SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

NEWMARKET COURT FILE NO.: FC-19-59232-00

DATE: 20200908

RE: Oren Naftali Ben-Shlomo, Applicant and Rebecca Sherri Zaretsky, Respondent

BEFORE: The Honourable Mr. Justice G.A. MacPherson

COUNSEL: Self-represented Applicant Self-represented Respondent

HEARD: September 4, 2020, virtually

ENDORSEMENT

Relief Requested

[1] The parties are unable to agree on the kindergarten / school that Joshua will attend in September 2020 and they are unable to agree on their respective contributions towards the costs for same.

[2] The Applicant requests an order that Joshua attend kindergarten at Thornhill Nursery School and Kindergarten (hereinafter “TNSK”) until the completion of Senior Kindergarten and that he commence half days until October where he will transition to full days.

[3] The Respondent requests Joshua be enrolled at Associated Hebrew Schools (hereinafter “AHS”) commencing with half days and that Joshua transition to full days at a time the parties consent to or when the court orders it.

Decision

[4] For the reasons that follow, Joshua shall be enrolled in Associated Hebrew Schools in September 2020 and his attendance shall commence for half days only. Joshua shall transition to full days on November 2, 2020 unless the parties agree in writing to an alternate arrangement or there is a further court order.

[5] The cost of tuition shall be shared in proportion to the parties’ income with the Applicant paying 47% and the Respondent paying 53%. The parties shall divide the tax receipt in accordance with their proportionate contribution.

Background

[6] The parties were married on March 3, 2013. There is a dispute as to the date of separation. In his Application the Applicant claims the parties separated on April 24, 2019 and in her Answer the Respondent claims the parties separated December 6, 2018.

[7] There is one child of the relationship namely, Joshua Benjamin Ben-Shlomo born October 8, 2016. Joshua will be four years of age next month.

[8] Pursuant to the order of Sutherland J. dated May 15, 2020, also argued on an urgent basis, Joshua spends alternating weekends from Friday until Monday with the Applicant as well as every Wednesday overnight until Thursday. The balance of the time Joshua resides with the Respondent.

[9] Following their separation, the parties continued to reside in the matrimonial home until March 23, 2020 when the Respondent left the matrimonial home with Joshua and moved into the home of the maternal grandparents.

[10] A request for an urgent motion for the sale of the matrimonial home and exclusive possession was denied by Kaufman J. on January 15, 2020 due to lack of notice and because the request was not deemed urgent. Regardless, the sale of the matrimonial home occurred on July 30, 2020 and the proceeds of the sale remain in trust. There is no agreement to release the sale proceeds.

[11] A section 30 assessment was ordered by Douglas J. on November 14, 2019. Not surprisingly perhaps, the choice of assessor was disputed requiring judicial intervention. Despite Kaufman J., in his endorsement of January 9, 2020, indicating Dr. Irwin Butkowsky would complete the assessment, Dr. Butkowsky withdrew. Dr. Radovanovic is conducting the section 30 assessment and it is not yet complete. The details of the withdrawal are not particularly relevant to this motion. It is noteworthy that the parties, seemingly, are unable to agree on many aspects of the litigation requiring the court to make these significant issues.

Applicant’s Position

[12] The Applicant argues that Joshua should be enrolled in TNSK for the reasons that follow. He argues that Joshua attended TNSK from September 2019 through March 2020 and he is familiar with the teachers, students and the building. He argues that Joshua needs the stability of a familiar school as he has been exposed to considerable change in 2020 as a result of the breakdown of his parents’ relationship, the sale of the matrimonial home and his subsequent move.

[13] The Applicant states that TNSK has class sizes smaller than AHS and, in terms of geography, it is close to both parent’s current residences than AHS.

[14] The Applicant also argues that the cost of tuition at TNSK is significantly less than AHS. On an annual basis tuition at TNSK is $8,530 in comparison to AHS whose tuition costs $14,185 annually.

[15] Further, although premature, the Applicant proposes Joshua attend public school when he commences grade 1 while the Respondent proposes that Joshua continue to attend AHS throughout grade eight.

Respondent’s Position

[16] The Respondent argues that she has always remained steadfast in her belief that it is best for Joshua to attend AHS, a private Jewish school. The Respondent argues that Joshua is Jewish as are both parents and both sets of grandparents. Joshua is being raised in the Jewish faith.

[17] The Respondent argues that AHS is geographically close to the parents’ residences and it has student / teacher ratios similar to TNSK.

[18] In terms of change, the Respondent argues that Joshua attended TNSK last year but only on two mornings per week for the first four months and three mornings a week for the last two months. She argues that Joshua will have new teachers and a new classroom at TNSK and, because of Covid-19, he stopped attending TNSK 6 months ago. Accordingly, she argues, there will be a change regardless of which placement is ordered.

[19] The Respondent also argues that Joshua will receive a Jewish education at AHS. The Applicant’s position is that if Joshua attends TNSK he will obtain a Jewish education separately, on weekends. That proposal, the Respondent argue will limit time with family and friends and each parent.

[20] Although AHS is more expensive than TNSK, the Respondent states that a charitable receipt is provided. The taxable receipt can be shared. The Respondent also indicates that the court must take into account the additional cost of the supplementary Jewish programming proposed by the Applicant should Joshua attend TNSK. The cost range is between $600 per annum - $1,200 per annum.

[21] It is noteworthy that incidents of custody include decision making for educational purposes.

Legal Framework

[22] Section 24 of the Children’s Law Reform Act, deals with the merits of an applicant for custody or access:

MERITS OF APPLICATION FOR CUSTODY OR ACCESS

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). 2006, c. 1, s. 3 (1).

