of $129,000. She deposes that his lifestyle far exceeds this income and that his financial information “does not add up”. This information is only relevant to whether or not the Father can afford, as he has offered, to pay for the cost of all three children being enrolled at Associated.

[ 27 ] There is what Mr. Birnboim characterized as a philosophical difference between the parents as to how their children should be educated. The Mother does not believe that full-time Jewish education is necessary or in the children’s best interests. It is her view that the children would benefit from an environment that exposes them to all cultures and religions so that they are better-rounded and that public schooling is in their best interests. The Father however believes wants the children to go to Associated. I agree with Mr. Birnboim that I am not in a position to determine which philosophical view is in the best interests of the children; that will have to be decided at trial. I have, therefore, looked at other factors as this is a temporary order that must be made on an urgent basis.

(a) The terms of the Separation Agreement

[ 28 ] As I said in Askalan at para. 31 , I accept that the terms of the Separation Agreement should be considered in determining what is in the Twins’ best interests to the extent they show what the parents believed was in their best interests at the time the Agreement was entered into.

[ 29 ] The Father submits that since separation the parties “agreed” to send their children to Associated. That is contrary to the evidence and the fact that they needed the assistance of Mr. Epstein twice to settle the issue. Furthermore, there was expressly no agreement that the Twins attend Associated or any other Jewish Day School. As already stated, the Parenting Plan provides that the Twins would not attend nursery school at Associated unless both parties mutually agree. That never happened. The Agreement is silent on what is to happen after nursery school. There is no evidence that the parties ever agreed that the Twins go to any particular school. I therefore do not find the terms of the Separation Agreement of any assistance in so far as this motion with respect to the Twins is concerned.

(b) The nature of the education at each school

[ 30 ] The Mother deposes that the emphasis in Jewish Day School is Hebrew studies for half of the school day every day. In the Father’s factum it is stated that there is no material difference in the general studies curriculum between the two schools and so a transition from Atkinson to West Prep would have a lesser impact on the children’s education than a switch the other way around. The Father deposes that if the Twins do not go to Associated for Grade 1 “their educational continuity in Judaic studies, particularly Hebrew language, would suffer and so it would be virtually impossible for them to reintegrate in a (sic) future years. As a result, a decision to remove them from Jewish day school at this stage would essentially be the end of their formal Jewish day school education.” This is the Father’s opinion and is not supported by any expert evidence. I accept the position of the Mother as to time devoted to Hebrew studies as she is in a position to give this evidence as a teacher at Associated. Although I do not make such a finding, given the time spent on Hebrew studies every day and the Father’s position, it could also be argued that the children would have a hard time adjusting to West Prep if they attend Associated next year. In my view this is an issue to be considered at trial, on the appropriate evidence. I have therefore considered that if as a result of my order the Twins must change schools for Grade 2, that it will make no difference if they are switching from West Prep or to West Prep.

[ 31 ] In any event, at this stage, in my view what is important is that there is no evidence to suggest that the Twins’ Jewish education would suffer if they attend West Prep and then have appropriate extra-curricular Judaic and Hebrew studies. The Mother is prepared to commit to put the Twins into an extra-curricular program with Jewish content provided the costs are shared proportionately between her and the Father. The Mother has already demonstrated her commitment to ensuring that the Twins receive Jewish instruction after school at significant cost to her and I see no reason not to accept that she would do so again this year. The Father however must contribute his proportionate share.

[ 32 ] The Mother alleges that the Father refused to take the children to West Prep on his parenting days, notwithstanding the decision of Mr. Epstein and advised her that if she wanted the children to attend West Prep for the afternoon program she would need to pick them up from Associated and take them there. This resulted in the Twins missing and/or being late on several occasions due to the Mother’s teaching obligations at Associated. This allegation is not specifically disputed by the Father. I raise this as I have ordered that when the children are with a parent at drop off or pick up times that that parent is responsible for transportation. I expect the Father to comply with my order; it will not be up to the Mother to arrange transportation to or from West Prep when the Twins are with him.

[ 33 ] Furthermore, both parents are Jewish and fluent in Hebrew and, according to the Mother, expose the children to Hebrew conversation in the home. The Mother is a Hebrew schoolteacher at Associated, with an educational background in religious studies. This clearly provides the children with further Judaic instruction.

[ 34 ] I, therefore, find that there is no evidence at this stage that the Twin’s education would suffer if they attend West Prep and have extra-curricular studies in Judaism, complemented by what the parents do at home. Although I have no evidence that the reverse is true, at this stage I assumed that if the Twins went to Associated and then switched to West Prep that they would not be behind.

