COURT FILE NO.: FC-09-227-1
DATE: 2021/10/04
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Patrick Bamford, Applicant
AND
Janna Mae Peckham, Respondent
BEFORE: Blishen J.
COUNSEL: Frédéric Huard, for the Applicant
Melanie Nylund, for the Respondent
HEARD: September 14, 2021
AMENDED ENDORSEMENT
The text of the original endorsement was amended on October 4, 2021
and the description of the amendment is appended
Introduction
[1] This matter was heard as an urgent motion regarding the choice of school for the parties’ daughter, Zoe, who is 12 (DOB July 4, 2009) and is starting Grade 7 this September.
[2] The mother requests an order that Zoe attend Grade 7 in the French Immersion program at Dunning Foubert Elementary Public School in the mother’s school district. She has filed the required paperwork but is unable to register Zoe at school without the father’s consent. School began on September 9.
[3] The father requests an order that Zoe attend Gisèle-Lalonde French Secondary Public School which is a homogeneous French School in the parties’ catchment area. Similarly, the father cannot register Zoe without the mother’s consent. Classes at Gisèle Lalonde began on August 31.
[4] Either school would be new for Zoe. The school she has attended for the last five years only goes to Grade 6.
Background
[5] The parents resided together for a brief period and separated shortly after Zoe’s birth on July 4, 2009 when the mother left with the child.
[6] The father brought an application and obtained orders for access. Ultimately a Final Order was made on May 18, 2012 for a 2-2-3 equal time-sharing schedule. Although the order does not address decision making, the parents considered this a “joint custody” order and have always governed themselves accordingly, seeking the other’s approval for significant decisions affecting their daughter. Enrollment in a school program is considered an incident of decision making which if not agreed upon, may be determined by the court under s. 28(1) (b) of the Children’s Law Reform Act, R.S.O. 1990, c.C.12, as am. (CLRA).
[7] The mother speaks English only and has very little understanding of the French language. The father is bilingual and identifies as a French Canadian with strong family ties to the French language and culture. Zoe is bilingual. Her first language is French. Language assessments in November 2013 when she was four years old and in July 2014 when she had just turned five, indicate she was at ease in French; effectively communicated in the French language and was proficient in all linguistic tasks.
[8] Prior to her beginning Junior Kindergarten in Sept 2013, the parties could not agree on whether Zoe should attend a homogenous French school program or French Immersion. A motion was argued and on August 13, 2013 the mother was successful in obtaining an order that Zoe attend the French Immersion Program at Henry Larson Elementary Public School which she did for three years.
[9] After some controversy as to which school Zoe should attend for Grade 2 as the mother had moved out of the school district for Henry Larson, the mother sent the father a note on September 2, 2016 indicating she felt Zoe was now ready for French school and asking him to immediately register her in Jeanne-Sauvé French Elementary Public School. For the last five years Zoe has continued her education and all her classes completely in French at Jeanne-Sauvé.
[10] In August 2019 when Zoe was 10 years old, there was an argument with her father at the father’s home. Since that time Zoe has refused to visit her father indicating she is afraid of him.
She has seen him on only two occasions. The father has had virtually no parenting time for two years. He indicates the mother does not promote or encourage Zoe’s relationship with him. The mother alleges she has been trying to encourage Zoe to visit her father but to no avail.
[11] The mother filed a Motion to Change the Final Order requesting sole decision making and parenting time in accordance with Zoe’s wishes.
[12] The Office of the Children’s Lawyer (OCL) accepted a referral from the court and began a clinical investigation. The clinical investigator was unable to make final recommendations as Zoe refused to see her father. Nevertheless, the clinician interviewed the parties and the child, received information from key collaterals and filed a report dated June 24, 2021.
[13] Even though is a high conflict case, the school reported Zoe continued to do well academically. In addition, her learning skills and work habits were described as very good as was her behaviour. She has done well in a homogeneous French learning environment.
Analysis
[14] There are many school cases involving one bilingual and one unilingual parent. All are fact specific. The governing principle is always the child’s best interests.
