COURT FILE NO.: FC-17-2057
DATE: 20180824
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Katrina Lynn Turnbull
AND
David Turnbull
BEFORE:
COUNSEL: Katherine Shadbolt and Bryce Dillon for the applicant, Katrina Lynn Turnbull
Andrea Camacho and Kathryn Bortolussi for the respondent, David Turnbull
HEARD: August 9, 2018
ENDORSEMENT
H.J. Williams, J.
[1] Katrina and David Turnbull have asked the court to decide which school their young sons should attend because Katrina and David cannot agree.
[2] One thing Katrina and David do agree on is that the boys should attend the same school.
[3] Katrina and David have asked the court for an order that would affect Ethan, now four years old, when he starts junior kindergarten in just a few days from now and Theo, who will be three this November, when he starts junior kindergarten in September of 2019.
[4] Katrina wants the boys to attend Elmdale Public School, which offers an early French immersion program.
[5] David wants the boys to attend Turnbull School, a private school founded by David’s mother.
[6] My task, which I told the parties at the conclusion of their hearing would be as difficult as it is important, is to determine which school would be in the boys’ best interests.
Background
[7] Katrina and David married in September, 2011.
[8] Ethan was born on March 2, 2014.
[9] Theo was born on November 2, 2015.
[10] Katrina and David separated in February of 2017.
[11] There is no formal parenting agreement or order in respect of custody. Since September of 2017, the boys have been alternating between the parents’ homes on a weekly basis. The parents share decision-making.
[12] Both boys have been attending a Montessori daycare, where they have been taught in both French and English. Ethan began to attend the daycare in February of 2015, Theo in July of 2016.
The positions of the parties
[13] Katrina wants the boys to attend Elmdale because it offers an early French immersion program.
[14] Katrina argues that Elmdale is located less than one kilometre from her home and just over two kilometres from David’s home. The proximity of the school to the parents’ homes would not only be convenient but would mean that the boys would attend the same school as other children in their neighbourhood with whom the boys would likely also share community-based activities.
[15] Katrina is opposed to the boys attending Turnbull because it does not offer French immersion and because of its connection to David’s family. Katrina is estranged from David’s parents. She says that she does not feel comfortable or welcome at Turnbull. She fears that the boys would be given special treatment at Turnbull and then resented by their peers. She is also concerned about David’s family’s financial connection with Turnbull.
[16] David wants the boys to attend Turnbull because of his family’s ties to the school and also because of its small class sizes, its enriched programs, its ability to cater to the individual needs of students and its resources and modern facilities.
[17] David is not as opposed to Elmdale as Katrina is to Turnbull but he is concerned that Theo may be left behind in a French immersion program because he will be younger than most of the children in his grade and his language skills are not as strong as Ethan’s were at the same age. David is also concerned about an expansion project that is scheduled to take place at Elmdale while the boys would be students there.
The legal framework
[18] In Thomas v. Osika, 2018 ONSC 2712 at para. 37, my colleague Audet J. said that the decision with respect to the choice of school, when the parents disagree, is ultimately a matter of judicial discretion.
[19] In Thomas v.Osika, Audet J. said that a number of general principles have nonetheless emerged from the case law to assist the court to make a decision that is in the child’s best interests.