(c) Treating the children “equally”

[ 35 ] The position of the Father that Mr. Birnboim stressed was that since Lielle has gone to Associated and will go there at least for one more year, that it was important to treat the Twins “equally” and give them the same “opportunity”. Implicit in this submission is that Associated as a private school will provide a better education for the Twins than West Prep, a public school. That is no doubt the Father’s opinion, but the Mother has an opposite view. As they are both good schools, it is premature on the evidence before me to conclude that one is superior to the other.

[ 36 ] Justice Smith of the British Columbia Supreme Court [3] noted “the decision whether to send one's children to public schools or private schools is a decision for individual parents to make…[and that]…in the absence of evidence of special circumstances, a parent cannot be faulted for deciding that public schools are the right choice for their children.” The court further noted that it would be incorrect to take judicial notice of the proposition that private schools should be considered superior to public schools.

[ 37 ] Furthermore, there is no reason to believe that the Twins educational and social needs are identical to their older sister. That is an assessment that must still be made.

(d) Location of the schools/parent’s homes and the logistics of pick up and drop off

[ 38 ] In his reasons dated September 7, 2010, Mr. Epstein noted that the Mother’s move to the Eglinton and Bathurst area compounded the problem of where the children would go to school as of September 2010. He noted that Associated was perhaps 2.4 kilometres from the Father’s residence but at least 12 kilometres from the Mother’s residence. The Mother did not breach Paragraph L (II) of the Separation Agreement by her move. The distance however between schools and the parents’ residences is a factor to consider.

[ 39 ] The position of the Mother is that her home is the children’s primary residence and that she has the children for more school days than the Father. This was disputed by Mr. Birnboim.

[ 40 ] As I understand it, under the current schedule the children reside with their Mother 8 days per 14 days and 6 days per 14 days with the Father. This is conceded in the Father’s factum. As such I agree that her home is the children’s primary residence.

[ 41 ] The residential schedule imposed by the Parenting Plan in Part D provides that every Wednesday the Father will pick up the children after school and keep them until the morning when they are returned directly to school or camp. In addition to alternating weekends, he has the children after school on Fridays until Monday at 9 a.m. in week one and until Sunday at 6 p.m. in week 3. The intent of the parties was expressed that an alternating Thursday would be added to the Twins’ schedule no later than January 1, 2011. I do not believe this was done. The remainder of the time the children are to reside with their Mother. This schedule means that the Twins spend more time with their Mother during the school week, when they need to be dropped off and picked up from school, in that she has them for three to four drop offs at school, whereas the Father has one to two, and the Mother has the children for three pick ups from school whereas the Father has to pick them up from school two times.

[ 42 ] The Parenting Plan requires a mandatory review of the children’s schedule in April 2010 which has been postponed and remains outstanding. The Father wants to move to equal time. The Mother relies on an email that the Father included in his responding affidavit sent February 1, 2010, to Ms. Rosen, his former counsel. In that email she advised him that if the children went to Associated, it would make his 50/50 schedule “even stronger”. She submits that this is his motive.

[ 43 ] I have not considered this evidence at this stage. As already mentioned. Mr. Epstein concluded that both parents were motivated by what was convenient for them. Their actual motives are difficult to ascertain and in my view, not relevant, as the question is solely what is in the children’s best interest.

[ 44 ] The Mother deposes in her first affidavit that during a two week rotation of the Parenting Schedule, Lielle spends between six and nine hours in the car travelling to and from school, although the time differs based on traffic. She states this will be the same for the Twins if they attend Associated on a full-time basis.

[ 45 ] Regardless of where the children go to school, given the parenting schedule, there will be some travel either way. However, the Mother deposed that the Twins attending West Prep will reduce their travel time to and from school. Given my conclusion that the children are with her for more of the drop offs and pick ups from school, and given they can walk to the school, I accept that statement. As such the Twins will have less travel time by car if they go to West Prep which given their age is a factor in favour of sending them to that school.

[ 46 ] I do not accept the Father’s assertion that it will be impossible for the parties to be dropping off and picking up the children at two different schools which are 12 km apart, twice per day. The children may have after school programs at the school they attend and in any event Lielle is older and can be dropped off at school earlier if need be and picked up later to accommodate the Twins. There is no problem for the Mother given that when the Mother has the children, her nanny will walk the Twins to school and presumably pick them up. The Mother will drive herself and Lielle to Associated. She will have to make arrangements to pick Lielle up as she only works half days, when Lielle is with her. The Father will have to make the necessary arrangements to transport the children when they are with him.

[ 47 ] There is no dispute that the Mother will be teaching half days at Atkinson in the Fall and travelling there in the morning. The Father relies on this fact as what he characterizes as an obvious practical advantage of his plan.

