COURT FILE NO.: FC-15-170 DATE: 2016/09/19 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

NADIA ABU-ZAHRA Applicant – and – ASHRAF HENDY Respondent

Counsel: Emily Comor, for the Applicant Gonen Snir, for the Respondent

HEARD: September 15, 2016

Endorsement

Overview

Overview

1The Applicant and the Respondent are scheduled to proceed to a trial during the September 2016 trial sittings dealing with custody and access to their two children of the marriage namely, Nora Fara Hendy, born July 22, 2011 (“Nora”), and Adam Omar Hendy born April 4, 2013 (“Adam”).

2The Applicant (“the mother”) brings a motion today seeking an order that her eldest daughter, Nora, attend École Trille des Bois in Ottawa and the after school daycare program at that school. The Respondent (“the father”) opposes such an order and requests that the child attend École Élémentaire Francojeunesse (“Francojeunesse”).

Facts

Facts

3The parties were married to each other on February 10, 2005 and separated on May 16, 2014. They have two children, Nora and Adam.

4The parties have been in litigation since the mother commenced proceedings on January 23, 2015. This matter was designated a high conflict matter and case managed by Madam Justice Warkentin.

5On December 21, 2015, Madam Justice Warkentin, with the consent of the parties, issued on an interim without prejudice basis, an order dealing with decision-making, communication, parenting schedule, exchanges of the children, education and daycare, health, children’s activities, religion, and miscellaneous provisions.

6With respect to the parenting schedule, the children’s primary residence was with the mother. The father was granted access that since January 2016 has been every second Saturday from 9:00 a.m. until Sunday at 7:30 p.m. The father was not granted access to the children during the week.

7Pursuant to that consent order, the parties agreed that the child would attend Francojeunesse as that was the French public school in the school district where the matrimonial home was located and where both parties and the children resided.

8Things changed when the father exercised his right to purchase the mother’s interest in the matrimonial home. The process took over seven months to finalize.

9In mid-July 2016, the mother moved from the matrimonial home to her current residence in Rockcliffe Park.

10However, the issue of school was raised on April 25, 2016 when Ms. Lisa Sharp, then counsel for the father, received an email from counsel for the mother, Ms. Comor, enclosing an attached letter from the school inquiring as to whether or not the child would be returning to Francojeuness the following year. The letter was in French, and consequently, Ms. Sharp, who did not understand the letter, was unsure as to what the form was for and advised her client to contact the school to find out.

11The next day on April 26, 2016, Ms. Comor emailed Ms. Sharp advising her that since the mother was moving out of the school district, the child would not be returning to Francojeunesse. The father admits that on April 26, 2016, he found out that the mother was planning to move the child out of the school district.

12That day, the father went to the school and provided them with a copy of Madam Justice Warkentin’s Order dated December 21, 2015.

13On May 4, 2016, Ms. Sharp sent an email to Ms. Comor indicating that the father did not consent to the child changing schools. The letter also mentioned that the mother did not provide any information of her new neighbourhood or what school she wished to register the child in. Within three hours of receiving the said email, Ms. Comor replied indicating the mother’s plans to move to a home in Rockcliffe Park, that the mother hoped the child would attend school in September 2016 at École Trille des Bois, that it is in the French School District for the mother’s future home address and that it is a Waldorf model school which is much sought after. There was no reply from the father.

14On June 2, 2016, during a conference call between counsel and the case management judge, Ms. Comor raised the issue that the child will have to change schools due to her upcoming change in residence. This was not denied by the father.

15The mother registered the child in the new school on or about July 6, 2016 as the deadline to register the child at the Francojeunesse after school program had expired and there had been no response to the May 4 email.

16The parties attended a motion before Justice Sheard on July 14, 2016 on issues related to the matrimonial home. Counsel for the father, in his Cost Submissions, acknowledged that his client was notified during the July 14, 2016 motion that the Applicant was registering the child in a new school.

17On August 8, 2016 Ms. Comor sent a letter to the father’s counsel, Mr Snir, including forms to be completed and submitted for the after day program at the child’s new school. The mother requested the return of the completed forms by August 10, 2016 failing which she would simply file the forms herself. On August 10, 2016, Mr Snir sent a fax to Ms. Comor objecting to any change in school.

18Ms. Comor advised the Court and it is confirmed by her client’s affidavit that she never saw the fax. The mother proceeded to register the child in the after school program on the basis that she never received any response from the father. There was no follow-up by either party despite no reply to their letters.

19On August 29, 2016, the child attended her first day at daycare at École Trille des Bois. On August 30, 2016, she met her new kindergarten teacher.

20On August 30, 2016, the parties attended a three hour Settlement Conference with Madam Justice Warkentin. Both parties agree that no one brought up the issue of the change in school.