[20] I adopt Audet J.’s summary of these general principles:
(a) Sub-section 28(1)(b) of the Children's Law Reform Act specifically empowers the court to determine any matter incidental to custody rights. The issue of a child's enrollment in a school program must be considered as being incidental to or ancillary to the rights of custody (Deschenes v. Medwayosh, 2016 ONCJ 567);
(b) It is implicit that a parent's plan for the child's education, and his or her capacity and commitment to carry out the plan are important elements affecting a child's best interests. In developing a child's educational plan, the unique needs, circumstances, aptitudes and attributes of the child, must be taken into account (Bandas v. Demirdache, 2013 ONCJ 679, 2013 ONCJ 679 (Ont. C.J.));
(c) When considering school placement, one factor to be considered is the ability of the parent to assist the child with homework and the degree to which the parent can participate in the child's educational program (Deschenes v. Medwayosh, 2016 ONCJ 567);
(d) The emphasis must be placed on the interests of the child, and not on the interests or rights of the parents (Gordon v. Goertz, 1996 191 (SCC), [1996] S.C.J. No. 52 (S.C.C.);
(e) The importance of a school placement or educational program will promote and maintain a child's cultural and linguistic heritage (Perron v. Perron, 2012 ONCA 811, 2012 ONCA 811 (Ont. C.A.);
(f) Factors which may be taken into account by the court in determining the best interests of the child include assessing any impact on the stability of the child. This may include examining whether there is any prospect of one of the parties moving in the near future; where the child was born and raised; whether a move will mean new child care providers or other unsettling features (Askalan v. Taleb, 2012 ONSC 4746, 2012 ONSC 4746 (Ont. S.C.J.);
(g) The court will also look to any decisions that were made by the parents prior to the separation or at the time of separation with respect to schooling (Askalan v. Taleb, 2012 ONSC 4746, 2012 ONSC 4746 (Ont. S.C.J.);
(h) Any problems with the proposed schools will be considered (Askalan v. Taleb, 2012 ONSC 4746, 2012 ONSC 4746 (Ont. S.C.J.);
(i) A decision as to the choice of school should be made on its own merits and based, in part, on the resources that each school offered in relation to a child's needs, rather than on their proximity to the residence of one parent or the other, or the convenience that his attendance at the nearest school would entail (Wilson v. Wilson, 2015 ONSC 479);
(j) Third party ranking systems, such as the Fraser Institute’s, should not factor into a Court’s decision. These systems of ranking do not take into consideration the best interest of the particular child in a family law context (Wilson v. Wilson, 2015 ONSC 479);
(k) If an aspect of a child's life, such as school placement, is to be disrupted by an order of the court, there must be good reason for the court to do so. Thus, before a court will order a child to transfer schools, there must be convincing evidence that a change of schools is in the child's best interests (Perron v. Perron, 2012 ONCA 811, 2012 ONCA 811 (Ont. C.A.);
(l) Custodial parents should be entrusted with making the decision as to which school children should attend. When a sole custodial parent has always acted in the best interest of a child, there should be no reason to doubt that this parent will act in the best interest of the child when deciding on a school (Adams v. Adams, 2016 ONCJ 431);
(m) Those cases are very fact-driven. The courts are not pronouncing on what is best for all children in a general sense but rather deciding what is in the best interests of this child before the court (Deschenes v. Medwayosh, 2016 ONCJ 567).
The Evidence
[21] The record for this motion was thick and dense. Both parents filed multiple multi-paragraph affidavits with numerous and often lengthy exhibits.
[22] The affidavits of both parties contained quite a bit of hearsay and opinion evidence.
[23] For example, I was asked to consider two research papers on the relationship between date of birth and educational outcomes, a report on teaching French as a second language, an article about arts education and an article that concluded that boys do better in school when they have male teachers. These reports were attached to the affidavits of the parents. I was also asked to consider a Fraser Institute “School Report Card” for Elmdale, which was attached to an affidavit sworn by one of Katrina’s lawyers. I have disregarded all of these articles and reports on the basis that they contain the opinions of experts filed without affidavits from their authors; they are also hearsay.
[24] Where the parents’ evidence included information obtained from others and the parents’ affidavits did not comply with Rule 14(19) of the Family Law Rules, I have disregarded that evidence.
[25] The evidence I was provided in respect of Elmdale focused primarily, although not exclusively, on the school’s kindergarten program. The evidence in respect of Turnbull was in respect of kindergarten through grade 8.
Considerations:
[26] In my efforts to determine which school would better serve the interests of the boys, the parties asked me to consider a number of factors including the following:
Was there a pre-separation agreement between the parties?
[27] The parents disagree about their pre-separation discussions about school choice.
[28] Katrina said that before they separated, the parents had agreed that the boys would attend Elmdale.
[29] Katrina said that the home on Clarendon Avenue where the family lived when the parents separated was only 350 metres away from Elmdale and had been purchased because of its proximity to the school.
[30] David said that he had always wanted the boys to attend Turnbull. He said that the fact that the Clarendon Avenue home was in the Elmdale catchment area was a factor that was only relevant for resale purposes.
