COURT FILE NO.: FC-14-1728-1
DATE: 2020/10/08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Frederick Kaszap
Applicant
– and –
Amber Volk
Respondent
Marc Coderre for the Applicant
Tanya Davies for the Respondent
HEARD: October 1, 2020
Endorsement
shelston, j.
Overview
[1] The respondent (“mother”) filed an urgent motion for an order that the parties’ daughter, Chloe, attend school on line rather than in person and an order finding the applicant (“father”) in contempt of court of the order of Justice Labrosse dated August 2, 2017, by registering the child without the mother’s consent.
[2] On September 18, 2020, I granted leave for the mother to proceed with the school issue.
Position of the Parties
[3] In the mother’s notice of motion dated September 14, 2020, she seeks the following relief:
a. an order directing that the child Chloe attend school from home by way of remote/virtual learning, which is an option that is available and appropriate in the circumstances of this case;
b. an order finding the father in contempt of the final order of Justice M. Labrosse from August 2, 2017, for unilaterally enrolling Chloe into in-person/classroom learning sessions, without the consent or approval of the mother; and
c. costs of this motion on a full indemnity basis.
[4] The father has filed a notice of motion dated September 22, 2020, where he seeks the following relief:
a. an order allowing for the late service of his affidavit;
b. an order that the child Chloe be registered and attend Forest Valley Elementary school in grade 5, in the French Immersion Program;
c. an order that Chloe be allowed to take the school bus for transportation to and from the father’s home;
d. an order that the contempt motion be adjourned to a day to allow the father to file the proper materials; and
e. costs.
Preliminary Matter
[5] In my endorsement dated September 18, 2020, I ordered the father to file his responding materials by September 22, 2020. I amended that endorsement to permit the father to file his materials by September 23, 2020, which he did. No further order is required.
Factual Background
[6] The father and mother lived together from early 2009 until January 1, 2014. The father and the mother have one child, namely Chloe, 9 years of age.
[7] The mother has two children from a previous relationship namely Hunter, 18 years of age and MacKenzie, 13 years of age.
[8] Since separation to date, Chloe has alternated between the parent’s residence on a weekly basis.
[9] On August 2, 2017, the parties consented to a final order of Justice Labrosse that, inter alia, granted the parties joint custody of both MacKenzie and Chloe and an equal parenting regime.
[10] Further, at para. 8 of the order, the consent of both parties would be required on any major decision affecting both girls as follows:
- The parties will make important decisions about the children’s welfare together, including decisions about the children’s:
a. education;
b. major non-emergency health care;
c. major recreational activities; and
d. religious activities.
[11] The parties also agreed that if there was a material change in circumstances, the parties would attend mediation prior to commencing litigation
[12] Currently, the father and MacKenzie are estranged because MacKenzie refuses to see the father. MacKenzie attends grade 8 at Emily Carr Middle School in person while Hunter lives with his father in Perth and attends high school in person.
[13] When the pandemic struck, in person education was suspended and all students participated in school online. Chloe completed her grade 4 and was moving on to grade 5 in September 2020.
[14] On July 31, 2020, the mother emailed the father asking for his thoughts about Chloe attending school in September. On August 4, 2020, the father replied that he was not impressed with the school plans and wanted to work with the mother for the child’s best interests.
[15] On August 10, 2020, the mother emailed the father asking about his feelings about sending the child back to school and inquiring whether or not he received any information from the school by email. That same day the father sent the following email:
Hello Amber
It has been a har decision and I’ve been considering all options.
As equally concerned on the options at hand I have come I’m feeling that there are couple extra benefits to Chloe needs that she would get from returning to school. For one is most important is her French.
So I will be looking more toward sending her back to school along with her friends to keep up with her class with direct help from the teachers for her to Benefit from when needed.
I’m also afraid that if we can’t come to an agreement that we will follow the court order.
These are my thoughts? This is not my final decision. I still need to call the school and talk to them but that’s where I’m at for now. This year Chloe will be going to also take the bus to and from school so I need to look into that as well before making a decision.
