COURT FILE NO.: FS-16-408402 DATE: 20210810
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
YEVGEN MOKHOV
Applicant
– and –
NATALIYA RATAYEVA
Respondent
Christina Doris and Sydney Bunting, for the Applicant
Matthew Armstrong, Agent for the Respondent
HEARD: July 27 and August 9, 2021
HIMEL J.
REASONS FOR DECISION
[1] Yevgen Mokhov (“the applicant”) brings this motion for the following orders:
That Katerina Mokhov (“the child”), born on August 21, 2015, be enrolled into a French Immersion program at Corsair Public School located in Mississauga, Ontario;
That if the child misses more than two consecutive days of school and has not provided a doctor’s note within 72 hours of the absences, there shall be an automatic review of the parties’ parenting terms;
That the mother, Nataliya Ratayeva (“the respondent”), provide the applicant with disclosure regarding her employment history for the past 24 months to present and the childcare arrangements for the past 24 months to present;
That the respondent cannot seek any relief until she has paid outstanding costs awards; and
That he be granted costs on a full indemnity basis.
PRELIMINARY ISSUES
[2] Former counsel for the respondent brought a motion on July 9, 2021 for an order removing Alexandra Abramian/Brigitta Tseitlin, Barristers & Solicitors, as counsel of record. The respondent filed a Notice of Change of Representation indicating that she will act in person. Matthew Armstrong is acting as her agent for the purposes of the motion.
[3] As this matter was booked for a one-hour motion, I advised counsel at the outset that it would not be possible to argue all the requests for relief sought by the applicant within the allotted time. This was in light of the volume of materials filed and the complexity of the issues raised. The applicant proposed that I hear the motion concerning the choice of school for the child in September as this was most pressing. Counsel for the applicant suggested, and I agreed, that the remaining matters may be addressed at another motion to be scheduled.
[4] The applicant raised a preliminary issue concerning the request by the respondent for leave to file an affidavit in surreply to the reply affidavit of the applicant. The applicant’s counsel objected to such leave. I have reviewed the correspondence between counsel on behalf of the parties, in particular, the email of Matthew Armstrong written on July 22, 2021 to Ms. Doris attaching documents in reply to the reply affidavit served the same day. In light of the relevance of such materials to the issue of the best interests of the child and because there is no prejudice to the applicant who had sufficient disclosure of these materials, I am of the view that leave should be granted. This is in keeping with r. 2(2) of the Family Law Rules, O. Reg. 114/99, which outlines the primary objective of the rules, that is, to enable the court to deal with cases justly. I therefore exercise my discretion, as I consider it necessary for a just determination of the matter, to grant leave to file the surreply affidavit of the respondent.
[5] After hearing the arguments of the motion, I requested that counsel provide the court with some additional information concerning: (1) the offer by the applicant to drive the child to the school in Mississauga during weeks when she is living with the respondent, and how often that offer would be available; (2) the current employment of the respondent and whether her start time for work each day is flexible; and (3) the availability of before and after school care at the school proposed by the respondent. I asked counsel when they would be able to provide this information and they agreed that it could be filed with the Trial Co-ordinator by Tuesday, August 4, 2021 at 12:00 p.m. After receiving the further affidavits of the parties, counsel for the applicant objected to the court considering certain of the information provided by the respondent. I asked counsel to re-attend before me to make any further submissions which took place on August 9, 2021. I have now considered those submissions and the further information as part of the overall materials filed on this motion. Again, in keeping with r. 2(2) of the Family Law Rules, I exercise my discretion and deem it necessary for a just determination of the matter to consider the complete affidavits filed by the parties.
FACTUAL BACKGROUND
[6] The parties were married on March 7, 2015. They have one child, Katerina Mokhov, who was born on August 21, 2015. The parties separated on November 23, 2015 when the child was three months old.
Procedural History
[7] The father commenced proceedings in 2016 alleging that the respondent was withholding access. Justice Stevenson ordered specified access to take place on a supervised basis and adjourned the matter to a case conference. At the case conference, Stevenson J. made an order on consent for the Office of the Children’s Lawyer (“OCL”) to conduct an investigation pursuant to s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43. There was some delay in the investigation but ultimately, the Report submitted to the court was dated May 15, 2017.
