Superior Court of Justice - Ontario

Court File No.: FS-18-93522 Date: 2020-09-01

Re: Sofia Assaf, Applicant And: Mohammad Aoudeh, Respondent

Before: Trimble J.

Counsel: Andrea L. Di Battista, Counsel for the Applicant, adibattista@dkgcfamilylaw.com Brahm Siegel, Counsel for the Respondent, bsiegel@nathenssiegel.com

Heard: In Writing

Endorsement

The Motion

[1] The applicant, Ms. Assaf, brings this motion pursuant to section 28(1) of the Children's Law Reform Act for an order that the children of the marriage, Maya Mohammad Aoudeh (born July 18, 2013) and Lilly Sofia Aoudeh (born August 15, 2015) attend James W. Hill Public School in Oakville commencing September 8, 2020 and that the children attend before and after school care at or near James W. Hill Public School. Mr. Aoudeh brings a cross motion that the children shall continue to attend Tecumseh Public School in Mississauga until further order.

[2] The parties have agreed that this motion can be determined, in writing.

The Material Filed

[3] This motion came in to the court at the end of July 2020 as a request for an urgent motion. On 30 July, it came before Tzimas, J., who was acting as triage Judge for emergency motions. In her endorsement of 30 July 2020, Tzimas, J. said:

1. Both counsel are to confer and attempt to agree on a return date for the hearing of this motion within the next two weeks, and the estimated time required, and advise the TCO accordingly.

2. The motion shall be heard by Zoom conference and will be heard by the Judge assigned to civil motions on that day.

3. The Court already has the Respondent's materials. Counsel for the Applicant shall follow the filing requirements set out on p. 9 of the Notice to the Profession for Central West issued on June 25, 2020 and effective as of July 6, 2020 and agree on a timetable that permits all filings to be completed by no later than two days before the hearing date.

4. Counsel should know that the judge hearing the motion will not have access to the file or any of the past orders. Accordingly, the parties should ensure that they provide the court with copies of any endorsements or orders that may be relevant to the determination of the issue in dispute.

Finally, during this difficult transitional period in the COVID-19 world, we expect both counsel to be cooperative, efficient and reasonable in all respects. Should either fail in that regard, s/he can expect significant cost consequences.

[4] On 19 August 2020 at the filings were completed and the matter was referred to me to decide in writing. For reasons I cannot determine, not all of the file was received through the appropriate portals, or if received was not transmitted properly internally, or if transmitted internally, was lost. I offer counsel and the parties my profound apologies on behalf of the court and thank counsel for assisting in rebuilding the file.

[5] The following material were filed on this motion (excluding Affidavits of Service):

From Ms. Assaf:

1. Notice of Motion dated Aug 11/20
2. Affidavit in support of motion dated Aug 11/20, and exhibits;
3. Factum and Brief of Authorities dated Aug 11/20 (attached); and

From the respondent Mr. Aoudeh:

1. Book of Authorities
2. Factum
3. Notice of Motion dated July 28, 2020
4. Affidavit dated July 22, 2020
5. Reply Affidavit sworn August 17, 2020
6. Draft Order

[6] Ms. Assaf filed a further affidavit which she swore on 26 August 2020. This was after my correspondence to counsel asking for assistance in rebuilding the file. Mr. Aoudeh objects to my receiving it.

[7] I have received the affidavit because it is filed to correct errors of fact in Mr. Aoudeh's reply affidavit of 17 August 2020.

The Facts

[8] The parties were married on September 2, 2011 and separated on August 8, 2018. They have two children: Maya Mohammad Aoudeh (born July 18, 2013) and Lilly Sofia Aoudeh (born August 15, 2015).

[9] The parties separated after Mr. Aoudeh called the Police which resulted in charges against Ms. Assaf, and release terms which barred her from the matrimonial home at 1096 Caldwell Avenue, Mississauga, where the children continued to reside with Mr Aoudeh.