[31] Both parents agree that there had been discussion, if no final agreement, about the boys attending Elmdale until Grade 6 and then attending Turnbull for Grades 7 and 8.
Community ties:
[32] Elmdale is a community school. The students who attend Elmdale live in the school’s catchment area.
[33] Students who attend Turnbull come from all parts of the city.
[34] Katrina argued that, at Elmdale, the friends the boys would make at school would also be their neighbours.
[35] Katrina already knows at least two mothers whose children will be attending Elmdale; she said that Ethan knows these children and has played with them.
[36] David said that one of his school friends will be sending his children to Turnbull.
[37] There was evidence that both schools involve their students in community activities through fund-raising and other volunteer initiatives.
French immersion:
[38] Both parents agree that it is important that the boys become bilingual.
[39] Katrina is bilingual. She attended a French immersion program herself, although not an early French immersion program. She has worked as a French to English translator. She speaks and reads to the boys in French and ensures that they are exposed to French books, television programs and culture.
[40] Although David denied this, Katrina said that David had told her that his inability to speak French limited some of his professional opportunities.
[41] Elmdale offers early French immersion. All students attending Elmdale are in its French immersion program. It offers no other program.
[42] Turnbull does not offer a French immersion program. At Turnbull, French instruction begins in kindergarten. Turnbull’s primary students have seven 40-minute French language classes/week, one of which is a computer class and daily physical education classes are taught in French. Following the primary grades, students are placed into one of three French steams, based on their proficiency. The highest level, Rigorous Enriched French, uses materials used by schools under a francophone school board where the first language of most students is French.
Public vs. private and cost:
[43] Elmdale is a public school.
[44] Turnbull is a private school. Annual tuition fees vary but are approximately $20,000.00 per year.
[45] David’s parents have offered to pay the tuition and associated expenses for both Ethan and Theo to attend Turnbull to the end of grade 8.
[46] David argued that Turnbull provide facilities, resources, individual attention and special programs that a public school cannot offer.
[47] Katrina’s lawyer cautioned me against taking judicial notice, or simply assuming, that a private school is necessarily better than a public school.
Proximity:
[48] Elmdale is 800 metres from Katrina’s home and 2.2 kilometres from David’s home.
[49] Turnbull is 3.3 kilometres away from Katrina’s home and 4.4 kilometres from David’s home.
[50] Katrina said that she would walk with the boys to and from Elmdale. Katrina said that it is an easy walk and that there are crossing guards at the busy intersections.
[51] David said that because he lives outside the catchment area for Elmdale, he would not qualify for busing to Elmdale but Katrina said that this is not true.
[52] David said that Turnbull would make arrangements with a private company to transport the boys to and from school. David’s parents have arranged to pay for morning transportation if either David or Katrina request it.
Class size and individual attention:
[53] Elmdale’s kindergarten classes are expected to have 25 to 27 (there was evidence both of “25 to 26” and “26 to 27”) students but could have as many as 31. Each class has one teacher and also one early childhood educator assigned to it. In grade 1 and throughout the higher grades at Elmdale, the number of students drops to approximately 20 per class.
[54] Turnbull’s classes have no more than 12 students from kindergarten to grade 3, no more than 14 students in grade 4, no more than 15 students in grades 5 and 6 and no more than 18 students in grades 7 and 8.
Neutral environment:
[55] Katrina argued that, unlike Turnbull, with which the boys share their last name, Elmdale is a neutral environment, where the boys will not be singled out and where both parents will feel welcome and comfortable.
[56] Katrina said that she does not feel comfortable or welcome at Turnbull and that she was excluded from the registration process and left in the dark about a visit David and Ethan made to the school and the results of a test that was administered.
[57] David denied that Elmdale is neutral territory, as Katrina has befriended two Elmdale teachers, including a kindergarten teacher who follows Katrina’s on-line presence and who provided Katrina with much of the information about Elmdale relied on by Katrina for this motion.
Stability and continuity:
[58] Elmdale offers classes from junior kindergarten to grade 6.
[59] Turnbull offers classes from junior kindergarten to grade 8.
[60] As noted above, Elmdale offers only a French immersion program.