21However, later that day, after the Settlement Conference, the father called Francojeunesse to inquire about the child’s first day at school and if she needed anything. He was informed by the school that she had been deregistered and removed to another school.

22On August 31, 2016, the father went to the school board and was told that the child had been transferred to École Trille des Bois. He called the principal who confirmed that Nora was registered in the new school. Later that day, the father attended the new school and gave the school principal a copy of the Order. Once the school was advised of the Order, the school’s authorities advised the mother that the child could not attend school without the consent of both parties or a new consent order.

23On September 2, 2015, the father was contacted by the school principal who indicated Nora could not attend the new school and would be going back to Francojeunesse.

24Since September 1, 2016, the child has not attended school and is awaiting the Court’s decision as to which school to attend.

Parties Positions

Parties Positions

25The mother argues that until August 31, 2016, she was operating on the understanding that the child was going to the new school. The mother takes the position that it is in the child’s best interest to attend this school for the following reasons:

a. It is her neighbourhood school and allows her to form friendships with neighbourhood children; b. She is registered in the after school program while there is no daycare set up at Francojeunesse; c. The child can take a bus to the new school and there is no bus service available to her at the old school as she no longer lives in the school district. d. It is most likely the school that her brother Adam will attend when he starts school in September 2017; e. The new school is saving Nora a spot in her class and at the daycare; f. Nora has met her teacher, attended the daycare and the school, and believes she is now just on a short break; g. Her favourite teacher from Francojeunesse and another teacher now teach at her new school; h. The new school teaches the Waldorf model which is highly respected; i. The child is in the mother’s primary care and resides with the mother on all school days; j. The December 21, 2015 Order gives the mother responsibility to make final decisions about the children in the event of a dispute and she believes that the child’s best interests are best met by attending the new school; k. The child is a very strong student, has not shown any negative effects of this will change and is in fact excited about attending the new school; and l. The father’s continued residence in the Francojeunesse school district is tenuous as he has placed his residence up for sale.

26The father’s position is that the child shall attend Francojeunesse based on the following factors:

a. The child attended that school last year in junior kindergarten where she was very happy, had lots of friends and was attached to the school, teachers and friends; b. When the parties agreed to paragraph 15 of the Order of December 21, 2015, it was intentionally and specifically for the arrangements regarding education and daycare and excluding them from the decision-making clauses in paragraph 1 and 2 of the Order which granted the mother the right to make the final decision in the event of a disagreement. c. That he is not even sure if the mother lives in the school district as she has failed to provide him with her new address; d. He is concerned about the new school having a lower ranking than the old school and that is not a supporter of the Waldorf philosophy. e. He is concerned that changing the school can be a wrenching social and emotional experience for Nora based on studies that he has read including one in Time magazine; f. The new school is not far from the old school and the mother could drop the child off at Francojeunesse on her way to work at the University of Ottawa. The father proposes that if the mother has an issue about afterschool care he can pick the child up and care for her until the end of the school day until the mother is ready to go home; and g. The father raises the concern of the child being five years of age and taking the school bus. His position is that the child should not take a school bus and that it should be avoided and that the mother should take the child to Francojeunesse in the mornings.

Analysis

Analysis

27It is clear from a review of the pleadings that this is a very high conflict proceeding where there is no trust between the parties. This is confirmed where the parties agree that all access transfers take place at the police station.

28The parties have been in litigation since January 2015 and will be going to trial this fall either in the September or November trial sittings. All issues outstanding between the parties will be adjudicated.

29The mother requests that I make a final order regarding the placement of the child’s school and daycare. I decline to make a final order as all issues will be proceeding to trial this fall. However, I will make a temporary without prejudice order so that the child can attend school while this litigation continues.

30At the time the parties entered into the December 21, 2015 consent order, they both were residing in the same school district. Due to the inability to communicate, the parties agreed that the school of the child would not change. However, circumstances changed when the father purchased the mother’s interest in the matrimonial home and the mother moved from one school district to another school district.

31An issue was raised by the father that he did not know the mother’s address, and consequently did not know where his children were living or what Nora’s proper school district is. However, in the father’s own affidavit dated September 13, 2016, he attaches as exhibit B to his affidavit two documents. The first document is a school registration document for Francojeunesse where he checked off that he has joint custody of the child. Upon reading of the December 21, 2015 Order, it does use the term joint custody. In fact, the primary residence of the children is with the mother and the father has access. With respect to any major decision affecting the children, the Court order provides that if they cannot agree, the mother will make the final decision taking into account the father’s input.

32With respect to the allegation, the father alleges that he is unaware of the mother’s address or whether Nora is in the proper school district. Upon a review of the Personal Medical Profile of the mother dated July 13, 2016, the form gives the mother’s address. Despite the father’s allegation in his affidavit, it was he who filed the Personal Medical Profile document that contained the address information.

