Court File and Parties
Court File No.: FC-14-1959-1 Date: 2021-02-09 Ontario Superior Court of Justice
Between: Dominic Gosselin, Applicant And: Anna Soukhovtseva, Respondent
Counsel: Susan E. Galarneau, for the Applicant Jeffrey Behrendt, for the Respondent
Heard: November 30, December 1, 2, 3 and 4, 2020
Reasons for Judgment
M. Smith J.
Introduction
[1] The Applicant, Dominic Gosselin (the “Father”) and the Respondent, Anna Soukhovtseva (the “Mother”) were never married. The parties separated on August 20, 2014. They have two children from the relationship, namely Maxime Soukhovtseva Gosselin born on October 11, 2012 (“Maxime”) and Andrew Soukhovtseva Gosselin born on March 5, 2015 (“Andrew”).
[2] Prior to trial, the parties successfully resolved most of the issues in dispute, including residency, parenting schedule, medical decisions, day-to-day decision making, religion, education and parenting coordination.
[3] The focus of the trial was on custody and the children’s attendance at the Rodnik Russian School on Saturdays.
[4] The trial took place over five days ending on December 4, 2020. The Mother testified and called three witnesses who worked at the Rodnik Russian School. The Father testified and called no additional witnesses.
[5] I found all witnesses to be credible and reliable. In specific reference to the Father and Mother’s evidence, although there were some instances where their evidence diverged on certain events and may have had a slight tone of exaggeration, I do not find that it is material in my determination of the issues. I do not find that this case requires me to prefer one party’s evidence over the other, as both parents were equally believable.
[6] The Mother and Father are both firm in their convictions as to what they believe is in the best interest of the children. I do not find that either party is advancing a position in a malicious manner.
Issues
[7] The Father seeks joint custody of the children, while the Mother seeks sole custody with the following condition: before the Mother makes any decisions with respect to the children, she shall consult with the Father and seek his input in a meaningful way. It is only after this consultation process that the Mother will be at liberty to make a decision. The Mother will advise the Father in writing of her decision as soon as possible.
[8] The Mother seeks an Order that the children continue to attend Rodnik Russian School on Saturdays. The Father maintains that this is an extra curricular activity and ought to be treated as such.
[9] The issues to be determined are therefore the following:
a. Whether the parents should be granted joint custody or sole custody to the Mother? b. Whether the children should attend the Rodnik Russian School on Saturdays?
Background and Litigation History
[10] Both parties work for the Federal Government. The Mother works with Global Affairs Canada and the Father works with Health Canada.
[11] The Mother was born in Russia and moved to Canada in or around 1960. Her first language is Russian. She also speaks English and French. The Father is a Francophone.
[12] The parties started their relationship in 2005 and moved in together in 2006. In 2007, they separated to eventually move in together again in April 2011. An incident took place in August 2014, where the Mother slapped the Father. The parties permanently separated on August 20, 2014.
[13] Maxime and Andrew attended a Russian speaking daycare at the Rodnik Russian School. Then, the parents agreed to send the children to a French catholic school called École élémentaire catholique Bernard-Grandmaître. Maxime is in grade 3 and Andrew is in senior kindergarten.
[14] On January 15, 2016, on consent, Justice Doyle made a final order regarding parenting, daycare/school, medical decisions, extracurricular activities and custody. With specific reference to these last two matters, the Court Order read, in part, as follows:
Extracurricular Activities
1.38 Dominic will choose and lead an extracurricular activity when the children reach five years of age. If the activity is during Anna’s time, Anna will take the children on her time. If she cannot, Dominic will be able to pick-up the children for the activity and bring them back after the activity even if it is on Anna’s time.
1.39 Dominic will be supportive of the children attending at Russian School on Saturdays and will take the children during his time on Saturdays unless he has a special activity planned with the children for special occasions or travel.