[61] Neither school has a “gifted” program, per se, although both can offer individual education plans.
[62] Katrina argued that, because the boys have been in a bilingual daycare, Elmdale’s early French immersion program offers them continuity.
[63] David argued that the daycare is not really bilingual and that, because of Turnbull’s smaller class sizes, Turnbull offers the boys greater continuity.
Buildings and facilities:
[64] Elmdale is in a 90 year old building which is about to be upgraded. Construction of a seven-classroom addition is scheduled to begin at Elmdale in September, 2019.
[65] Students will either be bused to another school for one year while the addition is built or will stay at Elmdale while the work is completed over three to four years.
[66] Turnbull’s building is more modern. Construction is also expected at Turnbull. A music hall is being built, a visual arts room is being renovated and a drama classroom is being created. Turnbull announced the renovations in February, 2018.
[67] At present, Elmdale has one computer lab and one gymnasium while Turnbull has two of each.
Before and after-school care:
[68] Supervised drop-off starts at Elmdale at 8:45; classes start at 9:00.
[69] Supervised drop-off starts at Turnbull at 8:00: classes start at 8:30.
[70] Both schools offer before- and after-school care.
[71] Elmdale’s after-school program is operated by Mothercraft. It has an educator to student ratio of 1 to 13. It costs $550.00/month.
[72] Turnbull’s after-school program is operated at Turnbull by the Dovercourt Recreation Centre. It has an educator to student ratio of 1 to 8. It costs $231.50/month.
Analysis and conclusion:
[73] As I stated at the outset, this is a difficult decision. I am not, obviously, to attempt to decide which of the two schools is “better”; I am to decide which of the two schools would better serve the interests of Ethan and Theo, taking into account their particular needs and circumstances and the factors that are relevant to them.
[74] I do not consider the relative proximity of the two schools to the boys’ two homes to be a significant factor in my weighing of the two options. The longest distance between one of the schools and one of the homes is only 4.4 kilometres. Katrina can walk the boys to Elmdale. Elmdale is only 2.2 kilometres away from David’s home and David has a car. Transportation is available to Turnbull. Both schools have before- and after-school care, although Elmdale’s is more expensive. I do not consider the anticipated construction at the two schools to be a significant factor. While it may create disruption, I believe that the parents can rely on the schools’ administrators to keep the teachers teaching and the students safe while the construction is on-going; the students will of course benefit from the upgraded buildings.
[75] I consider other factors raised by the parents on this motion to be more significant.
[76] For example, Katrina very much wants the boys to attend a French immersion program in the school in the community where they live.
[77] To her credit, Katrina recognizes that Turnbull is a good and well-respected school and that there is an additional, family-related reason to send them to Turnbull. Although she was not quite as generous in the affidavits filed on the motion before me, in her reply to David’s answer in her application, Katrina said:
With respect to paragraph 6, the Applicant reiterates her statement that the Parties agreed to send the children to Elmdale Public School from kindergarten to Grade 6. The Applicant acknowledges the qualities of Turnbull School and the significance of sending her children to a well-respected private school founded by their paternal grandmother. (Emphasis added.) She is open to discussing sending the children to Turnbull School for Grades 7 and 8, as the Parties discussed during the marriage. However, the tuition to Turnbull School is around $20,000+ per child each year. This expense is not reasonable, necessary nor practical given the Parties’ respective financial means. The Respondent has not provided any particulars as to how he expects the Parties to pay over $40,000 a year to put the children in private school.
[78] The concern about cost raised by Katrina in her reply has now been addressed by David’s parents, who have offered to pay for the boys to attend Turnbull to the end of grade 8.
[79] However, Katrina says that she does not feel comfortable or welcome at Turnbull.
[80] Just as Katrina acknowledges that Turnbull is a good school, David recognizes that Elmdale is a good school. As noted above, David does not appear to be as opposed to Elmdale as Katrina is to Turnbull but he has concerns about how Theo in particular might respond to early French immersion. He is also concerned about the construction that is to take place at Elmdale, which would ultimately benefit the boys but which would be disruptive for them for at least one year and possibly four years.
[81] It is important to David that the boys go to the school their grandmother founded.
