COURT FILE NO.: FS-20-0109-00
DATE: 2021 04 29
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MARK CHRISTOPHER MURAKAMI, Appellant
- and -
CUIRONG “STEPHANIE” MURAKAMI, Respondent
BEFORE: BIELBY J.
COUNSEL: Trevor Smith, for the Appellant
Dianne Klukach, for the Respondent
HEARD: April 19, 2021
ENDORSEMENT
introduction
[1] The Appellant has placed before the court an appeal of the arbitration award of Elizabeth Hyde, dated September 2, 2020.
[2] The parties married each other on May 26, 2007 and separated November 14, 2017.
[3] The parties are the natural parents of two children, Carter, born November 19, 2016 and Oliver, born March 17, 2015.
[4] Since separation the parties have entered into three agreements: Minutes of Settlement dated August 26, 2019, an amending agreement dated January 21, 2020, and a parenting agreement dated August 18, 2020.
[5] The parenting regime is shared, on a 2:2:3 schedule.
[6] In the Minutes of Settlement it was agreed that, for the academic year 2019/2020, the children would attend Middlebury Public School (Middlebury) and/or YMCA daycare located in the school.
[7] In August 2020, the Appellant gave notice that he wanted the children to attend Tall Pines Private Montessori Elementary School (Tall Pines) for the academic year 2020/2021. The Respondent did not agree, so in accordance with the parenting agreement a process was commenced which ultimately lead to the Arbitration Award in issue.
[8] Ms. Hyde’s decision was based only on the written submissions of both parties.
[9] Ms. Hyde ruled in favour of the Respondent and concluded the children should attend Middlebury for the 2020/2021 school year. The Appellant submits that Ms. Hyde made errors in fact, in law and in mixed fact and law, and as a result, the order of Ms. Hyde should be overturned, and the children should be required to attend Tall Pines.
[10] Further, since the time the appeal was launched, both parties have brought motions to admit fresh evidence.
[11] There is no issue as to this court’s jurisdiction to entertain this appeal.
ARBITRATOR’S RULING
[12] The arbitrator, Elizabeth Hyde, in reaching her decision, relied primarily on the decision of H.J. Williams J. in Turnbull v. Turnbull 2018 ONSC 5061 and set out number of relevant considerations that were explored in Turnbull. They were:
(i) was there a pre-separation agreement between the parties?;
(ii) community ties;
(iii) public v. private cost;
(iv) proximity;
(v) class sizes and individual attention;
(vi) stability and continuity;
(vii) facilities; and
(viii) before and after school care.
[13] Ms. Hyde determined that she was to decide which of the two schools would better serve the interests of Oliver and Carter taking into account their particular needs and circumstances and the factors that are relevant to them (para. 35). Commencing at paragraph 36, under the title of, Analysis and Conclusion, Ms. Hyde noted the following:
(a) the Appellant, in 2019 and 2020 did not raise the subject of the children going to Tall Pines until August of each year. To allow a thorough analysis of both schools, the discussion should be initiated sooner;
(b) the parties placed Oliver in a pre-school Montessori program but she did not believe that was determinative of the future choices they would make;
(c) the Appellant’s ties to the Tall Pines community were relatively new and only related to the school not the community, unlike the Respondent’s and the children’s links to the neighbourhood where the Respondent and the children live;
(d) the respondent mother’s concern about the fees and the potential extra expenses related to attendance at Tall Pines had been addressed by the Appellant’s offer to pay all related expenses and fees;
(e) unlike the vast majority of cases cited, she considered the proximity of the two schools to the parties’ homes a considerable factor. In traffic, the commute time could be up to an hour each way. Considering the age and stage of development of both Oliver and Carter, this presented a significant hurdle to attendance at Tall Pines. Ms. Hyde viewed the Appellant’s commitment to do all of the drop offs and pickups as admirable and a large concession on the Appellant’s part, but felt that the Appellant was not being realistic given that he has a new job in Oakville. Ms. Hyde could not reconcile how the Appellant could pick up the children from the Respondent’s home at 8:10 and drive almost 30 kms for an 8:30 start time. She did not consider the Appellant’s partner as a driving alternative;
(f) the evidence relating to each of the children’s aptitudes was limited however, regardless of the individual aptitudes of either child, being in a class of 9 students versus 24 or 25 would be beneficial;
(g) both parents believed in the need for stability and continuity but disagreed as to what it looks like. The Appellant’s arguments were said to be, in essence, a proposal of what will unfold if the children attend Tall Pines. The Respondent’s arguments were based on the children’s current reality;
(h) no evidence was submitted by either party as to which school has the better facilities; and
(i) the Appellant’s transportation plans did not convince her that the plan was manageable given the fact that the Appellant worked in Oakville, the Respondent’s nanny does not drive and the Respondent works in Toronto.