Custody - Decision Making
1.40 Subject to the terms herein, Anna shall have sole custody with respect to the children. Before Anna makes any decisions with respect to the children, she shall consult with Dominic and seek his input in a meaningful way. It is only after this consultation process that Anna will be at liberty to make a decision. Anna will advise Dominic in writing (email) of her decision as soon as possible.
[15] On May 8, 2018, on consent, Justice Audet ordered, amongst other things, a change to the parenting schedule. As of September 1, 2018, a 2-2-3 schedule has been implemented.
[16] There were subsequent Court Orders issued (February 20, 2019 and July 9, 2019) with respect to the appointment of a social worker and psychologist to provide a recommendation on what may be the best daycare/school for Andrew.
[17] Motions to change were filed by both parties and as noted above, other than custody and the attendance at the Rodnik Russian School on Saturdays, all remaining issues have been settled as between the parties.
Analysis and Disposition
Issue #1: Whether the parents should be granted joint custody or sole custody to the Mother?
[18] The Mother argues for status quo, being sole custody of the children. She says that, despite the recent agreement on a number of issues, there has been a lot of conflict throughout the years and it has continued to this day. She says that there is virtually no trust between the parents and collaboration is difficult. The Mother submits that joint custody is not recommended in these circumstances.
[19] The Mother notes that the agreement sets out precisely each issue in detail and there is no room for discretion. If by chance there is a disagreement, it is to be referred to the parenting coordinator. She submits that parents who can communicate do not need to spell it out in such a manner.
[20] Although the Mother acknowledges that the agreement is comprehensive, she indicates that parenting is dynamic and there will be issues that arise in the future which are not covered by the agreement and need to be addressed. The Mother argues that as the sole custodian, she has previously demonstrated an ability to exercise her decision making in an appropriate manner and there is no evidence to support that her decisions have been rash or unsafe for the children. She submits that sole custody is in the best interest of the children.
[21] The Father says that status quo is irrelevant. The test is the best interest of the children and the starting point is that each parent is entitled to custody.
[22] In exercising sole custody and making the decision, the Father says that the Mother has repeatedly tried to seek loopholes as a means to minimize the children’s involvement with the Father. The Mother wishes to maintain sole custody for control purposes and a continual power play.
[23] It is submitted by the Father that the evidence does not support the Mother’s position.
[24] Section 20(1) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA) says that each parent is entitled to custody of the child.
[25] Joint custody should only be considered where both parents have a strong claim for custody.
[26] Section 24(2) of the CLRA sets out the factors to consider when assessing the best interests of the children.
[27] There is no dispute that parental rights play no role in determining custody. It is simply the best interest of the children.
[28] A standard of perfection in respect to parental communication is not required. If the cooperation as between the parents is adequate and that there is a reasonable measure of communication, then that would be sufficient (Warcop v. Warcop, [2009] No. 638 (S.C.J.) at para. 94).
[29] The Court must be guided by the evidence on the issue of communication with one another. Past interim custody orders and how they have worked is a relevant consideration (Kaplanis v. Kaplanis, [2005] O.J. No. 275 at paras. 11 and 12).
[30] The Court of Appeal did not interfere with a joint custody order, despite the existence of intense conflict because when necessary, the parents were able to consider the real interest of the children and behave appropriately (Ladisa v. Ladisa, [2005] O.J. No. 276).
Section 24(2) factors of the CLRA
[31] In my opinion, the relevant factors to consider in this case are set out in sections 24(2) (a), (c), (d) and (g) of the CLRA.
Love, affection and emotional ties
[32] The Father testified that the children have a loving and close relationship with both parents. When asked the same question to the Mother during cross-examination, she initially said that she was unable to confirm or deny this statement as she does not see him with the children. Then, she responded that she thinks that the children love him, and they have a good relationship with their Father.
[33] I have no reason to doubt that the children love the Father and Mother. The evidence supports that the children share an equally special bond with both parents.
Length of time the children have lived in a stable environment
[34] In January 2016, the Father’s access to the children was 40%. In September 2018, it changed to 50%, as the Mother acknowledged that the Father played an equally important role in the children’s lives.
