Court File and Parties
COURT FILE NO.: FS-18-3225 DATE: 20190417 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: Bogdan Chmielewski Applicant – and – Agueda Gallego Gonzalez Respondent
Counsel: Audrey Shecter, for the Applicant Gillian Hayes, for the Respondent
HEARD: April 11, 2019
C. Gilmore, J.
Ruling on Motions
Overview
[1] There are two motions before the court. The applicant/father’s motion seeking an order that the parties’ two children attend either Rosedale Day School or Maurice Cody Junior Public School, and the respondent/mother’s cross-motion for an order that the children attend St. Brigid’s Catholic School and various orders for support. The parties also seek an order with respect to the children’s daycare placements.
[2] During the course of argument on the support matter, an issue arose with respect to the characterization of certain income earned by one of the father’s companies, and whether that income was employment or dividend income, and whether that income was already included in, or separate from, the income calculations provided by the father.
[3] Counsel agreed to provide short written submission with respect to their agreement on this point. If they cannot agree, I will set a timetable for brief written submissions on the point. Given that this issue will affect the determination of the father’s income for support purposes, this ruling will deal only with the father’s motion. The mother’s cross-motion, and the issue of costs will be dealt with at a later date.
Background
[4] The parties were married for four years. They separated in September 2015 and were divorced in April 2017. There are two children of the marriage, namely G.G. aged 5 and S.G. aged 3.
[5] G.G. currently attends St. Brigid’s Catholic School (“St. Brigid’s”) in Senior Kindergarten. S.G. attends Purple Tree Nursery School (“Purple Tree”).
[6] On January 16, 2019, the mother was charged with two counts of assault in relation to S.G. Following the charges, the mother was not permitted to see S.G. because of her release conditions. The father placed S.G. into Purple Tree near his home on January 22, 2019 so that he could care for her. Previously, S.G. was attending a subsidized daycare near the mother’s home. Approximately one month after the charges were laid, and after investigation by the Children’s Aid Society, the mother was permitted to see S.G. again.
[7] The parties signed a partial Parenting Agreement in March 2016. The agreement stipulated that the parties would have joint custody of the children. The agreement set out a somewhat complicated gradually increasing six stage parenting arrangement which started on March 1, 2016.
[8] The parents are currently in Stage Five of the Parenting Agreement which runs from July 30, 2018 to July 30, 2019. In Stage Five, G.G. resides with both parents equally and S.G. resides with the father on alternate weekends from after school pick up until Sunday evening at 7:00 p.m., every other Wednesday from after school until Friday morning school drop off and every other Monday from Monday after school until Tuesday morning drop off.
[9] In Stage 6 (to commence July 29, 2019) the children will reside equally with both parents.
[10] The parties signed a Separation Agreement in October 2016. Pursuant to the terms of that agreement, the father was to pay full Table child support until the end of Stage Three of the access schedule. When Stage Four commenced, the father was to pay 50% of Table support. When Stage Five commenced, 30% of Table support was payable. At Stage Six, set off Table support is payable.
School Options for G.G.
[11] G.G. is currently five years old and in Senior Kindergarten at St. Brigid’s. He shares time with his parents.
[12] Dr. Sharon Marcovitch, a registered psychologist, prepared an assessment dated June 2018. The assessment was prepared in order to better understand G.G.’s cognitive, social-emotional, attention and behavioural profile. She described G.G. as a sweet boy and a pleasure to assess.
[13] Much time was spent at the motion referencing this report and its impact on where G.G. should go to school. After extensive testing, G.G. was found to be average in most areas but high average in numerical operations and very superior (99th percentile) in math problem solving. Dr. Marcovich also found that G.G. was borderline ADHD which accounted for his behavioural issues.
[14] Dr. Marcovich commented as follows:
To promote his continued successes and to encourage increased emotion regulation, G. will benefit from an enriched and supportive learning environment that will address his mild weaknesses in attention and provide enhanced curricula to keep him engaged (page 10).
[15] Dr. Marcovich made the following general recommendations:
a. G.G. work with a teacher who had experience working with gifted children; b. Her report be shared with G.G.’s school; c. G.G. would benefit from an Educational Assistant or Child and Youth Worker in the classroom; d. Her report to be shared with G.G’s pediatrician so that G.G.’s impulse control can be monitored and a possible future discussion held related to pharmacological intervention; and e. That G.G. be exposed to organizations and activities for gifted children.