33The father is also against the child taking a bus as the child is too young. However, the evidence of the mother, which is not denied by the father, is that the child took the school bus from September 2015 to June 2016 when she was four years of age.

34These contradictions cause me to have serious concerns about the father’s credibility in his affidavit evidence.

35I find that the Order of Justice Warkentin dated December 21, 2015 is a temporary order subject to variation in the event of a material change in circumstances.

36I do not find that the mother had the unilateral right to change the child’s school without the consent of the father or court order. I agree with the father that the parties specifically dealt with school and daycare in paragraph 15 of the Order of Justice Warkentin.

37However, things changed when the mother transferred her interest in the matrimonial home to the father in July 2016. At that time, I find that it was quite clear that the mother would be changing the child’s school as she would be changing school districts.

38I find that the father was aware of the mother’s intention to change the child’s school by the following events:

a) the email sent on April 26, 2016 by Ms. Comor; b) the email sent on May 4, 2016 by Ms. Comor; c) the discussion of the child changing school during a conference call with Justice Warkentin on June 2, 2016; d) the disclosure made during the motion on July 14 that the child would be changing schools; e) the Cost Submissions made by counsel for the father in July 2016 where he acknowledged that he was aware that the mother had changed the child’s school; and f) the letter of August 8, 2016 from Ms. Comor enclosing the daycare registration documents at the new school.

39Despite these occasions where the mother communicated that she was changing the child’s school, the father alleges that he was shocked to find out that his daughter was no longer going to the old school. The father’s position is that he relied on the terms of the December 21, 2015 Order so that without his consent, the child would be attending Francojeunesse.

40However, the father provided no evidence that he has made daycare arrangements for the child at the old school. As well, the registration document for Nora at Francojeunesse which appears at Tab B in the father’s affidavit dated September 13, 2016, is dated September 7, 2016. If the father believed that his daughter was going back to that school, there is no evidence before me that daycare arrangements had been made or that the child was registered to attend the school.

41The mother’s plan is the child will attend school by travelling by school bus, spend the day at school and be in after school day care until the mother picks her up. The father’s plan is that the mother would deliver the child to school every morning on her way to work at the University of Ottawa, the child would spend the day at school and, if the mother did not have daycare facilities, that he would take care of the child until the mother picked her up at the end of each day.

42The problem with the father’s proposition is that it is a fundamental variation of the father’s access to this child. The Consent Order provides the father with access every second weekend from Saturday at 9:00 a.m. to Sunday at 7:30 p.m. Further, there is a Peace Bond that specifies at para. 2: “You are not to contact or attend the residence of Nadia Abu-Zahra or her parents except for the purposes of access to the children pursuant to a Family law order or agreement and communication for this is duly allowable for the sole purpose of the communication and access to the children and must be due through Our Family Wizard website.” The plan proposed by the father is a dramatic variation of the access. The issue of custody and access will be decided after a trial. There is no motion before me to vary the interim access, and consequently I cannot consider this proposal.

43I have reviewed the jurisprudence provided by both counsel. Decisions on schools for children are fact-based. The general principle of acting in a child’s best interests permeates these decisions.

44While the father raises the issue about the inappropriateness of some of the philosophy of the Waldorf School, I am dealing with a temporary order that will last until the trial in this matter for the placement of a five-year-old girl in senior kindergarten. At this juncture, I do not believe the philosophy of the Waldorf School is a significant factor in my decision.

45In this case, the child resides in the primary care of her mother with her brother Adam in Rockcliffe Park. The father has very limited access to the child. The father has not provided any evidence as to what daycare facilities are available for the child at Francojeunesse. His evidence is that he is proposing to care for the child every day after school until the mother is ready to pick the child up. On the other hand, the mother has proposed a plan where the child will take the bus to school, spend the day at school, and the mother will pick the child up at the end of the day at an afterschool daycare program. When presented with two competing plans, I must determine which plan is the most viable and in the best interests of the child and not the best interests of the respective parents.

46I find that the plan proposed by the mother on a temporary without prejudice basis is the most viable, does not require a variation of the access terms of the December 21, 2015 Order and is in the best interests of Nora.

Disposition

Disposition

47After considering all the factors, I order, on a temporary and without prejudice basis, that the child, Nora Farrah Hendy, born July 22, 2011, attend École Trille des Bois Elementary School and daycare.

48If the parties are not able to resolve the issue of costs by September 23, 2016, the Applicant shall provide her Costs Submissions not to exceed two pages plus Bill of Costs and any Offers to Settle by October 7, 2016. The Respondent father shall provide his Cost Submissions, not to exceed two pages plus a Bill of Costs and any Offers to Settle by October 21, 2016.

Shelston J.