[8] The OCL’s Report recommended that the respondent mother have custody of the child, who was 20 months old at the time, and noted that because of the high level of conflict between the parties, joint custody was not appropriate. However, the author also stated:
Ms. Ratayeva shall demonstrate a commitment to involving Mr. Mokhov in important decisions as it relates to Katerina by informing him in advance of any major decision and seeking his opinion. While Ms. Ratayeva shall have final decision-making authority after taking Mr. Mokhov’s opinion into consideration, sole custody should be reviewed if Ms. Ratayeva is not working cooperatively with Mr. Mokhov and is not supporting his relationship with Katerina.
[9] The applicant brought further litigation before Del Frate J., seeking to expand his access to the child. This led to Minutes of Settlement signed on January 26, 2017. However, the respondent later objected to the Minutes being issued and indicated that she planned to appeal. Justice Del Frate expressed the view that the respondent was not facilitating the applicant’s access and that this was not in the child’s best interests. He ordered her to pay costs of $10,000 plus disbursements and HST.
[10] Following the order of Del Frate J., the applicant brought a motion before Croll J. on June 29, 2017 to enforce access. Justice Croll made an order incorporating Minutes of Settlement that set out an access schedule and removed the condition of supervised access.
[11] In 2018, the applicant brought a motion claiming that the respondent was not complying with the order of Croll J. The respondent retained new counsel who asked that the matter proceed to a case conference.
[12] The parties attended a case conference before Backhouse J. on September 21, 2018 and consented to a temporary order (“the Backhouse order”) regarding joint custody of the child with provisions for access, travel, mobility, holiday access, child support, the transfer of a car to the respondent and divided decision-making regarding the child’s health and education. The order set out strict terms for access transfers. The parties were to have alternating weekends with the child. The applicant would have additional access during days off from work and the respondent was to have the child reside with her for the balance of the time. The applicant was to provide his work schedule.
[13] The Backhouse order provides that the parties shall consult on all major decisions affecting the child, including education, religion and non-emergency health care. Paragraph 9 of the order states: “After consultation, if the parties cannot reach a final decision through mutual agreement on the issues of education (up to and including grade 8) the Respondent Mother shall have final say and will provide her decision in writing to the Applicant.”
[14] The applicant brought an emergency motion on short notice on January 10, 2019, alleging that the respondent was in breach of the access provisions. At one point, he had involved the police to check on the child as he was unable to reach the respondent and he had not seen the child. At the motion brought on an urgent basis, Kristjanson J. adjourned to a long motion, setting out a timetable for filing documents and specifying terms of access pending the return of the motion.
[15] Justice Nakonechny heard the long motion on April 4, 2019 and ordered a schedule of access pending the release of her decision. The long motion was brought pursuant to s. 1(8) of the Family Law Rules. The applicant alleged that the respondent had breached orders regarding access and transfer of access, and asked that, as a result of the breach, the court change primary residence of the child from the respondent’s home to the applicant’s home.
[16] On May 29, 2019, Nakonechny J. released her decision setting out the history of the litigation and her reasons. She found that the respondent had breached the terms of the orders of Del Frate J. and Croll J. by withholding or interfering with the applicant’s access, refusing to provide make up time and failing to give the applicant the right of first refusal. While she noted that it would not be appropriate to change the child’s primary residence purely on the basis of a breach of a court order, she found that the respondent’s breach of the access terms and the resulting high conflict between the parties was contrary to the child’s best interests. Justice Nakonechny wrote that r. 1(8) permits the court to make any order that “it considers necessary for the just determination of the matter”. She found that a remedial order was necessary to ensure that the access arrangements were in the child’s best interests. She referenced the Report of the OCL which expressed concern about the high conflict between the parties being detrimental to the child’s best interests. She considered additional evidence on the motion, including an audio recording that showed manipulation by the respondent to cause the child to fear the father and his family. Justice Nakonechny concluded that the respondent had consistently sought to undermine and marginalize the applicant’s relationship with the child.
[17] In considering the best interests of the child, Nakonechny J. noted that the respondent has been the child’s primary residential parent since birth, but that she has refused to support the father’s relationship with the child. The court must consider the importance of maximum contact under s. 16(10) (now s. 16(6) after the March 2021 amendments) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), and the willingness of the parent to facilitate contact. She concluded that it was in the child’s best interests to spend an equal amount of time with both parents. Thus, she found that the respondent had willfully breached the Backhouse order and made a new order dated May 29, 2019 for shared residential time of the child equally in a week about schedule with transfers to take place on Friday afternoons. She ordered that if access transfers take place somewhere other than the child’s daycare or school, they shall be done according to the comprehensive order made in para. 6 of the Backhouse order.