Best interests of child

(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. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10; 2016, c. 23, s. 7 (1, 2); 2016, c. 28, s. 2.

Past conduct

(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1); 2016, c. 23, s. 7 (2).

Violence and abuse

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person’s household; or

(d) any child. 2006, c. 1, s. 3 (1); 2016, c. 23, s. 7 (2, 3).

Same

(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse. 2006, c. 1, s. 3 (1).

[23] Under the Divorce Act, R.S.C. 1985 c 3 (2nd Supp), the court is guided in custody and access orders as follows:

CUSTODY ORDERS

Order for custody

16. (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.

Interim order for custody

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses or by any other person, make an interim order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage pending determination of the application under subsection (1).

Joint custody or access

(4) The court may make an order under this section granting custody of, or access to, any or all children of the marriage to any one or more persons.

Terms and conditions

(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.

Factors

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

Past conduct

(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.

Maximum contact

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[24] In considering what is in the best interests of Joshua I note that both parents agree that Joshua should be in school despite the risk of Covid-19. I also note that both parents agree that Joshua will be raised as a member of the Jewish faith.

[25] The parents do not agree on the date of separation. The parents required a motion to set a parenting plan. The parents required a motion to determine who would complete the section 30 assessment. There was no agreement, initially, on the sale of the matrimonial home and they sought a motion. They do not agree on the distribution of the sale proceeds now that the matrimonial home is sold. They do not agree on Joshua’s kindergarten. With that backdrop, I make the observation that this matter is on the path toward a lengthy, expensive litigation experience. It is surprising that both parents are seeking, in their pleadings, a joint custodial disposition when they have been unable to agree on much.

[26] Joshua is three years old and has experienced some considerable disruption this year. He is no longer living in the matrimonial home with his parents and, instead, travels back and forth between his parents’ homes. Covid-19 has no doubt impacted Joshua’s life, as it has impacted many.

[27] Based on the evidence before me I am satisfied that both TNSK and AHS are adequate educational facilities. I have also determined, based on the evidence before me, that both have adequately addressed Covid-19 risks. In terms of geographical proximity neither requires extensive travel for Joshua.

[28] I have determined that Joshua likely has very little memory of TNSK. He is only three. His attendance in 2019 was limited to two mornings per week and in 2020 it was limited to three mornings a week. As a result of Covid-19, Joshua has not attended TNSK since March 2020. Joshua will have new teachers and a new classroom at TNSK should he return there. For all of these reasons, I have determined that Joshua will experience change whether he attends AHS or TNSK.

[29] I have chosen AHS as being in Joshua’s best interest because it offers an academic education, religious instruction and Hebrew during the week. I find this preferable to the plan offered by the Applicant who proposes that Joshua be enrolled in a supplemental Jewish Program in addition to his education at TNSK. The supplemental Jewish Program he proposes would occur for approximately two and a half hours on Sundays. For many separated couples with young children, parenting time is precious. When considering parenting plans, weekend times are crucial. Children are at school during the week and parents are, generally, working during the week. Having Joshua attend a program every Sunday will, potentially, interfere with available parenting time unnecessarily and expose Joshua to an educational regime 6 days a week. It will also limit his time for socialization with friends on Sundays and limit his ability to attend extra-curricular activities as he matures on Sundays.

[30] I have also determined that the cost of AHS is not significantly more than TNSK for junior kindergarten. The Applicant states that the cost for AHS tuition this year is $14,185. The Applicant states that the tuition cost for TNSK is $8,530. However, when one factors in the additional cost of the weekend supplemental Jewish Program which varies but, from the evidence before me, is in the $1,000 range, the cost goes to $9,530. And, as a significant portion of the tuition at AHS is eligible for a charitable tax receipt which, the parties advise, can be divided between the parents, the after-tax cost of tuition is considerably lower. The Respondent estimates that the impact of the charitable receipt will result in AHS costing approximately $10,000 in after tax dollars, just slightly more than TNSK after the supplemental Jewish Program costs are factored.

[31] The Applicant earns approximately $123,960 per annum. The Respondent earns approximately $141,000 annum. I have determined that this expense is reasonable given the parties’ incomes.

[32] Accordingly, and for all of the reasons stated, I have determined that it is in Joshua’s best interests to be enrolled at AHS for the 2020 – 2021 academic year.

[33] I have also determined that it is in Joshua’s best interests to commence half days in September and to then transition to full days on November 2nd. Both parents proposed a transition to full days and I agree this is in Joshua’s best interests to do so. In order to reduce the possibility of a dispute I have chosen November 2, 2020 as the day Joshua will transition to full days. Two months should be sufficient in terms of a transition. If more time is required, the parents can agree to an alternate transition date. However, if there is no agreement, it shall be November 2, 2020.

Order

1. Joshua shall be enrolled in Associated Hebrew Schools (AHS) in September 2020 and his attendance shall commence for half days only. Joshua shall commence full days on November 2, 2020 unless the parties agree in writing to an alternate arrangement or there is a further court order.

2. The cost of tuition shall be shared in proportion to the parties’ income with the Applicant paying 47% and the Respondent paying 53%. The parties shall divide the tax receipt in accordance with the amount they paid.

3. If the parties cannot agree on the issue of costs of the herein motion, I shall consider the request for costs. The Respondent shall serve on the Applicant and file in the Continuing Record her written submissions, limited to three pages, exclusive of the Bill of Costs and Offers to Settle within 20 days of the date of this decision. The Applicant shall serve on the Respondent and file in the Continuing Record his written submissions, limited to three pages each, exclusive of the Bill of Costs and Offers to Settle within 15 days thereafter. If no submissions are received within the time period set out herein, an order will be made that there will be no costs.

Justice G. A. MacPherson

Released: September 8, 2020