Court File and Parties

COURT FILE NO.: FS-20-260

DATE: 20210816

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: David Joshua Dauber, Applicant

AND:

Christine Denise Dauber, Respondent

BEFORE: Justice D.A. Broad

COUNSEL: Jessica Polis, for the Applicant

Jayarajani Nadarajah, for the Respondent

HEARD: August 10, 2021

ENDORSEMENT

[1] The parties, who separated in October 2016, are the parents of M.D.D. born […], 2011 and M.B.D. born […], 2014. Until the respondent’s recent move to Ingersoll, Ontario, both parties resided in Brantford, Ontario and the children attended Madonna Della Libera Catholic Elementary School, located within the catchment area of the respondent’s former residence. M.D.D. completed grade 4 and M.B.D. completed grade 1 in June 2021. The children have resided in Brantford and attended Madonna Della Libera Catholic Elementary School for the past three years.

[2] On January 21, 2021 I made an order on a temporary, without prejudice basis, that the parties shall have joint custody (decision-making responsibility) of the children and that the pre-existing week-about parenting arrangement be reinstated with exchanges to take place at the end of the school day on Fridays. The week-about arrangement with exchanges on Fridays had been previously agreed to by the parties in 2019.

[3] I also made an order, on consent of the parties, requesting the involvement of the Office of the Children’s Lawyer (OCL) with clinical assistance. The OCL consented to provide services pursuant to section 112 of the Courts of Justice Act and its assigned clinical investigator Mr. Todd Perreault carried out an investigation and delivered a written report dated August 9, 2021. He provided the parties with oral disclosure of his recommendations previously.

[4] The respondent moved with her current partner Terrance Heslop to Ingersoll Ontario on June 18, 2021 and communicated to the applicant her desire/intention to enroll the children in St. Jude’s Catholic School, located within the catchment area of her new residence commencing in September, 2021.

[5] The applicant opposes the respondent’s plan to enroll the children at St. Jude’s Catholic School in Ingersoll and has brought a motion for an order that the children be enrolled in and attend Burford District Elementary School, which is located within the catchment area of his residence in Brantford, where he resides with his current partner Wendy Van Barneveld.

[6] The court is therefore tasked with determining what school the parties’ children will attend in less than four weeks.

Facts

(a) Report and Recommendation of OCL Clinician

[7] In his report Mr. Perrault commented that M.D.D. is currently on an Independent Educational Program (IEP) for learning disabilities. She reads below grade level and has difficulty understanding and processing science and social studies but does try to do the work with assistance. M.D.D. works with an Educational Assistant (EA). She has been diagnosed with neurodevelopmental delay by her pediatrician. Although immature for her age, M.D.D. does have a couple of friends at school.

[8] Mr. Perrault reported that the evidence from the school indicates that M.B.D. has been struggling academically which was further exacerbated by the COVID pandemic and on-line schooling. He is below the grade 1 level for reading, writing and number sense, however he has been steadily improving in mathematics. The evidence indicated that M.B.D. has struggled behaviourally, experiencing toileting “accidents” and being very aggressive towards his mother. The school reported that M.B.D. may need an IEP as he progresses through the older grades. An Occupational Therapist has provided recommendations and assistance to both of the parties and to M.B.D..

[9] In summary, Mr. Perrault reported that the evidence indicates that both children have had struggles, behaviourally for M.B.D. and academically for M.D.D.. When the children were attending in-person school the teachers and staff were able to work with both children and their parents on some of the children’s struggles.

[10] Mr. Perrault also reported that the school, both parties, Ms. Van Barneveld and the Occupational Therapist Ms. Jakovljevic who has worked with the family and M.B.D. regarding his behaviour since May 2019, have all acknowledged that M.B.D. struggles with transitions. Ms. Jakovljevic has made a series of recommendations to attempt to address this issue.

[11] Mr. Perrault recommended that the children attend Burford District Elementary School, concluding on this issue as follows in his report:

Ms. Dauber provided information that rates the St. Jude’s Catholic School slightly higher than Burford District Elementary School. It is also acknowledged that for a child, such as M.B.D. who does not react well to transitions, the move to Ingersoll and a change in schools are major changes. While these changes are unavoidable, one can attempt to mitigate further stress such as changing communities. The children had been residing in the Brantford community for the past three years. They have friends and are familiar with the community. Changing communities may increase the stress on the children. It is therefore recommended that [the] children attend Burford District Elementary School which is located within Mr. Dauber’s catchment area.

