Court File and Parties

COURT FILE NO.: FS-20-00018764 DATE: 20201005

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: J.E.S. Applicant

– and –

S.S. Respondent

Counsel: Howard J. Feldman, for the Applicant Daniela R. Di Rezze, for the Respondent Ely-Anna Hidalgo-Simpson, for the Toronto District School Board

HEARD: September 24, 2020

REASONS FOR DECISION

Faieta J.:

[1] The parties were married in June, 2014 and separated in June, 2018. They are the parents of two children: W.S., age 6 and K.S., age 4. (the “Children”).

[2] The Applicant mother brings this urgent motion for a temporary Order that the Children attend Birch Cliff Heights Public School (“Birch Cliff”), in person, for the 2020/2021 school year and that she with either provide or select the pre-school and after school program for the Children. For the reasons described below, I have dismissed her motion and order that the Children continue to attend Sloane Public School (“Sloane”) for the 2020/2021 school year.

BACKGROUND

[3] There is no Order that deals with parenting issues.

[4] The parties have joint custody of the Children pursuant to a Separation Agreement made in September, 2018 which, at paragraphs 3, 30 and 37, states:

3. The Parties agree that joint legal custody is in the best interests of the children. The Parties agree that both parents are fit and proper persons to have joint responsibility for the care of the dependent children.

4. [K.S.] will continue at Muppets Pre School and [W.S.]at Sloane Public School for 2018/2019 School Year. After that it will be re-assessed based on comfort of both parents. …

5. In the event that a dispute arises regarding this Agreement, the Parties will try to resolve the matter through negotiation or mediation, prior to initiating a court action.

[5] The Children attended Sloane in 2019/2020. W.S. completed Senior Kindergarten and K.S. completed Junior Kindergarten.

[6] On August 19, 2020, the parties discussed the 2020/21 school year using WhatsApp. They agreed that the Children would continue to attend Sloane and that they would attend in person rather than online. They agreed to re-assess which school the Children would attend next year.

[7] Nevertheless, on August 20, 2020 the parties exchanged text messages. The Applicant asked whether they should keep the Children home in September, 2020. The Respondent responded that they should take a “wait and see” approach.

[8] On August 21, 2020, the Toronto District School Board (“TDSB”) sent an email to parents, including the parties, which amongst other things stated:

• The first day of school would be Tuesday, September 15, 2020;

• The entry of all grades would be staggered over three days;

• The expectation was that students would wear masks/face coverings however for younger students they would ensure that there are outdoor breaks so that the students were not wearing masks for multiple hours at a time;

• “Enhanced health and safety protocols will be in place, including smaller class sizes to help maximize physical distancing. Elementary schools located in Toronto communities where Toronto Public Health data shows higher risk of contracting COVID-19 will have lower class sizes than all other elementary schools. Visit the website for more information, including important details on elementary class sizes”.

• Parents who want their child to learn from home can choose the remote learning option;

• The TDSB asks parents to register their children on August 26, 2020 to either attend school or choose remote learning.

[9] The TDSB website identified Sloane as one of more than 80 schools on a list of “Schools in the Highest-Risk Neighbourhoods for COVID-19 identified by Toronto Public Health” based on a composite score derived from socioeconomic data related to the percentage of population that is low-income, visible minority and living in multi-generational homes. The TDSB website also shows that Victoria Village Public School, which is the school where the Children attended day care both before and after school, is on the same list.

[10] The TDSB website further stated:

Toronto Public Health maintains that the best way to prevent the transmission of COVID-19 is through physical distancing. Based on TPH’s recommendation around physical distancing, TDSB has developed a strategy to ensure that class sizes across the system are reduced as much as possible while also focusing resources in communities where public health data shows higher risk of contracting COVID-19.

Schools in communities identified by Toronto Public Health as higher risk for contracting COVID-19 will have JK/SK classes with a targeted cap of 15 students, while Grade 1 to 6 classes would have targeted caps of 20. A total of 81 schools fall into this category. Using TPH’s data and also taking into consideration a combination of additional factors that include larger enrolments, physical characteristics of class room, the TDSB’s Learning Opportunities Index, and large numbers of students attending the school that reside in higher risk areas, an additional 13 schools have been identified as ones needing additional measures to lower class sizes.