I recommend we give school a chance and if it’s not acceptable down the road we can look into alternatives. Like hire a tutor possibly.
We Still have a few days to figure this out. Can take the time needed to make the right decision for chloes best interest.
[16] On August 12, 2020, the mother replied considered socialization aspects about the child returning to school. She indicated she was concerned that three quarters of the school would be without masks and that it would put Chloe and her whole family at higher risk of getting infected with COVID-19. In addition, the mother raised the issue that the child’s individual educational plan (IEP) requires the child to spend one-on-one time with the teacher and that the school board has made it clear that teacher-student contact will be limited. Finally, the mother was opposed to the child taking the bus because a child had not taken it in over four years and that taking the bus would increase her exposure and potential risk of infection. The mother rejected the father’s proposal to register the child and then pulled her vote based on her understanding that the school board would not agree to let the parents flip-flop decisions about school attendance in person or distance learning.
[17] The same day, the father responded to the mother’s concerns. In the end he proposed the following:
As it appears we will never agree to any things and the sing in for student needs to be done ASAP, I propose that for this decision,
- we will sing her up and send her to school, so now as This is preferred by me, we will go with your preference next time a major decision needs to be taken or when it becomes Necessary to Make the call to Have her stay home.
[18] The parties exchanged emails on August 13, 14, 15 addressing various issues such as options to driving the child to school, contingency plans if she became ill, concerns about the trials IEP plan.
[19] On August 15, 2020, at 19:23 hours, the mother sent the father in email as follows:
good evening Fred
Until I get the information I asked for I am not confident enough to send her to school. If you choose to contact legal counsel, that is your choice. However, you do not have the authority to make decisions alone. Therefore, until this gets out, I am more comfortable signing her up for distance learning anything seen kosher within the community and school, then we can review her attending at a later time.
[20] In response, at 19:30 hours, the father sent an email to the mother stated as follows:
Ok you can sign her up with out my ok but I can’t sign her up. Hmmm that a little one-sided is it it.
I will be signing her up you can do the same.
Still not sure what info you need since you are being very vague and difficult. At least should be signed up for both what ever we decide.
[21] At 19:44 hours, the mother responded that she was not signing the child up and advised the father that he did not have the authority to make sole decisions. The mother indicated that she had huge reservations about sending the child to school in person.
[22] At 19:49 hrs. the father emailed the mother telling her that he filled out the attendance for placing the child to attend in person grade 5. Specifically, in his email he wrote the following paragraph:
It’s NOT final since we do not agree but at least she will be enrolled in case we can come to our Senses
[23] On August 20, 2020, the father emailed the mother to advise that he did not sign Chloe up for the bus and that he would make his own transportation arrangements for the child while she is in his care and that the mother had no say in his arrangements.
Analysis
[24] The issue of in person versus online education has been the subject of recent jurisprudence in this Court. In Chase v. Chase, 2020 ONSC 5083, Himmel, J. found that the provincial government along with the health authorities are best able to assess and address school attendance and associated risks. At para 45, the Court stated:
[45] There is a consensus between the Ontario government and medical experts that, at this juncture, it is not 100 per cent safe for children to return to school. However, the risks of catching COVID-19 (and the typical effects of the illness) for children are being balanced against their mental health, psychological, academic and social interests, as well as many parent’s need for childcare. There is no end in sight to the pandemic and, as such no evidence as to when it will be 100 percent safe for children to return to school. The Ontario Government has determined that September of 2020 is an appropriate time to move on to a “new Normal” which includes a return to school.
[25] In Zinati v. Spence, 2020 ONSC 5231, Akbarali, J dealt in dealing with an issue of whether a six-year-old child should attend school either in person or online, set out a number of factors for the Court to consider. At paragraph 27 of the decision, the Court states the following:
- In my view, and having regard to available jurisprudence on this new and evolving issue, determinations about whether children should attend in-person learning or online learning should be guided by the following factors:
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.
