Court File and Parties

COURT FILE NO.: FS-20-20809-0000 DATE: 2021-10-15 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Michael Eric Leinwand, Applicant AND: Rachel Leeba Brown, Respondent

BEFORE: M. Kraft, J.

COUNSEL: Robert McNeillie for the Applicant Julie K. Hannaford, for the Respondent

HEARD: October 12th, 2021

Endorsement

Nature of the Motion

[1] The applicant ("husband") brings a single-issue motion before the court. He asks for an order determining the school placement for the parties' child, JAL, commencing September 2022. Specifically, he seeks an order that JAL be enrolled in (a) the public school system and registered to attend West Preparatory Junior School commencing September 1, 2022, for in-person learning; and (b) in Sunday Jewish religious school at a mutually agreed upon educational institution commencing September 1, 2022.

[2] The respondent ("wife") submits that the Court ought not to make a determination at this time and that, instead, should order the parties to attend a family dispute resolution process pursuant to s.16.1 of the Divorce Act. Alternatively, if the court is inclined to determine JAL's school placement commencing September 2022, the wife seeks an order that JAL remain at his current school, Robins Hebrew Academy, which is a private Jewish day school.

Background Facts

[3] The parties were married on August 16, 2015. They separated on March 19, 2019.

[4] They have one child of the marriage, JAL, born on September 4, 2018. The parties separated when JAL was six months old. He is currently 3 years old.

[5] The parties mediated their outstanding issues with the assistance of Philip Epstein on May 15, 2019 and reached an agreement regarding all financial and parenting issues, subject to a review in September 2020. If the parties were not able to reach agreement at the time of the review, they were to determine the dispute resolution process.

[6] The husband issued the within application on December 22, 2020, seeking relief with respect to parenting, a s.30 custody and access assessment, and other financial relief.

[7] Following a case conference conducted over two days on June 11th and 30, 2021, the parties agreed to a shared residential schedule for JAL, such that he resides with each parent pursuant to a 2-2-3 equal-time-sharing schedule. The parents also agreed to share the Jewish holidays with JAL.

[8] The Endorsement of Pinto, J., date June 30, 2021, provides that the parties agreed to a parenting schedule; leave was granted to the husband to bring this motion regarding JAL's schooling; and a settlement conference is to take place in November to be scheduled by the parents through the Family Law office.

[9] Both parties are Jewish. They married in the Jewish faith, and they both celebrate and embrace Jewish traditions.

[10] Prior to the husband issuing this application, the parties had agreed that JAL would attend nursery at Robins Hebrew Academy (RHA). JAL has been attending RHA this academic year 2021/2022. Payment for school fees was made by the wife's mother, Susan Friedman, without any request for the husband to share in the cost of school fees.

[11] Other than the residency schedule for JAL to which the parties have agreed, there is currently no parenting agreement/parenting plan in place. There is no agreement or order in place with respect to decision-making authority. The husband submits that since the parents share equal parenting time they have de facto joint decision-making authority and since they cannot agree on whether JAL should be registered in public school or private Jewish Day School commencing September 2020, they require the assistance of the Court to make this determination.

Husband's Position

[12] The husband's position is that he only agreed to JAL attending RHA for one-year (2021-2022) and that he and the wife had previously agreed that JAL would thereafter attend public school and go to Jewish school on Sundays. Furthermore, the husband asserts that neither party can afford private Jewish day school fees or speak Hebrew, and as such, the parties will not be able to assist JAL with his homework and educational development. While the wife's parents have now agreed to pay RHA school fees for JAL through to the end of Grade 8 (RHA ends in Grade 8), the husband's position is that the school choice for JAL is a decision to be made by him and the wife and he believes it is in JAL's best interests to commence Junior Kindergarten in the Toronto public school system. The husband believes the wife relies significant on her parents and that it is her parents who are insistent that JAL attend RHA and not public school. The husband is of the view that the public school system will provide consistency for JAL and his educational development which is in his best interests.

[13] The husband has also proposed that J.A.L. attend Jewish religious school on Sundays, at an agreed upon institution.

The Wife's Position

[14] The wife's position is that the Court should not decide this one discrete issue at this time because the parties have not yet engaged in a family dispute resolution process to address decision-making, as was contemplated in their agreement reached with the assistance of the mediator, Philip Epstein. The wife asserts that, if after engaging in such a process, the parties cannot reach agreement as to where JAL should attend school commencing September 2022, then the Court can then determine that issue. Alternatively, if the court is inclined to determine the issue of JAL's school placement now, the wife submits that it is in JAL's best interests to remain at RHA for school commencing September 2022 for the following reasons:

a. RHA is a recognized school where the core curriculum is taught in English.

b. RHA is based on Jewish tradition which both parties believe is an important foundation for JAL's upbringing.

c. The fact that the parties do not speak Hebrew does not affect the parents' ability to assist JAL with his homework or educational development.

d. The maternal grandmother has undertaken to pay the cost of RHA tuition without asking for contribution from either parent to the end of Grade 8.

e. There is no evidence that the wife's viewpoint that RHA is a school choice that would be in JAL's best interests is driven by anything other than her belief that it is the best school for him.

f. There is no evidence that the maternal grandparents interfered with this decision-making process, other than offering to assist the parties; and

g. The husband's concerns that if JAL attends RHA he may be alienated from his cousins on either side of the family is unfounded.