[35] The Mother admits that the Father provides a stable home to the children. The Father has no issues with the Mother’s home.
[36] There is no question that both homes are suitable and safe for the children. They are equally able to offer their children stable and loving home environments.
Ability to provide the children with the guidance, education and necessaries of life
[37] The Mother testified that she is unable to say whether the Father provides guidance and education to the children while in his care. She does, however, acknowledge that the Father provides the necessaries of life.
[38] The Father has no concerns about the Mother’s abilities in this regard.
[39] The children are performing well at school. Both parents have volunteered at the school and are able to assist the children when needed.
[40] The Mother and children speak Russian to one another. During Covid-19, the children are still attending the Rodnik Russian School on Saturdays in a virtual setting but at for a shorter period of time (1.5 hours). The Mother is the parent that assists the children with their Russian homework. For the time being, the Father makes sure that the children attend school on Saturdays, even while they are in his care.
[41] I am satisfied that both parents are able to provide the children with guidance, education and necessaries of life.
Ability to act as a parent
[42] The Father testified that at the beginning of the conflict, he had concerns about the Mother’s ability to make proper decisions for the children. He no longer has these concerns. He finds her to be a competent parent, despite the fact that he believes she has made bad decisions in the past. He recognizes that all parents may make a bad decision at some point.
[43] The Mother said during her testimony that she should maintain sole custody because the Father has displayed poor judgment in the past. By being awarded sole custody, she would ensure that these poor judgment calls be minimized in the future. That being said, she admitted during cross-examination that other than those instances of poor judgment (some of which are described below), she does not have a concern with the Father as a parent.
[44] The Mother testified that, while the children were in his care, the Father demonstrated a lack of judgment. Some of the examples are as follows:
a. He applied lice shampoo to the children’s hair as a preventative measure; b. Maxime almost drowned while on a camping trip with the Father; c. Andrew was involved in an accident where he almost fell out of the vehicle that was being driven by the Father’s aunt; d. Andrew/Maxime was given a puffer by the doctor at CHEO; e. Andrew was in a hot tub for an extended period of time; and f. He had the children tested for COVID-19 without consultation or following the recommendations.
[45] The Father’s explanation as to these events is somewhat different:
a. There were reported cases of lice at school. He looked in the children’s hair and found some nits on the hair shafts. He did apply lice shampoo, but it was not preventative. b. Maxime was not following the Father’s instructions regarding wearing his life jacket. While he was in 4 feet of water, surrounded by adults, he went under water and was immediately brought back to the surface. He could have gotten up himself, but he panicked. c. It was explained that both children were restrained in the vehicle and upon starting to move, Andrew was able to unlock and open the door. The vehicle stopped immediately. d. The Father brought Maxime to see his family doctor and not the children’s pediatrician. Upon his doctor’s recommendation, Maxime was given a puffer for asthma. e. He does not deny bringing Andrew in the hot tub at his partner’s house for a few minutes. He recalls that the children would go into the hot tub after swimming practice at Movati. f. He brought the kids for Covid-19 testing because while they were in his care, he identified some symptoms and thought it would be prudent to have them tested.
[46] I do not agree with the Mother that these incidents (as well as others described during trial) demonstrate that the Father exercised bad judgment. In all of these incidents, I find that the Father acted in a responsible manner and made decisions that he believed were in the best interest of his children and their well-being. I believe that had the Mother been the parent caring for the children during these incidents, she would have undoubtedly responded differently given how she approaches things. But this does not mean that the Father acted inappropriately nor that he is less qualified to act as a parent.
[47] The Mother and Father have different parenting styles and methods in the raising of their children. Regardless of the approach taken by the Mother or Father, they are both on equal footing and possess the necessary abilities to act as parents.
Other factors to consider
Medical knowledge / Research capabilities
[48] The Mother believes that she is better equipped to make decisions regarding the children’s medical needs because she has more medical knowledge than the Father. The Mother testified that because of her family background (grandmother was a family doctor; grandfather was a surgeon), she was exposed to medicine (up to the age of 20 years old) and she has therefore developed what she describes as a corporate memory.