[18] Justice Nakonechny further ordered that each parent shall be responsible for their own child care arrangements, that the parties follow the holiday schedule in the Backhouse order and that the parties communicate regarding the child using the Our Family Wizard service and only by text or email. She made provision for the costs order of Del Frate J. to be paid by the respondent. Finally, she ordered that the matter be scheduled for a settlement conference/trial management conference no later than August 30, 2019 on a date to be agreed upon.
[19] In para. 7 of Nakonechny J.’s order it states: “Except as modified by this Order, the Order of Backhouse J. remains in full force and effect.”
The Child’s Schooling
[20] During the months following the order of Nakonechny J., the child attended junior kindergarten at Redstone Public School on a part-time basis during the weeks she was in the mother’s care. While she was with the applicant, she attended Salvation Army Mississauga Temple Day Care Centre. This continued until the school closures in March 2020. There was conflict between the parties about the access schedule and transfers of the child, especially during the COVID-19 pandemic lockdowns. Some of these events are referenced in email exchanges between counsel for the parties.
[21] For example, the applicant alleged that the respondent was breaching the court order and withholding access to the child. The respondent replied that the example the applicant cited took place during COVID-19 when he was residing at his parents’ home along with his grandparents and brother. Their daughter had a persistent cough and the doctor’s office was closed. The respondent said that she was advised to take their daughter to the hospital, where she was examined and tested for COVID-19. She was told to self-isolate until they received the results. Once the results came back as negative, the respondent advised that the schedule should resume. There were other allegations concerning the Easter holiday weekend and another when the respondent says the applicant was banging on her vehicle when she picked the child up and the child was crying. The applicant and his girlfriend said the respondent was intoxicated.
[22] The applicant brought a motion on August 20, 2020 to determine the choice of senior kindergarten for Katerina for the 2020-2021 school year. The applicant proposed a school close to his residence in Mississauga and the respondent proposed that the child attend a school in North York. Justice Monahan adjourned the matter to September 8, 2020 to receive additional information concerning the availability of a school proposed by the respondent and the place of residence and employment of the parties. The parties settled the issue by having the child attend a Montessori school in North York (the mid-point between Richmond Hill and Mississauga where they were each living). On September 8, 2020, Monahan J. made an order on consent that the child shall attend Casa Vera Montessori School for the 2020-2021 school year and that the applicant was to pay the cost of tuition.
[23] During the ensuing year, the respondent moved to North York to be close to the school. Katerina attended Casa Vera Montessori School for the school year but was absent a great deal of the time. The applicant filed evidence from the school concerning the child’s absenteeism which is referenced below. The school is only available up to the age of six and Katerina will be six years old on August 21, 2021. This gives rise to the issue before this court: which school should the child attend for the 2021-2022 school year?
Current Status of the Parties
[24] Following their marriage, the parties lived with the applicant’s parents at 262 Westforest Trail in Kitchener, Ontario, then moved to the respondent’s mother’s home in North York at 48 Arlstan Drive in August 2015. Upon separation in November 2015, the applicant moved in with his parents and brother in Kitchener. The respondent and the child continued to live with her mother. In May 2018, the respondent moved with the child to her father’s house at 63 Amulet Crescent, Richmond Hill. The applicant and his new wife, who is a full-time student, moved in the spring of 2019 to a house at 1437 Myron Drive, Mississauga. In May 2020, they moved to 2076 Sherobee Road, Mississauga where they currently reside. In May 2020, the respondent’s father and his girlfriend renovated their basement and the respondent moved to stay temporarily with her mother at Arlstan Drive. The respondent returned to the house in Richmond Hill when the renovations were completed. The respondent is now residing with the child and a roommate in North York and has lived there for the past nine months.
[25] Regarding his employment, in his affidavit, the applicant states that he works for Rogers as a Home Entertainment Specialist and has done so since November 2018. He works four non-consecutive days a week with ten-hour shifts. He said in his affidavit that “I typically work from 8:00 a.m. to 6:00 p.m., but I will have some flexibility to finish at 5:30 p.m. on the days that Katerina is with me to be able to pick her up.”