[16] Dr. Marcovich also made specific academic recommendations such as G.G having preferential seating and challenging subject matter academic activities (such as math groups) outside of class. In terms of social-emotional and behavioural recommendations, Dr. Marcovich recommended a communications journal, a behaviour chart, structure, consistency, giving choices and taking responsibility, and setting boundaries and limits.
[17] In response to Dr. Marcovich’s report, the father enrolled G.G. in a weekly three hour program at the ROM. The mother enrolled G.G. in the Russian School of Mathematics to provide an extra-curricular challenging math environment for G.G. On Dr. Marcovich’s recommendation, the parties have also agreed to take G.G. to a therapist at the SickKids Centre of Community Mental Health. That program will likely not start for another 10 months given the current waiting list.
[18] Dr. Marcovich’s report was given to St. Brigid’s in September 2018. An IEP was prepared for G.G. at the end of November 2018.
[19] In response to various questions by the parties, Dr. Marcovich provided a follow-up letter dated March 27, 2019. Dr. Marcovich indicated in the letter that gifted children and children with ADHD benefit from an enriched curriculum and small class sizes. She indicated that without proper behavioural supports, and in the event of an escalation of his behaviour, he may be asked to leave whatever school he is enrolled in.
[20] G.G. has had a difficult year in Senior Kindergarten. Since September 2018 he has been sent home early for bad behaviour at least 12 times, he was not allowed to attend a class trip due to his behaviour, asked to stay home for two days and formally suspended for one day on Novemer 13, 2018. G.G. has also been bullied and taunted at school. G.G.’s behaviour at school has, at times, been out of control. Photographs were provided showing how G.G. had “trashed” his classroom, throwing chairs and emptying out the knapsacks of fellow students into piles.
[21] The parties have very polarized views as to how to deal with G.G.’s education going forward. In November 2019 the applicant brought a motion to allow him to participate with the children in pre-admission processes (such as open houses and interviews) at various public and private schools. He also requested an order that a behavioural consultant be permitted to attend at G.G.’s school to conduct classroom observations.
[22] The applicant was permitted to take the children to pre-admission interviews but his request for observations to be conducted by a behavioural consultant was dismissed. The costs of that motion were put over to me as the long motion’s judge.
[23] The children have now been accepted to Rosedale Day School (“RDS”). The applicant wants to enroll them there in the fall of 2019. Alternatively, he seeks to enroll them in Maurice Cody Public School. The applicant’s position is that RDS can provide the enriched and individually tailored learning environment that G.G. needs. RDS is a small school which focuses on each student as being unique.
[24] G.G. spent an entire day at RDS at their invitation on January 22, 2019. The father met with RDS on two occasions and had provided them with a copy of Dr. Marcovich’s report. Naturally, RDS was concerned about whether it could provide the proper supports for G.G.
[25] The day at RDS went well. When G.G. began throwing snowballs at lunchtime he was redirected by supervising teachers to build a snow fort. The matter was handled quickly and efficiently. During class time G.G. was motivated by dice rolling during a writing exercise. Students also move around frequently which is conducive to ensuring that G.G. receives constant learning stimulation.
[26] The father submits that S.G. would do well at RDS too. S.G. is a bright child who does not have any behavioural issues. The JK class at RDS has two teachers (there is only one at St. Brigid’s) and offers enriched learning opportunities.
[27] An email dated February 4, 2019 from Mr. Patrick Fordyce, Director of Enrolment Management at RDS, to the father states:
We feel that both children would be great additions to our school and have wonderful, kind personalities that will allow them to easily fit in and join our community. Academically, both are very bright and we feel our structured, academic environment will allow them to flourish and develop the academic confidence and knowledge. In regards to G’s transition into Grade One, I feel it will be important that we continue to dialogue about specific measures that will be needed and supported both at home and at school, specifically with regards to his impulse control and self-regulation. Some very effective recommendations were outlined in is psychological assessment that we would be comfortable employing. We are very interested in creating an enriching environment that will allow him to feel comfortable and focus on his strengths.
