Court File and Parties
COURT FILE NO.: FC-18-957 DATE: 2021/01/22 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Manon Auger, Applicant and Peter Bowles, Respondent
BEFORE: Justice Shelston
COUNSEL: Deborah Bennett for the Applicant Jonathan M. Richardson for the Respondent
HEARD: January 14, 2021
ENDORSEMENT
[1] The applicant (“mother”) seeks a temporary order as follows:
a. that the applicant shall have sole decision-making authority in relation to the schooling and education of the children;
b. in the alternative, that the children shall attend the respective schools on an in person basis when in person schooling resumes;
c. that the applicant shall have sole decision-making in relation to a follow-up testing/assessment of Miguel with a French speaking psychologist on the issue of his ADHD diagnosis;
d. an order that the parties shall communicate by Our Family Wizard; and
e. costs.
[2] The respondent (“father”) submits that the applicant’s motion should be dismissed in its entirety and seeks costs on a full indemnity basis. He proposes that the children continue to attend school online and he sees no reason that the parties need to be restricted to communicate by Our Family Wizard.
[3] During the motion, the parties agreed on the issue of a French speaking psychologist. Based on that consent, I make the following order:
a. the parties shall jointly retain a French speaking psychologist to prepare a psycho-educational assessment for Miguel with the cost to be shared equally.
b. in the event that the parties cannot agree on an assessor, the parties are to contact the trial coordinator’s office to schedule a motion before me on this issue.
Background
[4] The parties cohabitated from September 1992 until October 2012. The parties are the parents of two children namely, Miguel, 14 years of age and Gabrielle, 10 years of age.
[5] The parties entered into a comprehensive separation agreement on April 11, 2013, where the parties agreed to joint custody and equal parenting time. The children alternate residences on a week about basis.
[6] The mother currently lives in Orleans, Ontario where the children attend school. The father lives in Carp, Ontario with his partner and her two children. Between the father and mother, there are two children and two stepchildren all of whom attend four separate schools.
[7] Miguel is diagnosed with ADHD while Gabrielle is diagnosed with Mosaic Turner’s syndrome, a genetic disorder which causes problems with her growth.
[8] In March 2020 as a result of the pandemic, the children attended school online until the end of the school year.
[9] In the summer 2020, the provincial government announced the reopening of in person attendance for the September 2020 school year and set a deadline of August 13, 2020 for parents to notify the school as to whether the children would attend in person or online.
[10] On August 5, 2020, the father emailed the mother raising concerns about the global pandemic and the risks that exist if the children were exposed to COVID-19 by attending school in person. The father proposed that the parties hire a bilingual tutor to teach the children while they attended his partner’s private school. This school is designed to deal with children with special needs.
[11] On August 10, 2020, the mother replied rejecting the father’s proposal raising various issues such as the school board were keeping the parents informed of the COVID-19 measures, that she wanted to ensure the children were being educated in French and that she wanted the children to maintain their connections with the community, school and peers. In that email, the mother noted that the deadline for online registration was August 13, 2020.
[12] Seven days later, on August 17, 2020, the father sent the mother a text to advise that he could not respond as he was camping with the children.
[13] On August 19, 2020, the mother emailed the father addressing two issues being communication and decisions about school. In that email, the mother proposed that on a temporary basis, that both children would attend school online with same conditions:
a. That if the children were going to attend school, it would be at their current school in Orleans.
b. That the father’s stepchildren would be attending school via online learning only and would not be attending school in person.
c. That Miguel and Gabrielle would be supervised during school hours and that Miguel would not be placed in the position of having to supervise his sister during the week, as he would have his own schooling to do.
[14] The mother indicated in the email that her intention was to have the children attend school for the second term in person as long as there were no outbreaks associated with the schools and that the parents would be able to monitor the school’s ability to manage from September to December.
[15] On August 19, 2020, the father responded that he had already signed the children up to attend school online in July 2020. Further, he indicated he was at risk of infections and having four different children in four different schools was too much.
[16] On August 20, 2020, the mother responded and asked that the parties communicate using Our Family Wizard and stated “I am not aware of your health situation and whether you are at higher risk than others. I have not been provided information in this regard.” The father did not provide any information regarding his health.
[17] On the conditions set out by the mother, the father responded as follows:
a. That the children would attend school online and that he had no intention of changing the children’s current school now or in the future.
b. That Miguel would go to the school that best suits him.
c. He agreed that his stepchildren would not attend school in person as they were currently attending online;
d. On the issue of supervision, the father requested that the obligation be the same in both households.
[18] The father agreed that the issue of online learning for both children would be revisited by the parties in December 2020.
Mother’s Position
[19] The mother believes that children should be attending school in person for the following reasons:
a. Miguel has ADHD and learns better in a “hands-on” environment.
b. The children need to be with their peers for social development and overall mental health.
c. The children were looking forward to returning to school in the fall as part of their routine every year.
d. Miguel has been accepted into a music program.
