COURT FILE NO.: FS-20-0044-00
DATE: 2020 09 17
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
IQRA SIRHINDI
Applicant
- and -
OMAIR QAYYUM
Respondent
H. Grewal, for the Applicant
R. Deswal, for the Respondent
HEARD: 11 September 2020
ENDORSEMENT
Trimble J.
INTRODUCTION
[1] For most parents, the month of August bring thoughts of return to school. What clothes do they need to buy their children, and what school supplies? For most parents the most burning question is what color should the pencil-case be and does the knapsack or book bag look “cool”.
[2] For parents going through a divorce, August brings the burning question of “where does our child go to school?”
[3] Many divorcing parents ignore this question. It festers. When they do address the question, their discourse it is an acrimonious to-and-fro of demands, positions, and accusations, ending in “I’ll see you in court”.
[4] This is one of those cases.
The Motion
[5] The Applicant Mother seeks an order for sole custody of the couple’s child, Surah Binti Omair (DOB 4 November 2016), and restricted access for the respondent, father.
[6] This motion came before me on 4 September based on the two-page letter and draft order required under the Chief Justice’s Notice to the Profession, as well as with an affidavit from mother sworn two days earlier. There was no Notice of Motion.
[7] The Respondent Father sought an adjournment so a) he could respond to the applicant mother’s motion and b) bring a cross motion for custody and access. Father also wanted an interim access order along with his adjournment, which I denied, there being no Motion to that effect granted on an urgent basis.
[8] On 4 September, I decided that the school issue was urgent, fixed 11 September for the hearing of that issue and timetabled it, and fixed the balance of the motion for a two hour hearing 24 February 2021 at 10 am.
[9] While Father filed his responding affidavit and Mother, her reply, Father brought no motion for any relief.
[10] On 11 September, I released a brief endorsement ordering that the child attend junior kindergarten at Edenrose Public School in Mississauga, on an online basis, for the time being.
Position of the Parties
[11] Mother says that the child has been attending daycare since she was 18 months old. Daycare was only interrupted in March 2020 when it shut down because of the Covid-19 pandemic. Father never expressed any reservation about daycare.
[12] Mother says that she raised the issue of the school the child would attend back in January 2020. Father took no objection to her intention of enrolling the child in public school junior kindergarten, in-person. She did so only to have Father object and un-register her.
[13] Finally, mother says that there are no health issues in either party’s household that pose any issue with respect to the child attending school in person. The Province and Peel Region School Board have taken necessary precautions to protect children and their families.
[14] Father takes issue with everything mother says. He says that there are, in fact, health issues in the households that are of concern. His 69-year-old mother 76-year-old father lived with him. His mother is diabetic and has real compromise. His father has no health concerns, specifically, his age puts him in a danger zone with respect to Covid–19.
[15] Father says that he has always had an issue with the child attending public school, in person, as opposed to online. Mother registered the child unilaterally, over his objections.
[16] Further, father has concerns that both parents live in Peel, which according to recent news reports is the hotbed of rising Covid-19 infections. He is concerned that the precautions taken by the Peel Region Public School Board are not sufficient. In any event, his child is 3, likely won’t wear a mask, and likely won’t social distance.
Result
[17] The child will attend JK at Edenrose Public School, online, and be enrolled as soon as is practicable.
The Law
[18] The law on this subject has evolved rapidly, but now is relatively clear.
[19] The law is, and always has been, that the best interests of the child govern the issue of where the child goes to school.
[20] The Covid-19 pandemic does not change the focus of the analysis. Rather, it adds certain other factors to consider as set out in Himel J.’s decision in Chase v Chase, 2020 ONSC 5083, Akbarali J.’s decision in Zinati v. Spence, 2020 ONSC 5231, and my decision of Amin v. Kabir, 2020 ONSC 5245, (to all three of which I directed Counsel during or Zoom Videoconference of 4 September).
[21] The Court should exercise caution in cases such as this where there has been no determination as to custody and access, and the issue of custody is hotly contested. However, the child’s interest requires that the Court take on this issue squarely.
[22] Most of the “where does the child go to school” motions, such as this case, are really requests by the parties to break the deadlock between parents who share decision making for their children but cannot come to a decision.
[23] In Zinati v. Spence, Akbarali J., said that:
Courts must pay deference to government plans for a safe return to school. It has access to experts in the Ministry of Health and Departments of Public Health, to advise it on the changing pandemic landscape. The court is not in a position, without expert evidence, to second-guess the government’s decision-making. The court should proceed on the basis that the government’s plan is reasonable in the circumstances for most people, and that the government will modify its plans as circumstances require, or as new information becomes known.”
When determining what educational plan is in a child’s best interest, it is not realistic to expect or require a guarantee of safety for children who return to school during a pandemic. There is no guarantee of safety for children who learn from home during a pandemic either.