[28] In addition, RDS has committed to using Dr. Marcovich as a resource, using RDS’ learning strategist to create a learning profile for G.G., promoting math opportunities above G.G.’s Grade level, and smaller class sizes (likely 18 students in Grade 1 and 12 students in JK).
[29] The father also offers the possibility of Maurice Cody Public School (“MCPS”) as an option. The father met with the principal of MCPS in July 2018 and again in March 2019. MCPS would provide a support team for G.G. and ensure he is matched with an appropriate teacher. MCPS prefers not to use isolation as a means to correct behaviour but instead uses in school strategies to reintegrate and redirect the student.
[30] MCPS offers a more challenging learning environment than St. Brigid’s including lunchtime engineering, robotic, art and chess classes. MCPS also offers a green soccer field and many extracurricular sports. The gifted program begins full time in Grade 4. At St. Brigid’s it does not begin until Grade 5 and is then only one day per week.
[31] MCPS is close to the father’s home and within seven kilometres of the mother’s home. While the father suggests this as an alternative in keeping with the recommendations of Dr. Marcovich, he submits it would not offer the same possibilities in terms of meeting G.G.’s specific needs.
[32] The father’s position is that G.G.’s behaviour problems at school are closely associated with the lack of resources and enrichment offered to G.G. When G.G. is with him or at the ROM program he does not act out. Interestingly, the letter provided to the court by the mother from the Russian School of Math does not indicate a behaviour problem with G.G.
[33] The father notes a number of complaints about St. Brigid’s which he submits can be wholly addressed by a change to RDS. The father’s position is that St. Brigid’s is failing G.G., causing damage to his self-esteem. The father’s specific complaints are set out below:
a. G.G. is not properly engaged by the lessons or style of learning from the teachers at St. Brigid’s. b. A gifted program is not available until Grade 5 and only for one day per week. c. The IEP prepared for G.G. did not note his exceptionality or provide for any enriched learning program. d. Between the date of his suspension and the end of the November 2018, G.G. was placed in a separate class and isolated. He was supervised by a non-teacher and not given any academic programming during that period. e. G.G. is being bullied. The father reported this to the Vice-Principal but the school did not believe him. f. At a meeting on October 29, 2018 with a psychologist, social worker, school assessment worker, the Vice-Principal, Principal and G.G.’s teacher, the solution offered was to give G.G. a fidget toy, a token board and some books about dealing with anger. g. The school implemented a Student Response Team to work with G.G. in March and April. The parents met with SSRT on March 26, 2019. The father was very concerned that the team member they met with had not read Dr. Marcovich’s report or G.G.’s file. h. Communication from St. Brigid’s is sparse and inconsistent. i. Neither the mother nor father are practicing Catholics. St. Brigid’s was chosen primarily because it was convenient and across the street from the matrimonial home where the mother still lives. Catholicism is not a part of the father’s life. j. At a meeting with the Dr. Marcovich and the parents on January 31, 2019, Dr. Marcovich expressed her view that while St. Brigid’s has provided some behavioural accommodations for G.G. such as fidget toys, belly breathing, a “special room” and choices as to seat and activities, this is not enough. G.G. needs other resources. According to the father, Dr. Marcovich described private school as the “golden option” for G.G. k. In a meeting with the Vice-Principal on April 3, 2019, she confirmed with the father that the Child Youth Worker that provides one on one support for G.G. may not be available next year. Further, the class size for Grade One has not yet been confirmed but may be as high as 23 students. l. While St. Brigid’s did put a series of supports in place for G.G. in September 2018, he was suspended and sent home 12 times even in the face of having all of those supports.
[34] The mother has a very different view with respect to other school options. She disagrees that G.G. only acts out at St. Brigid’s. G.G.’s behaviour issues go back to when he was in daycare when a behavioural specialist was engaged.