[26] In her affidavit, the respondent says she worked as an office administrator, then as a project coordinator and now is self-employed in the construction industry as a project manager/consultant. She did not work from December 2020 to May 2021 because of material shortages and a lack of project opportunities during the pandemic. She has resumed working since May 2021. She did not attend the hearing of this motion because of work commitments.
[27] The respondent has been ordered to pay a total of $24,000 in costs awards following various motions. She says she has paid $16,000 and $8,000 remains outstanding.
SUPPLEMENTARY INFORMATION
[28] As noted, at the conclusion of the hearing on July 27, 2021, I requested that the parties provide me with additional information concerning the applicant’s offer to drive the child to school, the respondent’s employment schedule and the availability of before and after school care at the school proposed by the respondent.
[29] The applicant has provided a response which includes argument regarding financial issues between the parties. He objects to the breadth of the respondent’s affidavit, which includes additional information regarding the availability of before and after school care for the child.
[30] The applicant filed an affidavit that explains that he contacted the Yorkview Kids Care program, which is the before and after school care service connected to the respondent’s proposed school choice. He was told that there is no guarantee that the child will have a spot by September 2021. This information was conveyed to me in oral argument by counsel at the hearing of the motion.
[31] The applicant requested disclosure of income tax returns and financial information in correspondence between counsel following the argument of the motion. He references these efforts in his affidavit. This aspect of the motion had been adjourned to a date to be scheduled by counsel. He also asks that an adverse inference be drawn because the respondent has failed to provide details regarding her employment, including T4s and income tax returns. Again, these matters should be raised with the judge presiding at the hearing of the motion to be scheduled.
[32] Finally, the applicant stated in response to my request for more information about his offer to drive the child to school in Mississauga that he would assist the mother with some of the driving responsibilities during her parenting time with Katerina. He is prepared to drive two to three mornings and two to three afternoons per week during weeks when the child is living with her mother and he is not working.
[33] The respondent filed an affidavit attaching a letter from UNICA Concept where she is working as a subcontractor. In her affidavit, the respondent confirmed that the employment is Monday to Friday. The letter states that the respondent’s hours are 7:30 a.m. to 4:00 p.m. and that she is required to be on site as a condition of the contract. She also filed a copy of the registration with Yorkview Public School for the 2021-2022 academic year. She indicated that she has placed the child on the wait list for the before and after care program at Yorkview Kids Care which operates at the school. She further provided a letter indicating that the Director is away on vacation for the next two weeks and will have a better idea of vacancies upon her return.
[34] The mother also registered the child at the Fantasia Child Care Centre, approximately five to ten minutes away from the school, for the before and after school program which, according to the letter from the Centre, operates from 7:00 a.m. to 6:00 p.m. each day. The respondent is willing to bear the cost of the program at Fantasia Child Care Centre. Transportation would be arranged through Dignity Transportation Inc. and would be paid for by the mother. Finally, she registered the child at the City of Toronto’s home child-care waitlist. She is proposing that the child attend the Fantasia Child Care Centre until a place at Yorkview Kids Care becomes available.
POSITIONS OF THE PARTIES
The Applicant Father
[35] The applicant takes the position that the child should be placed in a French Immersion program at Corsair Public School in Mississauga. He says that he is not able to take the child to and from school in North York during his access week without it impacting his employment. He claims the respondent is not employed and on a number of occasions did not take the child to school this year despite a court order requiring her to do so. She is able to drive the child to and from school in Mississauga during her access week. If she is employed, he is prepared to assist her with the driving when he is not working.
[36] The applicant argues that enrolling the child at Corsair Public School would be in the child’s best interests and the only option to maintain the current parenting schedule. He points out that during the 2020-2021 school year, Katerina was absent from school 54 times and late 20 times while in the care of her mother. He filed email exchanges with the principal of the school noting the absences and her frustration. While in the father’s care, she was absent ten times, with five days the result of a positive COVID-19 test in the mother’s household. The applicant says the mother has failed to explain the child’s absences. He has taken steps to have the child enrolled at Corsair and to attend the before and after school program. His affidavit states that Katerina has been accepted at the school and at the before and after school program which runs from 7:30 a.m. to 6:00 p.m. He also explains that he frequently has days off during the week and can spend time with Katerina and take her to different activities such as dancing, art and swimming.