In all other schools, JK/SK classes would have a target cap of 24, Grade 1 to 3 classes would have a target cap of 20, while Grade 4 classes would have a target cap of 27. … [Emphasis added]

[11] The Applicant states that she became “gravely concerned” for her family and decided that it was necessary for the children to change schools. She had explored a change of schools with the Respondent on numerous occasions before receiving the TDSB’s email, however he refused to agree to a change in schools.

[12] On August 22, 2020 the Applicant notified the Respondent by text message that Sloane was on a list of high-risk schools that the TDSB had published. The Applicant notified the Respondent that she would try to enrol the children at Birch Cliff. She stated:

“Sloane public school has been identified on that list so it seems like for the safety of the kids registering at the school on my street. I will call the school next week.”

[13] There is nothing in the text messages which suggests that the Respondent agreed with the Children being enrolled at Birch Cliff.

[14] On September 4, 2020, the Applicant unilaterally enrolled the children at Birch Cliff. She states that she subsequently notified the Respondent of this registration. In fact, the Respondent first learned on September 9, 2020, from his son WS and not the Applicant, that the children had been enrolled to attend Birch Cliff.

[15] An exchange of WhatsApp messages ensued on September 9, 2020:

Respondent: Hey, I’m very disappointed and this needs to be addressed and fixed immediately. I did not agree to move the kids to another school. We never had a conversation with a solution or plan. We have 50/50 custody which means we are both equally involved in decision making for our children. You made this decision without my consent.

The kids have been through so much change in these last two years and there is no benefit FOR THEM to change schools. I know you’re concerned the school is “high risk” but this is because O’Connor is included in the Victoria Village area for the risk assessment. The kids in that area are out of district for Sloane. The neighbourhood had a total of 78 cases whereas your neighbourhood has had well over a 186. The fact that Sloane is high risk means we get more teachers and protective measures from public health, but the area that made the school “high risk” is not even in the district. It’s actually the best place for the kids to be. The school also already has things in place to help [WS] based on his issues last school year. Having our kids stay at Sloane is best for them. It’s also easiest for us since it’s near my house and we both travel west for work.

My expectation is that they are moved back to Sloane immediately and going forward you treat me with respect as your co-parent. You will not make life altering changes for our kids without my consent.

The school has 225 kids in the entire school we have a small school. 14 kids in SK per clas. Grade 1 & up – 18/19 kids per class …

Applicant: Hi [S.S.] I will not be moving the children back to Sloane immediately as you requested. Nothing has been implemented for [WS] at Sloane other than assessments started that have already been transferred to the new school. I want what is in the best interest of the children. A strong friend group in both areas is ideal for them. They have that in your area and this will help them develop it in mine. Due to lack of communication and risk that you placed the children, myself and over 40 kids at their camp by not advising us during the pandemic that you had gone for COVID testing due to symptoms was irresponsible … especially given you had COVID. Also when you showed up to my house when everyone was on lockdown and you had nail marks all over your neck and you laughed and said you and the other person wore a mask … at this point we weren’t allowed to be with anyone who didn’t live in our residence. This shows me that your decisions are not in the best interest for their safety and well being. [Emphasis added]

[16] On September 11, 2020, the Respondent requested that the TDSB remain at Sloane for the 2020-2021 given that the Applicant had changed the Children’s school without his consent. On that same day, counsel for the TDSB advised that:

… If you could please provide me with a copy [of] the Court Order/Separation Agreement as it appears that we were never provided with a copy. The TDSB will of course comply with any Court Order with respect to this matter. In the meantime, I have instructed the Superintendent and Principal to have the children enrolled at Sloane Public School for the time being pending review of the Court Order.

[17] Nevertheless, the Children have not attended Sloane this month as the Respondent states that the Children exhibited symptoms of COVID-19. Fortunately, the Children have tested negative for COVID-19.

[18] On September 15, 2020 the Applicant commenced this Application for Divorce and filed this motion. On September 16, 2020, Justice Hood granted the Applicant leave to have this motion heard on an urgent basis.