[35] She does not want either children to change schools. Her strongly held view is that St. Brigid’s has tremendous resources for G.G. which simply cannot be found at RDS. Leaving apart the cost which she cannot afford, the mother’s views can be summarized as follows:
a. G.G. has the ROM program, the Dinosaur program and the Russian School of Math. As per Dr. Marcovich’s recommendations, he has many extra-curricular enriched activities to keep him challenged. b. RDS simply does not have the resources of a publicly funded school system. It lacks its own gymnasium and school yard. G.G. needs to be able to go outside and expend his energy. It is not reasonable to keep him contained in a class all day. c. The bullying of G.G. was addressed at the SSRT meeting in March 2019. d. G.G. has a one on one Educational Assistant to assist him. It is unlikely such a resource would be available at RDS. When G.G.’s behaviour issues escalate, he is moved to a separate intensive support room with the E.A. If he still cannot be calmed, he is moved to a low stimulation room with the E.A. At all times, the goal is to reintegrate him back into the classroom as quickly as possible. e. G.G. is not simply bored. He has behavioural issues which must be and are being managed by St. Brigid’s. f. While G.G. has superior math skills, he is average or only slight above Grade level in all other areas. g. Immediately upon receipt of Dr. Marcovich’s report, St. Brigid’s put supports for G.G. in place including flexible work locations, time outside to expend his energy, access to noise cancelling headphones, squeeze toys, and fidget toys. Changing schools for G.G. will mean that all of the substantial supports in place at St. Brigid’s will be lost. h. The SSRT has already implemented a five week social skills program for G.G. and recommended the Dinosaur program. i. The mother does not agree that St. Brigid’s does not communicate well. She is able to message teachers directly, receives daily bulletins and has access to the Vice-Principal by email and in person when needed. A behaviour log is sent home each day. j. It is not the job of St. Brigid’s to provide treatment for G.G. If matters worsen, he may require medication. The father simply will not accept that G.G. has ADHD, preferring to blame the child’s issues on the school. k. Dr. Marcovich does not make a recommendation one way or the other. Her March 27, 2019 letter indicates that she does not have any direct knowledge of RDS or MCPS and therefore cannot give an opinion as to their suitability for G.G. l. There is nothing in the RDS literature which speaks to its ability to provide programs for ADHD children. If he is asked to leave, it will mean another transition for G.G. m. The mother purchased the father’s interest in the matrimonial home where she still resides. The children have known no other home. Both children have ties to St. Brigid’s and their community of friends who attend there. At RDS, the children will be from all over the City of Toronto and the sense of community will be lessened or non-existent. The mother is not aware that the father has any connection to the MCPS community other than the school is very close to him. n. The parties chose St. Brigid’s for their children and agreed that the children should be raised Catholic. The mother relies on an email from her former father-in-law dated December 5, 2018 in which he confirms that the Chmielewski family has been of the Roman Catholic faith for generations. o. The mother does not drive. Enrolling the children in RDS will create transportation issues for her, particularly in winter. p. The parties have agreed to the appointment of the OCL. The mother submits that no school-related decision should be made until the OCL has provided their position.
[36] In summary, the mother opposes any change of schools on the grounds that G.G.’s behavioural issues cannot be adequately addressed at RDS and the significant supports he has at St. Brigid’s will be lost. A change in schools will also result in a loss of community and stability for the children.
Fees Associated with Attendance at Rosedale Day School
[37] Tuition fees for G.G. for the 2018/19 academic year at RDS will be $21,925. The fees for J.K. for S.G. will be $20,500.
[38] The mother cannot afford the fees. She argues that the expense is neither reasonable nor necessary. In addition, there is the cost of before and after care.
[39] The father and his partner have opened a joint investment account with a GIC of $135,000 to pay for two years of tuition for the children. After the first two years, the father’s partner has committed to paying 40% of the tuition on a go forward basis, leaving 60% to be covered by the parties. Based on the parties’ current incomes, the father submits that the mother would be responsible for about $8,000 per year in year three and forward.
[40] The mother’s position is that this arrangement is not tenable. First, there is nothing in writing from the father’s partner confirming her commitment to this arrangement. The father’s partner has no legal responsibility to the parties’ children and the commitment is therefore without foundation. Further, the relationship could end or the means of either the father or his partner could change drastically. The mother earns only a modest income under $100,000. She simply cannot afford the cost of a private school.
[41] Finally, it is well known that the cost of private school increases each year. The alleged proportionate contribution of $8,000 per year from the mother may well be much more than that by the time the children enter the 2021/22 academic year.
Analysis and the Law
[42] There is no dispute that a change or choice of school is an incident of custody. Any incident of custody is subject to alteration by court order as per section 29(7) of the Children’s Law Reform Act.
[43] Any decision related to an incident of custody must be in accordance with the best interests of the children. Laird v. Laird, 2015 ONSC 1005, para 11.