[37] The applicant submits that the respondent’s pattern of behaviour has been to breach court orders concerning the protocol for access, taking the child to medical appointments without permission, removing the child from daycare without telling the father, failing to pay court orders for costs and exposing the child to harassment, threats, yelling and occasional violence. By having the child attend Corsair, each party will have maximum contact with the child.
[38] With respect to the supplementary information provided, the applicant argues that the letter concerning the respondent’s employment has few details and he submits that the respondent has produced a similar letter in the past and shortly after, has said she is not working. As for the information on the availability of before and after school care, the applicant argues that the Fantasia Child Care Centre does not offer before school care according to its website and that since the respondent has to start work at 7:30 a.m., using this facility would not work for the child. Finally, he argues that the respondent has failed to provide financial documents and an adverse inference should be drawn.
The Respondent Mother
[39] The respondent says that the applicant is now seeking to change the child’s school location to Mississauga which would impose hardship on her as she moved to North York to be close to her daughter’s school. While she agrees that there were issues regarding the transfer of the child during the last year, she says the parties were both responsible for the unpleasant exchanges. She maintains that the reason she did not take the child to school every day during the past year is because of the COVID-19 pandemic. The Toronto public schools were closed and while the Casa Verde Montessori school is registered as a daycare and not a school, she felt it was better to have the child be schooled at home on occasion. She argues that to move the child from the North York area where she has been attending school and extracurricular activities to Mississauga would result in a change that is not in Katerina’s best interests.
[40] The respondent further argues that the child has been assessed three times as her speech is not at an age-appropriate level. In an affidavit filed regarding the motion before Monahan J., the respondent indicated that Katerina’s language development was assessed when she was two years old and again in November 2019 by the York Region District School Board. The child was referred for speech therapy services at the Children’s Treatment Network. Also filed is the March 16, 2020 opinion of Dr. Weinberg, written on a notepad, that the child requires speech therapy.
[41] However, the respondent says that due to COVID-19, she did not take her for speech therapy. The respondent points out that the child’s first language is Russian and she is struggling in English. To put her into a French Immersion school at this time would not be appropriate.
[42] The respondent also takes the position that the applicant’s request is contrary to the Backhouse order that gives the respondent final decision-making authority with respect to Katerina’s education. She wishes to register the child at Yorkview Public School in North York, which is in her home catchment area. Yorkview offers before and after school care on the premises from 7:30 a.m. to 6:00 p.m. each day. She says that this school has French Immersion commencing in grade three and by then, it would be more apparent whether Katerina is suited to be enrolled in it. She says that she proposed this school to the applicant along with two others on February 17, 2021.
[43] As the before and after school program may not be available immediately, she proposes Fantasia Child Care Centre and is prepared to bear the cost of it and the transportation until a place at Yorkview Kids Care becomes available.
[44] The respondent submits that it would be impossible to drive the child to school in Mississauga while fulfilling her work commitments. She has provided evidence that she is working 7:30 a.m. to 4:00 p.m. Monday to Friday.
[45] Finally, she argues that if there is a closure of schools during the coming year, as Fantasia Child Care Centre operates as a daycare as well, it will be available for the child to attend.
DECISION
[46] An order respecting the decision-making or parenting time of a child is to be determined according to the best interests of the child: see Divorce Act, at s. 16; Children’s Law Reform Act, R.S.O. 1990, c. C. 12 (“CLRA”), at s. 24. Section 24(2) of the amended CLRA provides a non-exhaustive list of factors that courts shall consider when evaluating the best interests of the child. The court may determine any aspect of the incidents of the right to decision-making or parenting time: see CLRA, at s. 28(1)(b). The issue of a child’s enrollment in a school program is one such matter incidental to decision-making rights.
[47] An assessment of the best interests of the child must take into account all of the relevant circumstances as to the needs of the child and the ability of each parent to meet those needs. The plan for a child’s education should consider the needs, circumstances, aptitudes and attributes of the child: see Charron v. Hollahan, 2020 ONSC 4423, at para. 27, where the court held that it was in the child’s best interests to attend a school closer to his mother’s home and noted that given the parents’ respective work schedules, he would spend less time in traffic and more time with each of his parents, while minimizing the time he needed to spend in before and after school daycare.