[82] At the hearing of this motion, counsel for both parents confirmed that the parents agree that both boys should go to the same school. They requested an order that Ethan be enrolled in that school in September, 2018 and Theo in September, 2019.
[83] There are many good reasons why the parents would want the boys to attend the same school and I find that it would be in the boys’ best interests for them to do so. Coordinating transportation, communications and logistics for two boys who attend the same school will be challenging enough for two busy parents who live separately and, at present, do not always see eye-to-eye. If the boys were to attend two different schools, this would add an unnecessary layer of complexity to their lives. In her evidence, Katrina said that Theo would want to be in and would benefit from being in the same two-year kindergarten class as Ethan. David said that the boys have a strong bond and that he also believes that it is in their best interests to attend the same school. I also find that, in this situation, where one of the two schools charges tuition fees which would be paid for by the boys’ grandparents and is named after their grandmother, there would be merit in sending the boys to the same school so that they feel that they are being treated equally.
[84] Both parents emphasized the importance of continuity and stability in the choice of school for the boys.
[85] Taking into consideration that the boys should attend the same school and the importance of continuity and stability, for the reasons below, I find that it would be in the best interests of the boys for them to attend Turnbull.
[86] I was urged by Katrina’s lawyer not to fall into the trap of assuming that a private school is necessarily better than a public school. I took this warning to heart and I have not made this assumption. In making the decision I have made, I have considered what each school has to offer these particular boys. I am very aware that the decision I have made will deprive the boys of an opportunity to attend what appears on the evidence to be a vibrant French immersion school that is located in the community in which one of their two homes is located and is not far from the other home.
[87] There are two fundamental reasons for my decision in favour of Turnbull: The first is the evidence about the smaller class sizes and individual attention Turnbull offers its students; the second is that I was asked to decide now, on the basis of the evidence that is available now, which school would be in the best interests of two boys who may prove to have different aptitudes and abilities and who should attend, and continue to attend, the same school.
[88] There was evidence from both parents that Ethan has strong language skills in both English and French. In his affidavit, David said that Ethan has demonstrated language acquisition well beyond his years and Katrina put in evidence a Montessori progress report that said that Ethan “demonstrates an interest in learning French” and “knows many of the words”. Ethan also did well on a test he took at Turnbull.
[89] The evidence in respect of Theo was somewhat different.
[90] Theo was a November baby. Although he is big for his age, he is young in comparison to the other children in his class.
[91] David’s evidence is that language and articulation skills have so far not proven to be among Theo’s strengths and that Theo is not as advanced in this area as Ethan was when Ethan was Theo’s age. David also said that Theo is lagging behind in French.
[92] David is concerned that Theo may have difficulties in French immersion, both because of his age relative to other students and the level of his language skills.
[93] Katrina agreed that Theo is not as advanced as Ethan in terms of language skills but said that he is bright and curious and very social and that he responds well when she speaks and reads to him in French. Katrina said that she believes that Theo is on par with his peers. Katrina says that Theo’s progress report from Montessori shows that he has mastered verbal skills and comprehension skills in English and is learning in French.
[94] Theo’s May, 2018 “Toddler Progress Report” from Rainbow Montessori shows that in Verbal Skills and Comprehension, Theo was given an “M” which stands for “Mastered to his/her own level.” For French “Verbal Skills & Comprehension” he was given an “L” which stands for “Still in the learning process.” I infer from this that, as of May, 2018, Theo had not yet “mastered” French verbal skills and comprehension “to his own level”.
[95] David said that Theo had not been moved up to the next level at his daycare as would have been expected. Katrina’s evidence was that the daycare had not mentioned to her that Theo had been held back because of his French skills.
[96] David’s evidence is that Theo is too young to assess whether he will be successful in a French immersion program. While that statement was unsupported by any evidence, there was in fact no objective evidence before me that Theo will be successful in a French immersion program and there was evidence: (a) that he is young for his grade; (b) that both parents agree that his language skills are not as advanced as Ethan’s were at the same age; and (c) that he has not “mastered” French verbal skills and comprehension “to his own level.”