[44] It is true that S.G. has not been identified as gifted or having any special needs but it is clear that it would be in the children’s best interests to have both of them attend the same school. It would also assist the parents in terms of pick up and drop off by preventing driving or commuting potentially long distances to different schools.
[45] The father’s preference is that G.G. attend RDS for the reasons stated above. The mother does not support a change of schools for three main reasons; it is not necessary given the supports in place at St. Brigid’s, the parents chose St. Brigid’s prior to separation and it offers both community and stability for the children, and, she cannot afford a long-term commitment to private school fees.
[46] I find that a change of school to MCPS does not seem feasible given that the supports offered are not much different overall from those offered by St. Brigid’s.
[47] The real issue is whether the children should attend RDS and whether the enriched and individualized program offered there would be in G.G.’s best interests, given the questions about the current behavioural supports offered.
[48] In examining whether G.G. should attend RDS, the court must look at the requirements under section 7 of the Child Support Guidelines. Section 7(d) contemplates a contribution to “extraordinary expenses” including “extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs.” The expense must necessary with respect to the child’s best interests and reasonable in relation to means of the parties and their spending pattern prior to separation.
[49] Section 7(1.1) goes on to define the term “extraordinary expenses,” taking into account the amount of the expense, the nature of the educational program, any special needs or talents of the child or children, the overall cost of the program and other factors.
[50] I find that attendance at RDS is necessary because it would be in G.G.’s and S.G.’s best interests based on the following reasons:
a. G.G. is a child in crisis. As Shore, J. indicated in her November 2018 reasons in this case, something must change. The supports put in place by St. Brigid’s did not really assist. G.G. was suspended after they were put in place. b. The supports offered by the public or Catholic school system may be ephemeral. Cost cutting may result in the supports being unavailable or drastically reduced at any time. c. Class sizes in the public system are higher. Dr. Marcovich repeated several times the importance of G.G. having more individual attention. That can only be achieved through smaller class sizes. d. I agree with father’s counsel that the focus of St. Brigid’s has been on disciplining G.G. while failing to fully address his academic needs. e. Dr. Marcovich did not specifically recommend RDS or MCPS because she could not. She had no knowledge of those schools. Her emphasis was on an enriched curriculum for G.G. He simply cannot receive that at St. Brigid’s until Grade 5 and then only one day a week. It would not be in his best interests to miss the possibility of an enriched program for that long when one is being offered to him now. Further, Dr. Marcovich indicated that if G.G.’s behaviours escalate he could be asked to leave any school, public or private. f. The mother relied heavily on what she perceived to be a lack of behavioural supports at RDS. I do not agree. First, RDS chose to observe G.G. for an entire day. They witnessed some of his disruptive behavior and dealt with it. They are aware of both his suspension and Dr. Marcovich’s report. Notwithstanding that information, they offered G.G. a place. They believe they can provide a program to benefit him. It would have been easy for them to simply say no to what might be perceived as a child with “problems.” g. RDS does provide individual supports for G.G. h. While the mother emphasized that G.G. scored on the “average” scale for most of his subjects that does not mean that he cannot develop those areas with an enriched program. i. The fact that the mother lives across the street from St. Brigid’s should not dictate what is in the children’s best interests. The children are young and will develop a new community at RDS. As per Thomas v. Osika, 2018 ONSC 2712, para 37 a decision with respect to the choice of school should be arrived at on its own merits rather than its proximity or convenience to one parent or the other. j. While it is true that the court will consider decisions made by the parents about choice of schools prior to separation (see Askalan v. Taleb, 2012 ONSC 4746) that is only one consideration within the factual matrix. In this case, the convenience of St. Brigid’s was a significant factor with respect to the parent’s choice at the time. Best interest factors may now override such considerations. k. The father is not (or is no longer Catholic) and the mother is. The children’s religion and an agreement to raise them in the Catholic religion should not be an overriding factor in determining their best interests. I note that the separation agreement does not require that the children be raised Catholic or attend a Catholic school. l. The parents have taken Dr. Marcovich’s recommendations to heart and enrolled G.G. in a ROM program, extra-curricular math and therapy. The parents respond well to recommendations about what is best for G.G., other than the choice of school. m. It is not clear to this court that appointment of the OCL will be of benefit with respect to the school issue in this case. Dr. Marcovich will remain involved, and G.G. has many other supports. The OCL clinical report (if they agree to take on the appointment) would focus on parenting issues. There is no reason to wait for the report. n. The case law in this area is largely focused on “disruption” to a child/children and how that affects their best interests. It is this court’s view that September 2019 is a good time for a transition to RDS with minimal disruption. G.G. will be going into Grade 1 which is a transition in any school, and S.G. will be entering JK.