[49] Also, when it comes to medical decisions that need to be taken regarding the children, the Mother says that she will conduct extensive research and then obtain 2-3 different medical opinions. This will allow her to properly brief the Father in order to allow them to make an informed decision. As an example, the Mother referenced the research and consultation that she had undertaken with respect to selecting the best dental plan for Maxime (three dentists).
[50] The Mother could not point to any reasons that would prevent the Father from researching a medical issue, if he so desired.
[51] With respect, I am not persuaded that Mother has more medical knowledge than the Father because she was exposed to it during her teenage years. The Father testified that he works for a public health agency and is often exposed to medical issues. It is clear that the Mother’s decision making process involves obtaining as much information as possible. She needs to carefully weigh all of the alternatives. It is not wrong or right. It is the way that she conducts herself or as she testified: “my brain is structured that way”.
[52] In my view, both parents are well educated and have an ability to understand the medical needs of their children. I do not find that the Mother is better suited or has a superior medical background when it comes to making decisions regarding the health of the children.
[53] The Mother takes the position that throughout the years, there has been a lot of conflict with the Father. They take differing views and there is virtually no trust between the parents. Collaboration has been very difficult. The Mother submits that joint custody would not be feasible in these circumstances.
[54] Prior to the separation, the relationship between the parties was difficult and somewhat conflictual. The conflict worsened when the Mother slapped the Father in August 2014 and he called the police. Assault charges were laid against the Mother and she agreed to take an anger management course and a one-year peace bond was issued. To put it into context, Maxime was taken to the hospital by the Father because he fallen and had a continuous nosebleed. While tending to him, the health care providers had to restrain Maxime and force air in his noise, a procedure that the Mother perceived to be intrusive and painful. The Mother was shocked as to what was happening to her child. The Mother claims that the Father was stoned, and he was not reacting to this procedure. The Mother tried to grab Maxime out of the Father’s arms and hit him.
[55] The Father testified that he had no choice but to call the police. He claims that the health care providers told him that if he did not call the police, they would call them as well as call the Children’s Aid Society to report that he did not assist his child who was in danger.
[56] While I do not condone the Mother’s behaviour nor do I find that the Father acted inappropriately in the circumstances that existed at the time, it is unfortunate that the events escalated to that point. Predictably, after this event, the level of conflict and distrust was high.
[57] Both parties presented exhaustive evidence regarding each other’s conduct and/or decisions that had been taken. Not surprisingly, they criticized each other. Some of the evidence included:
a. The Mother does not always advise the Father promptly of the medical appointment dates. b. The Mother does not give sufficient time for the Father to make an informed decision (i.e. one day to decide on metal or ceramic crowns for Maxime). c. The Mother brought the child to a particular pediatrician that was opposed by the Father. There was no evidence that this pediatrician made bad medical decisions about the children. The Father did not like this pediatrician because he preferred dealing with the mothers and not fathers. d. The Mother refused to agree that the children takes swimming lessons during the winter months. The Father had enrolled them without her knowledge. e. The Mother refused to allow the children to attend a sliding activity with the class. f. The Father removed furniture and appliances from the matrimonial home. The Mother returned home to an empty house. g. The Father took Maxime to the hospital without promptly advising the Mother. h. The Father removed watches gifted by the Mother to the children, while in his care. He claims that these watches were equipped with a GPS and the Mother could track all of their movements. i. The Father accused the Mother of not giving him a school document for his signature. j. The parents both baptized Andrew in their respective religion without advising the other.
[58] In my opinion, these past disagreements and/or the criticisms of each other are minor in nature and not conclusive evidence of parents that are unable to cooperate with one another. Also, I do not find that these types of discord are out of the ordinary for parties that are separated and share custody of their children.
[59] The August 2014 incident could have easily caused an irreversible and permanent rift between the parties. Fortunately, it did not. I find that throughout the years, the level of tension has subsided, and the parties have worked very hard in setting aside their differences, all in the best interest of their children. They have shown a great deal of restraint in most recent times. It is laudable.