When deciding what educational plan is appropriate for a child, the court must ask the familiar question – what is in the best interest of this child? Relevant factors to consider in determining the education plan in the best interests of the child include, but are not limited to:
a. The education plan that the parent puts forward;
b. The risk of exposure to COVID-19 that the child will face if she or he is in school, or is not in school;
c. Whether the child, or a member of the child’s family, is at increased risk from COVID-19 as a result of health conditions or other risk factors;
d. The risk the child faces to their mental health, social development, academic development or psychological well-being from learning online;
e. Any proposed or planned measures to alleviate any of the risks noted above;
f. The child’s wishes, if they can be reasonably ascertained; and
g. The ability of the parent or parents with whom the child will be residing during school days to support online learning, including competing demands of the parent or parents’ work, or caregiving responsibilities, or other demands.
[24] In Amin v. Kabir, after incorporating the factors in Chase and Zinati, I said that:
Courts should consider further factors including the child’s connections to school, socially or athletically, and whether it is in the child’s best interests to be removed from them? Are there alternatives outside of school?
Every child in Ontario has the right to receive educational services, but also has the obligation to attend a school for the year as defined by the Ministry of Education. Parents must take steps to ensure that their child fulfills his obligation to attend school. It is only in exceptional circumstances that a child will be exempt from this obligation.
The Covid-19 pandemic is an extraordinary situation calling for exceptional measures. But these are only temporary measures which do not modify the provisions of the Education Act. Even though the return to school might not be mandatory, this does not necessarily take away the right of children to receive educational services nor mandate them in one form or another.
In order to justify removing children from school, parents must establish that they have and can take the means necessary to achieve the standards set out in the Education Act other than in-class attendance. If one of the parents in a shared custody situation cannot establish that he or she can offer his child the proposed alternative to attendance at school for acceptable and reasonable reasons, there is no reason to deprive the child of his right to attend his school when it is possible for him to do so.
The Covid-19 pandemic landscape during the pandemic is made of sand, not stone, and is ever-shifting. The current situation may not be much different next September.
[25] In Amin, I was referring to the mandatory attendance at school. The Education Act provides that school is mandatory for children only over 6. My comments in Amin, however, apply equally to children under 6 years of age, subject to the fact that school for them is not mandatory.
Evidentiary issues
[26] As part of her Reply Affidavit, the Mother attached the following three documents:
the undated surveillance report of SSC investigative Consultants Inc. commissioned on 5 September 2020;
the affidavit of Zoha Jamshed, sworn 8 September 2020; and
the affidavit of Rafia Sirhindi, also sworn 8 September 2020.
[27] Father objects to the court receiving these documents for three reasons:
This is an attempt to introduce new evidence; it is not proper reply.
It is inappropriate to attach properly sworn affidavits of others as exhibits to another’s affidavit; it is a blatant attempt to shield those two affiants from cross-examination.
Producing this information in a Reply Affidavit is a violation of an undertaking given by mother’s counsel. On 4 September, after the Zoom videoconference with me, the parties exchanged emails. Father’s counsel asked if mother would be filing a supplementary affidavit. Her response was no, she was resting on her 2 September 2020 affidavit, but might file something in reply. Father says that the affidavit in reply is in direct violation of the representation mother’s counsel made to father’s.
[28] Mother’s response is that it is all proper reply. Father raised his parents’ compromised health in his Responding Affidavit. All of the information in the Reply Affidavit is in response to the allegations about father’s parents’ health.
[29] For the reasons that follow in this section, I admit the two affidavits as proper reply in this motion. I do not admit the report from the private investigator.
[30] I address the affidavits first. Their timing is significant.
[31] After the 4 September hearing of this matter, mother’s lawyer was attuned to the fact that father’s lawyer was concerned that she might file more evidence. Father’s lawyer asked her directly whether she intended to file a Supplementary Affidavit. She said she would only do so in Reply. Mother’s lawyer clearly knew at that time that father would be saying that his parents who lived with him have underlying comorbidities that make exposure to Covid-19 a danger to them. The next day mother’s lawyer commissioned the private investigator’s report, giving the investigator the specific mandate to determine whether father was observing Covid-19 protocols. Within four days of the first videoconference, mother’s lawyer had obtained and commissioned the two affidavits. These affidavits were sworn 24 hours before father’s affidavit was sworn and served.
[32] In essence, the two affidavits that Mother’s lawyers obtained are new evidence. They were obtained immediately following mother’s lawyer’s statement that there would be no new evidence, only evidence in Reply.
[33] I find that mother’s lawyer was contemplating obtaining the new evidence when she made her statement on 4 September to Father’s counsel. Mother’s counsel never corrected her statement to father’s lawyer. In addition, I find that mother’s lawyer withheld producing the two new Affidavits until after father served and filed his response affidavit. In other words, she intended to box Father in. This is sharp practice. It is an example of “gotcha” litigation. It brings heightened conflict to an already overheated piece of litigation. It is also contrary to the necessity of counsel needing to be more cooperative in the pandemic period.
[34] Technically, however, the two affidavits are an appropriate reply to the affidavit that father filed. Further, what is contained in those affidavits should be no surprise to father as the evidence concerns his and his mother’s activities surrounding the death of a family member and speak to the extent to which father and his mother maintain Covid-19 protocols given Father’s parents’ Covid-19 comorbidities.
[35] With great reluctance I admit the two affidavits.
[36] Turning to the surveillance report, I do not admit it into evidence.