[51] Turning to the reasonableness of the expense for RDS, it is clear that spending on a private school was not something that the parties did during their marriage. The parties did not live a lavish lifestyle during the marriage nor do they live one post separation.
[52] The cost of RDS is not insignificant. The mother projects that the cost of sending both children to RDS for eight to ten years would be over $400,000. The mother points out that if she is required to pay for private school, this will leave her less money to take the children on vacation or contribute to an RESP for them.
[53] The mother’s position is that the only way that RDS could work (if the court orders the children go there) is for the father to pay for all the tuition.
[54] The father has offered to pay for two years of tuition and suggests that the mother would pay a reduced proportional share of tuition thereafter based on a commitment from his partner to assist with the fees.
[55] There is, of course, a concern that the father’s partner may renege on her commitment or that their relationship may not still be intact after two years. The father’s partner has no legal obligation to contribute to G.G. or S.G.’s private school education.
[56] The only way to ensure that the father’s commitment and the benefit of RDS is to review matters at the end of two years and determine at that time if a contribution by the mother is reasonable, given the parties’ respective financial situations at that time.
Daycare Issues
The Mother’s Position
[57] Prior to the alleged assault on S.G. by the mother, S.G. attended the Woodbine Early Learning and Child Care Centre.
[58] After the alleged assault took place in mid-January 2019, the father deposed the S.G. was very upset in the following days. The father was concerned that S.G. was reacting to the alleged assaults which had taken place on the way to daycare and the necessity of S.G. being taken by ambulance to hospital.
[59] The father needed other arrangements for S.G. so he could continue to work. He was able to find a part-time spot at Purple Tree Nursery School on short notice. S.G. attends there on Tuesdays and Thursdays from 9:00 a.m. to 3:00 p.m. and on Mondays, Wednesdays and Thursdays from 9:00 a.m. to 11:45 a.m.
[60] The mother does not agree with this placement. She complains that S.G. lost her subsidized place at the Woodbine daycare as a result of the father unilaterally removing S.G. without consulting her. As well, the mother denies that S.G. was experiencing any stress at the Woodbine daycare after the alleged assault.
[61] Further, a part time daycare does not work for several reasons. First, the mother works and second, the mother does not drive and Purple Tree is not close to her home. The mother asks that the father’s self-help efforts not be rewarded and that S.G. be removed from Purple Tree and be returned to a full-time daycare.
[62] Currently, the mother’s mother is living with her as a result of the CAS intervention after the alleged assault. Without this help, it would be impossible for the mother to manage picking up and dropping off the children in two different places. As a result, the mother has simply removed S.G. from Purple Tree. On most days she is in the mother’s care because it is simply easier to leave S.G. in the care of her maternal grandmother. The father objects to this, as he submits it is not consistent with the terms of the Parenting Agreement and that S.G. needs the programming offered by the nursery school.
[63] The mother suggests that S.G. attend Victoria Child Care Centre which is near St. Brigid’s, and near the home where S.G. has grown up.
[64] The mother complains that the father also unilaterally removed G.G. from the daycare he had been attending and the subsidized space for G.G. was also lost. The mother suggests that G.G. return to Child Space Daycare where he has traditionally attended. He has long standing relationships with the children there, many of whom attend St. Brigid’s.
[65] The mother’s position is that the parties confirmed to Dr. Marcovich that G.G. would be returned to Child Space in January 2019. That did not happen.
[66] Finally, the mother submits that the current arrangement does not work geographically. Purple Tree is located at Mount Pleasant and Eglinton. Three days per week, Purple Tree and St. Brigid’s end at the same time. She simply cannot be in two places at the same time.
The Father’s Position
[67] On January 16, 2019, the father received a call from police advising that S.G. was being taken by ambulance to Sick Kids’ Hospital. While being dropped at daycare, S.G. had a tantrum. It is alleged that the mother assaulted S.G. in the head and face. The charges remain outstanding.