[60] The preferred method of communication between the parents has been by way of email. In reviewing the numerous email correspondences that has been filed by the parties, I have been pleasantly surprised at the level of civility. This evidence is, in my view, quite revealing when it comes to the parent’s ability to communicate. The emails are cordial, respectful and at times, apologetic. The Mother and Father are thorough in their description as to what is transpiring with the children.
[61] It is obvious that the parents have a difference of opinion, but it is nonetheless conveyed in a polite manner and not in an accusatory tone. Also, considering their personality traits, it is not surprising that there exists a certain level of disagreement between the parties. The Mother has a very strong personality. She is intelligent, a detailed oriented person and extremely methodical in her thinking. She is the type of individual that must analyse and research each issue, setting out the pros and cons of a decision that needs to be taken. The Father has a more laid-back attitude in his approach but he is equally intelligent and a well read person. He has different method in approaching a problem. It appears to me that he takes more of a practical approach in analyzing a situation. It is not, in my view, less or more effective than the Mother’s. There is more than one way to determine the best decision to make in any given situation.
[62] The email communications that I have reviewed persuade me that the Mother and Father are quite capable of effectively communicating with one another for the well-being of their children. I do not have a sense that the parties share animosity towards each other. I am impressed with the way that they treat each other via email. There exists a mutual respect between the parties that is often absent in these types of family law proceedings. The Mother and Father make decisions that they truly believe are in the best interest of their children. They are sincere in their beliefs and there is no evidence that any of the decisions have been made maliciously or in bad faith.
[63] I believe that the Father well summarized his current relationship with the Mother: “we have put lots of water in our wine”. In other words, there is a sense of compromise in the air and there has not been a great deal of conflict for some time.
[64] This leads me to the other factor that warrants consideration, namely the parties’ most recent agreement on most of the issues involving the children.
Terms of final Order on consent
[65] In or around mid-November 2020, the parties entered into a comprehensive agreement resolving many of the issues in dispute. In terms of the decision making, the parties agreed, amongst other things, to the following:
a. For the day to day decision making, the parent residing with the children at the relevant time will have the authority to make day-to-day decisions affecting the children. b. For medical decisions, a new pediatrician is being selected; CHEO is the hospital of choice; the parties have agreed on a specialist in the following disciplines: dentistry, physiotherapy, speech therapy, otolaryngology and orthotic; and the recommendations of the medical professionals will be followed. c. For the decision making process, the parties shall use Our Family Wizard to communicate; they agree to notify each other as far in advance as possible, fully explore the issues, provide one another the information and documentation, recognize and respect the value of another’s input and perspective; and if they are unable to agree, they will use the parenting coordinator to resolve the dispute. d. In addition, they have agreed to: exchange important documents, a parenting schedule, summer holidays and summer camps, sick days, and travel.
[66] This agreement is very thorough and comprehensive. For medical decisions, which may be the most contested items for the parents in the future, this agreement eliminates a lot of the debate. The parties are to follow the medical professional’s opinion.
[67] The Mother says that parents who can communicate would not have had a need to spell out each potential issue in detail. Despite the thoroughness of the agreement, the Mother argues that there are gaps in the parenting plan, and it is not possible to outline every possible scenario.
[68] I agree with the Mother’s submission that parenting is dynamic and there will be issues that will arise that need to be addressed and not covered by this agreement. If that is the case, the parenting coordinator will be able to assist the parties. I recognize that there may be emergency situations where it will be impractical or impossible to refer the issue to the parenting coordinator. Should such a situation arise, I find that based on the evidence presented at trial and my assessment of the parties, they will be able to make a joint decision that is in the best of the children. They love their kids immensely and they would do what it takes to ensure their well-being.