[14] Ms. Hyde concluded by writing:
“I have no doubt that Tall Pines would provide Oliver and Carter with an “outstanding” opportunity. The class size alone is significant. The fact that it would be free of charge makes the decision even more difficult. However, I do not believe this opportunity outweighs all of the concerns and evidence outlined above. This decision is for the 2020/2021 school year only. Oliver and Carter are 3 and 5. The have had many changes in a short period of time including the added stressors the current pandemic has placed on all families, including the children. I believe that it is in Carter and Oliver’s best interests at this time to attend Middlebury for the 2020/2021 academic year” (para. 45).
[15] Some of what I take from all of this is:
(a) given that the Appellant did not raise the issue of Tall Pines until the month before the school year started, the arbitrator was of the belief that to properly address the issue required more time and better evidence/information;
(b) there was very little evidence as to the children’s academic needs and the strength of the programs in both schools;
(c) there was little evidence in regard to the respective facilities; and
(d) it was emphasized that the ruling was only for one academic year, being 2020/2021.
FRESH EVIDENCE
[16] The Appellant, by the order of Lemay J. made in February 2021, was allowed to admit the following fresh evidence for consideration. In the Fall of 2020, the Appellant acquired a controlling interest in Tall Pines and spends most of his time working out of an office at Tall Pines. Apparently at the time of the arbitration, the Appellant was in discussions to purchase the interest but felt he ought not to disclose that fact until the interest was acquired.
[17] As part of this appeal, the Respondent has before the court a motion to admit the following fresh evidence: in March 2021, the Appellant’s partner gave birth to a baby boy.
[18] Set out in R. v. Palmer 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at pg. 775 is the general test for the admission of fresh evidence on an appeal;
(a) the evidence should be admitted if it could not have been adduced at the trial by due diligence;
(b) the evidence must bear upon a potentially decisive issue at trial;
(c) the evidence must be credible in the sense that it is reasonably capable of belief; and
(d) it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
[19] When the best interests of children are in issue, the test for the admission of fresh evidence is relaxed and fresh evidence is to be admitted if it bears directly on the best interests of the children and is reasonably capable of belief (Salehi v. Tawoosi 2016 ONCA 986, para. 21 and Spadacini-Kelava v. Kelava 2020 ONSC 3277, at para. 71).
[20] With respect to the Respondent’s motion for fresh evidence, I find that the fact the Appellant and his partner have a new child bears directly on the best interests of the children and since the birth of the child is not contested, it is clearly capable of belief. What weight it is to be given is another matter. Regardless, it is admitted on this appeal as fresh evidence.
STANDARD OF REVIEW
[21] When considering questions of law, the standard of review for an appeal court is, “correctness”.
[22] When considering questions of fact, the standard of review is, “a palpable and overring error”.
[23] In Hickey v. Hickey 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518, the court dealt with an appeal on a support order made at trial. It was said at paras. 10 and 11 that a judge’s decision on support involves an exercise of considerable discretion and that the Supreme Court of Canada has often emphasized the rule that appeal courts should not overturn discretionary support orders, unless the reasons disclose an error in principle, a significant misapprehension of the evidence or unless the award is clearly wrong. Such an approach promotes finality in family law (para. 12).
[24] While support is not an issue before me, the rationale is applicable to all cases involving judicial discretion in family law matters, which includes the issue of what school the children should attend.
ANALYSIS
ERROR IN LAW
[25] The Appellant submits that, while the decision of Ms. Hyde is to be given deference, she erred on a question of law by ignoring precedent and placing undue importance on the proximity of the parties’ homes to the two schools in question (see para. 13(e) above).