(b) Applicant’s Evidence

[12] The applicant deposed, inter alia, to the following:

(a) when he learned that the respondent was proposing to move away from Brantford, he offered that she and the children could move into a rental property he owned in Brantford but the respondent refused. The respondent purchased a home in Ingersoll 47 km from the applicant’s home and the children’s current school and existing neighbourhood. From his previous experience working in Ingersoll the applicant is aware that the drive from his home in Brantford to Ingersoll can be anywhere from 30 minutes to more than an hour;

(b) the parties had previously agreed that the children would remain in Brantford and that both parties would continue to reside in that city;

(c) M.B.D. and M.D.D. each have friends in the applicant’s neighbourhood who attend Burford District Elementary School. This is important particularly for M.D.D. who has communication issues and difficulty making friends;

(d) M.B.D. exhibits a lot of anxiety and stress around transitions;

(e) Grand Erie District School Board, the local board that Burford Elementary is part of, offers a number of programs that would be beneficial to both children including:

(i) a world-renowned mental health program called Mind Up which would be beneficial for M.B.D.;

(ii) a Strong Start program for children up to grade 2 which is a one-on-one literacy program for struggling readers. M.B.D. has already been participating in the program in his current school allowing continuity for him;

(iii) partnership with Lansdowne’s Children’s Services for speech and language therapy, occupational therapy and other services. Both children have been accessing the services at their current school, permitting continuity for both of them in accessing these supports;

(iv) special measures taken during COVID which are unique and beneficial for the children given their specific needs;

(f) the children will also be able to easily access their other community supports and activities they have been engaged in if they are attending a school nearby including:

(i) literacy and numeracy tutoring through It’s 4 Kids;

(ii) private speech and language therapy at Kids Can Speak in Brantford;

(iii) occupational therapy for M.B.D. to address his behavioural issues at That’s Life! Occupational Therapy in Brantford;

(iv) all of the children’s extracurricular activities and summer camps that they regularly attend (prior to COVID) are the Brantford area;

(v) the children’s physicians, dentists, tutors and extracurricular programs are all in Brantford.

(g) It would be significantly more difficult, if not impossible, to continue the children’s programs if they are attending school in Ingersoll, as all of their providers are in Brantford. The applicant works in Brantford and often in the Cambridge/Waterloo region and getting the children to and from school in Ingersoll as well as getting them to all of their appointments and extracurricular activities, which has fallen primarily on the applicant, would be impossible;

(h) the applicant and his current partner have more flexible work schedules. If the children attend school in Ingersoll they will require before and after school care, whereas if they attend Burford this will not be necessary. The applicant is happy to get the children to and from school on the respondent’s weeks if she requires additional assistance, permitting her to drop the children off and pick them up from the applicant’s home, in order to impact her work as little as possible.

(c) Respondent’s Evidence

[13] The respondent deposed, inter alia, to the following:

(a) St. Jude’s is ranked 5.8 on the Fraser Institute school ranking whereas Burford Elementary is ranked 5.0;

(b) St Judge’s is only a ten-minute walk from the respondent’s new residence;

(c) The respondent will continue to work partly from home post-COVID and her employer is very flexible should she need to adjust her schedule to accommodate the children’s schooling;

(d) St. Jude’s offers before and after school care and specific programs to assist children with math, French and English. It also offers speech therapy and counselling;

(e) The respondent has already engaged with other mothers in the area and will be establishing safe play dates with other children over the summer to assist the children in establishing some friendships;

(f) M.D.D. is in an IEP program and M.B.D. might need IEP. Mr. Perrault reported that both schools under consideration have IEP programs for the children;

(g) although Mr. Perrault recommended Burford Elementary School to prevent an additional transition for the children, both schools would be a new school for the children and the children know few children in either school. The children have adapted very quickly to their new neighbourhood in Ingersoll;

(h) the respondent works from home and advised Mr. Perrault that she would be driving the children to and from school and if there is a need for care in the future she would look into before and after care. She does not believe this would be required unless the children attend Burford Elementary School.