[69] I can appreciate that the relationship has not been an easy one for either parent. In or around the time of separation, the parties’ relationship could have easily been characterized by a high level of distrust. The basis of this distrust is partially due to the events of the August 2014 incident and the aftermath. It was a significant event that could have had the potential of eliminating any possibility of collaboration in the future. It could have dramatically impacted the future dealings with one another. The parties rose to the occasion and set aside their differences, all in the best interest of their children. They should be congratulated for their efforts. In my opinion, this most recent agreement demonstrates the parents’ flexibility in their thinking and approaches. The evidence has clearly shown that in recent years, albeit with a lot of work, the Mother and Father have a true willingness and ability to communicate and cooperate with one another. I accept that there have been some disagreements in the past, but I do not find that it is as a result of failed communication. With this comprehensive agreement, I believe that it will facilitate communication, enhance collaboration and reduce significantly the areas of contention.
Disposition on Issue #1
[70] For the reasons set out above, I find that the evidence supports the conclusion that the parents have set aside their differences, they have an ability to cooperate with one another as well as work together effectively. Given these findings, I conclude that the best interest of the children can be achieved under a joint custody regime. The Mother’s request for sole custody is dismissed.
Issue #2: Whether the children should attend the Rodnik Russian School on Saturdays?
[71] The Mother would like the children to continue attending the Rodnik Russian School on Saturdays. She is prepared to assume the costs associated with this activity and undertakes to be responsible for the homework given at this school. In the joint document submitted to the Court called “Updated Issues to be Determined at Trial”, the Mother seeks an Order that an extracurricular activity does not include the children’s schooling, including the Russian School. While this document does not reference a timeframe for attendance at the Rodnik Russian School, the Mother has testified that she would be seeking an Order that the children attend this school until grade 8.
[72] During Covid-19, the classes are virtual and only last 1.5 hours. Normally, the children would attend school from 9:30 a.m. to 2:30 p.m. each Saturday. With the existing 2-2-3 schedule, the Mother estimates that during the Father’s weekends with the children, there would be fifteen (15) Saturdays where the children would have to attend school.
[73] The Mother admits that there are alternatives, such as a Russian tutor but is not a viable option as it is only limited to language and not the panoply of courses being offered at the Rodnik Russian School. It is not a substitute for the school’s comprehensive program, and it would leave out the cultural and community aspects being offered by this school.
[74] The Mother relies upon the decision of Thomas v. Osika, 2018 ONSC 2712, where Justice Audet made some observations (at paragraph 35) regarding the child’s attendance at a Polish School on Saturdays and the parent’s obligations. In that case, the father was taking the position that attendance on every Saturday would impede on his time with his child:
[35] I find that this position does not focus on what is best for Carwyn, but rather on what is best for the parties. Parents who insist on a joint custodial and time-sharing parenting regime should be expected to agree on the activities that their child will be enrolled in and, once they have agreed, should be committed to the child’s regular attendance at those activities. It would not only be sad for this child to attend only one half of his hockey practices and games and one half of his Polish classes, it would also impede on his ability to fully participate and progress in these activities, and would make him a less desirable member of those groups (as he would constantly be absent).
[75] The Father does not criticize the quality of the teachings being offered by the Rodnik Russian School. Further, he says that he does not seek to undermine the importance of the Russian culture for his children. He has been supportive of the Mother in this regard and will continue to do so in the future. The Father argues that there are alternatives to the Rodnik Russian School.
[76] The Father submits that the issue is whether it is in the best interest of the children to continue attending the Rodnik Russian School, as opposed to exposing these young children to other activities including sports or those associated with the Father’s French culture.
[77] The Father relies upon the decision of M.D. v N.J., 2018 ONSC 3706 where Justice D.J. Gordon decided, in the context of the children attending Ukrainian School during the weekend, that it would not be appropriate to impose it during the other party’s parenting time (paragraph 126):
126 I recognize the importance of Ukrainian School for these parents and for C.D.J. I am concerned for the child's well-being and the added work for him bearing in mind the separation of his parents and the importance of spending quality time with each of them. However, it would not be appropriate to rely on my personal views. See: Young at para. 203. Clearly, attending Ukrainian School is in C.D.J.'s best interests, as the parties confirm. It would not be appropriate to direct a parent as to what may be done in his or her parenting time. This is a decision each parent must make, but only for their parenting time.