[26] When considering whether Ms. Hyde committed an error in law, I note that there was little evidence of the children’s aptitudes and abilities, the facilities of each school and the resources and programs at each school, except to say that Ms. Hyde did say that the lower teacher/student class size at Tall Pines was significant and that Tall Pines would provide Oliver and Carter with an outstanding opportunity.
[27] She concluded however, that the “opportunity” did not outweigh her concerns.
[28] The Appellant relies on the case of Thomas v. Osika 2018 ONSC 2712, a decision of Audet J. of the Ontario Superior Court of Justice in which one of the issues before the court was the choice of school. From para. 37, I quote,
“The decision as 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.”
[29] The Appellant relies on the following comment made by Audet J. when reviewing the considerations involved in deciding what school a child will attend:
“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” (Para. 37 (i)).
[30] Audet J. also made reference to other considerations, including:
“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” (para 37(k)).
“The cases are 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 the child before the court” (para. 37(m)).
[31] Audet J. concluded that the school chosen by the father was where the child had the most community contacts including place of residence, friends and the location where he attended daycare (see 2018-19 Annual Review of Family Law, pg. 275).
[32] I do not believe Ms. Hyde erred in law by finding proximity to be a considerable factor in the decision.
[33] In the matter before me, the parties reside in Mississauga. Tall Pines is situated in Brampton, some 30 kms away from the homes of both parties. The commute, to and from school, would require travelling on a 400 series highway. In comparison, in the Thomas decision, the further home/school distance in issue was said to be 4.5 km.
[34] In the Turnbull decision, Williams J. made reference to the Thomas decision and adopted the Thomas summary of general principles in determining a choice of school which included the principles set out in paras. 30-31 above. Williams J. then went on to consider a number of factors the parties asked him to consider, which included the issue of proximity.
[35] At paras. 48-50, Williams J. made reference to how far away the proposed schools were from where both parties lived. He took into consideration such things as the ability to walk to school and available busing, among other things.
[36] It only makes common sense that the further the distance, the more important and relevant the issue of proximity becomes. Further, while there is a disagreement as to the travel time required, given the ages of the children even a half hour each way would likely have an impact upon the children.
[37] As noted in the above authority, cases such as this are fact-driven, and the matter is one of judicial discretion. While Audet J. opined that the emphasis should be on what each school can provide the children and not proximity, apart from class size, Ms. Hyde commented on the lack of evidence as to what each school could provide.
[38] The conclusion reached by Audet J. relied, apart from proximity, on much of what Ms. Hyde relied upon including, residence, community contacts and friends.
[39] Oliver had already spent a year at Middlebury, and Carter spent one year at the YMCA daycare program situated at Middlebury. The children have community contacts and friends at Middlebury. Such factors also go to the issues of continuity and stability.
[40] Counsel for the Appellant, at para. 28 of his factum, takes issue with the comment of Ms. Hyde that the Respondent’s ownership of her home demonstrates a continuity and stability greater than that of the Appellant. While I agree that renting a home can also demonstrate continuity and stability, such facts can be taken into account.
[41] I conclude as stated above, Ms. Hyde made no error in law in relation to proximity, when exercising her judicial discretion.
QUESTIONS OF FACT
[42] The alleged factual errors relied upon by the Appellant are:
She erred in her calculation of the time needed to drive to Tall Pines, including opining it could be as much as an hour depending on traffic.
She failed to accept the Appellant’s evidence that in his experience the trip had never taken more than 25 minutes. The Appellant takes issue with the Respondent relying on Google maps calculations, alleging that such evidence is hearsay.
She erred by concluding that a pick-up time of 8:10 am would not get the children to Tall Pines for an 8:30 am start time. It is submitted that the drop off time is 8:30 to 8:45, suggesting a start time of no earlier than 8:45 am.
She erred in her conclusion as to the Appellant’s daily availability to drive the children to and from school, each day. Further, she failed to account for the before and after school daycare provided at Tall Pines.
She erred in concluding that Carter had been involved in a language/speech program through his daycare and will continue with it at Middlebury. The Appellant advised that the program was completed and Ms. Hyde’s conclusion is not supported by the evidence.
[43] In my opinion, these alleged errors in fact do not amount to palpable and overriding errors to the extent necessary to allow the appeal. It cannot be said that Ms. Hyde significantly misapprehended the evidence or was clearly wrong.
