Court File and Parties

Court File No.: FS-17-421462 Date: 2020-08-04 Ontario Superior Court of Justice

Between: Rathore, S., Applicant – and – Kumar, Respondent

Counsel: Sherman, R. (on limited scope retainer), for the Applicant Self-Represented, for the Respondent

Heard: July 30, 2020

Before: S. Shore, J.

Endorsement

[1] The applicant mother brought an urgent motion to enroll the parties’ child at Eatonville Junior School (“Eatonville PS”) in Etobicoke and to sever the divorce from the corollary issues. The respondent father wants to enroll the child at Ethel Gardiner Public School in Georgetown (“Ethel PS”). The parties were unable to reach an agreement on what is in the best interest of their child and are leaving up to this court to decide. It is unfortunate that the parties could not reach an agreement on this issue. The parents and the child will be most affected by this choice and therefore have the most invested in this decision. The parents have the best knowledge of what is in their child’s best interest and their own means to meet those needs. I gave the parties an opportunity to consider whether an agreement could be reached between them. It could not and as such, this Court must decide where the child will attend school.

[2] This motion has come before me in accordance with the triage endorsement of Justice Hood, dated June 21, 2020. This motion is urgent as the child will be starting school in September and the parties need to enroll the child in school before that date. The issue of severing the divorce from the corollary issues was not deemed urgent and therefore not addressed during the motion.

[3] The parties have one child together, Aria Singh, born August 11, 2015. She is almost five years old and will be starting kindergarten in September. Aria lives equal time with both parents.

[4] The mother continues to live in the matrimonial home in downtown Toronto. However, within the next year (March 2021) she plans on moving into a property she owns in Etobicoke, not far from Eatonville PS.

[5] The father is living in Georgetown with his sister, brother in law and their family. He lives a very short drive from Ethel PS.

[6] The child has been attending daycare in Etobicoke. Daycare was needed to allow both parties to work. Until recently, both parties were working for Bell. They chose the daycare together because it was not far from their work. The Mother no longer works for Bell but left her job at Bell for another company. That job did not work out and she is currently on leave. The Father plans on opening his own law firm this fall. It was unclear where his firm would be located. Until then, he continues to work at Bell.

[7] The mother’s position is that the child should stay in the same area as her daycare, and in the same area where the mother will be living starting in March 2021. The mother can register the child in Eatonville PS because she owns property in the area. The mother’s evidence is that the child attends extracurricular programs in the area and is familiar with the area because it is only ten minutes from the daycare. Eatonville PS has before and after school care on site.

[8] The mother submits that it would be difficult to get the child to and from school in Georgetown while maintaining a job because the commute would be almost a 2 hour round trip twice a day for the mother.

[9] The father’s position is that Ethel PS is a superior school to Eatonville, looking at statics and rankings available to the public. Education is very important to the father. He alleges that he takes Aria to all of her extracurricular activities and cares for her when she is sick, not the mother. The father has the support of his sister and brother in law who have assisted both parties when they have needed help with Aria. Apparently, the mother, in her job at Bell, was not able to take the time off. The father submits that the child is more closely bonded with the community in Georgetown. The YMCA runs a before and after school program at Ethel PS.

[10] I have considered each of the parties’ arguments carefully. I have considered that the father takes the child to most of her extracurricular activities and cares for the child when she is not well. I have also carefully considered the fact that the parties rely on the father’s sister and brother in law as a support system. However, this has been taking place despite Aria attending daycare in Etobicoke. The child has been attending extracurricular activities. There was no indication that the father’s sister and brother in law would end their support if Aria continued to attend school/daycare in Etobicoke. Further, at (almost) five years old, Aria’s life is still largely centered around her parents, not her friends or community. I accept that she has some connection in both communities.

[11] The father expressed concerns that the mother does not keep up with Aria’s school and school work. The child is five years old. She has been in junior kindergarten. I am not prepared to decide the issue on this factor alone or to give this argument to much weight at this time.

[12] I have considered the fact that Ethel PS was ranked higher than Eatonville PS by the Fraser Institute. The father submitted that Ethel PS is a better school than Eatonville PS. He referred to Schloegl v. McCroary, 2012 BCSC 1606, which he says stands for the proposition that paramount consideration should be given to the school that will give the child the best competitive advantage. In that case, the mother wanted the child at private school and the father wanted the child at public school. That case is easily distinguishable and does not stand for the proposition suggested by the Father. The child in Scholegl was six years old and had not attended school at all. The parties did not know what grade level he would or should be placed at (kindergarten or grade 1). At paragraph 37, Justice Watchuk stated: It is not the task of this Court to determine the best school by any measure, standards, or comparison. The issue for this Court is solely to determine which school is in the best interests of Cage.

[13] Justice Watchuk specifically dismissed the argument that relying on a ranking system was a reliable indicator of what is in the best interest of the child. There are many factors to take into consideration. In that case, the private school was a Christian school. The father was not a practicing Christian. Justice Watchuk concluded that public school would facilitate the child having both parents involved in schooling.

[14] Further, the strength and weaknesses of the schools as presented by the father was largely hearsay, consisting of information from the internet on the ratings of each school by the Fraser Institute and the Ministry of Education. There was no expert evidence before me: Wilson v. Wilson, 2015 ONSC 479, at paras 110-112. There are many other factors that must be considered in determining what school would be in the best interest of a child.

[15] What was clear from the materials is that Aria loves and is closely bonded with both of her parents. She spends equal time with both parents. It is in her best interest, if possible, for this schedule to remain in place. Neither party is asking that there be a change to Aria’s schedule. The schedule has been in place for some time. Both parties recognize that Aria has a strong relationship with the other parent.

[16] I asked the parties to address my concern about whether the current residential schedule could still work if I chose one school over the other.

[17] The father was clear that he was not looking to reduce the mother’s time with Aria and that the child was close to both parties. The father acknowledged that it would be difficult for the mother to get the child to and from school while maintaining a job. However, the father argued that the case law indicates the Court is concerned about the best interest of the child and not the parent’s commute. In this case, I am not sure the two issues are easily distinguishable. If Aria attends school in Georgetown, the mother’s commute would make it so the current residential schedule (which they agree is in the child’s best interest) would have to change.

[18] I find that it would be in the Aria’s best interest to attend Eatonville Junior School at this time. Attending Eatonville PS would offer the child stability in that her residential schedule and day to day schedule would remain the same. The commute she has had for the last three years would be very similar in that Eatonville is close to her daycare. More importantly, the equal time-sharing arrangement could remain in place, with little disruption to the child. I am not satisfied that the same could be said if she were to attend school in Georgetown. Further, while we know where each parent plans on living for the next while, both have uncertainty around their work place. The father could not give a definite answer as to where he would be working or where his firm would be located, if he leaves Bell in the fall. The mother is still looking for work.

[19] Order to go as follows: a. The parties shall forthwith register Aria Singh, born August 11, 2015, to attend Senior Kindergarten at Eatonville Junior School, for the 2020/2021 school year; and b. If the parties are unable to agree on the issue of costs of this motion within ten business days of release of this endorsement, the applicant may serve and file cost submissions, to my attention. The respondent shall serve and file any responding materials to my attention within ten business days after receipt of the applicant’s materials. Submissions shall be no more than 2 pages, not including bills of costs and offers to settle. Parties can assume I am familiar with the current law and cases on costs.

Shore, J. Released: August 4, 2020