COURT FILE AND PARTIES
COURT FILE NO.: FC-14-1356
DATE: 2014/09/09
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MIKLOS HORVATH, Applicant
AND
AKIM THIBOUTHOT, Respondent
BEFORE: Mr. Justice Marc R. Labrosse
COUNSEL: Steven A. Fried, Counsel for the Applicant
Carol Cochrane, Counsel for the Respondent
HEARD: August 25, 2014 at Ottawa
ENDORSEMENT
Overview
[1] The Applicant Father and Respondent Mother are the parents of Thomas Pierre Euan Horvath, born July 4, 2011. The parties have resolved most of the issues surrounding their separation with the exception of the choice of schooling for Thomas. The Applicant seeks to have Thomas enrolled in a homogeneous French education program at Lycée Claudel in Ottawa commencing in September 2014. In the short‑term, the Respondent seeks to have Thomas remain enrolled at the Dalhousie Parents Day Care Centre (“Dalhousie Day Care”) for the 2014‑2015 academic year. In the long‑term, the Respondent would see Thomas enrolled in a French immersion school in proximity to her residence or alternatively in a homogeneous French public school.
[2] The present motion also seeks a determination of their respective income figures pursuant to section 5.12 of their Separation Agreement dated August 13, 2013. The Applicant seeks a deduction of his union dues from his Line 150 income and the Respondent seeks to exclude non‑recurring income relating to a one‑time payout of vacation pay.
[3] For the reasons which follow, the schooling issue is to be dealt with on a temporary basis for the 2014‑2015 academic year. The Court is not in a position to determine Thomas’ long‑term schooling and he should remain at the Dalhousie Parents Day Care Centre for the 2014‑2015 academic year. This matter will have to be fully explored at trial in the event that the parties cannot agree before then.
[4] With respect to the determination of their respective incomes, section 5.12 of the Separation Agreement clearly requires that the income determination be based upon the Line 150 income. The parties did not negotiate any exceptions, such as the deduction of union dues or an exception for non‑recurring income. As such, they have chosen to be bound by their Line 150 incomes.
Position of the Parties
[5] The Applicant’s position is based upon the benefits of a homogeneous French education and the high level education offered by Lycée Claudel. These points are not significantly disputed by the Respondent. The Applicant relies upon various studies along with the findings of the Court of Appeal in Perron v. Perron, 2012 ONCA 811 to support his position that Thomas must be enrolled in the education program offered by Lycée Claudel as soon as possible. The Applicant’s evidence supports the notion that the earlier a child is enrolled in homogeneous French education, the better.
[6] The Applicant also relies on the fact that Thomas’ half‑sister, Alessandra, is also a student at Lycée Claudel and that the parties are each able to afford the annual enrollment costs. The Applicant argues that the cost of enrollment for the 2014‑2015 academic year is not significantly different than the cost for Thomas at the Dalhousie Day Care. Furthermore, in attending Lycée Claudel at this age, Thomas would not be required to write the proficiency exam, which is required prior to entering Kindergarten. He would, however, have to write it next year.
[7] The Applicant also argues that this is a transition year for Thomas at the Dalhousie Day Care. He is moving to the senior toddler room and, as such, will be having a new educator. This would be a good time to start at Lycée Claudel, as he will already be in transition. The Applicant does admit that Lycée Claudel and the Dalhousie Day Care have similar approaches to prepare a child for Kindergarten and similar qualifications for their educators.
[8] While the Respondent does not have a vehicle, the Applicant argues that it is by choice and that she could have a driver’s licence and obtain a vehicle for transportation. Alternatively, the Applicant estimates a 25‑minute bus ride for the Respondent to drop Thomas off at Lycée Claudel and that this is not significantly different than walking down to the Dalhousie Day Care or walking to a school in the Glebe with a French immersion program. The Respondent can drop Thomas off at school and then continue on to her place of work in downtown Ottawa.
[9] The Applicant principally relies upon the argument that it is very important that Thomas begin his homogeneous French education at a young age. The Applicant feels that it will be very difficult for Thomas to catch up later in his French language skills if he attends the daycare now and attends at a public school as proposed by the Respondent. The Applicant does not however identify any consequences of starting his French education for the 2014‑2015 academic year as opposed to the 2015-2016 academic year.
