Court File and Parties
COURT FILE NO.: FS-13075-16 DATE: 20180924 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Leah Tessier Applicant – and – Joseph Toner Respondent
Counsel: Christopher McInnis, for the Applicant Liisa Parisé, for the Respondent
HEARD: September 18, 2018
Reasons for Decision
Gauthier J.:
Overview
[1] The parties each brought a motion for a determination of which school the child Cohen, who is four years of age, will attend. The contest is between a French language school and a French immersion school, and the location of such a school, either Walden or Espanola.
[2] Although the parties’ Notices of Motion sought orders granting them each the sole right to make educational decisions for the child, and for each to have the primary residence of the child be with him or her, at the end of the hearing, it was clear that the parties are only seeking judicial intervention with regard to their child’s education.
[3] Neither party claimed custody in the Application or Answer, however both parties seek the court’s assistance pursuant to Section 21(1) of the Children’s Law Reform Act, in the determination of an “aspect of the incidents of custody of the child”, being where the child should be enrolled in school, and in which program.
Facts
[4] The parties are 22 and 24 years of age, respectively. They were involved in a romantic relationship and resided together during the last year of their relationship, from January, 2014 to January, 2015. They are the parents of one child, Cohen Toner, born June 16, 2014.
[5] The custody and parenting of Cohen has, since the separation, been equally shared. On December 9, 2016, the parties executed a Final Consent for joint and shared custody/parenting, with the child spending one week with one parent, and the following week with the other parent.
[6] The applicant (“the mother”) resides in Sudbury, although she will be moving shortly, together with her partner (“Donald”) to a home they have purchased in Walden; the home is a two minute walk from the school the mother wishes Cohen to attend.
[7] The mother and Donald have been cohabiting for more than one year. Cohen is very comfortable with Donald, and the two of them have developed a very good relationship.
[8] The mother is employed on a full-time basis with the Chamber of Commerce, as an event planner. Her hours of work are Monday to Friday, from 8:30 a.m. to 5:00 p.m. Donald works as a plant manager for Lecoupe Ice and he works from Tuesdays to Saturdays, from 6:00 a.m. to 2:00 p.m. during the spring, summer, and fall. During the winter months, he works from Monday to Friday, again, from 6:00 a.m. to 2:00 p.m.
[9] The respondent (“the father”) resides in Espanola with his partner, (“Trisha”), and her five year old son, Jaxyn. He is employed on a full-time basis with Domtar. He works two shifts, days (6 am. to 6 pm.) and nights (6 pm. to 6 am.) on a four week rotation as follows:
| Sunday | Monday | Tuesday | Wednesday | Thursday | Friday | Saturday | |
|---|---|---|---|---|---|---|---|
| Week 1 | Days | Nights | Nights | ||||
| Week 2 | Days | Days | Nights | Nights | |||
| Week 3 | Nights | Days | Days | ||||
| Week 4 | Nights | Nights | Days | Days |
[10] He is engaged to Trisha, with whom he has been in a romantic relationship since June of 2015. Jaxyn is Trisha’s son from a prior relationship. He is one year older than Cohen and the two boys have a close bond and, according to the father, “consider themselves brothers”. Trisha has a loving and caring relationship with Cohen, and has been actively involved in his life since Cohen was an infant. Trisha is a nurse in the employ of the Espanola Regional Health Centre.
[11] Both the mother and the father are unilingual Anglophones. The father has begun some online French courses. None of the parties’ immediate family members is fluent in the French language.
[12] Cohen was to begin school (junior kindergarten) in September 2018. The parties disagree as to where and which school he should attend, so he has not yet begun his education.
The Issue
[13] Will Cohen attend École Saint-Joseph, a French language school in Espanola, or will he attend Walden Public School, in the French immersion program?
The Law
[14] Sections 21(1), 24(1) and (2), and 28(1) of the Children’s Law Reform Act apply to this case.
21 (1) A parent of a child or any other person, including a grandparent, may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child.