[26] In Chase, the Court indicated that if an unreasonable risk of harm existed, circumstances may warrant online education versus in class. The issue of unacceptable risk of harm was a determining factor in Joachim v. Joachim, 2020 ONSC 5355 where Summers, J. was provided with detailed medical evidence that the mother was at high risk of complications if she became infected and ill with COVID-19. The risk to the mother’s household outweighed the children attending school in person.
[27] I agree with the jurisprudence which directs that the Courts are not to determine whether or not a school remains open. That issue is best reserved for the provincial government in consultation with the relevant school boards and medical authorities based on the best information available. In my view, if schools are open, children should attend unless there is an unacceptable risk to either the child or a member of their household that is created by the fact the child attends the school and may contract the virus.
[28] The order of Justice Labrosse dated August 2, 2017 is clear that both parties must agree on any decision regarding the child’s education. The court order provides that if the parties do not agree on an issue, that they will retain the services of a mediator before returning to the litigation process. The parties are required, if there is a material change in circumstances, to advise the other within seven days of the change and agree to utilize the services of a mediator within 30 days of the change.
[29] By March 13, 2020, the pandemic caused the closure on in person education and in person attendance was changed for online participation. Children and their parents had no choice.
[30] In July 2020, the issue of if, when and how schools would reopen was not resolved. In late July 2002, announcements were made that school would reopen in September 2020. From July 31, 2020, to August 28, 2020, the parties exchanged emails setting out their respective positions. By mid August 2020, the parties fundamentally disagreed on the child attending school in person and taking the bus. Despite the mother’s objections, the father registered the child for in person attendance and to be transported by bus on his weeks. Neither party proposed to use the service of a mediator. In early September 2020, the mother commenced this proceeding.
Analysis re: School Issue
[31] Both parents submit that their educational plan for their daughter is in her best interests. I have considered various factors presented by the parents set out herein.
Child’s Views and preferences
[32] Chloe will turn 10 years of age in mid October 2020. The only information as to her views and preferences are statements contained in the father’s affidavit. The information contained in the father’s affidavit is hearsay evidence and inadmissible.
[33] I have no admissible evidence as to the child’s views and preferences.
Chloe’s Educational needs
[34] The mother argues that Chloe has special needs that puts her at a higher risk to contract the virus and those needs cannot be properly addressed if she attends school in person at this time.
[35] The mother has filed a psychological assessment dated September 9, 2019, which was designed to identify Chloe’s overall learning and psychosocial profiles to help her with school programming. Dr. Collins, the author of the report, indicated that Chloe presented with attention problems with some degree of self-regulation difficulties. At the time of the assessment, the child was attending grade 3 in a French Immersion Program.
[36] The doctor concluded that the child’s profile did not indicate any form of learning disability. She showed only mild delays of her basic academic skills. Her weaknesses were consistent with an Attention-Deficit Disorder profile. More broadly speaking, Chloe is at risk to develop academic difficulties, but these would be to a combination of factors including:
a. ADHD-related weaknesses (e.g. poor focus, difficulty organizing information, poor work habits, etc.);
b. Psychosocial factors (e.g. high anxiety, low confidence, low motivation, etc.)
[37] The report concludes that the child is at risk for ongoing psychosocial and school difficulties and that she should have supports. The report recommends that she be identified as a student requiring special education support and that she have an individual educational plan (IEP) created to address her needs. With respect to support in the classroom, Dr. Collins recommends the child should be seated in an area close to the instructor so that her attention can be monitored. Further, he states:
With respect to optimal learning environment, Chloe would benefit most from one-on-one context when available. She will require periodic one-on-one support in the classroom to help her maintain focus, keep on track, and consolidate learning. She would also benefit from small group work.
[38] Further, the report indicates that the diagnosis was that the child has ADHD in the mild to moderate. The doctor made the following conclusions:
a. the child presents with a history of poor self-regulation at home, classroom attention problems and some degree of academic difficulty.
b. The present findings suggest that the child presents with significant inattention and weak executive functioning in both the classroom and home settings but that the difficulties are viewed as being more problematic at home than in the classroom.
c. The child’s intellectual skills are age-appropriate in all areas.
[39] The recommendations of Dr. Collins formed part of the child’s IEP and was implemented starting in the 2019-2020 educational year until the suspension of in person attendance in March 2020.