[10] On the issue of the interpretation of section 5.12 of the Separation Agreement, the Applicant’s position is somewhat inconsistent. While he feels that the parties agreed to the Line 150 income figures and that the provision should be interpreted strictly, he claims a deduction for union dues.
[11] The Respondent is simply of the view that there is no need for a decision to be made on Thomas’ long-term education prior to the 2014‑2015 academic year. Thomas is scheduled to attend the Dalhousie Day Care and this was a mutual decision made by the parties prior to their separation. The Respondent denies that there was ever an agreement that he would attend Lycée Claudel.
[12] The Respondent is of the view that a proper determination of the schooling issue should be made at trial when the Court can receive full evidence on what is in Thomas’ best interests. Issues relating to transportation, education costs and the best education for Thomas need to be fully considered at a trial. In addition, there is evidence that Thomas may be having difficulty adjusting to the parties’ separation. In having a change of schooling take place after a trial, it would allow for at least one more year to pass before Thomas makes the transition to a new school.
[13] The Respondent further states that while the costs may not be significantly different for the 2014‑2015 academic year, they will be significantly different when the alternative is the public school system. Currently, both parties have significant debts and they are not in a position to commit to the long-term cost commitment of Lycée Claudel.
[14] The Respondent relies upon the admission by the Applicant that both the Dalhousie Day Care and the proposed Lycée Claudel programs have similar approaches to prepare a child for Kindergarten and similar qualifications for their educators. The Respondent states that there is no need to establish the long‑term schooling plan for Thomas at this time and that it should properly be done following a trial.
[15] As for the income determination, the Respondent states that the one‑time payout of vacation pay is non-recurring income which should not be included in the annual determination of her income. However, her position is also somewhat inconsistent as she opposes the deduction for union dues claimed by the Applicant.
Analysis
[16] The Court’s analysis is governed by the best interests of the child as set out in section 24(1) of the Children’s Law Reform Act. Further, I was referred to the decision of the Court of Appeal in Perron v. Perron and the decision of Kershman J. in Potter v. Dhieux, 2012 ONSC 4498. In considering these authorities, I am mindful that the above‑referenced decisions were both heard over several days during trials.
[17] When considering the above authorities, I start with a recognition that for two bilingual parents who both seem to favour a bilingual education for Thomas, it is hard to argue against the benefits of a homogeneous French education. While the mother seems to argue for French immersion as a result of the convenience of having Thomas attend a school in proximity to her home, I am not certain that this would allow Thomas to eventually become fully bilingual. I am cognisant of the fact that there are different levels of bilingualism. The evidence before me certainly suggests that a homogeneous French education is a pre‑requisite for Thomas to become fully bilingual.
[18] The findings of the Court of Appeal in Perron v. Perron certainly suggest that if it is determined that it is in the best interests for Thomas to be fully bilingual, his chances of success are certainly better in a homogeneous French school.
[19] It is also difficult to argue against the academic success rate of Lycée Claudel and its form of education. This was not challenged by the Respondent. It has a highly rated educational program, which would likely give Thomas an excellent opportunity to complete his studies being fully bilingual.
[20] However, I am of the view that a more in‑depth analysis must be done of the distinction between the available French public schools and Lycée Claudel. This was not explored. The Applicant relies on the ranking of the public schools by the Fraser Institute as one of the main factors when considering the merits of the French public schools which are available to Thomas. There is, in my view, a subjective element that must be considered. Does Thomas benefit from having two parents who are committed to his education, who will provide the necessary guidance to allow him to excel within the public system? If Thomas has two parents who will be committed to his education, will this help him overcome scoring results of the schools in question? This is evidence which will be required for the Court to evaluate the choice of school. This subjective element may also apply to a French immersion program. This needs to be explored.
