Court File and Parties

COURT FILE NO.: FC123/20

DATE: March 23, 2021

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

RE: Gary Douglas Piper Jr., Applicant

AND:

Jennifer Lee Hare, Respondent

BEFORE: Tobin J.

COUNSEL: Karen M. King for the Applicant

P. Allen Skuce for the Respondent

HEARD: March 19, 2021 via videoconference

ENDORSEMENT

[1] In this motion, the court is asked to determine what school the parties’ child will attend beginning in September 2021.

FACTS

[2] The applicant (“the father”) and the respondent (“the mother”) lived together for approximately two years. This living arrangement ended in January or February 2019. In the course of their relationship, the mother and father had one child, Isaac Eugene Paul Piper (“the child”), born April 1, 2017.

[3] Since the spring of 2019, the child has been in the care of the mother and father on a rotating basis, rotating weekly. The exchanges take place on Friday afternoons.

[4] Starting in September 2021, the child will attend junior kindergarten. The mother and father agree that the child is excited to be attending school.

[5] The mother and father do not agree on which school he should attend.

[6] The mother is fluent in French and holds a certificate of bilingualism. The mother’s evidence is that the child enjoys learning French with his older brother and her. His comprehension of spoken French with his French-Canadian family members is improving.

[7] She has been employed in Catholic schools for approximately 16 years. The mother is actively raising the child as Catholic. The father has “no issues with the child being raised in the Catholic faith.”

[8] The mother’s evidence is that the parties agreed that the child, who had been baptized Catholic, would attend École élémentaire catholique Saint-Jean-de-Brébeuf (“Brébeuf”) in London. This is a French first language Catholic school.

[9] The father denies that they agreed to this. The mother’s evidence is that she was “completely blind-sided” by the father’s change in position.

[10] The mother resides in St. Thomas, but this is within Brébeuf’s school and bus transportation boundaries. This is the case because there is no French first language Catholic school in St. Thomas.

[11] If the child attends Brébeuf, then, on the weeks that she has parenting time, the mother would put him on the bus at 7:00 a.m. and then leave for work. When the bus returns at approximately 3:30 p.m., which is the same time the mother’s workday ends, the mother has arranged for someone to meet him and bring him to her home.

[12] The child is also eligible for bus service from and to the father’s home during the father’s parenting time.

[13] An objection that the father has to the mother’s plan is that he will not be able to effectively participate in the child’s education. He does not speak French and will not be able to assist the child with his homework.

[14] In response to this, the mother’s evidence is that the staff at Brébeuf are fluent in both French and English and are accommodating towards all parents. The classroom communication programs all have translation options that will allow the father to read all correspondence.

[15] The father proposes a different plan for the child.

[16] He wants the child to attend school at Westminster Central Public School (“Westminster”), which is “two (2) doors down” from his residence.

[17] His son from a previous relationship already attends this school.

[18] On the weeks that the father has parenting time with the child, the child will not need to be transported by car or bus. On the weeks that the mother has parenting time with the child, the child is able to attend before- and after-school care at Westminster.

LEGAL CONSIDERATIONS

[19] Where a child will attend school is an incident of parental decision-making responsibility.

[20] In this case, there is no temporary or final order granting either parent this responsibility. As the child will be entering junior kindergarten, this is a case about where the child’s first day in school will be; it is not about a change in school placement.

[21] It is in this circumstance that the court is asked to determine the particulars of this child’s education.

[22] The jurisdiction to make this decision is found in the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”), s. 28(1)(b), which provides that the court “may by order determine any aspect of the incidents of the right to decision-making responsibility.”

[23] This decision is to be made by taking into account only the best interests of the child: CLRA s. 24.

[24] In Thomas v. Osika, 2018 ONSC 2712, 13 R.F.L. (8th) 191, at para. 37, Audet J. summarized the general principles to be considered in deciding where a child is to attend school when the parents disagree:

Choice of school

37 The decision as to the choice of school that a child should attend, when the parents disagree, is ultimately a matter of judicial discretion. However, a number of general principles have emerged from the caselaw to assist the decision-maker in making the decision in the child's best interests. They can be summarized as follows:

a. Sub-section 28(1)(b) of the Children's Law Reform Act specifically empowers the court to determine any matter incidental to custody rights. The issue of a child's enrollment in a school program must be considered as being incidental to or ancillary to the rights of custody (Deschenes v. Medwayosh, 2016 ONCJ 567 (Ont. C.J.));

b. It is implicit that a parent's plan for the child's education, and his or her capacity and commitment to carry out the plan are important elements affecting a child's best interests. In developing a child's educational plan, the unique needs, circumstances, aptitudes and attributes of the child, must be taken into account (Bandas v. Demirdache, 2013 ONCJ 679 (Ont. C.J.));

c. When considering school placement, one factor to be considered is the ability of the parent to assist the child with homework and the degree to which the parent can participate in the child's educational program (Deschenes v. Medwayosh, 2016 ONCJ 567 (Ont. C.J.));

d. The emphasis must be placed on the interests of the child, and not on the interests or rights of the parents (Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.J. No. 52 (S.C.C.);