[15] After listing the frequently cited principles in choice of school cases, Justice Audet in Thomas v. Osika, 2018 ONSC 2712 notes all these cases are very fact driven. She states: “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.”
[16] Section 24(3) of the CLRA indicates the court must consider all the child’s needs and circumstances and provides a non-exhaustive list of criteria for the court’s consideration as follows:
Factors
(3) Factors related to the circumstances of a child include,
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.
[17] This case is similar in many respects to Lauzon v. Lauzon, 2021 ONSC 5684 which involved a choice of schools for the parties’ daughter who was entering a new school for Grade 7 after attending French school to that point. The parties had shared parenting. The mother was bilingual and the father spoke English only. After a careful analysis of the applicable factors listed in Thomas v. Osika, Justice Stankiewicz concluded that it was in the child’s best interests to attend the French School. He stated:
[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.
[18] I have considered all the factors listed under s. 24(2) of the CLRA, and the jurisprudence and principles outlined in Thomas v. Osika as well as the excellent summary of applicable factors in Lauzon and note the following with respect to this individual child, 12 year old Zoe:
1. Parenting Time/Decision Making
[19] This case is brought in the context of the Mother’s Motion to Change a Final Order to provide her with sole decision making and most of the parenting time with Zoe. This is hotly contested by the father.
[20] Although Zoe has refused to see her father and has resided with her mother almost exclusively for the past two years, there has been no change in the court order for shared parenting time nor for what the parties always considered to be “joint custody” now referred to as joint decision making.
[21] The only significant decision which has required the court’s assistance during the past two years is choice of school which was also an issue when Zoe was spending an equal amount of time with both parents in August 2013.
[22] Both parties have been and continue to be, joint decision makers as per the existing court order, despite the change in parenting time.
2. Benefits of a French School
[23] In Perron v. Perron, 2012 ONCA 811 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.
[24] Despite the outlining the significant benefits of French language education, the court did not order that the children be enrolled in a French school. There were other factors to consider for those individual children. The court stated 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.
[25] Ultimately the court found the status quo for the children to be more important and did not order a change from the French Immersion school the children had attended for three years to a homogeneous French school.
[26] In this case, Mr. Bamford’s roots are French Canadian, and he is proud of his francophone identity and French-Canadian culture. Although Ottawa is a bilingual city, outside of school Zoe will be fully immersed in the more dominant English-speaking community, particularly without her father’s active involvement in her life.
[27] Continued homogeneous French language education would be a significant benefit to Zoe under the circumstances of this case and for the reasons cited by the OCA in Perron.
[28] However, there are numerous other factors to consider.
3. Zoe’s Progress at Jeanne-Sauvé
[29] Zoe’s report cards filed as exhibits to both parents’ affidavits, indicate that overall, Zoe has done well academically. Her work habits and learning skills are very good. She manages her behaviour well and respects her commitments. Although she has had some Cs in French and has struggled at times, her last Grade 6 report card indicated marks of B-, B- and B- in French oral, reading and writing respectively. Marks for the same areas of English were B-, B- and C- respectively.
[30] All Zoe’s subjects were in the French language and her marks were all Bs with a B+s in Math, Health and Drama and an A- in Music. She has been doing very in a French language learning environment.
[31] Despite the high conflict dispute between her parents, her mother describes Zoe as happy and thriving. Her father submits Zoe has adapted well and is thriving while attending a homogeneous French school.
4. School Attributes
[32] I was provided with no information regarding the attributes of either school. Apart from the overall benefits of French education outlined by the OCA in Perron above, there is insufficient evidence for me to conclude that Zoe would receive a better overall educational experience at one school over the other.
[33] I do note that Dunning Foubert is an Elementary School so Zoe would have to move to another new school in two years. Gisèle-Lalonde is a Secondary School so she could finish her High School education there which would provide continuity and stability.
5. Transportation
[34] Both parents reside in Orleans and both schools are in that community.