[68] When he attended the hospital to visit with his daughter, he was advised by CAS to keep both children in his care. The CAS contacted G.G.’ school and S.G.’s daycare the next day to advise that the mother was not to have contact with the children. Her release terms do not allow her to have contact with the children except at the discretion of the CAS. After six weeks, the CAS allowed contact to recommence in a supervised environment. Overnight access recommenced in March 2019. The mother brought her mother over from Spain to live with her and act as her supervisor. This arrangement is satisfactory to the CAS and to the father who likes his mother-in-law.
[69] After the alleged assault, S.G. became very distressed about going back to her daycare. This was problematic as S.G. had always enjoyed going to the Woodbine daycare. The father was in a difficult position after the alleged assault. Both children were suddenly placed in his care, he was working full time, the mother was not allowed to have contact with the children and S.G. was refusing to go back to Woodbine daycare.
[70] The father made the best decision he could on short notice and enrolled S.G. in Purple Tree Nursery School. According to the father, S.G. likes it there and does not exhibit stress as she did at Woodbine after the alleged assault.
[71] The father is concerned about the fact that the mother chooses to remove S.G. from Purple Tree on the days she is caring for her. The father does not believe that this is conducive to S.G.’s social development. The father submits that the mother is refusing to pay her proportionate share of fees to Purple Tree.
[72] The father’s view is that it does not make sense to remove S.G. from Purple Tree and then change again if S.G. goes to RDS.
[73] With respect to Child Space Daycare, the father submits that the environment is similar to that of St. Brigid’s and not a positive one for G.G.
Analysis and Ruling on Daycare Issues
[74] These children have been through a lot this year. G.G. has had significant challenges at St. Brigid’s. S.G. has gone through a traumatic experience. Whether the allegations with respect to the assault are borne out or not, the effect of the charges had a dramatic effect on the family.
[75] It is this court’s view that there should not be any change in the current arrangements for the children. If S.G. were moved to Victoria Child Care Centre, that would be the third daycare placement for her in this academic year. S.G. should remain at Purple Tree. Since this was the father’s choice, he must assist in pick up and drop off to ensure that S.G. remains there during the day.
[76] As for G.G., putting him back in daycare at this point after being out of it for so long may also not be helpful. However, if the mother wishes to put G.G. back into Child Space daycare on her days with him (given her lack of transportation) she may do so at her expense.
Orders
[77] The children, G.G. born May 23, 2013 and S.G. born July 11, 2015, shall attend Rosedale Day School commencing in the 2019/20 academic year.
[78] The applicant shall pay the tuition costs of Rosedale Day School for both children for the 2019/20 and 2020/21 academic years.
[79] The parties shall proportionately share the cost of the Rosedale Day School before and after school program and the hot lunch program.
[80] The applicant shall pay for the cost of uniforms and any other incidentals, including extracurricular programs at Rosedale Day School for the 2019/20 and 2020/21 academic years.
[81] In January 2021, there shall be a review with respect to the reasonableness of the cost of the children continuing to attend Rosedale Day School. The review shall involve the following considerations:
a. The parties’ respective financial situations at the time; b. The children’s progress at the school and in particular G.G.’s progress; c. Any contribution to tuition offered by third parties such as the applicant’s partner or family; d. The fact that the applicant has paid for two full years of tuition;
[82] An OCL order shall issue for a section 112 assessment.
[83] S.G. shall remain at Purple Tree Nursery School until the commencement of school in September 2019 and subject to any summer arrangements the parties may agree upon.
[84] The parties shall proportionately share the cost of Purple Tree Nursery School.
[85] S.G. shall not be removed from Purple Tree Nursery School during regular school hours. The applicant shall assist with pick up and drop off of S.G. at Purple Tree, given the respondent’s transportation difficulties.
[86] The respondent may register G.G. for Child Space daycare for the days on which she cares for him. If she does so, she will pay the entire cost of daycare for those days.
C. Gilmore, J. Released: April 17, 2019
COURT FILE NO.: FS-18-3225 DATE: 20190417 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Bogdan Chmielewski Applicant – and – Agueda Gallego Gonzalez Respondent
REASONS FOR JUDGMENT C. Gilmore, J. Released: April 17, 2019