SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FC-14-704-00

DATE: 20150904

RE: TRINA MARYTE RIEGG, Applicant

AND:

MARK RIEGG, Respondent

BEFORE: THE HON. MR. JUSTICE J.P.L. McDERMOT

COUNSEL:
Eun-Kyung Lee, for the Applicant

Carolyn T.M. Warner, for the Respondent

HEARD: September 3, 2015

ENDORSEMENT

Introduction

[1] This was a motion brought by the Applicant, Trina Riegg, to place the parties’ youngest child into a French Immersion Program at W.H. Day Elementary School (“W.H. Day”) in Bradford, Ontario. The Respondent has requested an adjournment of this motion and that the child remain in the separate school system at a new school in his catchment area.

[2] For the reasons set out below, I allow the Applicant’s motion and there shall be a temporary order placing Eva in the French Immersion Program at W.H. Day as requested by the Applicant.

Background Facts

[3] These parents separated in March, 2014 after a nine year marriage. They have two children, Luke who is 8 and Eva who is 6.

[4] This has been a difficult separation. The parties began these proceedings in May, 2014 and could not agree on care of the children; after a case conference before Olah J. in October, the parties agreed on a week about nesting arrangement in the matrimonial home pending its sale. After the sale of the home in March of 2015, the parties continued sharing custody of the children on a week about basis although that arrangement has never been formalized by court order.

[5] Custody of the children is a live issue; however it has been difficult getting that issue off the ground. The parties agreed in September, 2014 to request appointment of the Children’s Lawyer; that agency refused to become involved. They then agreed to an assessment pursuant to s. 30 of the Children’s Law Reform Act;[^1] although the appointment was in February of this year and the parties spoke with the assessor, Mr. Musselman, in April, 2015, there has been no progress since then. The parties agreed to mediation but have failed to agree to a mediator. The last court date was a trial management conference in June, 2015; that was adjourned pending the assessment and no further dates are scheduled.

[6] This is combined with severe communications difficulties between the parties. As noted above, the parties have been unable to agree on a mediator. The communication difficulties and mutual animosity appear to be driving this dispute respecting the children’s schooling. Both parties acknowledge their ability to communicate and to co-parent to be challenging at best.

[7] Luke began his schooling at the Art of Life Nursery and Montessori School (“Art of Life”). He went from there to the French Immersion program at W.H. Day and was attending there when the parties separated. He is now going into Grade 3 in that program. The issue before the court is whether Eva should join him at that school.

[8] In March, 2014, when the parties separated, Eva was also attending Art of Life. She continued there until her senior kindergarten year when the parties agreed that they could no longer afford Art of Life. In April, 2014, soon after separation, the parties also agreed that Eva would attend at W.H. Day; unfortunately neither party resided in the catchment area for W.H. Day and the French Immersion program (through which a child outside the catchment area could register in that school) did not begin until Grade 1. Accordingly the parties determined that Eva would attend at St. Charles Catholic School (“St. Charles”). Ms. Riegg says that the parties agreed to the school out of convenience as a better alternative to the overcrowded public school in her catchment area; Mr. Riegg says that the parties are committed to a Roman Catholic education (even though he does not regularly attend church).

[9] St. Charles is now no longer an option as the school boundaries have changed and a new separate school, Saint Angela Merici Catholic School (“Saint Angela Merici”) is opening for the first time this fall. Many of the staff from St. Charles will be transferring to that school as will a number of the students. Because of the change in school boundaries, Eva has been automatically registered in that school. Mr. Riegg says that Eva should continue in the separate school system at Saint Angela Merici and that any change from that school would constitute a change in the status quo.

[10] Ms. Riegg disagrees. She says that this is nothing other than a change in school and at this point a decision should be made between changing schools to Saint Angela Merici or alternatively to the French Immersion program at W.H. Day. To retain a place in the program, she has also registered Eva in the French Immersion Program.

