ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FC-09-2227
DATE: 2013/08/13
BETWEEN:
Patrick Bamford
Applicant
– and –
Janna Mae Peckham
Respondent
Gabrielle Beaulieu, for the Applicant
Pamela Barron, for the Respondent
HEARD: August 7, 2013 (Ottawa)
REASONS FOR DECISION
KERSHMAN J. (Orally)
INTRODUCTION
[1] The issue before the Court is where the child Zoé Dominique Joëlle Judith Bamford (“Zoé”), d.o.b. July 4, 2009 should attend school in September 2013.
FACTUAL BACKGROUND
[2] The Applicant (“Father”) brings this motion seeking to have his daughter attend l’École élémentaire catholique des Pionniers (“des Pionniers”), which is a homogeneous French‑language Catholic school. The Respondent (“Mother”) seeks to have Zoé attend a public school at Henry Larsen Elementary School (“Henry Larsen”) in a French immersion program.
[3] The Mother and the Father lived together from January 2009 to August 2009. Zoé was born on July 4, 2009.
[4] The Father is fluently bilingual.
[5] The Mother is unilingual English. She took core French in school. She does not speak French and understands very little French.
[6] Both parties agree that Zoé is fluently bilingual.
[7] There are several orders in place at present including a parenting agreement however, there is no custody order. Zoé lives with each parent on a 2‑2‑3 basis and has done so since May 2012.
[8] The Father was raised in the Catholic Church while the Mother was raised in the United Church. According to the evidence, neither party has any religious affiliation.
[9] The parties cannot agree as to whether Zoé should attend a homogeneous French Catholic school or an English‑language public school in a French immersion program.
[10] Zoé has been registered at both schools for September 2013.
ISSUE
[11] Should Zoé attend des Pionniers, a homogeneous French Catholic school or should she attend Henry Larsen, an English‑language public school in a French immersion program in September 2013.
Father’s Position
[12] The Father’s position is that Zoé should attend des Pionniers, a homogeneous French Catholic school.
[13] He argues that, in 2009, at the time of pregnancy the matter was discussed and both parties agreed that Zoé would attend des Pionniers, which is approximately 0.4 kilometers from the Father’s home.
[14] The Father says that he would like his daughter to attend des Pionniers, as that is where he graduated from.
[15] At the last settlement conference, the Father says that he asked for Zoé to attend a French‑language pre-school program, Petits pas à trois, offered free of charge by the Conseil des écoles catholiques du Centre‑Est, for the school year 2012-13. According to him, the Mother did not agree and Zoé was not enrolled in the program that year.
[16] The Father’s written argument deals with the choice between des Pionniers and Dunning‑Foubert Elementary School (“Dunning‑Foubert”). At the motion, the parties acknowledged that Zoé could not enroll at Dunning‑Foubert because she currently lives in the school zone to attend Henry Larsen. A variance could be sought to attend Dunning‑Foubert, but she would have to attend Henry Larsen for one year.
[17] The Father argues that he is fluently bilingual. He speaks with Zoé and does activities with her in French.
[18] The Father says that he values the importance of a French education as it teaches children not only the language but as well the culture and the heritage.
[19] The Father fears that if Zoé does not attend a homogeneous French school, she will slowly become assimilated and not learn how to properly write and read French, which he claims is a much more complex language to learn than English.
[20] The Father says that des Pionniers is a five minute walk from his home and it is a 10 minute drive for the Mother.
[21] The Father argues that des Pionniers is ranked by the Fraser Institute at 956 out of 2714. He compares it to Dunnning‑Foubert, which is no longer an option in this case.
[22] In terms of the ranking for Henry Larsen, the Court was not provided with such a ranking.
Mother’s Position
[23] The Mother’s position is that she is unilingual English, that she does not speak French and understands very little of it. She says that Zoé is fluently bilingual.
[24] She argues that although her religion is through the United Church and that the Father is Catholic, that neither party is involved in their faith. Notwithstanding that neither party practices their faith, she argues that the Father wants Zoé to attend a French Catholic school, which teaches religion. From her perspective, the Father will be making choices for education and religion.
[25] The Mother argues that she will not be able to help Zoé with her homework and that she will not be able to communicate properly with the teachers. As an example, she indicates that the website for the school is in French only and can only be translated using the translation feature in Google. The Court notes that while the Google translation feature is adequate, it does not provide the same level of translation as a translated version of the site.
[26] The Mother argues that she will not be able to appreciate or understand Zoé’s concerts and presentations.
[27] The Mother further argues that Zoé receives sufficient French cultural and language exposure while she is with her Father and his family.
[28] The Mother also argues that she does not have a vehicle to pick up and drop‑off Zoé from school. She says that she would have to bus with Zoé to school every morning and pick her up later in the day.
APPLICABLE LAW
[29] Both parties agree that section 24(2)(d) the Children’s Law Reform Act, R.S.O. 1990, c. C.12 is applicable in this case. The 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).
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.
Analysis
[30] The Father argues that the case of Perron v. Perron, 2012 ONCA 811, applies. In that case, Rouleau J. states at paras. 18, 20, 21 and 44:
[18] The education offered in a homogeneous French-language school is quite distinct from what is provided in a French immersion program. A homogeneous French-language school responds to the cultural and linguistic needs of the Francophone community. In contrast, the French immersion program is designed for English speakers in an English-language majority environment and provides bilingual instruction – usually 50 per cent in French and 50 per cent in English. See Solski (Tutor of) v. Quebec (Attorney General), 2005 SCC 14, at para. 50.