[48] Educational decisions and other incidents of custody are almost always left to the custodial parent or parents: see Perron v. Perron, 2012 ONCA 811, 113 O.R. (3d) 612, at para. 49. Although it is almost always preferable that parents make decisions about the education of their child as they know their child’s needs best, where they cannot agree, a judge may exercise discretion to determine the matter.
[49] In Bandas v. Demirdache, 2013 ONCJ 679, C.J. Jones wrote at para. 15: “The plan proposed by each parent for the child’s care and upbringing is a factor referred to in sub-clause 24(2) of the CLRA.” The emphasis is on the best interests of the child not the interests of the parents: see Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, 134 D.L.R. (4th) 321, at para. 49. 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 offers in relation to a child’s needs, rather than on the proximity to the residence of one parent or the other, or the convenience that his attendance at the nearest school would entail: see Wilson v. Wilson, 2015 ONSC 479 at para. 110. The convenience of the parents is not ignored, but is secondary to determining the best interests of the child when selecting the child’s school: see Wilson, at para. 34. As explained by Pazaratz J. in Grey v. Grey, 2013 ONSC 5572, at para. 17: “Ultimately, the selection of a school must be determined purely on the basis of which of the two proposals is better for the children” (emphasis in original).
[50] The case law that has developed on the question of the choice of school that a child should attend where the parents disagree outlines these general principles, but emphasizes that the determination is very fact-specific, and involves a discretionary balancing of the child’s best interests: see Deschenes v. Medwayosh, 2016 ONCJ 567, cited in Thomas v. Osika, 2018 ONSC 2712, 13 R.F.L. (8th) 191, at para. 37.
[51] The comprehensive Backhouse order, made on consent of the parties on September 21, 2018, gave joint custody of the child, who was then three years old, to her parents. Under the section entitled “Custody”, the order provides as follows:
- The parties shall have joint custody of the child of the marriage, namely Katerina Mokhov, born August 21, 2015 (age 3) (hereinafter referred to as “the child”) on the following terms:
a. The Parties shall consult on all major decisions affecting the child, including education, religion, and non-emergency health care;
b. After consultation, if the parties cannot reach a final decision through mutual agreement of the issues of education (up to and including grade 8) the Respondent Mother shall have final say and will provide her decision in writing to the Applicant;
c. After consultation, if the parties cannot reach a final decision through mutual agreement on the issue of religion the Applicant Father shall have final say and will provid[e] his decision in writing to the Respondent;
d. After consultation, if the parties cannot reach a final decision through mutual agreement on the issues of non-emergency medical care for the child, they shall defer to opinion or recommendations of the treating physician, after both parties have had the opportunity to get a second medical opinion. If the parties are still in disagreement, they will mediate the issue at Blue Hills Child and Family Mediation. If there is still a disagreement following the mediation, either party may bring a motion to resolve the dispute.
[52] The Backhouse order provides that the mother shall have ultimate decision-making over the child’s education if the parties cannot agree. There is no motion before me to vary that order. I have read the orders of judges who have adjudicated in this litigation and I see no variation of the Backhouse order in this respect. In fact, Nakonechny J. states clearly that “[e]xcept as modified by [her] order, the order of Backhouse J. remains in full force and effect.” Thus, if the respondent has proposed a school to the applicant and they cannot agree, the mother’s view shall prevail.
[53] I do recognize that a court adjudicating on custody and access issues, including the determination of which school a child is to attend, has discretion to make such a decision and must do so in the best interests of the child.
[54] In this case, the child has attended school or daycare near the respondent mother’s residence with the exception of when she spent alternating weeks in Mississauga during the 2019-2020 school year. The mother moved to be closer to the child’s current program at Casa Vera Montessori School. The child’s extracurricular activities have been both in North York and in Mississauga, although with the COVID-19 pandemic most activities were cancelled during the last year.
[55] One factor that is typically considered when determining the best interests of the child in deciding a choice of school is 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; and whether a move will mean new child care providers or other unsettling features: see Askalan v. Taleb, 2012 ONSC 4746, cited in Thomas, at para. 37.