[19] The TDSB attended the motion but took no position and filed no materials.

ANALYSIS

Issue #1: Judicial Notice

[20] During submissions the Applicant stated that the Court should take judicial notice of the following:

1. COVID-19 is a highly contagious, life-threatening, respiratory disease that attacks adults and children. It spreads through person to person contact and can also be spread through touching surfaces.

2. Adults and children with certain pre-existing conditions are more at risk for the disease to be life-threatening; these conditions include heart disease, diabetes, asthma, and weak immune systems (immune-compromised).

3. Cases in Ontario are on the rise again.

4. Public Health rules, protocols and warnings must be followed.

5. Public Health requirements are intended to protect all members of the public.

6. There is a higher rate of transmission in groups.

7. Ontario schools were closed for in class attendance on or about March 20, 2020, and classes were online for the balance of the school year to the end of June 2020.

8. For the academic year September 2020, TDSB has given parents the choice for children to attend online classes or in person classes.

9. TDSB delayed the opening of schools in Toronto until September 15, 2020. Schools reopened in phases and were fully open as of September 21, 2020.

10. At least 1 elementary school in Ontario has been closed due to COVID-19

11. COVID-19 symptoms include: (a) new or worsening cough (b) shortness of breath or difficulty breathing (c) temperature equal to or over 38°C (d) feeling feverish (e) chills (f) fatigue or weakness (g) muscle or body aches (h) new loss of smell or taste (i) headache (j) gastrointestinal symptoms (abdominal pain, diarrhea, vomiting) (k) feeling very unwell (l) Children tend to have abdominal symptoms and skin changes or rashes. (m) Symptoms may take up to 14 days to appear after exposure to COVID-19.

12. TDSB requires children to stay home if they have any of the following symptoms: (a) Fever (b) Cough (c) Difficulty breathing (d) Sore throat, trouble swallowing (e) Runny nose or red eyes (f) Loss of taste or smell (g) Not feeling well, tired or sore muscles (h) Nausea, vomiting, diarrhea (i) Have you returned from travel outside Canada in the past 14 days?

13. Toronto has one of the highest rates of testing positive in the Province

14. Toronto requires masks to be worn in indoor public spaces with exceptions for children under age 2 or those with medical conditions who cannot wear masks. Outdoors there must be social distancing.

15. All persons entering Canada MUST QUARANTINE for 14 days, provide contact information as requested and monitor themselves for symptoms subject to the Minimizing the Risk of Exposure to COVID-19 in Canada Order (Mandatory Isolation). If you don't have COVID-19 symptoms, you must quarantine for 14 days while you're still at risk of developing symptoms and infecting others. Quarantine instructions for travellers without symptoms of COVID-19 returning to Canada, if you have COVID-19 symptoms, you must isolate for 14 days.

[21] In R. v Find, 2001 SCC 32, the Supreme Court of Canada stated at para. 48:

In this case, the appellant relies heavily on proof by judicial notice. Judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute. Facts judicially noticed are not proved by evidence under oath. Nor are they tested by cross-examination. Therefore, the threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy: R. v. Potts (1982), 1982 1751 (ON CA), 66 C.C.C. (2d) 219 (Ont. C.A.); J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 1055.

[22] I will take judicial notice of paragraph 1 as that statement is generally accepted.

[23] The assertion in paragraph 2 that a person has a higher risk to contract COVID-19, or will suffer more serious consequences from COVID-19, as a result of a medical condition, such as asthma or heart disease, is not a matter for judicial notice and requires medical evidence particularly given the importance of that assertion: R. v. Jeyakanthan, 2020 ONSC 1984, at paras. 26, 28, 33-34.

[24] I will take judicial notice of paragraphs 3, 4 and 5 however I have difficulty seeing the relevance of those facts to the choice of schools.

[25] The assertions at paragraphs 6 and 13 regarding the “rates” of transmission or of positive tests seem to be conflated with the number of transmissions or of positive tests. I find neither of those assertions to meet the either branch of the test for judicial notice

[26] The assertions at paragraphs 7-10 is already in the affidavit evidence that has been filed. As a result, there is no need to take judicial notice of those assertions.