[11] Notwithstanding Mr. Riegg’s earlier agreement that Eva be registered at W.H. Day, he no longer believes in the benefits of the French Immersion Program, if he ever did. He says that bilingualism is on the decline and that Luke is struggling with the program. Contrary to his earlier agreement to W.H. Day in April, 2014, he wrote an e-mail to Ms. Riegg In January, 2015 stating that “It has never been my intention to have any of our children attend french (sic.) immersion” and that French was a “dieing (sic.) language.”[^2]

Analysis

[12] The Respondent argues that this motion is premature considering the fact that there is a s. 30 assessment underway. He says that the motion should be dismissed and that the status quo should continue which is that Eva go to Saint Angela Merici until there is a trial or other disposition of the issue. Alternatively, he says that there are no compelling reasons why there should be a change in the status quo.

[13] Ms. Riegg says that it is open to me to decide on a school and that this is not a choice between the status quo and a new school; it is really a choice between two schools.

[14] Throughout all of this, the parties suggest that the issue of status quo is an important one. This is a motion for a temporary order and the court must act with caution. It is difficult to determine a matter on untested affidavits and it is specifically impossible for me to determine whether French Immersion or the separate school system is in Eva’s best interests on the basis of conflicting materials filed by the parties. If Saint Angela Merici is the status quo, conventional wisdom dictates that it is best to leave that issue alone until the matter is determined by either the assessor or the court at trial.

[15] Moreover, if this is a change in schools from a “status quo” this puts the onus on the moving party to satisfy me as to whether it is in the best interests of Eva to “change” schools: see Askalan v. Taleb, [2012] O.J. No. 3947 (S.C.J.) at para. 33. As well, there is persuasive case law that to meet that onus, the proponent of the change must present “compelling and cogent evidence” that the change is in the child’s best interests: see Ursic v. Ursic 2005 18349 (Ont. C.A.) at para. 32.

[16] Accordingly, I must firstly determine whether Eva going to Saint Angela Merici is the status quo or, effectively a new school leaving the issue open for decision. Is the issue that of a change of schools as considered by most of the case law presented to me, or is in fact a choice between two new schools considering that St. Charles is no longer an option?

[17] It is certainly undoubted that Eva has been attending school in the separate school system for the past year. There are a number of other factors which confirm an element of continuity between St. Charles and Saint Angela Merici; those include the fact that a number of the staff have moved from St. Charles to Saint Angela Merici as have a number of students. The staff who moved from St. Charles include two of the senior kindergarten teachers[^3] as well as two of the Grade 1 teachers. Although the school is a new physical plant, there will be some continuity for Eva if she goes to the newly constructed school.

[18] However, from Eva’s perspective, this cannot be anything other than a new school. She will be walking into a new building, and effectively a different school from that which she attended last year. The surroundings will be unfamiliar as will be many of the staff and students.

[19] The issue of status quo is important to the courts because of the disruption to a child arising from the change; that is why courts need to be cautious in changing a status quo at the temporary motion stage. In this case, there will be disruption to Eva in any event because she will be attending a new school whatever my decision.

[20] Therefore, the issue cannot be determined in a formulaic contest between whether Saint Angela Merici constitutes a status quo. This is because a change to Eva’s schooling is inevitable. The only real issue is whether one option or the other is less harmful or disruptive to Eva considering her best interests. Certainly because a change for Eva is inevitable considering the change in the school boundary, this makes it more necessary for me to make a decision at this interim stage.

[21] This is therefore a unique situation, where I am effectively deciding on a choice of schools rather than a change of schools. This makes much of the case law cited to me distinguishable insofar as all of those cases consider motions for a change in the status quo. It makes the issue of onus less important considering that Eva will have to undergo a change in schools in any event this September. This also lessens the evidentiary burden for cogent and compelling evidence as circumstances rather than a party’s actions have dictated the change in the status quo.