24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).
(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) any familial relationship between the child and each person who is a party to the application.
28 (1) The court to which an application is made under section 21,
(a) by order may grant the custody of or access to the child to one or more persons;
(b) by order may determine any aspect of the incidents of the right to custody or access;
[15] The decision in Thomas v. Osika, 2018 ONSC 2712, [2018] O.J. No. 3321, offers a helpful summary of the general principles that have emerged from the case law in dealing with contests such as the one before me. The general principles were summarized as follows:
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 (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] 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 (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 (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 (Ont. S.C.J.)); h. Any problems with the proposed schools will be considered (Askalan v. Taleb, 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. 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); k. 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).
Mother’s Position
[16] Although initially the mother believed that Cohen should attend an English school, however, over time, she came to realize the benefits to Cohen of acquiring two languages. The mother now believes that it will be in Cohen’s best interests to acquire French as a second language, and that the best way for him to do so is to attend a French immersion school. As it will already be an adjustment for the child to attend school, it will be less demanding for him if he can acquire the French language while still being able to communicate in English, which at the moment is his only language. In the event that Cohen does not adjust well to being educated in a second language, he can transition to an English program in the same school.
[17] When the child experiences change, such as alternating between his Sudbury and Espanola day care providers, he becomes frustrated, angry, and displays other negative behaviours. He will have a better chance at success in learning a second language in the French immersion setting, rather than the “full” French setting.
[18] The French immersion program is specifically designed for English speaking parents, to assist them in supporting their child through the learning process. It will allow both the mother and the father to be fully involved in their son’s education in a more meaningful way than they would be in the French program.
[19] Although this will occur in some years in the future, it is notable that Sudbury has more secondary education options than does Espanola, including French immersion; there is no such program at the secondary level in Espanola.
[20] Cohen’s enrollment in a French program would marginalize the mother’s involvement as she does not speak or write the French language. At this point, neither does Cohen’s father. The only other person involved in parenting Cohen, that is Trisha, would be the person primarily involved with and responsible for the child’s education, over and above Cohen’s mother and father, given her fluency in both languages.
[21] If Cohen attends school in Espanola, the mother is unable to facilitate his transportation to and from school on the weeks that the child is with her, which has the consequence of rendering the shared residence, or shared parenting arrangement at an end. Cohen’s primary residence, by default, would become Espanola.
[22] Additionally, the mother would not be able to get Cohen to extra-curricular activities in Espanola, nor would she be able to participate herself and attend such activities, given her work schedule. If Cohen is attending school in Walden, the father could attend a significant number of extra-curricular activities, given his work schedule and hours of work.
[23] If Cohen attends the French immersion program in Walden, the mother will drop him off at school in the morning, and her partner, or, on occasion, her mother, will pick Cohen up after school. The mother will be home shortly after 5:30 p.m.
[24] This plan would permit the father to continue to have Cohen half of the time, and, given his work schedule, he would only be impeded approximately two days out of ten.
[25] The mother concedes that she did, in an attempt to avoid a conflict about the child’s residence, earlier acquiesce to the plan of Cohen attending a French language school, in the hopes that the father would agree to such a school located in Sudbury. She did so, she says, as she was attempting to maintain the shared parenting arrangement. Upon further reflection, and research about the benefits or disadvantages of both systems, the mother concluded that Cohen’s best interests would be served by him attending French immersion, as opposed to a full French program.
Father’s Position
[26] The father proposes that Cohen be enrolled at École St-Joseph, a French language school in Espanola. Alternatively, the proposal is that the child attend Sacred Heart School in Espanola, in the French immersion program.
[27] The father points out that his fiancée, Trisha, is fluent in the French language, that her son Jaxyn attends École St-Joseph, and that Trisha is prepared to assist Cohen with homework and any other school related tasks or events to be performed in the French language.
[28] Trisha and Cohen are extremely close, as are Cohen and Jaxyn, who consider themselves to be brothers. The transition into school, and into a French language school would be made easier on Cohen, given Jaxyn’s presence at the same school, and indeed, in the same class.