[27] The assertions in paragraph 11 regarding the various symptoms associated with COVID-19 are neither notorious nor are they readily supported by sources of indisputable accuracy given that it differs in some respects from the list of symptoms shown on the Province of Ontario’s website which provides direction to the public: See https://www.ontario.ca/page/covid-19-stop-spread.

[28] The various specific assertions in paragraph 12 are neither notorious nor are they readily supported by sources of indisputable accuracy.

[29] Paragraph 14 references a by-law made by the City of Toronto. See https://www.toronto.ca/legdocs/bylaws/2020/law0541.pdf. Paragraph 15 references an Order issued by the federal government. See https://orders-in-council.canada.ca/attachment.php?attach=39482&lang=en. There is no need to take judicial notice of a summary of these instruments, when the the full text of these laws are readily available.

Issue #2: Motion to Deliver Fresh Evidence

[30] Several days after the hearing of the motion, the Applicant delivered a further affidavit sworn by her on September 30, 2020.

[31] In Jackson v. Vaughan (City), [2009] O.J. No. 145, at para. 16, Lauwers J., as he then was, described the test for admitting fresh evidence after an application has been heard but before reasons for decision have been released, as follows:

The competing tensions are between finality to the hearing process and the need to prevent unduly protracted legal proceedings, on the one hand, against the need to ensure that important and relevant evidence is not ignored, since doing so might lead to a substantial injustice. Evidence that will likely be "conclusive of an issue" (Sengmueller), or evidence that "would probably have an important influence on the result of the case, though it need not be decisive" (Ladd v. Marshall cited in Sagaz) should be admitted, since failure to admit the evidence (assuming the rest of the test was met) would run the risk of "a substantial injustice in result" (Sengmueller).

[32] None of the evidence in the Applicant’s latest affidavit would probably have an important influence on the result of the case. In her affidavit, the Applicant states that the Respondent had implied in his affidavits that an Individual Education Plan for W.S. had been prepared. There is nothing in his affidavits which makes that assertion. The Applicant’s affidavit also suggests that K.S. has increased risk of contracting COVID-19 due to the fact that she has Celiac disease and asthma however she states that she was unable to obtain a medical opinion supporting this view from her family doctor and pediatrician because he is prevented from doing so by his governing College. The Applicant’s affidavit goes on to provide information about K.S.’s recent bloodwork but again provides no medical evidence of the significance of these results. As Justice Diamond stated in El Haddad v. Shakur, 2020 ONSC 5541, at paras. 25-26, direct and compelling evidence from a treating physician is required to prove that a child is at an increased risk of contracting COVID-19, or suffering harm from COVID-19, as a result of his or her medical condition.

[33] The only medical evidence included in the Applicant’s affidavit is a handwritten note dated September 29, 2020 from Dr. Anup Gupta, who treated the Applicant for cardiac arrythmia in the Summer of 2020. This note was sent in response to the Applicant’s email sent earlier that day. The note states:

Hi [J.E.S.]. Yes COVID-19 can affect the heart muscle and conduction and if you were to get COVID-19 you possibly could have arrythmia.

[34] The Respondent submits that: (1) the Applicant should have brought this evidence forward before the hearing of the motion if this was a serious concern; (2) the Applicant is a dental hygienist and continues to work at a dental clinic which may be risky; (3) Dr. Gupta’s view is based on the Applicant possibly contracting COVID-19 anywhere in the community and should not be a basis for changing schools. I agree with the Respondent’s views.

[35] I find that the exclusion of the Applicant’s affidavit sworn September 30, 2020 would not run the risk of a substantial injustice in the result and, therefore, dismiss the Applicant’s motion to deliver fresh evidence.

Issue #3: Should the Children be ordered to Change Schools?

[36] The Court’s discretion to choose a child’s school informed by the principles adopted by Justice Spies in Askalam v Taleb, 2012 ONSC 4746, at para. 32:

Where a court is asked to consider whether or not a child should change schools, the following considerations may be drawn from the case law:

(a) In situations of joint custody, the court is most reluctant to dictate where a child should go to school and the parents should be encouraged to resolve this matter amongst themselves. If they cannot agree the best interests of the child will govern.