[ 48 ] However, the Mother works half days and the children would be at the school for full days. It is not reasonable to expect she would wait for them to finish school before going home, particularly given that she has a young child at home. In fact that is another reason to minimize her travel time. Furthermore, as I will come to, the fact the Mother works at Associated has raised serious problems in the past for her and her relationship with Lielle.

(e) Stability and social considerations

[ 49 ] The Mother deposes that the Twins have formed close relationships with other children from West Prep during the last two years and that their classmates are from her neighbourhood. She is able to arrange play dates with these children outside of school hours. The Twins and Lielle also have a cousin who attends West Prep with whom they have a close relationship. The Mother deposes that there are no other children from her neighbourhood who attend Associated.

[ 50 ] I have no other evidence as to the friends of the children at Associated.

[ 51 ] In my view, given the age of the Twins, the fact they are primarily with their Mother and that they live in a neighborhood with other children and a cousin who attends West Prep is important as after school play dates are enjoyable for these children at this age. Furthermore, although they have spent time at Associated, the fact that they have been in kindergarten for two years at West Prep would suggest this is the school they are most familiar with. These factors favour the Twins going to West Prep.

(f) Keeping the children together

[ 52 ] The Father believes it is important to keep the children together. In his factum he states that Mr. Epstein identified that there is value in keeping the children together from an emotional support perspective even though Lielle will switch school for Grade 6. As I have already noted, that is not what Mr. Epstein said. In fact he concluded it was not necessary to keep the children together. I agree with his reasoning. There is a significant age gap between the children, Lielle is settled at Associated and the Twins have been happy at West Prep. Given the age gap and the fact the children would only be together for one year before Lielle moves on to middle school, having them all at Associated is not a significant factor.

[ 53 ] Furthermore, I do not accept that this is really a concern of the Father. Although I am not considering what will happen beyond this Fall, it is admitted that the Father’s plan for the Twins is that after Associated at the Kamin Branch for Grade 1, they would switch to Associated at the Pauslin’s Branch for Grade 2.

(g) School holidays

[ 54 ] The Father asserts that more than half the holidays at Associated are different than West Prep and again no evidence in support is provided for this bald statement. It is true that the Mother’s schedule as a teacher at Associated is consistent with that school. However, as I will come to, that has actually created serious issues for the Mother. The Mother deposes that she and her husband observe the High Holidays and that when the Twins were at West Prep, it was agreed they would simply not attend school during the High Holidays. She adds that there are many children who are Jewish and who do not attend Jewish day schools and that it is not uncommon for Jewish children to be absent from their secular public schools on Jewish holidays.

[ 55 ] I accept this evidence. Although it is common knowledge that private schools typically have a two week March break as compared to the one week in the public schools, there is no reason to think that if the Twins attend West Prep that they will miss observing important Jewish holidays. On High Holidays either parent who has the Twins can keep them home from school. There is no evidence that that was a problem during the last two years they attended the school.

(h) Transition mid-year from one school to the other

[ 56 ] The Father alleges in his factum that West Prep is required to accept students mid-year and that Associated does not and cannot. No evidence is given in support of this proposition. In any event, in my view it would not be in the best interests of the children to switch them mid-year. A trial can determine the issue for where the children go to school in the Fall of 2013 and beyond. Realistically, even with case-management, such a trial will not be heard until the Spring of 2013.

(i) Financial concerns

[ 57 ] The Father has offered to pay for all three children to attend Associated.. In his most recent Financial Statement sworn in June 2010 the Father deposed that his yearly income was $129,000 and his expenses were over $218,000 even though he was only spending $600 per month on school fees. The Mother deposes that the total cost to send all three children to Associated would be approximately $36,000 per year. She believes that the Father has received subsidies in the past to send Lielle to Associated which he has not disclosed, but states that the receipt of subsidies is a highly discretionary process.

[ 58 ] In his reasons of September 7, 2010, Mr. Epstein stated that he had significant doubts about the long-term affordability of having three children at the private Jewish day school, given the annual cost per child is approximately $12,000 and subsidies are highly discretionary and difficult to determine in advance. He presumed however, that the Mother, who was on maternity leave, would not be able to contribute to the cost. I share Mr. Epstein’s concern about the Father’s financial ability to do so. Furthermore, in my view this is not a situation where the Mother could be expected to contribute to the cost of private school given there is at least an equally good alternative that is free.