[97] I want to be clear that I am not making a finding that Theo cannot thrive in a French immersion environment. I am making the following findings, based on the evidence that was available to me:
a. That the parents want the boys to attend the same school;
b. That, because of the close bond between them, for logistical reasons and so that they will be treated equally, it is in the best interests of the boys to attend the same school;
c. That the parents want continuity and stability for the boys’ education;
d. That it is in the best interests of the boys to have continuity and stability in their education;
e. That the parents want the boys to be bilingual;
f. That it is in the best interests of the boys to be bilingual;
g. That, having been born in November, Theo will be among the younger children in his grade;
h. That Theo’s language skills are less advanced than Ethan’s were at the same age;
i. That there is some evidence that Theo is struggling in French (he has not “mastered” French verbal and comprehension skills “to his own level”);
j. That the smaller class sizes, individual attention and tailored programs Turnbull can offer would benefit both boys but particularly Theo, given that he will be only three years old when he starts junior kindergarten and that he will be younger than many of the other children in his grade;
k. That if both boys attend Elmdale and if either one of them does not thrive in its French immersion program and is required to transfer to a different program, because Elmdale offers only French immersion, the boys either will not be able to attend the same school or both will be required to leave Elmdale;
l. That there was no evidence of any reason that both boys would not be able to remain at Turnbull until the end of grade 8;
m. That although Turnbull does not offer French immersion, it offers a comprehensive French program which, after the primary grades, includes three levels of French instruction into which students are streamed depending upon their abilities; and
n. That although the boys will not be immersed in French in school, they will continue to be immersed in French when they are living with their mother who speaks and reads to them in French and exposes them to French television and culture.
[98] There is much to be said about a school such as Elmdale that draws students from its local community. Katrina expressed concern that if the boys do not attend Elmdale, they will either be “ostracized” by the children in the neighbourhood or “significantly excluded” from events such as birthday parties. It is true that by attending Turnbull, the boys will not be attending the same public school as many of the children in their neighbourhood. However, not all of the children in their neighbourhood will attend Elmdale; some will attend Catholic schools and others will attend other private schools. Armed with a positive attitude, there is no reason to believe that the boys’ experience will not be the same as that of their father who attended private school himself and said that, as a result, he made friends both at school and in his neighbourhood.
[99] Although the only reservations about Turnbull Katrina pleaded in her reply to David’s answer were the cost and that Turnbull did not have a French immersion program, I have not ignored Katrina’s concerns about not feeling comfortable or welcome at Turnbull. She devoted many paragraphs in her affidavits to the reasons she would feel this way.
[100] I consider the ability of both parents to participate in the boys’ education to be in the best interests of the boys.
[101] That Katrina would feel some degree of discomfort at Turnbull is understandable. It will not be a secret at the school that she and the son of the founder of the school are separated.
[102] The founder of the school, David’s mother, has retired from the school but continues to attend significant events at the school.
[103] In her evidence, Katrina asked this court to accept that the founder of the school and her husband, David’s parents, had not spoken to Katrina since Katrina and David separated. Katrina did not include in her evidence an April, 2017 email in which David’s mother had reached out to Katrina following the separation or Katrina’s reply, in which she told David’s mother never to contact her again and that she did not want to have anything further to do with David’s parents or his sister.
[104] It may be within Katrina’s power to take steps to make herself feel more comfortable at Turnbull and even if it is not, I do not find that her discomfort overrides the reasons that are the basis for my conclusion that attending Turnbull would be in the boys’ best interests.
[105] With respect to Katrina’s sense that she is unwelcome at Turnbull, I find that she has made certain assumptions that she is unwelcome while the evidence suggests otherwise.
[106] Although Katrina and David had agreed that Ethan would be registered at both Elmdale and Turnbull pending this decision, and David participated in the registration process at Elmdale, Katrina did not participate in the registration process at Turnbull.
[107] Katrina agreed to attend a meeting at the school on February 21, 2018, but cancelled due to illness.
[108] Katrina did not then ask to meet with the school’s registrar until June. The meeting did not take place until June 29, 2018 and, in her evidence, Katrina was somewhat critical of the registrar for not being available to meet until after the registrar’s vacation. Katrina brought a friend with her to the meeting. Katrina and the friend both then swore affidavits in which they described their meeting with the registrar. That the registrar was described in one of the affidavits as appearing uncomfortable is no surprise, given the circumstances.
