COURT FILE NO.: FS-20-0004
DATE: 20211014
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: C.D. v. R.D.
BEFORE: MANDHANE J
COUNSEL: A. Nyland for the Applicant
R. Singh for the Respondent
HEARD: October 12, 2021
ENDORSEMENT
[1] The parties appeared before me on the Father’s interim parenting motion. The parties separated on November 9, 2019 and have a six-year old child: J.D. (“the Child”).
[2] On October 16, 2020, the parents executed partial, temporary minutes of settlement giving the Father daily phone calls with the Child, and in-person parenting time on three out of four weekends. There was no agreement on decision-making responsibility, or specific terms related to school attendance.
[3] Before me, the Father seeks sole parental decision-making authority and primary residency over the Child. He asks that the Mother’s parenting time be supervised, and that she be psychiatrically assessed.
[4] The Father is particularly concerned that the Mother has not enrolled the Child in school. He notes that the Child has speech-related issues that require therapeutic support, and which make it hard for him to communicate with third parties. He also has concerns about the Mother’s mental health and capacity to care for the Child.
The Mother’s adjournment request
[5] The Father’s motion was first brought in May 2021 and has already been adjourned a number of times. The last appearance was on August 30, 2021. At that time, the parties agreed to adjourn the matter to allow for receipt of the OCL reporting letter. Fitzpatrick J. noted in his endorsement that the Mother had indicated then that she would be enrolling the Child in grade 1 at a local school proximate the next day. It went on to order the Respondent to “immediately enrol [the Child] in school and to ensure his attendance and enrollment ongoing pending further order of this Court.”
[6] While the Mother was being represented by Mr. Singh back in August, Mr. Singh recently filed a 14B motion to be removed as counsel of record. That motion is outstanding before the Court. The Mother asks for another adjournment to allow her to retain new counsel. She opposes the Father’s motion on the basis that he was abusive towards her and the Child in the past.
[7] Given the change in residency being sought by the Father, it is in the child’s best interests to allow the Mother to retain counsel to assist her with this motion. A short adjournment should suffice. Given the delay, the motion shall be marked peremptory on the Mother.
[8] That all being said, the narrow issue of school attendance cannot wait. The child is six years old and is not attending school, despite the Mother’s assurances and Fitzpatrick J.’s August 2021 endorsement. I am prepared to decide the issue of school attendance on a temporary, without prejudice basis, today.
School attendance
[9] The Father says that the Child was enrolled in JK at Parkinson School in Orangeville immediately prior to the parties’ separation in November 2019 but that, almost immediately post-separation, the Mother started keeping him home from school one or two days per week for speech therapy. After unilaterally moving the Child to Brantford, he says that the Child has not been enrolled in school.
[10] Child welfare authorities have been involved with the Family and have expressed concerns in the past about the Mother’s removal of the Child from school for periods of time. In May 2021, Brant Family and Children’s services wrote the Mother and encouraged her to enrol the Child in school for September and ensure that he has “positive social outlets with other children.” They noted that socialization was important for his speech development and emotional well-being.
[11] The Mother says that she is currently home-schooling the Child. The Mother has a college degree and says that she spends many hours each day working with the Child. She says that the Child has completed various workbooks and can read, write, and do math at grade-level. There is no independent evidence before the Court regarding the Child’s progress academically or in relation to his speech impediment.
[12] The Mother says that she is not comfortable enrolling the Child in in-person learning until he is eligible to be vaccinated. She says that the paternal grandmother is immunocompromised and that she cannot risk exposing her to COVID-19. The Mother admitted, however, that both her and the grandmother are vaccinated, and that they do not live together. Moreover, there was no suggestion that the Child is required to have regular contact with the grandmother.
[13] The Mother says that she cannot facilitate the Child’s enrollment in online learning because she does not have a computer. While she admitted to having an iPad, she was evasive regarding her reasons for not pursuing online education through the local school board.
[14] The Mother admitted that the Child’s only form of socialization is with his family (i.e., herself, the maternal grandmother, and the Father). She did not specify any family members of his own age group that he was seeing regularly.
[15] The Child’s needs, views, and preferences are largely unknown as the OCL report dated October 7, 2021 indicates that the Mother refused cooperate in the process. The OCL was forced to “discontinue” its report. The OCL investigator states that the Child’s “speech is difficult to understand.”
Best interests of the child
[16] My powers under the amended parenting provisions of the Divorce Act, R.S.C. 1985, c.3 (2nd upp.) are broad and purposive: s. 16, 16.1, 16.2. When making a parenting order, I must stay laser-focused on the best interests of the child: Divorce Act, s. 16(1).
[17] To judicially determine the child’s best interests, I must “give primary consideration to the child’s physical, emotional and psychological safety, security and well-being”: s. 16(2). I must engage in a rigorous assessment of the child’s specific circumstances, including, for example, the need for stability; each parent’s plan of care; their relationship with each parent; the history of care; the child’s views and preferences; the ability of the parents to cooperate; and any history of family violence that might impact parenting: Divorce Act, s. 16(3)(a)-(k).