[56] While stability and the length of time the child has lived in a stable home environment is a factor for consideration (see Bandas, at paras. 16-17), in this case, the applicant has lived in his current residence since May 2020 and the respondent has lived in her residence for the previous nine months. The stability of the environment is not a significant one given these circumstances. Further, this is not a case where the child is being removed from a school where she has already formed attachments. Here, given her age, she would not be permitted to continue attending the school she attended in the 2020-2021 school year in any event.
[57] The evidence before me, although superficial and possibly outdated, is that the child seems to be lagging in speech development and requires speech therapy. That alone may suggest that introducing a further language to her at this time may not be in her best interests. Certainly, it is important that a school placement or an educational program will promote and maintain a child’s cultural and linguistic heritage. However, this is not a case where one of the parents is Francophone and knowledge of the French language culture will promote the bond between a child and the Francophone parent: see Perron, at para. 21.
[58] It would further be disruptive to the mother and difficult to transport the child to Mississauga each day while maintaining her employment. The father’s evidence is that his work requires four non-consecutive ten-hour days, but that there is some flexibility in his hours. He has indicated he has several days where he is not working. In light of this, the father’s work arrangement appears to have greater flexibility to allow him to travel at the beginning and end of the school day.
[59] The school proposed by the mother offers before and after school daycare. If Katerina is not accepted to that program, there is another before and after school daycare program available which is close to the school and the cost of that program and transportation will be paid by the respondent. It is also a reasonable proposal that if Katerina’s language development stabilizes, enrolling in French Immersion at Yorkview Public School in grade three is available.
[60] Although the mother did not properly consult with the father about the issue of education and simply listed three possible schools which included Yorkview Public School in the communication made on February 21, 2021 through Our Family Wizard, the proposal she has made that the child attend Yorkview Public School including the before and after school program for the 2021-2022 school year is a decision contemplated by para. 9 of the Backhouse order. In that the applicant has not brought a motion to vary the provision in the Backhouse order regarding education, and it is in the child’s best interests not to be placed in a French Immersion program at a school located in Mississauga at this time, I conclude that the applicant’s motion must fail.
[61] “Week about” custody arrangements which are certainly desirable in some circumstances work best, in my view, when the parents each reside near to each other so that the child can easily move between the houses and will be able to attend one school, participate in extracurricular activities and develop a social network in the same area close to their residence. Parties cannot be forced to move their residence, but the location of the residences of the parents may be an issue for consideration in order to best accommodate the interests of the child as she becomes older.
RESULT
[62] For the reasons outlined above, I make the following orders:
The motion by the applicant father for an order that the child be enrolled for the 2021-2022 school year in the French Immersion program at Corsair Public School in Mississauga, Ontario is dismissed.
The child shall be enrolled at Yorkview Public School for the grade one program and in the before and after school care program associated with that school forthwith to ensure her placement. If she cannot be accepted immediately, the cost of the Fantasia Child Care Centre program and the transportation to the Yorkview School pending placement in the Yorkview Kids Care program shall be paid by the respondent.
The respondent shall ensure that the child attends school on a regular basis each day and should she be absent for more than two consecutive days, the respondent must advise the applicant in writing of the absence and the reason therefor. If no such notice and explanation is forthcoming, the matter may be brought back to this court to determine what consequences, if any, should result.
Failing agreement on the issue of costs of this motion, the parties shall file with the Trial Co-ordinator’s Office a written submission on costs which shall be no more than five pages according to the following timetable: the respondent within ten days of the receipt of this decision and the applicant within seven days of receipt of the respondent’s submission.
Should the applicant wish to pursue the balance of the relief sought, the parties shall schedule a new motion date. I am not seized with this matter.
[63] It is obvious from the history of the litigation that the respondent has not complied with court orders regarding access and transfers of access or, at least has not complied with the spirit of such orders. Now that the COVID-19 pandemic is hopefully behind us, it is time for the respondent to act in a way that maintains and promotes contact between the child and the applicant. In light of the history of conflict of the parties and the potential detrimental effect that the conflict may have on the child, I strongly urge the parties to seek and obtain counselling to assist them in communicating with each other and resolving matters together in the best interests of their child.
Himel J.
Released: August 10, 2021
COURT FILE NO.: FS-16-408402 DATE: 20210810
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
YEVGEN MOKHOV
Applicant
– and –
NATALIYA RATAYEVA
Respondent
REASONS FOR DECISION
Himel J.
Released: August 10, 2021