COURT FILE NO.: FC-13-2466
DATE: 20140821
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Rosaline Judith Hill, Applicant
AND
Alain Joseph Achkar, Respondent
BEFORE: Mr. Justice Robert N. Beaudoin
COUNSEL: Jennifer Johnston, for the Applicant
Farhad Mehr/Ernest Tannis, for the Respondent
HEARD: August 20th, 2014
ENDORSEMENT
[1] The Applicant Mother brings this motion (as amended) seeking:
A variation of the order of Justice Backhouse dated February 6, 2014 with regard to telephone access;
An order permitting the Mother to employ Kayleigh Comas to babysit the children during the remaining two weeks of summer;
An order that the parties children, namely Yasmina Marie Achkar, born October 26, 2007 and Lily Anne Achkar, born April 4, 2010, shall be enrolled at and attend Churchill Alternative School for the 2014/2015 academic year, or in the alternative, a public school in the Applicant’s catchment area, namely, one of: St. George’s Catholic Elementary School, École élémentaire catholique d’enseignement personnalisé Édouard-Bond, or École élémentaire catholique Terre-des-Jeunes; and
Cost of this motion.
[2] The Respondent Father opposes this motion and particularly, wishes that the children be enrolled at a private school, École Académie Providence School. (Académie).
[3] At the outset of the motion, I was advised that the parties had to come to an agreement on the issue of telephone access and an order will issue in accordance with the draft terms supplied to the court.
[4] I have also given oral reasons allowing the Mother to employ Kayleigh Comas as the children’s babysitter for the remaining two weeks of summer vacation. The Respondent gave no reasons for his objection to Miss Comas’ care for the children but has proposed that his mother look after the children instead. Miss Comas has been caring for the children all summer at the Applicant’s expense. The Applicant proposes continuing that arrangement without any contribution from the Respondent. The evidence before the court is uncontradicted that the Respondent’s mother has never looked after the children for more than one hour at a time. I see no reason to change the existing arrangements for the care of the children for a period of 10 days.
[5] The more contentious issue is that of schooling.
Background
[6] The parties separated on September 23, 2013. The Mother left the matrimonial home with the children under police escort. This is a high conflict separation. The Mother has made allegations about the Respondent’s behaviour; including his crippling anxiety, lapses of anger and yelling, and a history of physically entrapping her in corners of the house. Communications between the parties since separation have been difficult. Although the telephone access has been resolved, the evidence before the court suggests that this has been very problematic and the Father has made numerous complaints to the police to complain about telephone access. The police report dealing with this family is 73 pages in length. This behaviour, on the part of the Father, reveals a lack of insight as to how the involvement of the police might impact the children.
[7] The parties have different religious and cultural backgrounds. The Mother was raised in the Anglican faith but she converted to the Roman Catholic faith upon her marriage to the Respondent. She speaks English and some French. The Father is of a Lebanese background. He speaks English, French and Arabic and he is a Roman Catholic. By agreement of the parties, both children were baptized in the Roman Catholic faith.
[8] There is a temporary order that was granted on consent and on a without prejudice basis dated February 6, 2014 signed by Justice Backhouse. There is no specific provision with respect to custody and the children’s living arrangements are described in access terms. Nevertheless, the children’s primary residence has been with the Mother. The Respondent Father has access every Wednesday evening from 3:00 p.m. until 6:30 p.m., and every second weekend from Friday at 3:30 p.m. until Sunday at 3:30 p.m. That order also provides that the Respondent will pay child support in the amount of $862 per month based on an income of $58,000. The order requires the Respondent to be responsible for 47% of the section 7 expenses which include Yasmina’s tuition expenses for the Académie for the remainder of the 2013/14 school year.
[9] On April 23, 2014, the parties further consented to an order signed by Master MacLeod that Sally Bleeker was to conduct a custody and access assessment relating to the children which assessment was to specifically include the educational needs of the children.
[10] Yasmina is six years old and has just completed grade 1 at a French language private school operated by Lebanese nuns called Académie Providence. The school also teaches the students Arabic. Yasmina speaks French, English and has learned some Arabic. Four-year-old Lily will be starting junior kindergarten in the upcoming academic year. She does not speak French or Arabic.