e. The importance of a school placement or educational program will promote and maintain a child's cultural and linguistic heritage (Perron v. Perron, 2012 ONCA 811 (Ont. C.A.);

f. Factors which may be taken into account by the court in determining the best interests of the child include assessing any impact on the stability of the child. This may include examining whether there is any prospect of one of the parties moving in the near future; where the child was born and raised; whether a move will mean new child care providers or other unsettling features (Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.);

g. The court will also look to any decisions that were made by the parents prior to the separation or at the time of separation with respect to schooling (Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.);

h. Any problems with the proposed schools will be considered (Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.);

i. A decision as to the choice of school should be made on its own merits and based, in part, on the resources that each school offered in relation to a child's needs, rather than on their proximity to the residence of one parent or the other, or the convenience that his attendance at the nearest school would entail (Wilson v. Wilson, 2015 ONSC 479 (Ont. S.C.J.));

j. Third party ranking systems, such as the Fraser Institute's, should not factor into a Court's decision. These systems of ranking do not take into consideration the best interest of the particular child in a family law context (Wilson v. Wilson, 2015 ONSC 479 (Ont. S.C.J.));

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

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

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

LEGAL CONSIDERATIONS APPLIED

[25] The court must consider the general principles referred to above with regard to this child.

[26] The parents do not describe the child as having any special needs or attributes that would adversely affect his ability to participate and succeed at either school.

[27] If the child attends Westminster, he would be attending the school that the father’s older child attends. As Klein J. observed in Deschenes v. Medwayosh, 2016 ONCJ 567, at para. 22, the child would enter school with the added assurances that a sibling is close at hand.

[28] The logistics of getting the child to and from school under both plans must be considered.

[29] The father will have no difficulty getting the child to either school. He lives very close to Westminster and will have bus transportation to and from Brébeuf available to him.

[30] Under the father’s plan, the mother will have a challenge in getting the child to school and then getting herself to her work on time. Under the mother’s plan, this would not be a problem. The logistics of the mother’s plan would be less complicated for her and the child.

[31] The father’s plan will require the child, who will be four years old in September 2021, to spend approximately nine/ten hours each day when he is in the mother’s care – at school, in childcare, and in transit. He would leave the mother’s house at approximately 7:00 a.m. He would then be transported to school by 7:30 p.m. (making the mother late for work), where he would spend time in childcare from 7:30 a.m. until school started at 9:05 a.m. He would be dismissed from school at 3:45 p.m. and be in childcare again until the mother could bring him home by 4:45 p.m.

[32] The mother’s plan will mean an approximately seven/eight-hour day for the child. The child would leave the mother’s house around 7:00 a.m. and start his school day at 8:10 a.m. He would be dismissed at 2:45 p.m. and home from his bus ride by 3:30 p.m.

[33] As the child is only four years old, the extra two hours will be significant.

[34] The parents’ ability to assist the child with homework and participate in the child’s educational program must be considered.

[35] The mother will have no difficulty assisting the child with his homework or participating in his education at either school.

[36] Under the mother’s plan, the father will have difficulty helping the child with his homework as the father does not speak French. The mother’s evidence is that she is willing to communicate with the father, by a parenting application, for this purpose. The evidence also discloses that the staff at Brébeuf are bilingual and accommodating. The father would not be the only English-speaking parent of a student at that school.

[37] While the father’s difficulty in assisting with the homework is a concern, it can, on the evidence, be addressed and mitigated. With accommodation in place, the father will be able to participate in the child’s education and educational programs.

[38] The child’s attendance at Brébeuf will better promote the child’s religious identity. The father supports the child being raised in the Catholic faith.

[39] Attending at Brébeuf will also better promote the child having a full mastery of the French language. At Brébeuf, the child will become bilingual in French and English. In the long term, bilingualism in French and English provides a number of advantages for employment. In addition, in a social environment dominated by English, the child will generally communicate in English in many aspects of daily life and, as a result, acquire knowledge of the language of the majority: Perron v. Perron, 2012 ONCA 811, 113 O.R. (3d) 612, at para. 20.

[40] The court accepts that there are advantages and disadvantages in both the mother’s and father’s plans. They must be weighed in determining which plan is in the best interest of the child. In doing so, I find that the plan most consonant with the child’s best interests is that he attend Brébeuf, beginning in September 2021.

ORDER

[41] An order shall go as follows:

1. On consent, the informal, interim, parenting-time arrangement – of rotating the parenting time on a weekly basis – shall continue unless the court changes it by order on motion or at trial.

2. The child, Isaac Eugene Paul Piper, born April 1, 2017, shall attend École élémentaire catholique Saint-Jean-de-Brébeuf beginning in September 2021.

[42] If the parties are unable to agree on the issue of costs, the mother will provide her costs submissions, along with any offers to settle and a bill of costs, within ten days of the release of these reasons. The father will provide his costs submissions, along with any offers to settle and bill of costs, ten days thereafter. The parties’ costs submissions shall be a maximum of three pages in length, shall be double-spaced, and shall have a minimum of a 12-point font.

“Justice B. Tobin”

Justice B. Tobin

Date: March 23, 2021