[10] Mr. Aoudeh was the subject of four criminal charges in December 2018 and February 2019 in relation to assaults against Ms. Assaf and their youngest daughter, Lilly. These charges have since been dropped by the crown.

[11] Pre-Covid-19, both of the parties worked full-time. Therefore, the children attended daycare, when not in school.

[12] The parties agreed to an interim parenting plan which provided for equal parenting of the Children in a nesting arrangement, after the charges laid against Ms. Assaf had been dropped in full.

[13] Since the date of separation, the parties have been in constant litigation. The trial was set to be heard in the May 2020 sittings, but as a result of the COVID - 19 pandemic shut down of the courts, the trial was not heard.

The Children's School

[14] Maya will be entering Grade 2 in September 2020 and Lilly, Senior Kindergarten. Because of the shutdown of the Province's schools effective 16 March 2020 due to the Covid-19 pandemic the two children have not been at school, except virtually. Further, between January and March 2020, there were labor disputes and rotating strikes which also caused the children to be absent from school from time to time.

[15] The matrimonial home was in the catchment area for Tecumseh Public School in Mississauga where both children attended school. The matrimonial home was sold on March 16, 2020. Both parents moved outside of the catchment area for Tecumseh. Ms. Assaf now lives in Oakville, and Mr. Aoudeh in Mississauga.

[16] A section 30 assessment was performed. The assessor, however, did not address the question of where the children should go to school. Ms. Assaf wanted her to address the issue and make recommendations. The assessor said that she would do so only with the consent of both parents. Mr. Aoudeh would not consent.

Positions of the Parties

[17] Ms. Assaf would like the children to attend James Hill Public School in Oakville, which is the public school for the catchment area in which her new home sits. She also wishes to enroll the children in an afterschool care program at or near the school. Mr. Aoudeh believes that it is in the best interest of the children to leave them at Tecumseh.

[18] Ms. Assaf believes that sending the children to James Hill Public school is in their best interests for the following reasons:

1. The children are familiar with the neighborhood. They have been enrolled at a daycare in that neighbourhood since May 2014.
2. They have participated in extracurricular activities in the same area since 2016 such as March Break and summer camps in the vicinity.
3. There has been high staff turnover and a deterioration in teaching support at Tecumseh, as well as "a limited exposure to a modernized learning environment." Budget restraints have resulted in teaching roles being eliminated and non-teaching staff becoming teaching staff (school music teacher and librarian, for instance) and extracurricular and field activities have been reduced. These all remain available at James Hill.
4. Most of Lilly's kindergarten classmates are graduating to grade 1.
5. Most of Maya's class is moving on to private school.
6. James Hill is consistently ranked as the top ranked school in Oakville for academics in teaching support based on EQAO sources. The catchment high school of Oakville Trafalgar secondary school is consistently ranked among the top 10 secondary schools based on EQAO scores.
7. James Hill offers French immersion streams, Tecumseh does not.
8. Many of the children's friends will be attending James Hill in September.
9. Ms. Assaf is involved actively as a volunteer in the school and classroom environment at the children's schools. She desires to expand her involvement in the children's school at James Hill.
10. The distance between the schools and either party's home is minimal James Hill, however, is located within a block of Ms. Assaf's home.
11. The children up until the end of December 2019, run a waiting list for the PLASP afterschool program.

[19] Mr. Aoudeh believes that leaving the children at Tecumseh is in their best interests for the following reasons:

1. The two schools are academically equal. Neither he nor Ms. Assaf are qualified to opine on the academic qualifications or superiority of one school over the other.
2. Changing schools is not in the children's best interests given the instability that they have faced since separation, including that stress and turmoil caused by the breakdown of the parties' marriage, but also because of Covid-19.
3. Maya will be entering her fourth year at the school and Lilly entering her second year at the school.
4. Both children have established and secure relationships with friends and staff.
5. The children are eligible to continue at Tecumseh, especially since Mr. Aoudeh's new home is only 130 m outside the Tecumseh catchment area. Further, the school board has confirmed to Mr. Aoudeh that the children qualify for the flex application program which requires Ms. Assaf's signature or a court order.
6. Mr. Aoudeh believes that the sole reason for this motion is that Ms. Assaf wishes the children to attend school near to her home, for her convenience.
7. The PLASP before and after school care program has returned to pre-Covid-19 operations.
8. The children do not speak French. Neither of the parents speak French. The existence of a French immersion program at the other school is irrelevant.