[35] If Zoe attended Dunning-Foubert and continued to reside most of the time with her mother, she would be able to walk or ride her bike to school as it is in the mother’s neighbourhood. I was not provided with evidence as to how far it is from her father’s home and whether busing would be necessary or available.
[36] To attend Gisèle-Lalonde, Zoe would need to take a city bus. School buses are not provided for Secondary School. City bus passes are provided to the students. Driving Zoe to and/or from school could be an option as both parents drive. The distance from the parents’ respective homes to Gisèle-Lalonde was not provided.
[37] There is no question that at this time Dunning-Foubert would be more convenient.
6. Attachment to Friends
[38] Zoe has attended Jeanne-Sauvé for five years which is a feeder school for Gisèle-Lalonde. Therefore, some Grade 6 students from Jeanne-Sauvé will be attending Gisèle-Lalonde this fall. Presumably some are Zoe’s friends or at least acquaintances.
[39] There was no evidence as to Zoe’s friends. Who and how many friends would be going to Gisèle-Lalonde? Who, if any, would be going to Dunning-Foubert? Who are her friends? Are they in the mother’s or father’s neighbourhood, both neighbourhoods or elsewhere?
[40] Ms. Peckham’s evidence was that in June this year she asked Zoe which school she would prefer to attend. Zoe indicated she wanted to go to an English school and no longer wanted to go to a French school stating: “All my friends are going to other schools.” Her mother indicated the benefits of maintaining her French skills and that French Immersion at Dunning-Foubert was an option and Zoe agreed it would be a good compromise. The mother deposed Zoe is excited about attending Dunning-Foubert and she has” heard Zoe mention that she will know kids who will attend that school since she lives closer to that school…”. This is vague, inconclusive, and unreliable hearsay evidence.
[41] In in interview with the clinical investigator from the OCL, Zoe stated she was doing well in school and had “a few good friends”. However, she indicated she had more friends in Petawawa
where she and her mother got stuck for five months due to COVID-19. That is where the mother’s fiancé resided. Are any of the “few good friends” she had at Jeanne-Sauve going to Gisèle- Lalonde?
[42] Based on the evidence provided I cannot find attachment to friends weighs significantly in favour of one school over the other.
7. Zoe’s Views and Preferences
[43] Zoe told the OCL clinical investigator in May 2021 she would have preferred to be in an English school. However, she stated she gets help from her teacher as needed, is doing well at school and has a few good friends.
[44] The only other evidence is from Zoe’s mother who indicated that during a conversation in June about what school she would prefer to attend, Zoe stated she wanted to go to an English school, not a French school but they compromised on French Immersion at Dunning-Foubert. Ms. Peckham completed the registration forms and Zoe was excited about attending Dunning-Foubert, although it was clear Mr. Bamford was not consenting. Ms. Peckham indicated Zoe is very sad and frustrated that starting school at Dunning- Foubert has been delayed. She told her mother she does not want to go to Gisèle-Lalonde and her mother can’t make her go.
[45] The reliability of the mother’s evidence introduced as to the truth of Zoe’s statements as to her wishes is questionable particularly as it is from an interested party.
[46] I am concerned that Zoe was told not only that she could switch to French Immersion but that Dunning-Foubert would be her new school, despite her father’s objection. Ms. Peckham is now concerned if Zoe is told she is to go to Gisele-Lalonde she will be frustrated and simply not apply herself or start to avoid school altogether. This is a legitimate concern.
[47] Both parties agreed that Zoe’s views and preferences need to be before the court through an independent third party. Therefore, immediately after the motion was argued, I made an order referring this matter back to the OCL requesting a lawyer be assigned to represent Zoe.
8. Mother’s Ability to Participate in Zoe’s Education
[48] Ms. Peckham and her fiancé do not speak French. It has been difficult for Ms. Peckham to understand the contents of Zoe’s academic evaluations and report cards. She has been unable to assist Zoe with her homework or effectively communicate with the school or individual teachers at Jeanne-Sauvé. Ms. Peckham has been able to enlist the assistance of an unknown “family member” to translate Zoe’s report cards.