[40] The mother argues that the school cannot provide the necessary one to one interaction with the teacher and monitoring of the child as mandated by the report. The mother filed a current picture of the child at her desk located in the middle the classroom rather than at the front of the classroom as recommended in the report.
[41] The father submits that the child should return to school so that the school can monitor his daughter and have the teachers work closely with her.
[42] The mother has not produced any corroborative evidence from the teachers or the school that confirm her allegation that the child’s IEP cannot be implemented in person.
[43] The IEP requires the child to attend school to be working with the teachers. If she is participating online, the child cannot work as closely with the teachers as the IEP recommends.
[44] The only chance the child has to work with the teachers is if she attends in person.
Chloe’s French Immersion
[45] The father argues that Chloe’s attendance at school is required to ensure that Chloe practices her French in the French Immersion Program. The father is a Francophone and the language spoken in his home is French. He speaks to Chloe in French. While the mother and her husband are anglophones, the mother relies on Chloe’s report card showing that her marks in French reading were a B- and her marks in French writing was a B.
[46] I agree with the father that if the child is in school, she will be in a French social and linguistic milieu. I accept that the child has had positive marks in French reading and French writing while working online but that is a significant difference between attending a school environment where French is spoken daily and participating online.
Risk to Chloe’s health and her family and extended family
[47] The mother raises the issue that the immediate and extended family members of Chloe are at a higher risk for severe illness from COVID-19 as they suffer from underlying chronic medical conditions as follows:
a. the mother states she has unresolved kidney issues, high levels of creatine and medical ultrasounds have shown that there are concerning deficiencies in the functioning of her kidney;
b. Chloe’s stepfather has asthma and high blood pressure and has provided a letter from his family doctor that says the following:
September 9, 2020
This note is to certify that the above patient has health issues that put him at an increased risk of severe illness and complications from Covid 19.
Sincerely,
Kathy Vernooy MD CCFP
c. Chloe’s paternal grandfather has had multiple heart attacks;
d. Chloe’s paternal grandmother is a diabetic;
e. Chloe’s maternal grandfather has chronic pulmonary disease and Polycythemia;
f. Chloe’s maternal grandmother has Patsy Sosa, multiple sclerosis, Myasthenis Gravis, thyroid condition and Supraventricular Tachycardia.
[48] The mother’s other daughter Mackenzie is attending school in person. The father submits that if MacKenzie can attend school in person why can’t Chloe. The mother’s response is that Chloe’s anxiety manifests itself by her chewing pencils, pens, her fingernails, etc. She fears that this will result in the child not wearing her mask thereby exposing her potentially to the virus. In addition, the mother argues that Chloe is attending an elementary school where children in grades four and below are not required to wear a mask. Further, she submits that MacKenzie’s school requires all teachers, staff and students to work a mask at all times.
[49] I cannot conclude that Chloe is more at risk to contract the virus than MacKenzie. I reject the submission that Chloe is more at risk to contract the virus because she is in a school where children in grade 4 and below are not required to wear masks. If that was true, there would be no students above grade four in school. I also reject the submission that Chloe’s removal of the mask would occur. There is no evidence from the school or the teachers or any other third party to corroborate that she is removing her mask in school.
[50] There is no medical evidence that Chloe or her mother are at a higher risk of illness if she contracts the virus.
[51] The medical evidence submitted for the stepfather is insufficient to allow me to conclude on the balance of probabilities that he is at a higher risk of illness if he contracts the virus.
[52] None of the grandparents live with Chloe. They, as well as Hunter, will have to social distance with Chloe. I do not find that the medical issues related to the grandparents as a significant factor in deciding whether or not she should attend school in person or online.
[53] The mother argues that Chloe’s mental health is an important factor. She argues that if the child attends school then is required to switch to online learning, it could create instability. I agree that is true but that is what occurred in March and according to the mother’s evidence, the child did well in her school marks from March to June.