[29] The father describes the “hamburger” method of teaching utilized at École St-Joseph, which involves the use of the English language as well as the French language, and he also points out that any communication with a unilingual Anglophone parent, including communication with the teachers, will be in the English language. There are, he says, a significant number of children at École St-Joseph, whose parents are Anglophone. There will be no marginalization of either parent, as suggested by the mother.
[30] Cohen has already made friends in Espanola, having been involved in soccer and T-ball this past summer, as well as having been involved in swimming lessons in Espanola for the past three years. As well, a number of the children with whom Cohen was at daycare in Espanola are now attending École St-Joseph.
[31] Whether or not the child attends a French language school program or a French immersion program, he will likely be more successful at a school in Espanola because he already knows children there, as a result of his involvement in sports and daycare in Espanola. Cohen does not yet reside in Walden, and likely knows of no one attending Walden Public School. He is more closely connected to Espanola than to Walden, where he has no connection whatsoever.
[32] If Cohen does not succeed at St-Joseph, he can smoothly transition to Sacred Heart, to the immersion program, as those schools will be merging in the year 2020.
[33] Although the father recognizes that attending school for the first time will be an adjustment for Cohen, he believes that if the parties “as parents are committed to doing whatever is necessary to assist him together in that adjustment”, he will succeed.
[34] The father will be available to put Cohen on the school bus every day of the month, with the exception of four days, given his work schedule. Further, he says, he can be available to take the child off the bus, again, except for four days per month. Trisha will be available when he is not. No outside child care will be required for Cohen as one or both of the father and Trisha will always be available.
[35] If Cohen attends school in Walden, it will be nearly impossible for the father to get the child to his extra-curricular activities, during certain days that the child is with him. There would be no such issue for him if the child attends school in Espanola.
[36] Both the father and Trisha have extended family in Espanola.
[37] The father suggests that if the child is to attend school in Espanola, the easiest way to maintain the existing shared residence arrangement is for Cohen to be in the care of the mother every second weekend (when the father is working) and every second Wednesday (also when the father is working). In the summer, the mother would have three weeks with the child, to the father’s one week with the child, as well as all of each March school break. The mother could have other additional time that the parties could work out. The benefits to Cohen, of this arrangement, include coming home to a French speaking home, having his father put him on and take him off the bus every day, except for four days per month, and reducing the child’s travel time.
[38] However, the father also has proposed that he could assist in the driving of Cohen to and from Walden, to attend school in Espanola. The mother could meet the father or Trisha half way, before her work, on the weeks that Cohen is with her, and do the same after her work, on her weeks. Her partner also could also meet the father or Trisha half way, after the child’s school day, given that he is finished work at 2 p.m.
[39] The reason the respondent would not agree to having Cohen attend school in Walden rather than Espanola is because he truly believes that the child’s educational success lies with him attending school in Espanola.
Analysis and Conclusion
[40] I begin by stating that these two young parents have exhibited remarkable maturity in their parenting of Cohen since they decided to live separate and apart. To their great credit, and perhaps to the credit of their partners also, they have managed to put Cohen’s best interests at the forefront, ahead of their own, for which they are to be congratulated. There are countless numbers of parents who access our court system who could learn a lesson from Leah Tessier and Joseph Toner.
[41] I have, in reaching a decision in the very difficult situation where the exercise of judicial discretion will affect not only one young child, but his families, considered what will benefit Cohen more. It is his best interests alone which have guided my assessment of the merits of each party’s position.
[42] For the reasons that follow, I have concluded that Cohen’s best interests will be served by having him enrolled in École St.-Joseph, in the French language program.
[43] I have considered the provisions of s. 24(2) of the Children’s Law Reform Act, as well as the principles outlined in Thomas v. Osika.