(b) In the event a parent suggests changing schools, it must be demonstrated the change will be in the best interests of the child.

(c) While each instance is very fact specific, 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 how many years the child has attended his or her current school; 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. 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. Any problems with the present school will be considered.

[37] In addition to the above principles, the onus is on the parent seeking the change on an interim basis to present “compelling and cogent evidence” that the change of schools is in the child’s best interests given the need for stability in a child’s life. In Ursic v. Ursic, 2006 18349 (ON CA), [2006] O.J. No. 2178, at para. 32, the Ontario Court of Appeal addressed whether it was in the best interests of a 4-year-old who had almost completed junior kindergarten to change schools:

.. I think it is fair to provide that Jacob should continue to go to Northridge Public School unless both parties agree to send him to another school, or unless either parent brings forward compelling and cogent evidence showing a change of schools is in Jacob's best interest. I would so provide for these reasons: Mr. Reid [a social worker who prepared a parenting plan] recommended that Jacob go to Northridge; Jacob will likely already have formed attachments to the school; and, continuing at the school promotes stability in Jacob's life. [Emphasis added]

[38] Although this is not a case about whether a child should attend school in person or online during the COVID-19 pandemic, the principles outlined by Justice Akbarali in Zinati v. Spence, 2020 ONSC 5231, at para. 27, are also applicable, with the necessary changes, to the question of whether a child should change schools as a result of the COVID-19 pandemic:

a. It is not the role of a court tasked with making determinations of education plans for individual families or children to determine whether, writ large, the government return to school plans are safe or effective. The government has access to public health and educational expertise that is not available to the court. The court is not in a position, especially without expert evidence, to second-guess the government’s decision-making. The situation and the science around the pandemic are constantly evolving. Government and public health authorities are responding as new information is discovered. The court should proceed on the basis that the government’s plan is reasonable in the circumstances for most people, and that it will be modified as circumstances require, or as new information becomes known.

b. 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. No one alive today is immune from at least some risk as a result of the pandemic. The pandemic is only over for those who did not survive it.

c. 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:

i. The risk of exposure to COVID-19 that the child will face if she or he is in school, or is not in school;

ii. 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;

iii. The risk the child faces to their mental health, social development, academic development or psychological well-being from learning online;

iv. Any proposed or planned measures to alleviate any of the risks noted above;

v. The child’s wishes, if they can be reasonably ascertained; and

vi. 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.

How Many Years has the Child has Attended his or her Current School?

[39] W.S. is entering his third year (Grade 1), and K.S. is entering her second year (Senior Kindergarten), at Sloane.

Is there a Prospect of a Party Moving in the Near Future?

[40] The Respondent specifically states that three of his four brothers live in the Sloane catchment area and that he has no plans to move. The Applicant has recently moved to a home that is further away from the Sloane and close to Birch Cliff.

Where have the Children been Born and Raised?

[41] The Children were born and raised in Toronto and it appears in the vicinity of Sloane.

Will a Change in Schools be Unsettling?

[42] The Applicant states that Birch Cliff is less than one kilometre away from her home and that, because she has flexible work hours, she is willing and able to pick them up and drop them off every day. She states that the Respondent is 5.9 km, or a 12 minute drive, away from Birchcliff. The Respondent is a federal civil servant and states that he has a very flexible work schedule and is also able to pick up and drop off the children from school. As a result, both parents appear able to support a move of the Children to Birch Cliff.

[43] The Applicant states that the Children will not be impacted by changing schools. The Applicant states that K.S. is a very smart, determined and independent girl who did well at Sloane. The Applicant states that W.S.’s relationship with his cousin and another close family friend will not be altered as he will be able to spend time with them during the Respondent’s parenting time.

[44] The Applicant states having the Children attend Birch Cliff will help them:

… develop strong friendship that I can be part of and they can be excited to connect with when they are at my house. Given I am no longer part of the [S] family activities or family/friends, this would be a way for me to stay closely involved in another circle of friends and activities with my children, which as a mother means the world to me.