[44] In regard to the issues about the time it takes to drive to Tall Pines, Ms. Hyde as well as the Appellant, were relying on their personal driving experiences when considering travel time.
[45] What is important is the fact that the children will spend, at least, one hour per day, in a vehicle, if they attended Tall Pines. Proximity was a legitimate issue for consideration. Whether school at Tall Pines starts at 8:30 or later, proximity would remain an issue.
[46] The fact that there is now before the court fresh evidence concerning the Appellant’s controlling ownership in Tall Pines and that he works from the school most days, the new evidence does seem to answer Ms. Hyde’s concerns set out in paragraph 40, subparagraph 4 of her arbitration award. It is not significant enough however, to rise to a successful ground of appeal.
[47] In regard to the before and after school daycare provided by Tall Pines, it was noted that such daycare is provided by the YMCA at Middlebury. Daycare, I do not believe, was an issue one way or another in Ms. Hyde’s decision and it can be inferred that at either school daycare was available.
[48] If Ms. Hyde was wrong in her comments on Carter’s speech therapy, it may have been that he did receive such therapy at Middlebury in the past and it may be available in the future. Regardless, it spoke to a service available in Middlebury, a relevant consideration one way or the other, and did not amount to a palpable and overriding error.
QUESTIONS OF MIXED FACT AND LAW
[49] The Appellant submits that Ms. Hyde failed to conclude that class size outweighs the other facts relied on, and by rejecting the Appellant’s current partner as a driver option if the Appellant is not available.
[50] I am not aware of any authority that class size trumps all other considerations and there is no doubt that Ms. Hyde viewed the lower class sizes at Tall Pines as beneficial. She even stated attendance at Tall Pines would be an outstanding opportunity. After considering a number of factors, Ms. Hyde exercised her discretion and concluded that based on the information before her, the children should attend Middlebury, a school in which the elder child had already completed a year.
[51] In regard to Ms. Hyde’s rejection of the Appellant’s partner as someone who could transport the children to and from school, while I agree she gives no reason for her conclusion, I do note that on the fresh evidence filed by the Respondent, she is currently caring for a newborn.
[52] Regardless, with the Appellant now working out of Tall Pines most days of the week, the need for an alternate driver has been minimized.
[53] I find no error or combination of errors, in fact and/or in law which alone or together would amount to an error in principle, reflect a significant misapprehension of the facts or can be said to be clearly wrong.
GENERAL
[54] The other issue I feel I need to address is the fact that this appeal was heard when the school year was within two months of the completion of this academic year. Further, because of the Covid-19 pandemic, much of the “in school” learning has been suspended with much of the school curriculum being studied online. When and if attendance at school, in person, will resume is unknown.
[55] On its merits the appeal is to be dismissed but, even if there were errors or a lack of correctness sufficient to allow the appeal, I would not order a change of school at this point as such a change, so late in the year, would not be in the children’s best interests. Practically speaking therefore, the appeal can be said, at this point, to be moot.
[56] I understand that the Appellant wanted to proceed with the hearing of this appeal so as not to be faced with a stronger status quo argument, moving ahead. Having said that, it is noted that for the school year 2019/2020, it was agreed that the children would go to Middlebury. Further, in her award Ms. Hyde made it clear that her order was only for the 2020/2021 school year and that the following year should be addressed much earlier than August (2021) on, what I would call, a better record.
RULING
[57] The Appeal in this matter is dismissed.
[58] If the parties cannot agree on costs, I will entertain written requests for costs limited to three pages, double spaced, together will a cost outline, to be served and filed within 20 days of the release of this ruling. Responding submissions to be served and filed within 10 days thereafter, with the same size limitations.
Bielby J.
DATE: April 29, 2021
COURT FILE NO.: FS-20-0109-00
DATE: 2021 04 29
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MARK CHRISTOPHER MURAKAMI, Appellant
- and -
CUIRONG “STEPHANIE” MURAKAMI, Respondent
BEFORE: BIELBY J.
COUNSEL: Trevor Smith, for the Appellant
Dianne Klukach, for the Respondent
ENDORSEMENT
Bielby J.
DATE: April 29, 2021