Guiding Principles on Choice of School

[14] In the case of Piper v. Hare, 2021 ONSC 2139 Tobin, J. confirmed the following at paras. 19-23:

(a) where a child will attend school is an incident of parental decision-making responsibility;

(b) in a case like the case at bar, where there is no temporary or final order granting either parent this responsibility, the court may be called upon to determine the particulars of the children’s education;

(c) 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”;

(d) This decision is to be made by taking into account only the best interests of the children: CLRA, s. 24.

[15] The general principles guiding the court in deciding where a child shall attend school when the parties disagree were very usefully set out by Audet, J. in Thomas v. Osika, 2018 ONSC 2712 (S.C.J.) at para. 37 as follows:

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.)).

Discussion

[16] I attach no weight to allegations on both sides regarding the motivations and behavior of the other parent. The exercise of the court’s discretion respecting the choice of school for the children is to be based solely on the best interests of the children and not on an assessment of the relative blameworthiness of the parties.

[17] In keeping with the observation of Audet, J. in Thomas v. Osikain reliance on Wilson v. Wilson referred to above, I also attach no weight to the Fraser Institute rankings of St. Jude’s Catholic School and Burford District Elementary School relied upon by the respondent. No context was provided in the evidence to assist in the interpretation the relative scores and, in any event, the rankings do not take into consideration the best interests of the children and their particular circumstances.

[18] The applicant’s evidence that he has been the more involved parent in seeking out and implementing school and community supports for the children to address their specific needs was not disputed by the respondent. The applicant’s ability to continue with this to the same degree may be adversely affected by the children attending a school remote from his community, despite his best efforts.

[19] I agree with the applicant that enrolment of the children at Burford District Elementary School will better promote a seamless transition and continuation of the educational and therapeutic supports which they have already been engaged in their existing school and community.

[20] It is recognized that the children will be entering a new school in any event. However, in my view a similar consideration applies with respect to the community in which the children have lived and become accustomed as referenced at para. k. in the list of considerations in Thomas v. Osika. If an aspect of the children’s lives, in this case attending a school in their familiar community close to their existing supports, is to be disrupted by an order of the court, there must be good reason for the court to do so. I am not satisfied that there is a good reason to do so in this case.

[21] Although the respondent stated that enrolment at St. Jude’s would permit the children to remain in the Catholic school system, no further elaboration of this factor was offered by her and no connection was drawn to a consideration of the children’s best interests in choosing between the Catholic and public systems.

[22] The respondent’s position is largely based on considerations connected to her own convenience rather than on the children’s best interests in relation to their school enrolment and attachment to their broader support community. She argues that there are equivalencies between the two schools in terms of the programs and services that they offer and that the children will adapt to the change of school location to Ingersoll, including making new friends at St. Jude’s and in their neighbourhood.

[23] However, this approach does not take sufficient account of the unique needs of the children in this case, particularly in relation to M.B.D.’s behavioural difficulties and M.D.D.’s developmental issues and difficulties in making friends, and the adverse impact that a change from a school in the Brantford area to Ingersoll may have on them.

[24] Moreover, there are practical considerations associated with the children’s school being more remote from their accustomed caregivers such as doctors, dentists and other providers, making it more difficult to access those services readily without impacting the children’s school routine.

[25] Although the court is not bound by the recommendation of the OCL clinician, I am persuaded that his recommendation that the children be enrolled at Burford District Elementary School on the ground that moving the children’s schooling from their familiar community friends and supports may cause them unnecessary stress is well-founded.

Disposition

[26] For the foregoing reasons it is Ordered that the children M.B.D. born […], 2014 and M.D.D. born […], 2011 be enrolled in Burford Elementary School commencing September 2021.

Costs

[27] The parties are strongly urged to settle the issue of the costs of the Application.

[28] If the parties are unable to do so, the applicant may make written submissions as to the costs of the Motion within 14 days of the release of this Endorsement. The respondent shall have 10 days after receipt of the applicant’s submissions to respond. The written submissions shall not exceed three (3) double-spaced pages exclusive of Bills of Costs, offers to settle and authorities. All such written submissions are to be forwarded to me via email to the Trial Coordinator at Brantford, at the same email address as was utilized for the release of this Endorsement.

D.A. Broad, J.

Date: August 16 2021