[11] Miss Bleeker provided a limited report on August 14 dealing with the education issue. Ms. Bleeker, at the conclusion of the first paragraph of her report says:
Due to the school registration time constraint, the parents and their lawyers have agreed that a school recommendation may be made prior to the release of the final report. This is not intended to be a full evaluation of different pedagogical methods but and on balanced look at the need for ongoing stability in this family.
[12] She noted the Father’s strong preference that the children attend a private school. The Mother was initially reluctant to agree to this but stated she agreed to the private school in order to keep the peace at home.
[13] Further in her report, Ms. Bleeker comments:
Both parents highly value education and offer a great deal of extra stimulation to the children and both children are bright and appear advanced for their years.
[14] When he was asked to present possible school options to the assessor, the Father had a hard time allowing for any options other than the Lebanese private school. He only reluctantly agreed to consider another school if it was French Catholic. He also seemed to disregard the importance of a community school that might allow the children to have neighbourhood friends, indicating to the assessor that he did not have this when he was growing up. The assessor noted that the Mother was willing to compromise on the school issue and presented a number of options. The Mother’s concerns about the Académie related to the teaching style and the opportunities that the school would present for the Father to claim all of the influence due to his background.
[15] With respect to the opportunity for the children to be exposed to the culture of both parents, Ms. Bleeker noted that there was the option of Saturday morning Arabic school and Lebanese dance classes available which the Mother would support and which would be recommended as part of the final report. Ms. Bleeker also noted that the Father’s mother lives with him and that both French and Arabic are spoken at home and given the frequent contact, the children are exposed to French and Arabic when they are spending time with him. Ms. Bleeker went on to conclude:
The primary need at this time in the life of these children is an emotional settling into the structure of living in two homes and an easing of the chaos and conflict that has surrounded them following the separation. The father is very intense and tends to overstep boundaries. Although he passionately believes in the Lebanese School, he is likely to use this influence to disenfranchise the mother from involvement; and a more neutral school allows for both parents to be equally involved. The mother is calmer and somewhat better at providing the emotional environment needed by the children and they are more often in her care. Having a school closer to her home eases life for the children. Since the security of the father’s employment and his ability to drive or pick up the children have been uncertain in the past, continuity going forward is better assured by the children attending a community school, where both parents can have an active role and the friends they make are likely to overlap in community activities and can be easily visited on the weekends.
My recommendation therefore, is that the children be enrolled, preferably in École Édouard-Bond if they can be accepted there or Terre-des-Jeunes if that is unavailable. Both schools only open their registration on August 18, so this matter may ultimately be determined by availability. It is my understanding that Lily may be on the list already for École Édouard-Bond but this needs to be confirmed.
[16] I permitted the Mother to file an updated affidavit with respect to the schooling situation. Based on that information, there appears to be a possibility that the girls could be enrolled at Terre-des-Jeunes. An administrative assistant at that school has advised that the Respondent and the Applicant must submit the girls’ baptismal certificates to the school and then set up a meeting with the principal and superintendent to review the French language of instruction. Both parents would be asked to attend, and the school would want to speak to the Respondent Father to determine his proficiency in French. There is still no word on École Édouard-Bond.
[17] There is a significant issue with respect to Académie Providence’s location in Vanier. The parents live reasonably close to each other in the western part of town. The drive to the Académie has taken the Mother approximately 25 minutes in the morning and a minimum of 30 minutes in the afternoon. This means that the children will spend one hour each day just commuting to and from school. There are substantially longer commutes in the winter time. The Respondent’s anxiety has long prevented him from driving alone although he now claims he’s willing to do so if necessary. The two schools recommended by Sally Bleeker are less than 10 minutes away.
[18] In her report, Ms. Bleeker confirms that both parents prefer to enroll the children in the same school. The Father places very strong emphasis on minimizing change in the children’s life. He also emphasizes the importance of exposing the children to the French and Arabic language and his culture.
[19] While removing Yasmina from Académie Providence would represent a change in the status quo for her, there will be a change no matter what school Lily is enrolled in. It is true that our courts have been reluctant to change a child’s school. Stability is a critical consideration. The same is true with respect to language of instruction; in this case French. The Father has cited decisions that emphasize this point.[^1] Nevertheless, the case law demands an individualized assessment of all factors.