The Law

[20] Section 28(1)(b) of the Children's Law Reform Act provides that the Court may determine any aspect of the incidents of the right of custody and access, as does s. 16(2) of the Divorce Act. Both require the decision to be made in the best interests of the children.

[21] A child's school placement is incidental to and ancillary to the rights and custody and must be based on the children's best interests. Although the issues of custody and access are not yet determined, the impending start to the school year makes a decision on school necessary now.

[22] In Thomas v. Osika, 2018 ONSC 2712, Audet, J. says that when there is disagreement amongst the parents as to the choice of school for the child, it remains a matter of judicial discretion. Beginning at para. 37, Her Honour set out a thorough review of the factors and jurisprudence concerning school placement issues:

The decision as to the choice of school that a child should attend, when the parents disagree, is ultimately a matter of judicial discretion. However, a number of general principles have emerged from the caselaw to assist the decision-maker in making the decision in the child's best interests. They can be 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. Third party ranking systems, such as the Fraser Institute's, should not factor into a Court's decision. These systems of ranking do not take into consideration the best interest of the particular child in a family law context (Wilson v. Wilson, 2015 ONSC 479);

k. If an aspect of a child's life, such as school placement, is to be disrupted by an order of the court, there must be good reason for the court to do so. Thus, before a court will order a child to transfer schools, there must be convincing evidence that a change of schools is in the child's best interests (Perron v. Perron, 2012 ONCA 811 (Ont. C.A.);

l. Custodial parents should be entrusted with making the decision as to which school children should attend. When a sole custodial parent has always acted in the best interest of a child, there should be no reason to doubt that this parent will act in the best interest of the child when deciding on a school (Adams v. Adams, 2016 ONCJ 431);

m. Those cases are very fact-driven. The courts are not pronouncing on what is best for all children in a general sense but rather deciding what is in the best interests of this child before the court (Deschenes v. Medwayosh, 2016 ONCJ 567).

A Note on Evidence

[23] In this case, both parties, but predominantly Ms. Assaf, provided evidence concerning the educational and support programs offered by their proposed schools. Ms. Assaf provided a great deal of information about the alleged inadequacy of Tecumseh. The evidence of both parties comprises some first-hand knowledge. By far, the majority of the information they provided comprised third party hearsay, conveyed by relating what they were told by others, or from information taken from the internet.

[24] I note that while the children have been enrolled in Tecumseh for the coming school year, they have not been assigned to a class because they have not been approved under the flexible school boundaries policy. That is because Ms. Assaf has not signed the application, she says because Mr. Aoudeh began that process without consulting her and knowing that it was her desire since mid 2019 that the children attend James Hill.

[25] Ms. Assaf relies, in part, on an opinion letter written by the real estate agent who sold the matrimonial home concerning the "family of schools" and neighborhood in which James Hill and Tecumseh each sits. The real estate agent has no proved basis to conclude that he has any expertise that would allow him to opine on the quality of schools in the area. This is not admissible.