[109] David did not inform Katrina in advance about one of the meetings he attended at Turnbull with Ethan in February and then appears not to have asked Katrina if she would like the school to pass on some information about a test Ethan took, when the school had offered to send this information to Katrina. These incidents justified Katrina’s sense that she was being ignored by Turnbull but the evidence on this motion showed that it was David and not the school who was responsible for these lapses.
[110] There were emails in evidence from one of the school’s principals and from the registrar indicating their willingness to speak with Katrina and evidence that the school has a number of students whose parents are separated or divorced, that it shares information with parents equally and that it is aware that there may be confidentiality concerns.
[111] There was no evidence that Turnbull did anything with the intention of excluding Katrina or making her feel unwelcome.
[112] I see no impediments to Katrina participating fully in the boys’ education at Turnbull over which she does not have control herself.
[113] I note that at the time she delivered her reply to David’s answer to her application, which was in November, 2017, Katrina was open to the prospect of the boys attending Turnbull; she pleaded that she would be willing to send the boys to Turnbull for grades 7 and 8.
[114] I was unconvinced by Katrina’s argument that David’s family’s financial ties with Turnbull could negatively affect the boys’ education; there was no compelling evidence in support of this suggestion.
[115] Finally, Katrina asked me to consider Elmdale as being more neutral territory. David suggested that because Katrina is friends with two Elmdale teachers and that much of the evidence about Elmdale in Katrina’s affidavits was provided by one of those teachers, Elmdale would not feel like particularly comfortable or welcoming territory to him. There can be no doubt that Elmdale, which was not founded by David’s mother and which does not bear the family’s name, would be considered to be more “neutral” than Turnbull. I do not, however, consider this to be a factor that would outweigh my reasons for concluding that it is in the best interest of the boys to attend Turnbull.
The contract:
[116] Turnbull requires a contract to be signed by both parents in order for students to be registered in the school.
[117] Katrina has refused to sign the contract, because it would require her to assume liability for tuition fees and other expenses and because she does not want to disclose certain information requested by the school.
[118] David’s parents have agreed to pay for the boys to attend the school and have agreed to enter into an agreement with David and Katrina and also to set up a trust fund for this purpose.
[119] I expect that acceptable contractual arrangements between Turnbull and David and Katrina and David and Katrina and David’s parents can be worked out and that Turnbull will give appropriate consideration to any legitimate confidentiality concerns Katrina may have. However, if directions from the court are required in this regard, the parties may write to me care of the trial coordinator.
Disposition:
[120] I order that Ethan Turnbull attend junior kindergarten at Turnbull School beginning September of 2018 and that Theodore Turnbull attend junior kindergarten at Turnbull School beginning in September of 2019.
[121] I order that all required documentation to guarantee and secure the promise of David’s parents to pay for the boys to attend Turnbull shall be concluded no later than January 31, 2019, failing which, a review of this decision shall be permitted based on a material change in circumstances. I seize myself of the “choice of school” issue and will conduct any such review.
[122] I order that if David and Katrina cannot agree on cost sharing in respect of before- and after-school care or any other anticipated school-related expenses, they may request an order, on notice to the other, at the hearing of the other issues on this motion which were adjourned to another date.
Costs:
[123] I am willing to consider submissions with respect to costs of the “choice of school” issue at the time the parties deliver their costs submissions following my disposition of the other issues on the motion which were adjourned to a later date.
[124] However, my inclination is to award either minimal or no costs in respect of the “choice of school” issue. Both parents had legitimate positions; I do not consider either parent to have won or to have lost this motion.
Madam Justice H.J. Williams
Date: August 24, 2018
COURT FILE NO.: FC-17-2057
DATE: 20180824
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Katrina Lynn Turnbull
AND
David Turnbull
BEFORE: H. J. Williams J.
COUNSEL: Katherine Shadbolt/Bryce Dillon, Counsel for the Applicant
Andrea Camacho/Kathryn Bortolussi Counsel for the Respondent
ENDORSEMENT
H. J. Williams, J.
Released: August 24, 2018