[45] The Respondent states that the Children have many friends and cousins at Sloane and know the teachers and administrative staff. He states that it would be detrimental to W.S.’s mental health if he was taken away from his friends at Sloane and moved to Birch Cliff where he has no friends.

[46] The Respondent’s position is that the children have moved three times in two years and that Sloane provides stability as it is the only school that they have ever attended.

[47] The Applicant provided inadmissible hearsay evidence regarding the views expressed to her on a video call by a child psychiatrist about the effect that a change of schools would have on the Children.

[48] Thankfully, the parties have not engaged the Children in this litigation by providing their views on whether they wish to move to Birch Cliff.

Prior Decisions Made by the Parents Regarding Schooling

[49] As noted, the parties agreed to enrol the Children at Sloane. They also agreed to review that decision annually.

Problems with the Present School

[50] The Applicant states that WS has “not done well at Sloane”.

[51] By letter dated April 22, 2020, Dr. Nicola Keyhan, Staff Psychiatrist, at The Hospital for Sick Children, met W.S. with Dr. Kineta Valoo, for a consultation earlier that day and sent the following letter to Sloane:

… . Based on this consultation he was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”). We also have concerns about general anxiety disorder and suspect a learning disability. …

Although we believe that [W.S.’s] ADHD and anxiety symptoms are likely to have interfered with his academic performance to date, we are also concerned about the possibility of a co-existing learning disability. His mom describes challenges with “everything” from an academic standpoint including reading and writing. She also noted that there has been a recent meeting with a number of individuals at his school to discuss these concerns. She understands that he will be having follow-up through speech and language but is not sure about what else the school is planning to put in place.

We would suggest ongoing monitoring of his academic struggles with further assessments when appropriate and the implementation of appropriate supports. A full psychoeducational assessment will also be helpful when is the appropriate age.

We will not be providing treatment for this family at SickKids as we don’t have the best resources to support him and his family’s needs. We have made treatment recommendations to his primary care physician including listing community resources that can offer therapy to him and his family.

[52] The letter from Dr. Sloane included eleven common behavioural management techniques that have been found to help children with ADHD, both at home and at school. These techniques include providing as much structure and routine as possible, making expectations for behaviour clear, positive reinforcement, “time-outs” for misbehaviours and minimizing distractions, if possible, by placing him in a smaller class with as much one-on-one time as possible.

[53] The parties were invited by Sloane’s Principal to attend at School Support Team meeting on February 5, 2020 at Sloane, with a psychologist, speech language pathologist, social work and special education coordinator. The Respondent states that referral have been made by Sloane to a Speech Therapist and an Occupational Therapist for the purpose of finalizing an Individual Education Plan (“IEP”) for W.S. There is no evidence that an IEP has been finalized for W.S.

[54] While the Applicant states that W.S.’s class at both Sloane and Birch Cliff will have 15 students, she states that the resources W.S. will have at Birch Cliff are superior to those available for him at Sloane. No specific evidence from either school was provided to support this assertion and I give it no weight. It is premature to draw the conclusion requested by the Applicant without knowing what resources will be required by the IEP. The Applicant states that W.S.’s paternal cousins present a distraction at Sloane as he has left his seat in his kindergarten classroom on numerous occasions to look out the window for them during their recess.

[55] The Applicant also states that there were numerous outbreaks of head lice at Sloane from October 2019 to March, 2020. Further, the Applicant states that the children at Sloane were strongly recommended to obtain an emergency Hepatitis A vaccination following a Hepatitis infection at the school. The Respondent states that neither WS nor KS contracted head lice or Hepatitis A. He further states that the Applicant never suggested that the children change schools for these reasons prior to this motion.

School Performance

[56] The Applicant submits that Birch Cliff is a better school than Sloane.

[57] The Applicant relies on the Fraser Institute’s ranking of schools. It gives Birch Cliff a score of 5.1 which is down from a score of 6.8 in 2018. Sloane is not ranked. I place no weight on this opinion evidence. No evidence from the Fraser Institute was provided to explain this ranking and without much more it is meaningless and inadmissible: See Anderson v. McIntosh-Anderson, 2018 ONSC 4688, paras. 157-161.