[54] The mother also states that Chloe would be devastated if she contracts the virus from the classroom and transmits it to family members at high risk of severe complications virus. I agree any child be very upset if they contracted the virus. There is no guarantee that any child attending school will not contract the virus. School boards have implemented stringent procedures to protect the health of teachers, students and staff attending the school.
Disposition
[55] I conclude that it is the best interests of Chloe to attend school in person.
[56] I order that Chloe be registered and attend Forest Valley Elementary School in grade 5 in the French Immersion Program.
School Bus
[57] On the issue of the child being transported from the father’s house by bus, the mother argues that if Chloe takes the school bus, she is at higher risk to contract the virus because she will not keep her mask on. The father submits that there is no higher risk to Chloe because school boards have determined that it is safe for children to go to and from school by a school bus. He argues that if there was a risk, similar to the risk of children attending school in person, the school authorities as well as the medical authorities would not have permitted children to commute to and from school by bus.
[58] I agree with the submission of the father because there is no evidence provided to allow me to conclude that the child is at a higher risk of contracting the virus because she is on the school bus.
[59] I also agree with the father that there is no evidence that there is a higher risk because children on the bus will not be wearing a mask or that Chloe will remove her mask during the bus ride.
[60] I order that Chloe be allowed to take the school bus for transportation to and from the father’s house. The mother may make arrangements to deliver and pick up the child from school while the child is in her care.
Contempt of Court
[61] In the mother’s notice of motion, she sought an order finding the father in contempt of court by unilaterally enrolling Chloe in person class without the consent and approval of the mother.
[62] The father’s argument is that he is not in contempt because he registered the child to attend in person as she had in the past. He argues that paragraph 13 of the final order provides that the child should continue her education at the Forest Valley Elementary School. The specific provision provides as follows:
- The parents will support MacKenzie and Chloe continuing their education in the French Immersion Program at Forest Valley Elementary School. After McKenzie and Chloe complete grade 6 at Forest Valley Elementary School, the parties will make sure that the children continue in a French Immersion Program at the school in the jurisdiction of Forest Valley Elementary School.
[63] The father argues that by sending his daughter to attend school in person, he is simply complying with the terms of the court order. I disagree.
[64] The final order provides a paragraph one the following:
- The Applicant father and Respondent mother will have joint custody of the children.
[65] Paragraph 8 of the final order provides that education is one of the important decisions that the parties are to make.
[66] In March 2020, the parents were forced, as with all other parents, to educate the children from home. By the summer 2020, the issue arose as to whether or not the child should attend in person or online.
[67] The mother clearly opposed the child attending school in person. The terms of the court order required the father to obtain the mother’s consent and vice versa. If the parties could not agree, the parties should have pursued the mediation provision of the final order, failing which litigation would commence. Neither party had the right to make a decision about the child’s education unilaterally. Both the letter and the spirit of the joint custodial order were that decisions were to be made jointly.
[68] By acting unilaterally, the father breached paragraph 8 of the final order.
[69] The mother in her notice of motion did not seek any penalty. During submissions, counsel for the mother submitted it should be left to the discretion of the judge or it could be a factor in costs or a fine of $1000.
[70] Contempt of court is an option of last resort. The Court has various options available to address a breach of a court order. Court orders are to be respected. Breaches of court orders are not to be condoned.
[71] I agree with the submission of the mother and exercise my discretion pursuant to Rule 1(8) of the Family Law Rules, that the father shall pay the mother’s costs associated with the motion for contempt.
Costs
[72] The father was successful on the school issue while the mother was successful on the contempt of court. However, this is not a case of divided success. The school issue consumed most of the time and argument while the mother is entitled to her costs on the contempt issue the scale of which I will decide.
[73] I order the father to provide his cost submissions, not to exceed three pages, plus a detailed bill of costs no later than October 19, 2020. I order the mother to provide her cost submissions, not to exceed three pages, plus a detailed bill of costs no later than October 30, 2020.
Released: October 8, 2020
COURT FILE NO.: FC-14-1728-1
DATE: 2020/10/08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Frederick Kaszap
Applicant
– and –
Amber Volk
Respondent
ENDORSEMENT
Shelston J.
Released: October 8, 2020