[ 59 ] When I raised this concern with Mr. Birnboim he advised me that the Father would get the money “somehow”, borrowing from relatives and friends, but there is no evidence of anyone committing to lend him money. In my view this is not a satisfactory answer. It would be worse to move the Twins out of Associated mid-year because the Father could not afford to keep them there. Furthermore, if the Father is stretched financially, then he may not be able to meet his other financial obligations to the children for support and s. 7 expenses.

(j) Possible impact on the Mother at Associated if the Twins attend that school

[ 60 ] In her first affidavit, the Mother deposed that the Father has attended at Associated on many occasions and contacted the Principal of the school to demand that she not be permitted to have any contact with Lielle on his parenting days. On a particular occasion she left a cookie with an “I love you” note on Lielle’s desk because Lielle was with her Father on the Mother’s birthday. The Mother deposes that this resulted in the Father contacting the school and causing a “huge issue for me with the principal”. She deposes that as a result the Principal asked that she simply avoid Lielle as much as possible in order to comply with the Father’s demands.

[ 61 ] In the responding affidavit of August 24 th the Mother states that she is seriously concerned that the Father will show the materials she has filed in these proceedings to the staff at Associated or to other parents who will advise the staff.

[ 62 ] This in my view is a critical piece of evidence that impacts on the best interests of the children and yet all I have is the Father’s general denial to the first affidavit. Given the Father had, in my view, time to respond to allegations that impact on the best interests of the children, his failure to specifically respond to this allegation in my view is significant.

[ 63 ] Mr. Birnboim submitted that I could simply make an order that the Father not take such a position if the Twins attend Associated. That could be done, but I have no assurance the Father would comply with such an order given, for example, the position he took with respect to getting the Twins to West Prep on his parenting days. Furthermore, although I make no definitive finding at this stage, on the evidence before me I have to assume that the Mother’s allegations could well be true and in my view, if so, it is very significant that this occurred in the past. To take such a position, with respect to a child that knows no more than that her mother is a teacher at the school she attends, is very hurtful and harmful to the relationship. If the Twins went to Associated and this position was taken by the Father and/or the Principal, because of what happened in the past, the Twins would never be able to understand why their Mother was distant from them at school. This in my view is another important factor favouring the Twins attending West Prep.

Disposition

[ 64 ] Considering all of these factors, I was persuaded that on balance, an order that the Twins attend West Prep for Grade 1 is in their best interests and is preferable to sending them to Associated. This decision is consistent with the earlier decisions of Mr. Epstein. West Prep is the school they know best, they can walk to and from the school when they are with their Mother, any extra-curricular activities at the school will be with children from the neighborhood, they already have friends in the neighborhood and at school who they see for play dates and I am satisfied their Mother will ensure they have additional Judaic studies to replace the content of what they would have learned at Associated both at home and through extra-curricular activities. This presumes, however, that the parties can agree on the activity and the Father shares the cost.

SPIES J.

Date of Release: September 5, 2012

Schedule A

Endorsement of August 29, 2012 – Paul v. Ronen

For written reasons to follow order to go as follows:

1. Lielle shall attend Associated Hebrew Day School (Kamin) for Grade 5 and the Respondent Father shall be responsible for any and all costs for her attendance at Associated, as agreed by the parties. This part of the order is on consent.

2. The twins; Ariel and Oriel shall attend West Preparatory Public School for Grade 1.

3. The parent who has the children at the time school starts or ends is responsible for dropping off or picking up the children from school.

4. Although no finding is made that the Father has done this in the past, he is ordered not to disclose any of the court materials to the Mother’s employer; Associated or to any parents who have children at that school.

5. The parties may only tell the children where they are going to school. The court proceeding and my decision including the reasons to come must not be disclosed to the children or discussed with them. The fact there will be a trial and a decision made by the court for future years is not to be disclosed to the children.

6. The parties agree that this case should be case managed and Czutrin J. has agreed to do so. They should arrange to meet with him as soon as possible to discuss a timetable to bring this matter to trial in the Spring of 2013. The children should know before this school year ends where they will go to school for the Fall of 2013.

7. Cost submissions to be made in writing within 15 days of today; limited to three pages, excluding any offers. The Respondent’s bill of costs is still required.

“Spies J.”

[1] The position of the Mother is that because the date when the Father swore his responding affidavit was changed from August 22nd to August 23rd, and in light of what he stated in paragraph 38 of his affidavit, that he was intending to bring a motion himself on the same day. That is not how I read that material. I assume that his counsel prepared a draft affidavit on August 22nd and that it was the 23rd when the Father swore it. In any event, the motion was adjourned to be heard on August 28th.

[2] 2012 ONSC 4746 at para. 31 .

[3] T.(J.L.) v. T.(J.D.N.) 2011 CarswellBC 1598 (SC) at para 51 .