[26] Further, Ms. Assaf expresses her own opinions about the quality of the schools as if they were statements of fact, without giving any basis upon which to conclude that she is qualified to express them, factually or as an expert. She makes broad, sweeping statements, without any foundation, none of which are admissible, for example:

1. James Hill is bigger than Tecumseh and will be better able to provide for adequate spacing and social distancing.
2. Due to lack of funding, cuts disproportionately affect smaller, older schools such as Tecumseh.
3. Halton's property taxes are higher thereby allowing more money to be allocated to the suit school system in order to offer more diverse educational opportunities and various community reach-out events.
4. As a newer school, James Hill "... is automatically equipped with the technology and infrastructure to support the rapidly evolving modernized learning environment."
5. Tecumseh is one of the oldest school facilities in Mississauga and relies on ongoing significant donations from parents to keep pace with "smart classroom" environments that are in place at newer schools like James Hill. This includes computer labs and STEM programs.
6. As a result of Covid-19, class sizes across Ontario will be strictly enforced, as will the catchment area borders, which means that Tecumseh will not accept the children on their flex program.

[27] Mr. Aoudeh's evidence is equally suspect. For example, in his 17 August 2020 reply affidavit, all of his statements of fact about the flex boundary program and the availability of aftercare are either his opinion, or are hearsay, not supported by exhibits.

[28] I have no doubt that Mr. Aoudeh believes that his children will be accepted at Tecumseh under the flex boundary program. However, the program itself notes that final decisions will be made no later than September 30 with no guarantee that parents will be advised earlier than that of their children's acceptance.

[29] Further, correspondence that Ms. Assaf has produced indicates that the Peel Region Board's view is that school enrollment is determined by the home address, and admission under the flexible boundaries policy is only granted under extraordinary circumstances. The board will not allow the flex boundary admission to overload a class.

[30] Further, Mr. Aoudeh relies on parts of the Section 30 report. I do not accept, however, the section 30 assessor's comments as being relevant to the issue of schooling. Ms. Assaf asked the assessor to opine on the issue of where the children go to school. The assessor declined to do so because Mr. Aoudeh would not consent to her addressing the issue.

Result

[31] The children shall be enrolled in Tecumseh Public School, assuming the school can accommodate.

Analysis

[32] The task of choosing a school is fact driven. In exercising my judicial discretion, I must consider and emphasize the children's best interests above those of the parents.

[33] On the limited information presented, I am unable to conclude that the quality of education being offered by each of these schools is better than at the other. Ms. Assaf reports about the discussion she had with Maya's grade 1 teacher about Maya's poor performance at Tecumseh. This is hearsay, on the contentious matter, and is therefore not admissible.

[34] It is in the best interest of the children to be enrolled at Tecumseh. I say this for the following reasons:

1. The children have attended the school and have friends there. They know the teachers and the teachers know the children.
2. There is no clear advantage in one school or the other.
3. There is no indication that specific needs of either of the children are better addressed at one school or the other.
4. Travel distances between the schools are neutral, although Tecumseh is more equidistant between the parties, and promotes the maximum contact with both parents (see: Berry v. Berry, 2011 ONCA 706 and Woodhouse v. Woodhouse (1916), 29 OR (3d) 417 (C.A.)
5. The children would remain together at their familiar school, the only school that they have ever attended.
6. There must be good reason for a court to upset the children's former school arrangements (see: Thomas v. Osika). There is no "good reason" in this case.

Order

[35] The children of the marriage will be enrolled in Tecumseh Public School pending further order of the court. Since neither party raised an issue with respect to in-person attendance, the children shall attend in-person.

[36] The parties should understand that during the Covid-19 pandemic, this endorsement is as enforceable as an order, although the parties are free to have one issued and entered, that is possible.

Costs

[37] Mr. Aoudeh is the putative winner of this motion. I will decide the question of costs, based on written submissions. Submissions are limited to three typed, double-spaced pages (excluding bills of costs). Mr. Aoudeh's are to be served and filed by 4 PM 18 September 2020, and Ms. Assaf's by 4 PM 25 September 2020.

Trimble J.

Date: September 1, 2020

COURT FILE NO.: FS-18-93522 DATE: 2020-09-01

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

SOFIA ASSAF Applicant

• and -

MOHAMMAD AOUDEH Respondent

ENDORSEMENT

Trimble J.

Released: September 1, 2020