[20] In Ursic v. Ursic 2006 CanLII 18349 (ON CA), 2006 CarswellOnt 3335, Justice Laskin of the Ontario Court of Appeal did order the child in that case to stay enrolled in the same school “unless both parties agree to send them to another school, or unless either parent bring us compelling and cogent evidence showing a change of schools is in Jacob’s best interest”. In this case, the Applicant Mother has adduced that evidence; namely, the recommendation of the court-appointed assessor who was asked to make a recommendation on this very issue, particularly with regard to the upcoming school year. Assessment reports are admissible in evidence in these proceedings and there is no restriction on their use at an interim stage. Considerable weight must be given to Ms. Bleeker’s input since it was sought by the parties for this very purpose.
[21] It must be noted that Académie Providence is not a community school. Having regard to its private nature, it draws students from a broad area in Ottawa and Gatineau. Whereas Yasmina may have friends there, these are not children she can regularly associate with after school and on weekends. If the children go to a school that is closer to their neighbourhood, they will have that opportunity.
[22] While the Respondent places a strong emphasis on maintaining the status quo, it is difficult to believe that the parties will be able to maintain the costs of private education given their limited resources. Académie Providence is a private school and tuition is $7500 per child or $15,000 a year for both children. The Respondent indicates that he may be able to obtain a subsidy. In a more recent affidavit, he makes vague claims that his family will support the cost. In his first affidavit, he stated: “I have proposed to pay a tuition fee which reflects the child support being paid”. He concludes: “Should the Applicant accept to decrease the child-support to a reasonable amount, then I am willing to incur the tuition costs for the children.”
[23] The Father does not disguise his belief that he is paying an excessive amount of child support and refers to his 2013 Notice of Assessment which discloses a taxable income of only $13,062. The Applicant Mother’s line 150 income was $48,020. The payment of the ongoing costs of this private school education is simply not viable given the parties’ modest incomes and the need to maintain two separate households. The Father’s initial affidavit suggested that child support should be compromised to accommodate this expense. The vague assurances that his family will help do not assist. His family members were more than willing to file affidavits in support of the summer child care issue but these affidavits are noticeably silent on the issue of contributing to this tuition expense. The cost of this private school education has been identified as an issue at the outset. If these education costs cannot be maintained in the long-term, a change of schooling will inevitably take place and that will be a more difficult adjustment for the children. A change in schooling now would coincide with another change, namely the start of Lily’s schooling.
[24] In short, the Respondent’s plan is not realistic. Sally Bleeker’s comment that the Father “is likely to use this influence to disenfranchise the Mother from involvement” is supported by the evidence of high conflict that is already apparent in these proceedings. In these circumstances, I agree that a more neutral school will allow for both parents to be equally involved and permit some stability.
[25] While the enrolment in a community school will not permit the same degree of connection with the Father’s cultural background, the Mother’s background cannot be ignored. These parents have distinct cultural backgrounds; one does not precedence over the other.
[26] In my view, the recommendations made by Ms. Bleeker strike an effective balance of the various issues and concerns and her recommendations should be followed to the extent that they are possible. For that reason, I direct the parents to attend at Terre-des-Jeunes and follow through with any steps that may be necessary to have the girls enrolled in the school. Enrolment at this school will allow the girls access to a French language education and continued exposure to their Catholic faith. I’m satisfied that the girls can be provided with exposure to the Father’s Arabic culture through the language and dance classes identified by Ms. Bleeker. Moreover, the girls will have regular access to this culture and language during their regular access visits with their Father and his family.
[27] In the event that an enrolment in the two schools identified by Ms. Bleeker is not possible, then, I agree that the next best alternative is that the girls be enrolled in the Churchill Alternative school.
[28] In the event the parties are unable to come to an agreement on the issue of costs, there to provide me with their brief written submissions, not exceeding three pages, within 20 days of the release of this decision.
Mr. Justice Robert N. Beaudoin
Date: August 21, 2014
COURT FILE NO.: FC-13-2466
DATE: 20140821
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Rosaline Judith Hill, Applicant
AND
Alain Joseph Achkar, Respondent
BEFORE: Mr. Justice Robert N. Beaudoin
COUNSEL: Jennifer Johnston, for the Applicant
Farhad Mehr/Ernest Tannis, for the Respondent
ENDORSEMENT
Beaudoin J.
Released: August 21, 2014
[^1]: Bandas v. Demirrache, 2013 ONCJ 679; Perron v. Perron 2012 ONCA 811, 113 O.R. (3d) 600