Court File and Parties

Court File No.: FS-17-39853 (Milton)

Date: 2021-08-23

Superior Court of Justice - Ontario

Re: Julie Lauzon, applicant

And: Garrett Lauzon, respondent

Before: Justice R. Chown

Counsel: Ted R. Laan, for the respondent moving party Jonathan Stankiewicz, for the applicant responding party

Heard: By video conference, 2021-08-19

Endorsement

[1] This is a motion over choice of school for the parties’ daughter, Eva, who is entering grade 7. A quick decision is required as school starts in about two weeks.

[2] The decision turns on my assessment of the best interests of Eva.

[3] I will start with a few observations.

a. Eva is fortunate to have two loving parents who want the best for her. These advantages make it likely that she will thrive no matter which school is chosen.

b. I do not minimize the importance of the choice of school, but both options have advantages and disadvantages, and either school would be a fine choice. To paraphrase Justice Audet in Thomas v. Osika, 2018 ONSC 2712, at para. 41, both proposed schools would fully address Eva’s educational needs.

c. Eva is aware that her parents disagree on the choice of school. It must be difficult for a child to know, on an issue such as this, that whatever result, one of her parents will be disappointed.

Background

[4] Eva is 11, or almost 12 as the applicant mother emphasizes.

[5] The parties were married on September 16, 2006. They separated on November 1, 2015.

[6] The parties share parenting time equally.

[7] The mother is bilingual. The father speaks English only. When the parties cohabited, they spoke only in English. Eva communicates in English with both of her parents.

[8] The mother wants Eva to attend École secondaire catholique Sainte-Trinité, which is a homogeneous French-language school, where all instruction is in French. In this endorsement I will call this type of school a “French school.”

[9] The respondent father wants Eva to attend Munn’s Public School for grades 7 and 8 and Iroquois Ridge High School for grades 9 through 12. These schools offer French immersion, where some instruction is in French and some is in English. In this endorsement I will call this type of school a “French immersion school.”

[10] Eva is bilingual and has attended a French school until now. She has only ever attended École élémentaire Saint Nicolas. She went to pre-school daycare there and just completed grade 6.

Analysis

[11] I have reviewed the frequently cited principles in choice of school cases that Justice Audet listed in Thomas v. Osika, supra, at para. 37. As she notes at the end of the list, these 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.”

Benefits of a French School

[12] I have reviewed Perron v. Perron, 2012 ONCA 811. It is one of many choice of school cases involving one bilingual parent and one unilingual parent. The mother was granted custody at trial. No order was made regarding choice of school, despite the father’s request that it be a condition of custody that the children be enrolled in a French school. On appeal, the father asked the Court of Appeal to order the mother to enrol the children in a French school. The Court of Appeal stated at para. 20 to 21:

Homogenous French-language education brings many advantages. It promotes full mastery of the French language and the development of the child's cultural identity. This type of instruction also allows the child to become bilingual in French and English, because a homogeneous French-language school helps the child to develop a high level of skill in both French and English. In addition, in a social environment dominated by English, a child will generally communicate in English in many aspects of daily life and, as a result, acquire knowledge of the language of the majority. It should also be noted that bilingualism provides a number of advantages in terms of employment.

Apart from these advantages, where children have one Francophone parent, knowledge and mastery of the language and culture of the linguistic minority promotes and helps maintain the bonds between the children and the Francophone parent. [Citations omitted.]

[13] This reads like a general pronouncement for all children, but the outcome of the case shows the importance of individualized attention to the child and the circumstances before the court. The Court of Appeal did not order that the children should be enrolled in French school. The court did not take issue with the trial judge’s decision to grant sole custody to the mother, but held at para. 33 to 35 that the trial judge erred when he “did not subsequently consider whether it would be in the best interests of the children to include in the custody order a condition about the language of education.” Despite the trial judge’s error, the court said at para. 54:

At this point, the fact that the children have spent three additional years at [the French immersion school] must be added to the original reservations the trial judge expressed about ordering a change in schools. … It is therefore my view that despite the advantages these children would have enjoyed through enrolment in homogeneous French-language instruction, a change in schools at this stage would not be in their best interests.

[14] In this case, homogeneous French-language instruction is a significant benefit for Eva, for the reasons given by the Court of Appeal in Perron. This is an important but not a controlling factor. Perron was somewhat different in that there was one Francophone parent and the English-speaking parent was granted custody, whereas here the parents share equal parenting time.

School Attributes

[15] Each side has provided detailed evidence as to the relative attributes of the two schools. There is inadequate evidence for me to conclude that one will offer Eva a significantly better educational experience than the other, apart from the above comments about homogeneous French-language instruction.

Transportation

[16] Both choices are manageable for transportation. Busing is available for Sainte-Trinité from both parents’ homes. Munn’s is very close to the father’s home so busing would be avoided half of the time if she were to attend there.