[44] Cohen has, for virtually his entire life, moved between both of his parents’ homes, on a weekly basis. This is all he has known. And to all intents and purposes, it appears to be working well and meeting this young child’s needs. Both of Cohen’s parents, and their partners have cooperated with each other, and provided consistent care and nurturing to this child. The arrangement appears to be a stable one, in which all of the participants do the best they can vis-à-vis Cohen.
[45] Neither parent has claimed to be the “primary caregiver”, nor have they attempted to minimize the other’s role and importance in Cohen’s life.
[46] It is important that that continue.
[47] It is agreed that the transition from day care to attending a more structured setting such as a school will be a major adjustment for this young child.
[48] I have concluded that the transition for Cohen will be more easily managed, from his perspective, if he is able to identify with familiar faces and persons he knows, such as Jaxyn, with whom he shares a very strong fraternal bond, and with certain of the young friends he has made as a result of his involvement in the recent summer extra-curricular activities in Espanola.
[49] I acknowledge that Cohen also has a relationship with Donald’s niece, Kahlia, who is said to have become one of his best friends, and that Kahlia and Cohen would be in the same class at the Walden school, however, that relationship, in my view, will not have the same impact as Cohen’s relationship with Jaxyn, with whom he also resides two weeks out of four, on Cohen’s ability to adjust to a school setting.
[50] I have also factored into my consideration the fact that Cohen’s father is involved in a long-term relationship, dating back to Cohen’s infancy, and in which Trisha plays the role of parent to Cohen, without reservation. She is committed to the care of Cohen. The father and Trisha are engaged to be married, which will further establish the stability of their long-term commitment to being a family. The bond between Cohen and Trisha has been in place most of his life, as has his bond with Jaxyn.
[51] The mother appears to have a good communication with Trisha and to trust her ability to care for Cohen. This is a blessing for Cohen. It provides the harmony children need in order to thrive and to perform at their best.
[52] The above comments are in no way to be taken as being a negative reflection of the mother’s home situation which is stable, albeit not as long-standing as the father’s. I have no reason to doubt that Donald’s commitment to assisting in the parenting of Cohen is a serious one, and meant to be long term. Nor is there any reason to question the existence of a strong bond between Cohen and Donald. These things are not in question, however, the situation that Cohen finds himself in in Espanola has existed since he was an infant. The continuity will be of assistance in the transition to a school setting.
[53] It is crucial, as well and in keeping with Cohen’s best interests, that the existing co-residency/parenting arrangement continue. I believe that it can, if all parties involved pitch in, co-operate, and make it work.
[54] In order for the status quo to continue, I am suggesting the following arrangement for the transportation of Cohen to and from Walden, when he is attending École St-Joseph on the weeks when he is residing in Walden with his mother.
[55] The mother could travel halfway between Walden and Espanola, the total distance travelled being less than 60 km and requiring 45 minutes (more or less, depending on weather and road conditions), in the mornings, before she begins work, on the two weeks of the month when Cohen is with her. The father, or Trisha could transport Cohen the rest of the way to the school.
[56] After school, the father, or Trisha could transport Cohen halfway back to Espanola, where Cohen would be handed over to Donald (who the material indicated was available to provide child care to Cohen after school) or one of the other extended family members the mother said were available to assist with child care.
[57] Such an arrangement would ensure the continuation of the existing “week about” arrangement which has served Cohen well to date.
[58] The mother expressed the view that she would not be able to attend any of Cohen’s extra-curricular activities if he is attending school in Espanola. Firstly, I have no evidence to assist me in determining the nature and frequency of after school activities for kindergarten students. Secondly, given the mother’s hours of work, it is not likely that she would be able to attend many of Cohen’s after school activities in Walden either.
[59] I turn now to the issue of French language program versus French immersion program. I have reviewed the material filed by the parties regarding the tools available to Anglophone parents of children who are in the French language program, as well as those offered in the French immersion program.
[60] The tools or support are important not only to keep the parents actively involved in their child’s education and educational progress, but also to enable the parents to provide support to the child in the educational process.