[18] In my view, the parenting provisions of the Divorce Act must be interpreted consistently with children’s human rights and Canada’s obligations under international law: E.M.B. v. M.F.B, 2021 ONSC 4264; referring to R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292, at paras. 53, 174, and Baker v. Canada, 1999 699 (SCC), [1999] 2 S.C.R. 817, at paras. 69-71. A human rights-based approach to the parenting provisions of the Divorce Act, requires courts to recognize, respect and reflect each child as an individual distinct from their parents, and to empower children to be actors in their own destiny. In practice, it requires judges to probe into each child’s lived experience, to meaningfully consider their views and preferences, and to craft an order that promotes that child’s best interests and overall well-being.
[19] Access to education is a child’s fundamental human right: Article 28 of the Convention on the Rights of the Child, 20 November 1989, 1577 U.N.T.S. 3 (entered into force 2 September 1990, accession by Canada 13 December 1991). While children may require the assistance of a parent to access education, the right to education is held by the child not their parent. This is because the long-term implications of any disruption or termination of a child’s education are borne by the child alone. Indeed, it is difficult to underestimate the importance of education to the emotional, social and psychological well-being of the child, especially in situations where the child’s homelife is challenging. In situations of family violence or abuse, schools function as a “second set of eyes” to ensure that the Children are safe.
[20] Since the outset of the pandemic, Ontario courts have consistently found that, where available, in-person classes are presumed to be in the best interests of the child:
There is increasing evidence that there are long-term educational and social costs associated with virtual schooling for elementary and secondary school students. This has led courts to conclude that, absent compelling evidence otherwise, it is in the best interest of a child to attend in-person schooling where such schooling has been authorized by the government and relevant educational decision-makers. While potential exposure to Covid 19 is obviously a factor to be taken into account in any such assessment, the court is not in a position, especially without expert evidence, to second-guess the government’s decision-making. The court should proceed on the basis that the government’s plan for reopening of schools in the context of Covid 19 is reasonable in the circumstances for most people and that it will be modified as circumstances require.
Shaw v. Gauthier, 2021 ONSC 5790, at para. 31
[21] Thus, as a general proposition, the parent requesting something other than in-person schooling (i.e., virtual schooling or home schooling) has the onus of presenting expert evidence that such alternative schooling is in the best interests of the particular child: A.C. v. L.L., 2021 ONSC 6530 at para. 17. The underlying premise is that government and public health authorities are in a better position than the courts to consider the health risks to children of attending in-person school: Zinati v. Spence, 2020 ONSC 5231, at para. 27; Nolet v. Nolet, 2020 ONSC 5285, at para. 25; El Haddad v. Shakur, 2020 ONSC 5541, at para. 14; Chase v. Chase, 2020 ONSC 5083, at para. 42; Shepstone v. Masales, 2020 ONSC 5364, at paras. 18-20.
[22] Here, the Mother has not satisfied me that continued home schooling is in the Child’s best interests. Indeed, all the evidence suggests that the Child needs regular structure, socialization, and ongoing therapy for his speech impediment. All of these supports are best accessed in an in-person learning environment.
[23] The Mother has not satisfied me that there is any undue risk to the child of attending school in person. Neither he nor his Mother are immunocompromised, and many younger, unvaccinated children have been attending in-person learning without any significant spike in infections.
[24] Indeed, there are real risks to the Child’s mental health and emotional development if he is kept away from school any longer. I am deeply concerned that the Child has had nearly no opportunities for peer-to-peer socialization since the onset of the pandemic. As he grows older, socialization will be essential to his confidence when communicating orally.
Order
[25] Mr. Rapanjot Singh shall be removed as counsel of record for the Respondent.
[26] On a temporary, without prejudice basis, the Father shall make all important final decisions about the education of J.D. (“the Child”).
[27] The Father shall be permitted to seek and obtain information from the Child’s school directly. If the Mother’s consent is required to facilitate the same, she shall provide it forthwith.
[28] The Child shall be enrolled as a student with the Grand Erie District School Board immediately, shall commence in-person learning no later than October 18, 2021, and shall attend regularly (5 days per week). The Mother shall provide the Father with proof of the Child’s enrollment in in-person learning no later than October 18, 2021. If the Mother does not provide proof of enrollment, the Father shall enrol the Child in a school proximate to the Mother forthwith.
[29] The remainder of the Father’s parenting motion is adjourned to December 20, 2021 at 10:00 a.m. and shall be marked peremptory on the Mother.
[30] Costs for this appearance are reserved to the motions judge.
MANDHANE J
DATE: October 14, 2021
COURT FILE NO.: FS-20-0004
DATE: 20211014
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: C.D.
- and -
R.D.
ENDORSEMENT
MANDHANE J
DATE: October 14, 2021