[37] What is contained in the report has probative value to some extent. Father’s activities in being involved in large gatherings of people and the extent to which he does not follow Covid-19 protocols are relevant to the question of his claimed level of concern about protecting his parents from Covid-19 given their ages and comorbidities.
[38] The prejudice in admitting the surveillance report, however, far outweighs any probative value.
[39] One party making surreptitious recordings of another, or of the children, in family law litigation has been referred to as an “odious practice” that the courts typically seek to discourage because they are destructive of the maintenance, restructuring, and encouragement of constructive family relationships. In deciding whether to admit surreptitious recordings, the court must weigh these policy considerations against the evidence’s probative value. The party seeking its admission must establish a compelling reason for doing so (see: Hameed v. Hameed, 2006 ONCJ 274 (O.C.J.), at paras. 11 and 13, and Veljanovski v. Veljanovski, 2016 ONSC 2047, 81 R.F.L. (7th) 190 (S.C.J.), at paras. 37-60).
[40] I asked Mother’s counsel to provide an analysis of the probative value versus prejudice effect of the surveillance so that I could rule on its admissibility. I told her that was a precondition to my being able to consider it. She responded by saying that the evidence clearly indicated that father was not observing the necessary Covid-19 protocols. She did not establish any compelling reason to have the surveillance report admitted into evidence.
[41] My ruling is limited to the confines of Mother’s use of the surveillance report in this motion. I do not comment on whether the surveillance report is or may be admissible on any other issue.
[42] While I do not admit the surveillance report, the statements in paragraph 22 and 23 of mother’s 10 September 2020 Reply Affidavit are admissible insofar as they report on hearsay, and name the source of that hearsay. I did not give a great deal of weight to those statements since Father had no opportunity to cross- examine or otherwise explore the investigator’s opinion.
Analysis
[43] In this case, the best interests of the child are served by permitting her to attend JK online. I find this for the reasons that follow.
[44] There are several factors that weigh in favour of the child attending JK in-person:
Neither parent has provided a detailed, written educational plan that has been well researched and to which each can be held accountable. They simply take the position that the child should be educated in school or online.
Both parents acknowledge the child wants to go to school in-person. She is, however, only three years of age and likely unable to assess the risks of she and her family of Covid-19.
As a 3-year-old, I agree that she is probably not likely to wear a mask for the full day, nor is she likely to socially distance herself.
Neither parent has produced any evidence that this child will (or will not) be exposed to Covid-19 while in school in-person, at JK, at her school. Father merely quotes headlines and platitudes about Covid- 19.
The child’s mental and psychological health will be negatively affected by not going to school, in-person. As a general matter, small children learn better by direct contact with their teachers. They receive more direct attention from teachers through in-person learning. They benefit by socializing with teachers and friends. They get to be children, by laughing and playing.
While the parents will be able to assist the child in online learning from time to time, it appears that much of that assistance will come from the parties’ parents. I have very little evidence about he ability of either set of grandparents’ ability to support online learning.
[45] More significant, however, are the factors that weigh in favour of remote learning:
Father has established through medical evidence that his parents are at higher risk of catching Covid-19 and, if caught, suffering more severe consequences, mother because of her age and comorbidities, and father because of his age.
The risk to Father’s parents’ health in this case has as much to do with Father’s activities as to the child’s going to school in person.
The two affidavits attached as exhibits to Mother’s Reply Affidavit are a significant factor in this finding. The two Affiants indicate that Father and his mother attended large family gatherings during the pandemic, associated with a relative’s death. Father took the child to one of these gatherings. This is risky behaviour even with appropriate masking and social distancing.
The affidavits in reply are silent as to whether Covid-19 protocols were followed at those gatherings. There is nothing in them that says, for example that people wore, or did not wear masks, or maintained, or did not maintain, social distancing. Given the purpose for the affidavits, one would expect this sort of evidence to have been stated.
Father’s conduct is troubling. He claims that the child going to school in person poses a risk to his parents’ health. Yet, his own activities, voluntarily undertaken, raise the risk to his parents being exposed to Covid-19 through him. Further, his activities increase the risk to the child, when in his care, while attending JK online. Either, he raises his parents’ health as a risk solely for the purpose of this motion (given his own activities), or he is merely reckless.
Father’s mother’s conduct is even more troubling. She is the one who is 69, who suffers the specific comorbidities, and will suffer if she contracts Covid-19. Notwithstanding this, she indulges in what for her are high risk activities by attending large family gatherings, especially with visitors from the US.
Still, to the extent that sending the child to school in person in itself increases the risk of exposure to Covid-19 to Father’s parents, it is to be avoided.
Costs
[46] Mother submitted that were she successful on this motion, she would not seek costs. Father made no such undertaking.
[47] Father is presumed entitled to his costs.
[48] I will deal with the issue of who pays whom costs, and in what amount based on written submissions. Submissions are limited to two double-spaced, typewritten pages, excluding offers and Bills of Costs. Father’s are to be served and filed by 4 PM 25 September 2020 and mother’s by 4 PM, 30 September 2020.
Trimble J.
Released: September 17, 2020