The French Immersion Program
[61] The French Immersion program
is designed for English-speaking parents/guardians in such a way that they can support their children.” For kindergarten and grades one and two, the language of instruction is French 100% of the time. By grades three and four, both the French and the English language are employed. There are resources online to “support parents who have children in a French Immersion program and provides assistance to French Immersion students who require an accessible user-friendly reference tool to help with homework.
[62] The French language program at École St-Joseph (part of the Conseil Scolaire Catholique du Nouvel-Ontario) also provides assistance to English speaking parents.
French language Catholic Schools respect the specific needs of non-French speaking parents by offering certain services and programs. In addition to this, communication is often facilitated through networking with other parents as well as individual meetings with principals and school staff. We believe that strong language acquisition starts with an early introduction to the French language but most importantly, is strongly influenced by the parents’ involvement and positive support. Trust yourself. Trust your child’s ability to learn. A positive attitude towards French-language acquisition is the best support you can offer. Our goal is to work with you to ensure your child’s happiness and continued success.”
[63] There is also the program “À petits pas” (meaning short or small steps), aimed at Anglophone parents of children attending the French language program, and providing French instruction to such parents, in the vocabulary their child will usually employ at school.
[64] When one raises issues of possible marginalization, and the inability of the biological parents to assist with a child’s homework in a language that the parents do not speak, context and perspective is important.
[65] Cohen is four years of age. He will be commencing school in kindergarten. He will not likely have any homework of any significance for at least one or two years. The ability of a parent to assist a child with homework, and the degree to which that parent is able to participate in the child’s educational program is only one of the factors to be considered. Deschenes v. Medwayosh, supra.
[66] Trisha is available and prepared to assist Cohen in his education. The mother has acknowledged the value of such assistance. Cohen will be in a home where French is spoken, two out of every four weeks, if the parties maintain the shared parenting schedule that is in effect. This is not a case where the child will only be exposed to the French language while at school.
[67] As well, the mother can access the tools offered by the French language board if she so wishes.
[68] There is nothing to prevent the mother from interacting with Cohen’s teachers and the principal of the school if she wishes to do so. Typically, parent-teacher meetings take into account the parents’ work schedule and would likely generally occur in the evening.
[69] And, finally, as stated in Gordon v. Goertz, supra, the emphasis must be placed on the interests of the child and not on the interests or rights of the parents.
[70] After having considered all of the factors involved in this case, I have concluded that Cohen’s best interests will be served by attending École St-Joseph, with his step-brother, and with some children with whom he is already acquainted. His education will be supported in the father’s home. The mother will no doubt be supportive of Cohen’s education when he is with her.
[71] I will make the Order accordingly. Insofar as the arrangements for transportation, I have provided my suggestion. I leave it to the parents to work this out. Of course, if they are unable to do so, a further motion may be brought.
[72] The other outstanding issues, i.e. child support, will be discussed at the settlement conference.
[73] Once again, I want to make clear that this was not an easy exercise of judicial discretion, nor is my decision to be interpreted as being in any way critical of either of the parties or their partners. Again, they are to be congratulated on their reasonableness and selflessness as reflected in their parenting arrangement, and their co-operation with each other.
Order
- The child Cohen Toner will immediately be enrolled in and attend École St-Joseph in Espanola, in the French language program.
- The mother’s motion, contained in the Notice of Motion dated August 7, 2018, is withdrawn.
- The father’s motion, contained in the Notice of Motion dated August 21, 2018, is withdrawn.
- The outstanding issue of child support for Cohen Toner is adjourned to a settlement conference, to be arranged by the trial coordinator, at the request of the parties.
- In the event that the parties are unable to agree on costs, they may file written submissions of no more than five pages, double-spaced, in addition to any pertinent offers and draft bills of costs, within 20 days. If no submissions are received within 25 days, the parties will be deemed to have settled the issue of costs as between themselves.
The Honourable Madam Justice Louise L. Gauthier