[58] The Respondent provided a copy of the EQAO results representing the percentage of students at or above the provincial standard in reading, writing and mathematics for Grade 3 classes at Sloane and Birch Cliff for 2018/2019. The results were similar and both schools finished below the provincial and TDSB averages. I also place no weight on this evidence as there was no affidavit evidence from the Ministry of Education or the TDSB to explain the significance of the EQAO results (which do not, on their face, purport to compare or rank schools).

Is there a Greater Risk of Exposure to COVID-19 if the Children Attend Sloane rather than Birch Cliff?

[59] The main thrust of the Applicant’s submission is that there is a greater risk of exposure to COVID-19 if the Children attend Sloane rather than Birch Cliff.

[60] The Applicant’s position is that the Children should be moved to a school that is not a identified as a high risk for COVID-19 as both KS and the Applicant have pre-existing health issues that make them particularly vulnerable to COVID-19.

[61] However, as noted above, the TDSB has taken “enhanced” measures, including reduced class sizes, to reduce the risk of contracting COVID-19 at Sloane and other schools within the TDSB identified as being located in high risk communities.

[62] The Respondent states that, in fact, there have been more than twice as many COVID-19 cases in 2020 in Birch Cliff’s neighbourhood than in Sloane’s neighbourhood.

[63] In my view, there is insufficient evidence on which to conclude that there is a greater risk of exposure to COVID-19 if the Children attend Sloane rather than Birch Cliff.

Are the Children or Any Member of the Children’s’ Family at Increased Risk from COVID-19?

[64] The Applicant submits that she and KS are more vulnerable to COVID-19 due to their medical conditions.

[65] The Applicant has had three hospitalizations for heart arrythmia in the Summer of 2020. As noted, Dr. Gupta’s evidence is that if the Applicant were to contract COVID-19 then she “… possibly could have arrythmias”.

[66] KS suffers from Celiac disease and asthma. The Applicant states that KS is immuno-compromised however she has submitted no medical evidence, whether from her paediatrician or another treating physician, which supports this assertion.

CONCLUSIONS

[67] I find that the Applicant has not adduced “compelling and cogent evidence” that the proposed change of schools is in the Children’s best interests.

[68] I make the following Order:

a. The Applicant’s motion for an Order to have the Children attend Birch Cliff for the 2020/2021 school year is dismissed;

b. The Applicant’s motion for a temporary Order that the Applicant will either provide or select the pre-school and after school programme for the Children is dismissed.

c. The Children shall attend Sloane, in person, for the 2020/2021 school year unless the parties otherwise agree in writing;

d. This Order takes effect immediately without a formal Order being issued and entered;

e. A case conference shall be held in December, 2020 on a date to be selected by the Family Law Trial Office;

f. Parties are encouraged to come to an agreement on the issue of costs of this motion. If they are unable to do so, they may deliver written submissions, up to three pages in length, in addition to their Outline of Costs.

[69] I should note that the Applicant, in her Factum, also argued that there had been a breakdown in communication caused by the Respondent’s behaviour and therefore she should be granted temporary sole decision-making authority in respect of the Children. Of particular significance was the Respondent’s failure to immediately notify the Applicant that he had went for a COVID-19 test on July 27, 2020 (after he had dropped the Children off at the Applicant’s home) and that he learned that he tested positive for COVID-19 on July 29, 2020, at about 10:30 pm. Instead, the Respondent notified the Applicant that he had went for a COVID-19 test and that he had tested positive sometime on July 30, 2020. This led to the Applicant, her partner and the Children being tested for COVID-19. Fortunately, they tested negative for COVID-19. In any event, the focus of the motion was whether it was in the best interests of the Children to change schools. An order for temporary sole decision-making authority was not sought in her Notice of Motion, nor was it the focus of her oral submission, nor was leave granted by Justice Hood for this relief to be heard on an urgent basis. Accordingly, the request for such relief is dismissed on a without prejudice basis.

RELEASED: October 5, 2020

____________________ Faieta J.