[22] The Respondent requests that this motion be adjourned pending the completion of the assessment. If I do nothing, this invites a contest as to enrollment between two parents who have a great deal of animosity towards each other and who cannot communicate between each other for the purpose of co-parenting. Considering this, to not decide the matter would allow for anarchy as Eva’s enrollment in the separate system has not foreclosed her enrollment at W.H. Day. It is inappropriate for me to abdicate my responsibility under the circumstances as the parties and Eva would then be adrift for the foreseeable future. Certainly, it will be some time before the assessment is available; one counsel during argument said that since the meeting with the assessor in April, 2015, the parties have heard nothing from Mr. Musselman. The trial is being delayed pending the assessment and there is no foreseeable resolution through the courts at this time.

[23] My decision on schooling must be based upon best interests of Eva, taking into account the criteria set out in s. 24 of the CLRA as well as s. 16 of the Divorce Act.[^4] In considering Eva’s best interests, I note that Spies J. in Askalan did not accept the husband’s submission that, similarly to mobility issues, schooling issues could not be dealt with in a temporary motion; she stated at para. 34 of the report that, “Moving a child’s place of residence is much more significant than a change of schools where nothing else will change in terms of custody and access.” I specifically adopt that statement for the purposes of the present case.

[24] However, conflicting evidence was presented to me as to whether French Immersion is or is not best for this child. Both parties presented a great deal of evidence as to whether or not Eva would thrive in a French Immersion school. No expert evidence was provided to me as was the case in Askalan v. Taleb, supra and unlike that case, Eva’s views and preferences are not a factor. The evidence presented by the parties at this temporary motion makes it impossible to me to determine whether Eva’s best interests from an academic perspective would be met within the French Immersion system.

[25] I must therefore determine Eva’s best interests based upon the facts which are uncontested at this motion. These factors confirm that it is in Eva’s best interests that she be placed at W.H. Day in the French Immersion Program. These include the following:

a. From Eva’s perspective, she is changing schools in any event. There will be disruption to her wherever she attends. Although some staff will continue at Saint Angela Merici, Eva’s brother attends at W.H. Day and this is more important than staff continuity in my mind. He will be a familiar face at that school. As is the case with most siblings, they will attend school together and will also go to before and after school care together. Their education and their religious instruction would also be consistent and similar. This makes the move to W.H. Day less disruptive than would the move to Saint Angela Merici.

b. Eva has only been in the separate school system for one year and that was the final kindergarten year. There is a substantial change arising in any event from the transition from kindergarten to grade 1.

c. Eva is academically strong and there is no reason why she could not handle the challenges of French Immersion at this time;

d. Notwithstanding Mr. Riegg’s assertion that he “never” agreed to French Immersion, it appears that, in fact, he did agree to it in April, 2014. In fact, at that time, he demanded that Ms. Riegg immediately register Eva in W.H. Day. There was also a French language component to Art of Life. This supports the fact that French Immersion was important to the parties prior to and immediately after separation, and also corroborates Ms. Riegg’s evidence that the choice of the separate school system was more a matter of convenience than a conscious choice to raise Eva in the Roman Catholic lifestyle as asserted by Mr. Riegg.

e. If Eva is to be in French Immersion, she either must enter the system now, or, I am advised, in Grade 4, which is a significant delay. Accordingly, if the decision at trial is ultimately that Eva go into the French Immersion system, her ability to enter that program will be significantly delayed for a number of years. This would be more harmful to Eva than an eventual decision that she go back into the separate school system, which can occur at any time.

[26] Taking all of these factors into account, it is my determination that it is in Eva’s best interests that she be registered in the French Immersion Program at W.H. Day.

[27] There shall be a temporary order to go as requested at para. 2 of the Applicant’s Notice of Motion.

[28] The parties may make written submissions as to costs, with the Applicant and then the Respondent providing written submissions on a ten day turnaround. Costs submissions to be no more than three pages in length not including Bills of Costs and any Offers to Settle submitted on the motion.

McDERMOT J.

Date: September 4, 2015

[^1]: R.S.O. 1990, c. C.12

[^2]: Affidavit of the Applicant sworn August 24, 2014 at para. 16.

[^3]: It was unclear from Mr. Riegg’s material as to whether either of these teachers was Eva’s senior kindergarten teacher.

[^4]: R.S.C. 1985 (2nd Supp.), c. 3