[20] Homogenous French-language education brings many advantages. It promotes full mastery of the French language and the development of the child’s cultural identity. This type of instruction also allows the child to become bilingual in French and English, because a homogeneous French-language school helps the child to develop a high level of skill in both French and English. In addition, in a social environment dominated by English, a child will generally communicate in English in many aspects of daily life and, as a result, acquire knowledge of the language of the majority. It should also be noted that bilingualism provides a number of advantages in terms of employment.
[21] Apart from these advantages, where children have one Francophone parent, knowledge and mastery of the language and culture of the linguistic minority promotes and helps maintain the bonds between the children and the Francophone parent.
[44] In a linguistic minority environment, homogeneous French-language schools are generally preferable to French immersion programs for ensuring that both languages, namely French and English, are maintained at the highest level. In a region with a large English-speaking majority, homogeneous instruction in French does not result in losing the language and culture of the linguistic majority. This does not therefore imply a choice of preferring the culture and language of the minority over those of the majority. In a minority setting, homogeneous French-language schools in fact make it possible to maintain cultural and linguistic links with both the French-speaking and English-speaking parents. In accordance with s. 24(2)(d) of the Children’s Law Reform Act, the children’s language of education should therefore be taken into account when determining their best interests.
[31] The Perron case can be distinguished from the present case on the following basis:
The location involved in Perron was Hamilton, Ontario as opposed to Ottawa, Ontario. While the Court appreciates that Hamilton may have a predominantly English environment, the same cannot be said about Ottawa, which is officially a bilingual city. The Court does not find that there is a linguistic minority environment in Ottawa.
While the Court appreciates that the French language brings many advantages, the court has to look at the best interests of this particular child, as opposed to children in general.
While the Perron case specifically provides for the advantages of a homogeneous French‑language school, the Court notes that Perron was a 10‑day custody trial that was subsequently appealed. In the present case, the matter is a motion about which school Zoé should attend. The only materials used on the motion were two affidavits from the Father and one affidavit from the Mother. No cross‑examinations on the affidavits were conducted.
[32] Several articles were used by the Father to justify his position. The Court finds that while the articles are useful they do not reflect the circumstances of this particular case.
[33] As to the ratings of the schools, the court notes that no rating was provided for Henry Larsen however the Court makes an assumption that the rating for Henry Larsen would be in the range of des Pionniers.
[34] The Mother relies upon the case of Potter v. Dhieux, 2012 ONSC 4498. In that case, the Court held that the child was to be moved from a French‑language school to an English‑speaking school with an extended French program.
[35] At para. 72, Kershman J. stated: “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.”
[36] In this particular case, the following are the significant factors as to why Zoé should not attend a French Catholic school.
The Mother will have a difficult time communicating with the teachers and the school administration, as she speaks English only.
The Mother will have difficulty assisting Zoé with the homework as most of it will be in French. The Court is aware that there is a chat line and other resources to help the parents who do not speak French.
The Mother will not be able to appreciate the events held in the French language for her daughter’s schooling, concerts and other presentations should Zoé attend des Pionniers.
The Mother does not drive, which means that it will be difficult for her to pick up and drop off Zoé as and when needed. The Court is fully aware that the Father has volunteered to do all the driving, however, there will be times when he will not be able to drive and it will be necessary for the Mother to make arrangements for transportation.
The Father will continue to interact with Zoé in French and Zoé will continue to experience the French language and culture through him and his family. The Court notes Zoé has been experiencing the French language and culture until now and this should not change once she is attending school.
Finally, there is the issue of the fact that the Father wants her to attend a French Catholic school, notwithstanding the fact from the evidence that neither parent practices any religion. The Court notes that the Father has not chosen a French homogeneous school in the public school system but rather has chosen a French Catholic school which will provide religious education, when religious education is not being practiced in either home environment. The Court finds that as the parents do not practice any religion and based on the facts of this case, it would be better for Zoé to attend a public school with a French‑language immersion program.
[37] Therefore, considering all of the evidence before the Court and the analysis of the factors, the Court is satisfied that it is in Zoé’s best interest that she be registered and attend Henry Larsen Elementary School in the French immersion program starting in September 2013.
COSTS
[38] The parties are encouraged to settle the issue of costs of this motion. If they are unable to do so within 21 days of the release of this decision, counsel for Mr. Bamford shall deliver written costs submissions including a Costs Outline within 14 days. Thereafter, counsel for Ms. Peckham shall delivery written costs submissions including a Costs Outline within 14 days. Thereafter counsel for Mr. Bamford shall have a right of reply within 14 days. Each costs submission shall be no longer than two pages, excluding the Costs Outline. The parties shall comply with Rule 4.01 of the Rules of Civil Procedure.
[39] Order accordingly.
Mr. Justice Stanley J. Kershman
Released: August 13, 2013
COURT FILE NO.: FC-09-2227
DATE: 2013/08/13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Patrick Bamford
Applicant
– and –
Janna Mae Peckham
Respondent
REASONS FOR decision
Kershman J.
Released: August 13, 2013