[20] The father opposes the children attending school in person for the following reasons:
a. The mother agreed that children would be enrolled in online schooling including the second term so long as there were no outbreaks associated with the children’s schools.
b. Both children’s schools have had positive cases of COVID-19.
c. The father is immune-compromised, requiring three different hospitalizations related to infections.
d. There are no recommendations that Miguel requires hands-on environment for school.
e. There is no evidence that the children are suffering socially or that their mental health is at risk.
f. The evidence of the child’s wishes is inadmissible hearsay and is contradictory.
g. The music program that Miguel was accepted in was cancelled this school year.
[21] In the mother’s notice of motion, one of her claims for relief was that she sought an order to have sole decision-making authority in relation to the schooling and education of the children. At the motion, I advised the parties that my decision was restricted to a temporary order as to whether the children should attend school in person or online. The issue of final decision making would be an issue for trial.
Legal and Jurisprudential Framework
[22] Subsection 24 (2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “CLRA”) provides as follows:
Best interests of child
(2) The court shall consider all the child’s needs and circumstances, including,
a) the love, affection and emotional ties between the child and,
i. each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,
ii. other members of the child’s family who reside with the child, and
iii. persons involved in the child’s care and upbringing;
b) the child’s views and preferences, if they can reasonably be ascertained;
c) the length of time the child has lived in a stable home environment;
d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessities of life and any special needs of the child;
e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
f) the permanence and stability of the family unit with which it is proposed that the child will live;
g) the ability of each person applying for custody of or access to the child to act as a parent; and
h) any familial relationship between the child and each person who is a party to the application.
[23] In Chaitas v. Christopoulos, 2004 CanLII 66352 (ON SC), [2004] O.J. No. 907 (S.C.J.), the court described that interim, or temporary orders, are by their nature imperfect solutions to often complex problems. They are based on limited evidence, typically in affidavit form. They are meant to provide “a reasonably acceptable solution to a difficult problem until trial.”
[24] In Chase v. Chase, 2020 ONSC 5083, Himmel, J. found that the decision of the Ontario government to reopen schools in September 2020 was a significant factor in ordering the child to return to school. However, the court identified that online learning may be appropriate if there is evidence that the return of the child to school would result in either the child or anyone in either parent’s home being at an unacceptable risk of harm if they contract the virus.
[25] In Zinati v. Spence, 2020 ONSC 5231, Akbarali, J. considered the following factors in determining the best interests of the children in deciding whether they would attend school in person or online:
i. The risk of exposure to COVID-19 that the child will face if she or he is in school, or not in school;
ii. Whether the child, or a member of the child’s family, is at increased risk from COVID-19 as a result of health conditions or other risk factors;
iii. The risk the child faces to their mental health, social development, academic development or psychological well-being from learning online;
iv. Any proposed or planned measures to alleviate any of the risks noted above;
v. The child’s wishes, if they can be reasonably ascertained; and
vi. The ability of the parent or parents with whom the child will be residing during school days to support online learning, including competing demands of the parent or parents’ work, or caregiving responsibilities, or other demands.
[26] In Joachim v. Joachim, 2020 ONSC 5355 Summers, J., in deciding that the children would attend school online, found that there was an unacceptable risk of harm to the father if the children contracted the virus at school. The court relied on a current and detailed medical report that indicated that the father had two significant illnesses between October 2019 and January 2020 that affected his lungs and his ability to fight infection resulting in the doctor stating that the father was at a high risk of complications to become ill if he contracted the virus.
[27] In Phelps v. Child, 2020 ONSC 5901, Pedlar, J., in deciding to send children to school in person over the opposition of the father, found that the father had not met his burden of proof that the children attending school in person created an unacceptable risk of harm to him. The father provided a medical letter from his family doctor that he suffers from chronic asthma and is more likely to have severe complications from a respiratory infection such as COVID-19 or influenza. As well, he provided medical records dating back to 2008. Further, the father’s partner also provided two letters from her family doctor that indicated that she suffers from asthma and she is at risk of complications if she contracts the COVID-19 virus. At paragraph 41, the court stated:
I find that the Applicant father has failed to present sufficient evidence to establish an “unacceptable” level of risk to either himself or his partner or her children as a result of the three children who are the subject matter of this motion attending in person school class. The medical evidence, including hospital reports, falls short of that requirement. The court can only rely on the evidence presented to it and take a snapshot of conditions that exist at the time of the hearing…
[28] In Nuell v. Guay, 2020 ONSC 5861 the court found that the case law on in person versus online learning is fact specific and is to be decided on the individual needs and circumstances of the children and their families.
[29] In Manzon v. Carruthers, 2020 ONSC 6511 the court was provided with a current medical report from her treating physician that the mother was at a risk of suffering devastating and potentially life-threatening consequences if she becomes ill with the virus because she has a chronic auto-immune disease. Further, there were two younger siblings aged six months and two years who were at a higher risk if they contracted the virus. As result, in balancing the factors, the court found that the child should attend school online to alleviate this major concern.