[21] Further evidence is required to review the applicable factors the Court will consider. When I consider the list of factors at para. 47 in Potter v. Dhieux, I am of the view that the affidavit evidence presented in this motion is not sufficient to do a complete analysis of what is in Thomas’ best interests. There are certain issues which have not been fully explored which must, in my view, be considered by the Court when making a long-term decision on the type of schooling. I set some of them out in no particular order :
a. The subjective element discussed above to determine if two committed parents can overcome some of the suggested short‑comings of the public school system and if the Applicant and Respondent are so committed;
b. The travel arrangements for Thomas to attend Lycée Claudel with specific comparison with the available schools within the public school system;
c. The impact of the travel arrangements on Thomas, along with the impact on the parties who must then get to work on time;
d. The availability of private transportation, its costs and how it would be apportioned amongst the parties;
e. The apportionment of the schooling costs for Lycée Claudel. I note that for both transportation and schooling costs, the Applicant indicated that he would be willing to assume a greater responsibility for these items, however, no specifics were given; and,
f. The relationship between Thomas and his half‑sister, Alessandra.
[22] In considering the items listed above, I find that I am not in a position to make a decision as to the type of schooling which is in Thomas’ best interest in the long‑term. In the short‑term, I find that it is in Thomas’ best interests to remain at the Dalhousie Day Care for the 2014‑2015 academic year for the following reasons:
a. The parties have not fully compared the French immersion, public French and Lycée Claudel programs;
b. Thomas will benefit from a further year at Dalhousie Day Care and his familiarity with it while adjusting to his parents’ separation;
c. There is no evidence before me that there will be any significant effect of having Thomas start homogeneous French education in September 2014, as opposed to September 2015. However, it is acknowledged that the earlier is the better; and
d. Transportation and schooling costs, along with their apportionment, must be fully explored to allow a full analysis of the effects of travelling to Lycée Claudel, even if by public transportation. In the end, the differences for the Respondent in taking public transportation or walking or driving to area schools may be negligible, however, they have not been fully explored.
2013 Income Determination
[23] I am of the opinion that there need not be an extensive analysis of section 5.12 of the Separation Agreement dated August 13, 2013. The issue is simple. The parties agreed that their respective incomes would be governed by their Line 150 income from their respective Notices of Assessment. There is no provision which allows a deduction for costs such as union dues. Further, there is no ability to exclude non‑recurring income such as a one‑time payout of vacation pay.
[24] If the parties want to reconsider section 5.12 to allow for such deductions or exclusions, they should agree to amend the Separation Agreement. Otherwise, this section is clear and there is no ambiguity which would require me to consider additional factors. They are both bound by their Line 150 income figures.
Conclusion
[25] For the reasons set out above, I order that Thomas shall be enrolled at the Dalhousie Parents Day Care Centre for the 2014‑2015 academic year.
[26] With respect to their respective 2013 income, the parties are bound by section 5.12 of the Separation Agreement, which requires that the annual income be set in accordance with the Line 150 income figure.
Costs
[27] There is no doubt that the choice of Thomas’ schooling was the central issue dealt with on this motion. The income determination was clearly a secondary issue. While the Respondent was substantially successful on the schooling issue, the Applicant was successful on the income determination issue. Without having the knowledge of any offers made prior to the motion, the Respondent is entitled to some costs given her success on the schooling issue, however, the Respondent’s cost entitlement should be modest. If the parties are unable to agree on the issue of costs, they may write to me. The Applicant shall provide written costs submissions within 14 days of the date of release of this Endorsement. Thereafter, the Respondent shall provide written costs submissions within 14 days. Thereafter, the Applicant shall have a right of reply within 7 days. Each costs submission shall be no longer than two pages in length, excluding the Costs Outline. The parties shall comply with Rule 4.01 of the Rules of Civil Procedure.
Mr. Justice Marc R. Labrosse
Date: September 9, 2014
COURT FILE NO.: FC-14-1356
DATE: 2014/09/09
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: MIKLOS HORVATH, Applicant
AND
AKIM THIBOUTHOT, Respondent
BEFORE: Mr. Justice Marc R. Labrosse
COUNSEL: Steven A. Fried, Counsel for the Applicant
Carol Cochrane, Counsel for the Respondent
ENDORSEMENT
Labrosse J.
Released: September 9, 2014