[49] Mr. Bamford had been able to assist Zoe but until there is some resolution of the parenting time dispute and counsel appointed to determine and assess the independence of Zoe’s views and preferences, she will be likely continue to reside solely with her mother during this important transition to High School. Her mother will not be able to offer her support in the French language.
[50] However, I note:
Zoe has done well and in fact improved her French marks in the last two years without her father’s active involvement.
Although, it is beneficial that Ms. Peckham be actively involved in her daughter’s education, it is Zoe’s best interests not her mother’s that are the focus. Thus far, Zoe has done very well in a homogeneous French school without her mother’s assistance
Zoe will be able to assist in translating for her mother.
Although Ms. Peckham had difficulty communicating with the school and teachers at Jeanne-Sauvé, there is no evidence as to the accommodations that might be offered at Gisele- Lalonde. Is it possible, as it was in Lauzon, that the communication with a parent could be done in the parent’s preferred language? Could school information be provided in English if requested? Could Ms. Peckham’s concerns be addressed and mitigated?
In French Immersion many of Zoe’s classes will be in French and the mother will have the same difficulties.
[51] The mother’s concerns are legitimate and could prove significant. The argument that the mother should be able to participate actively in her daughter’s education, particularly when the father is not now involved is persuasive but is just one factor and as noted could potentially be mitigated.
9. Consistency/Status Quo
[52] Before Zoe began Junior Kindergarten, the parents disagreed as to whether she should attend French Immersion or a homogeneous French School. In August 2013, the court agreed with the mother’s position and ordered Zoe attend French Immersion which she did for three years. In September 2016, the mother indicated Zoe was ready for French School and requested the father enrol her at Jeanne-Sauvé which he did.
[53] Ms. Peckham consented to a homogeneous French School which Zoe has been attending for the last five years. All her subjects, other than her one English class, have been in the French Language. She has learned the terminology for subjects such as Math in the French language. She would need to re-learn those terms in English.
[54] As noted by the court in Lauzon at para. 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. Oskia 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 5344at para. 26 to 27.
[55] Although she must change schools anyway, Jeanne-Sauvé is a feeder school for Gisèle- Lalonde which would provide Zoe with a natural continuation of her education in French. Gisele- Lalonde represents consistency, stability and maintenance of the status quo, more than the French Immersion program at Dunning-Foubert.
Conclusion
[56] Having carefully considered and weighed all the factors applicable to this case as noted above and as referenced in the legislation and case law, I conclude that it is in Zoe’s best interests to attend Gisèle-Lalonde.
[57] The benefit to French only education as outlined in Perron, the fact that Zoe has done well in a homogeneous French environment without her mother’s assistance and the continuity, consistency and maintaining the status quo if Zoe attends Gisèle-Lalonde are the most significant factors.
[58] I am concerned that given Zoe’s involvement in selecting Dunning-Foubert, she will resist attending Gisèle-Lalonde. Her mother’s understanding of and deference to the court’s decision will be important.
[59] Zoe’s views and preferences must be assessed and presented to the court by an independent third party. Her views are an important factor but as a just turned 12-year-old, those views are not determinative.
Costs
[60] 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.”
[61] I agree with this statement.
[62] However, if they wish, the parties may provide brief costs submissions of no more than two pages with attached offers to settle. The mother’s submissions are to be filed by October 1, 2021 and the father’s by October 15, 2021. No Reply submissions.
Date: October 4, 2021 Blishen J.
COURT FILE NO.: FC-09-227-1
DATE: 2021/10/04
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Patrick Bamford, Applicant
AND
Janna Mae Peckham, Respondent
BEFORE: Blishen J.
COUNSEL: Frédéric Huard, for the Applicant
Melanie Nylund, for the Respondent
AMENDED ENDORSEMENT
Blishen J.
Released: October 4, 2021
Appendix
October 4, 2021: Paragraph 43: now reads: clinical investigator in 2021 and not 2018