Religion

[17] The extent to which Eva attends church is disputed by the parties. The father’s affidavit is very specific in indicating Eva’s attendance at church is not and has not been regular, which contrasts with the evidence of the mother and an unsworn note from the father. The father’s evidence on this point is more detailed and therefore more believable.

[18] The father describes himself as “only nominally Catholic.” He does not oppose Eva practicing Catholicism but says she does not need to attend a Catholic school for that to happen.

[19] Given the evidence before me, I do not consider the evidence on Eva’s religion to be a significant factor in this case.

Prior Agreement on Choice of School

[20] During argument, Mr. Stankiewicz objected to me reviewing the mother’s email of September 4, 2018, on the basis that it was subject to settlement privilege. According to the father’s affidavit, in the email, the mother “made it clear that Eva could attend French Immersion for her secondary education.” It seemed to me that the email was part of without prejudice settlement discussions, and I said I would not review it. On further review of the father’s affidavit, immediately after the quoted sentence he goes on to say, “The fact that Julie agreed to allow this [that Eva would attend French immersion for secondary school] was a deciding factor for me in agreeing to homogeneous French school for her primary education.”

[21] I had not made note of this evidence from the father during the hearing. The father is relying on the email on the basis that it is evidence of a quid pro quo, i.e., granted for something in return, and the refused “something in return” is the very subject of this motion. It is therefore necessary to review the email, and I have reviewed it.

[22] In the email, the mother states that she “would be open” to registering Eva in a French immersion school in grade 5. She seeks the father’s agreement that should the French immersion school options be unavailable for grade 5, Eva would remain in her then current school, Saint Nicolas “until such time as we can get her into the French Immersion Program in Milton.” This is conditioned on “the global settlement of all matrimonial issues in a timely manner.”

[23] The email is not evidence of an agreement, but rather a negotiation, and my review of it confirms it is not admissible.

[24] Even if it represented an agreement and was admissible, the argument on this point does little to address the best interests of Eva, which matters more than any agreement or understanding the parties may have had in 2018. As I observed in Cromwell v Allaby, 2021 ONSC 172, at para. 93 to 95, in some of the choice of school cases, decisions that were made by parents prior to separation are a factor that has been considered. This is so because such decisions may be considered evidence of what the parents thought was in the child’s best interest at the time, and perhaps for other reasons in some cases. However, I did not think this factor carried much weight in Cromwell, and this is even more so the case here, where the statement was made as part of a post separation negotiation.

Attachment to Friends

[25] The mother’s affidavit says that Eva does not know anyone at Munn’s. This is not disputed in the father’s affidavit.

[26] None of the affidavit material specifically indicates how many of Eva’s friends will be attending Sainte-Trinité, but I infer from paragraph 54 and 55 of the mother’s affidavit dated August 11, 2021 that Eva’s friends will primarily be attending Sainte-Trinité.

[27] The father argues that Munn’s and Iroquois Ridge are close to his home and this will allow Eva to develop friendships with classmates who may be located more conveniently to allow for socialization. Sainte-Trinité is fed from schools over a wide area and Eva’s classmates will live further away.

[28] The principle of stability found in s. 16(3)(a) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) and s. 24(3)(a) of the Children's Law Reform Act, R.S.O. 1990, c. C.12 points towards maintaining Eva’s attachments with her friends. This factor is deserving of some weight in the analysis. It is likely that Eva would find new friends, but that instability would likely be initially destabilizing and upsetting for Eva.

Eva’s Preference

[29] The child’s views and preferences, if they can be ascertained, should be considered in choice of school cases, giving due weight to the child’s age and maturity: s. 16(3)(e) of the Divorce Act and s. 24(3)(e) of the Children's Law Reform Act.

[30] It is common that children who are advancing to a new school will want to go to the same school as their friends. Because this is human nature, I accept the mother’s evidence that Eva wants maintain her friendships. I accept the statement in Ms. Rooney’s letter of July 27, 2021 that Eva “wants to attend a school where she already has established friendships from her current school.”

[31] I am highly skeptical of, and do not accept, any of the other evidence in the affidavits about Eva’s wishes. The circumstances in the information was gathered and make the statements exceptionally unreliable hearsay. The statements are related to the court by self-interested adversaries, and to some extent the parties have provided their suppositions. For Ms. Rooney’s letter (exhibit P to the mother’s affidavit), I have additional concerns: (1) the statements appear to be in the voice of a psychotherapist and not the voice of a child (e.g., “being in an all French environment will give her a richer experience” does not sound like the voice of a child); (2) the manner in which the information was gathered from Eva or related by her is not described; (3) Ms. Rooney is counselling not only Eva but also the mother, and has no similar relationship with the father, raising a concern of potential bias; (4) Ms. Rooney’s statements have not been subject to cross examination; and (5) despite the fact that the letter states it was prepared at the request of Eva, based on the relationship between Ms. Rooney and the mother, the timing of the letter, and paragraphs 21 to 24 of the father’s affidavit dated August 13, 2021, I infer that Ms. Rooney’s letter was discussed with the mother and not the father.