[78] The Mother called three witnesses from the Rodnik Russian School: the principal, a teacher and the supervisor of the daycare. The relevant evidence that can be adduced from their testimony is summarized below:
- there are 250-300 students enrolled at the school;
- the school is affiliated with the French public school board;
- classes are only offered on Saturdays from 9:00 a.m. to 2:30 p.m.;
- for the year 2020-2021, classes are being offered on 33 Saturdays;
- the Saturday program is designed to last 5.5 hours. It is not an option to attend part of the program;
- the subjects covered during the Saturday program are all taught in the Russian language and include: language, mathematics, geography, history and what has been described as fun activities (chess, art, dancing, music, drama);
- school credits are recognized after grade 9;
- Maxime and Andrew are good students and they were observed to enjoy the classes and activities; and
- the school staff can communicate with a non-Russian speaking parent.
[79] The Rodnik Russian School has been in existence for over 40 years. Through this program, the children are able to experience the Russian culture and learn abouts its heritage. The children have been diligently attending Saturday school and based upon the evidence that I have heard, they have been thriving and succeeding in this program.
[80] I find that since the children’s births, the Father has been supportive of the Mother’s Russian culture and heritage. He has embraced it in various ways: they hired a Russian speaking Nanny for the children; the children attended the daycare at Rodnik Russian School (until the ages of 4-5 years old), where all of the pre-school education was taught in the Russian language; piano lessons were given in Russian; and the children continue to attend the Rodnik Russian School on Saturdays, while under his care.
[81] The parties have asked to me to determine if the Saturday activity at the Rodnik Russian School is an extracurricular activity. In the decision of Moses v. Stephens, 2019 ONCJ 412, Justice K.A. Baker wrote the following in regard to defining the term “extracurricular”:
41 "Extracurricular" is defined by the Canadian Oxford Dictionary as "adjective 1. (Of an activity or subject of study) not included in the normal curriculum. 2. Outside the normal routine, job expectations, etc. 3. Extra marital". On a plain and common sense interpretation, such a term could not possibly apply to visits between a parent and child.
42 Further, in Arnold v. Washburn (2001), O.J. No. 4996, the Ontario Court of Appeal elucidated the meaning of "extracurricular" saying""Extracurricular" in common parlance refers to ancillary elements to the formal teaching programme".
[82] In my view, the courses that are offered at the Rodnik Russian School fall outside the scope of what can be described as a normal or regular curriculum. A child’s normal school curriculum involves attending classes from Monday to Friday. In essence, the Rodnik Russian School on Saturdays is a sixth day of school for the children. There is no doubt that the teachings being offered at this school have a very high educational and cultural component, but it is nonetheless ancillary to the normal teaching program. I am mindful that after grade 9, the Rodnik Russian School can offer academic credits but at present, it lies outside of the regular educational schedule. I conclude that it is an extracurricular activity.
[83] Regardless of the label that may be given to the program at the Rodnik Russian School (educational activity versus extracurricular activity), I find that based on the evidence at trial, it is not in the children’s best interest that the Father be imposed the Saturday schooling.
[84] The decision relied upon by the Mother (Thomas v. Osika) is, in my opinion, distinguishable. The Polish classes being taken in that case did not last most of the day as is the case with the Rodnik Russian School. The Polish School was found to be an extracurricular activity and it was ordered by the Court that all extracurricular activities could not exceed 2.5 hours per week. In the case at bar, the time spent at the Rodnik Russian School far exceeds 2.5 hours per week and represents a significant commitment on the part of the parent.
[85] I am cognizant that, at times, it becomes necessary to restrict what each parent can do during their respective parenting time in order to ensure that the child can continue to participate in an extracurricular activity. However, this is not, in my view, one of those times.