[30] On the issue of the socialization, mental health or academic progress of children in either an in person or online situation, I agree with comments of the court in Manzon (supra) at para.34,
The risks to Ms. Carruthers and to M’s two young siblings must, however, be balanced against any risks that M faces to his mental health, social development or academic progress, if he continues with remote learning. I take judicial notice of the fact that in-class education has pedagogic and other advantages for children that cannot be replicated with on-line learning. Even if the curriculum can be taught remotely and comparable academic advancement can be achieved (by children who do not struggle with on-line learning), there are aspects of classroom learning that are beneficial to the social development of children and to their emotional and psychological well-being. For some children, these benefits are more pronounced because of their home-life circumstances, but for virtually all children, in-class learning has material advantages over on-line remote education.
[31] With respect to the reasons why, according to the mother, the children should attend school in person, I do not find that Miguel requires “on hand” instruction. He was able to participate online from March 2020 to June 2020, although his marks were not as good as expected by his parents. The father readily admits that Miguel has struggled at times with online learning.
[32] With respect to the socialization with their peers, I agree that the parents could take steps to ensure that the children have socialization with their friends and peers in the COVID world. While attending school in person allows the children to socialize, it is not the only place where children can socialize.
[33] I will not consider the inadmissible statements of the children.
[34] The father’s evidence is that Miguel’s music program was cancelled. In the mother’s affidavit dated January 10, 2021, she did not deny that allegation. Consequently, I conclude that the music program was cancelled.
[35] I reject the father’s submission that the mother agreed that the children would attend school online. The email exchange clearly states that the agreement that the children attend school online was a temporary one and that both parties agreed to revisit the issue in December 2020.
[36] While it is true that both schools have had positive cases of COVID, the risk is low and I accept that the government would not allow children to attend school in person if the risk was unacceptable.
[37] While the father alleges that he is immune-compromised which resulted in three different hospitalizations, he has not provided any information as to when these hospitalizations occurred. He has not provided a medical report from his treating physician or hospital records to support a finding that the risk to him is unacceptable. The father has failed to meet his burden of proof that there is an unacceptable risk to him if he contracts the virus.
[38] For all these reasons, I find it is in the best interests of the children that when school reopens, Miguel shall attend Beatrice Desloges Catholic Secondary School and Gabrielle shall attend Arc-en-Ciel Catholic Elementary School in person.
Our Family Wizard
[39] The mother seeks an order that the parties communicate by Our Family Wizard because of delays by the father in responding to her inquiries.
[40] The mother first raised the issue of the parties communicating by Our Family Wizard in an email dated August 20, 2020.
[41] The father’s position is that there is no need for Our Family Wizard. He acknowledges that the parties only communicate by email and occasionally by text as, according to him, the mother refuses to speak to him. Further, he states that none of the email correspondence is insulting, derogatory or inflammatory and that the parties have operated this way for years.
[42] After reviewing the emails exchanged between the parties, I agree with the father that the emails indicate that the parties have the ability to communicate in a respectful manner. I also agree with the mother that, at times, the father has been dilatory in responding. For that reason, the mother wanted to move to Our Family Wizard with the provision that the parties are to respond within 48 hours of a request.
[43] I see no need to move to a specific platform when the parties have been able to communicate by email and text in the past. However, I find that the parties would benefit with certain rules to improve their communication. Better communication between the parents is always in the best interests of the children. Consequently, I order the following:
a. That the parties are to communicate by email or text. In medical emergencies regarding the children, they shall communicate by telephone.
b. That all communications are respectful.
c. That the parties are to respond to any request within a reasonable period of time.
Trial Management Issues
[44] This case should have been resolved by now as it has been before the court since 2018. The parties attended a settlement conference on May 17, 2019 before Justice Audet and have effectively had little to no communication since that time. At the motion, I advised the parties that this matter needs to move forward and consequently, I make the following order:
a. This matter is placed on the September 2021 trial sittings.
b. The parties may request a further settlement conference before Audet, J.
c. The parties are to attend a trial management conference no later than July 30, 2021 to complete the Trial Schedule Endorsement form.
Costs
[45] I urge the parties to resolve costs. If the parties are unable to resolve the issue of costs by February 5, 2021, the mother shall provide her written costs submissions not to exceed three pages plus any offers to settle and a detailed Bill of Costs by February 12, 2021. The father shall file his written costs submissions not to exceed three pages plus any offers to settle and a detailed Bill of Costs by February 19, 2021. Costs are to be sent to SCJ.Assistants@ontario.ca to the attention of Justice Shelston.
Released: January 22, 2021
COURT FILE NO.: FC-18-957 DATE: 2021/01/22
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Manon Auger, Applicant AND Peter Bowles, Respondent
BEFORE: Justice Shelston
COUNSEL: Deborah Bennett for the Applicant Jonathan M. Richardson for the Respondent
ENDORSEMENT
Mister Justice Mark Shelston
Released: January 22, 2021