[32] Eva’s preferences are a factor. However, neither parent describes Eva as mature. The father describes Eva as lacking self-confidence and easily led by others. At age 11, almost 12, I would consider Eva’s preferences as a minor to modest factor in the analysis.

Father’s Ability to Participate in Eva’s Education

[33] Children benefit from parental involvement in their education. The father has not been able to fully participate in Eva’s education at Saint Nicolas.

[34] The father’s affidavit says: “SAINTE-TRINITE requires that a parent must speak French in order to volunteer for field trips, extra curricular clubs and activities and parent [council]. I offered to volunteer for a field trip and an activity this school year and I was told that I was not eligible.” He says that Munn’s has no such requirement. When he says he offered to volunteer for a field trip “this school year,” he must be talking about Saint Nicolas, not Sainte-Trinité. The father does not state the source of the information about Sainte-Trinité. I infer that what he means is that he anticipates volunteering at Sainte-Trinité will be impossible for him, because it was at Saint Nicholas. There is no evidence on the point, but I appreciate the possibility is a concern.

[35] The father describes difficulty in helping Eva with math homework because worksheets are not available in English. Math is an area of weakness for Eva. The father emphasizes that he has Eva half of the time, so for half of her further years of schooling, his ability to help her will be limited. Again, this a concern but there is no evidence it will be the same at Sainte-Trinité, and Eva will be able to translate worksheets for him.

[36] The father also says, “During school plays, I understand nothing and sit there with a frozen smile. I am not able to discuss the play afterwards with Eva or perhaps share interesting or funny moments from the play with her.”

[37] The mother had agreed to send the father translations of all communications with the school but did not live up to this commitment for a period of time. The father does not have confidence that the mother will continue to translate for him.

[38] I find an email the father received from one of Eva’s teachers at Saint Nicolas troubling. It was in French. In English translation, it says, “I can communicate in English but the council forbids me to make emails in English. Only I can communicate orally in English with you and if you want a meeting also we can speak in English.” It is disconcerting to hear that a teacher or school would find it appropriate, or in the best interests of the child, to refuse to accommodate a unilingual parent when it is readily within their capacity to do so. The father’s evidence is that most of the communication from the school was by email or text.

[39] There is no adequate answer for the father for this very real concern. It is a strong point that weighs in favour of his argument that it is in Eva’s best interest that she attend Munn’s rather than Sainte-Trinité. However, several elements of the evidence ameliorate the father’s concern.

[40] First, the Principal of Sainte-Trinité, Rachele Caron, has written a reassuring email. She says that most of the students at Sainte-Trinité have a parent who does not speak French. She says:

Our teachers all communicate in French for sending to the whole class. However, when a parent communicates individually, the communication is done in the parent's preferred language. So all communication between Eva's father and his teachers can be done in English. Also, we have parent council members who deliver school information in English to parents who request it.

[41] The father says he has seen such assurances in the past. He points out that websites and other communication from the school (and I presume he means Saint Nicolas) notionally offer assistance to anglophone parents, but he says, “in practice, I have encountered nothing but difficulties in my efforts to be actively involved in Eva's education.” He says that “Eva has had teachers in the past who do not speak English at all and no doubt she would have more of such teachers in the future at [Sainte-Trinité].” However, this is not supported by evidence.

[42] Second, as Principal Caron also points out, Eva will be able to translate everything for the father.

[43] Third, even in French immersion, many of Eva’s courses will be in French and the father will be unable to assist with those courses.

[44] Finally, it is the best interests of Eva that matter, not the interests of the father. Any distress the father may feel is not considered. I agree that it is in Eva’s interests that her father be involved in her education, but when looked at through a strictly child-centric lens, this issue is less significant than other factors.

[45] The father’s factum argues that a French school will “completely exclude him from meaningful involvement in Eva’s education – forever.” He says that, in comparison, if Eva attends French immersion, both parents will be equally able to be involved. This argument is lifted from Chomos v. Hamilton, upon which the father relies. However, Chomos was significantly different. Among other differences, there was a concern that the French-speaking father would exploit the dynamic of the daughter attending a French school to “systematically isolate” the non-French speaking mother. Other reasons also supported the choice of a French immersion school.

[46] The father also relies on Bamford v. Peckham, 2013 ONSC 5241, where the court favoured a French immersion school over a French school, in part because the mother would have a difficult time communicating with teachers and school administrators and assisting the child with homework.