[86] In a shared custody situation, such as the case at bar, the parenting time is reduced. Weekends are precious occasions for the parents to create new experiences with their children. The time spent with the children during the weekends is unquestionably cherished by the parent exercising his/her parenting time. It is also cherished by the children because the activities that are unique to one parent are special and it exposes them to different kinds of experiences while creating long lasting memories with that parent.
[87] In my opinion, it is in the children’s best interest that they be exposed to different types of activities while in the Father’s care. The Father testified that by having the children attend school on each Saturday, it removes the possibility of exploring other interests or activities such as going to the cottage, playing soccer, basketball, and joining scouts. Also, as a proud Franco-Ontarian, he wants his children to be exposed to various activities that are linked to the French culture and heritage.
[88] By allowing the children to participate in activities chosen by the Father, this improves the likelihood of the children establishing a meaningful bond with him. Restricting the Father’s time with the children on most of the day on Saturday, eliminates, in my opinion, many enriching opportunities for the children.
[89] There is no doubt that learning Russian is beneficial for the children and the Mother should be commended for wanting the children to continue to learn and be exposed to her Russian culture and heritage. It cannot, however, be done to the detriment of the children being exposed to other things that are equally important to the Father.
[90] I find that the Mother is essentially asking the Court to endorse a sixth day of schooling on Saturday. The Mother’s wishes need to be balanced with those of the Father, all while considering the best interest of the children.
[91] If the children were permitted to attend Saturday school during the Father’s parenting time, a significant portion of the weekend would be taken away by this activity, thereby making it difficult for the children to participate in other activities with their Father that would could be beneficial to them.
[92] During the week, the Father works full-time, the children attend school, thereby limiting the time spent together. Therefore, there are fewer opportunities for meaningful parenting time, making the weekends that much more important. I find that it is important and valuable for the children to be involved in different types activities, all while spending as much quality time with their Father. Imposing Saturday school would not accomplish this objective.
[93] The Father has provided some alternatives where the children can be enrolled in a Russian program. For example, private Russian courses are being offered by Language Trainers Canada or you can register for free through the Ottawa Catholic School Board for Saturday Language Classes. While I agree with the Mother that these alternatives are no substitute to the offerings of the Rodnik Russian School, it is nonetheless an option for the children to learn the Russian language. Also, it is to be noted that the Mother speaks to the children in Russian during her parenting time.
[94] In terms of the Russian culture and heritage, the Mother testified that there is a large Russian community in Ottawa, and she is involved with this community. She attends Orthodox Church where the service is primarily in Russian. She has taken trips to Russia. She has Russian friends. Her parents speak to the children in Russian. These are all, in my view, great opportunities for the children to continue to be exposed the Mother’s culture and heritage. There is nothing preventing the Mother from increasing the children’s participation in the Russian community and/or activities during her parenting time.
Disposition of Issue #2
[95] I reject the Mother’s position that the children’s schooling at the Rodnik Russian School is not an extracurricular activity. Also, I conclude that, while the children are under the Father’s care, it is not in the children’s best interest that they attend the Rodnik Russian School, unless he otherwise consents.
Conclusion
[96] For the reasons set out above, this Court orders the following:
a. The parties shall have joint custody of the children, namely of Maxime Soukhovtseva Gosselin (born October 11, 2012) and Andrew Soukhovtseva Gosselin (born March 5, 2015). b. The children’s schooling at the Rodnik Russian School is an extracurricular activity. When the children are under the Father’s care, they are not required to attend the Rodnik Russian School, unless the Father otherwise consents.
Costs
[97] If the parties are unable to agree on the issue of costs, the Father may deliver written submissions along with his Bill of Costs and Offers to Settle, if applicable, within thirty (30) days of the date of this decision. The Mother may then deliver responding written submissions along with her Bill of Costs and Offers to Settle, if applicable, within fifteen (15) days of the receipt of the Father’s submissions. The Father may then deliver any reply submissions (limited to three pages in length) within seven (7) days of the receipt of the Mother’s submissions.
Justice Marc Smith
Released: February 9, 2021