[47] Deschenes v Medwayosh, 2016 ONCJ 567 is another case with a similar result, although in that case it was significant that an older sister was attending the French immersion school, and also significant that in Nippissing many in the population are bilingual, unlike in Hamilton, where the parties in Perron resided.

[48] There are, of course, cases which go the other way, such as Piper v. Hare, 2021 ONSC 2139, where the bilingual mother wanted the child to attend a junior kindergarten in French school and the unilingual English father wanted the child to attend an English school in his neighbourhood. The court noted that “under the mother’s plan, the father will have difficulty helping the child with his homework.” There was evidence that the staff at the French school were “bilingual and accommodating.” The court said, “While the father’s difficulty in assisting with the homework is a concern, it can, on the evidence, be addressed and mitigated. With accommodation in place, the father will be able to participate in the child’s education and educational programs.”

[49] Similar circumstances were in play in Bandas v. Demirdache, 2013 ONCJ 679. The child’s attendance at a French school presented difficulties for the father, who did not speak French. “The fact that the school community is French speaking, that school events are in French and that the general written correspondence received from the school is in French has been problematic for the father.” Despite this, the result did not favour the father.

[50] What these cases show is that these decisions are fact driven.

[51] The father’s argument that it is in Eva’s best interests for both parents to be able to participate in her education is persuasive. However, this is only one element to consider and there are factors which mitigate the concern.

Status Quo

[52] The mother unilaterally enrolled Eva at Sainte-Trinité, but only after unsuccessful efforts to resolve the issue, and she notified the father in April of 2021 that she had done so. (The father’s August 3, 2021 affidavit indicates that he would be enrolling Eva at Munn’s.) This motion was argued less than three weeks away from the start of school. There is no evidence that the delay in bringing the motion was the fault of the mother. On the contrary, the mother sought the father’s agreement to preparation of a voice of the child report. I do not fault the father for not agreeing to this, but it shows the mother was trying to advance the matter to resolution. She also sought to obtain copies of Eva’s counsellor’s notes, which did not materialize due to conditions the father imposed.

[53] It is apparent that the choice of school issue was discussed between the mother and Eva. It is not clear when this occurred. The father told Eva (after reading the mother’s affidavits) that he and the mother disagreed about choice of school and asked about her preferences.

[54] Ms. Rooney’s letter dated July 27, 2001 states that Eva “has reported feeling uncertain over where she will be attending school in September 2021.” Because this accords with human nature, I accept that this is true. I expect that by now Eva is even more “uncertain,” given that she has been involved in the dispute and the new school year is so close.

[55] A request to change a child’s school often runs afoul of the principal of stability. It has been stated that there must be a good reason to upset the children’s former school arrangements: Thomas v. Osika, supra, at para. 37; Assaf v. Aoudeh, 2020 ONSC 5246 at para. 34; Bandas v. Demirdache, 2013 ONCJ 679 at para. 96; NS v CN, 2012 ONSC 4993 at para. 23; Ursic v. Ursic, 2006 18349 (ON CA) at para. 32; and Malott v. Powell, 2012 ONSC 5344 at para. 26 to 27.

[56] Here, Eva must change schools in September anyway, but Sainte-Trinité represents the status quo much more than Munn and Iroquois Ridge do. Saint Nicolas is a feeder school for Sainte-Trinité. Eva’s friends will be attending Sainte-Trinité. Saint Nicolas and Sainte-Trinité are both French schools as opposed to French immersion.

Conclusion

[57] I have concluded that, overall, it is in Eva’s best interests that she attend Saint-Trinité.

[58] The most significant factors favouring Sainte-Trinité for Eva are: (a) the benefit of French-only instruction, on the same rationale that was given by the Court of Appeal in Perron, supra; and (b) the concern that Munn’s would represent a change from the status quo.

[59] Less important (because she would no doubt adapt), but still concerning, is the fact that the attachments Eva has to her friends would be broken by the change in school. Attending a school where she knows no one would cause, initially, some anxiousness. This concern could be managed, I am sure, but is made worse by the last-minute timing of this motion.

[60] The father’s inability to fully participate in Eva’s education is important and is of real concern, but this concern does not outweigh the other considerations.

Disposition

[61] The father’s motion is dismissed.

Costs

[62] Justice H.J. Williams said in Turnbull v. Turnbull, 2018 ONSC 5060 at para. 124, “my inclination is to award either minimal or no costs in respect of the ‘choice of school’ issue. Both parents had legitimate positions; I do not consider either parent to have won or to have lost this motion.”

[63] I am similarly inclined.

[64] With that said, if the parties require it, I will receive written submissions on costs, with each side limited to two pages plus supporting documentation. The mother’s submissions shall be filed by September 7, 2021. The father’s shall be filed by September 21, 2021. No reply.

“Chown J.”

Date Released: 2021-08-23