Law and Analysis

[15] Significant amendments to the Divorce Act came into force on March 1, 2021. These amendments modernized the language in the Act by removing any reference to the terms "custody" or "access" and replacing them with terminology that focuses on parent's responsibilities for their children, with the goal of helping to reduce parental conflict. The Act introduced new terminology relating to "parenting orders", "parenting time" and "decision-making responsibility", and further added other terms and definitions including "family dispute resolution process", "family justice services", "family member" and "family violence". Similar changes were also made to provincial statutes such as the Children's Law Reform Act (CLRA), contained in the Moving Ontario Family Law Forward Act, 2020, (which also came into force on March 1, 2020).

[16] In my view, these changes are very welcome to the Family Courts and it is my hope they will do exactly what they were intended to do, which is to help reduce conflict, which is ultimately in the best interests of children.

[17] Section 2 of the Divorce Act ("Act") provides definitions for some of the new terminology. The definition of "custody" and "custody order" were repealed. Now, instead of making a custody order, the courts make a "parenting order" pursuant to s. 16.1 (1) of the Act. In a "parenting orders" the court may, among other things: allocate parenting time and day-to-day decisions (in accordance with s. 16.2 of the Act; allocate decision making responsibility (in accordance with s. 16.3 of the Act); and direct requirements regarding communication between the persons that have been allocated parenting time.

[18] Under the Act, a parenting order is available to either or both spouses; or a person, other than a spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent. Parenting time may be allocated by way of a schedule, and unless the court orders otherwise, the parent who has been allocated parenting time has exclusive authority to make the day-to-day decisions affecting the child when the child in in their care. This would include time when the child is not physically in the care of that person, such as when the child is at school or in daycare. If there is a particular issue that would normally be a day-to-day decision, but it is of certain significance to a particular child, it could provide for any other matter that the court considers appropriate.

[19] The amendments to the Act relevant to this matter is that the Court may now make an order directing the parties to attend a family dispute resolution process pursuant to s.16.1(6). The definition for "family dispute resolution process" is set out in s.2(1) of the Act, as follows:

Family dispute resolution process means a process outside of court that is used by parties to a family law dispute to attempt to resolve any matters in dispute, including negotiation, mediation and collaborative law; (mécanisme de règlement des différends familiaux)

[20] Here, the husband deposes that the parties had discussions and, prior to separation, agreed that JAL would attend public school and be enrolled in Jewish religious school on Sundays. The wife denies that agreement. Instead, she deposes that she recalls one discussion where the husband expressed his desire for JAL to attend public school and, at that time, she said "sure". The wife submits that there were no ongoing discussions between the parties about JAL's school placement but, rather, this was a one-time discussion. Again, JAL was six months old when the parties separated.

[21] These parties have a demonstrated history of being able to reach agreement in relation to matters concerning JAL. They were able to reach a parenting agreement in mediation with Philip Epstein on May 19, 2019. The parenting schedule agreed to in mediation was to be in place for one year and to be reviewed in September 2020 and, failing agreement, the parties were to determine the dispute resolution process. After the husband commenced this application, even though he sought a s.30 custody and access assessment and raised concerns about the wife's mental health and parenting abilities, the parties were still able to agree on an equal-time shared parenting residential schedule at a case conference, such that JAL resides with the parties, pursuant on a 2-2-3 schedule.

[22] While court is unquestionably a dispute resolution process, I find that a court application was not a dispute resolution process of first resort envisioned by the parties when they signed their agreement at mediation. Had court been the first option, they could easily have said so.

[23] There is no urgency to the Court making a determination about JAL's school placement for September 2022. There is, in my view, an opportunity here for the parties to attempt a less divisive solution – to enter into a family dispute resolution process where, with creativity and compromise, they can try to negotiate an agreement about how they will share the decision-making responsibility for JAL and one where they can try and design a comprehensive parenting plan to establish principles and rules to guide how they will share responsibilities and time with JAL, including addressing such matters as: how information is to be shared and communicated between them; how other related issues are to be addressed, such as the involvement of a new partner with the child; how future disagreements about the child are to be resolved; whether or not a parent should have a right of "first refusal" is the scheduled parent is unable to personally be with the child; how the parents are to manage attendance at child-related events; which parent is to hold the child's government-issued documents; how travel with the child can take place; how the children's personal items are to managed – and what school the child will attend. Again, with creativity, compromise and third-party assistance, the parties have the chance to find a less divisive solution that will ultimately benefit their child.

[24] It is well-established that children of parents who separate do significantly better if their parents co-operate and communicate with each other and conflict is minimized. If communication and co-operation with the other parent is difficult, then a good parenting plan can provide the details of parenting arrangements so that parents are not required to negotiate every decision that needs to be made and so that parents do not turn to the Court to make decisions for them that they themselves may be able to make with some assistance.

[25] Section s.16.1(6) of the Act is a new tool that can be used by the Court to assist parties who cannot agree about a major decision that impacts their child(ren) prior to making such a determination, in circumstances where such a decision is not time-sensitive. Having parents arrive a decision together, with the assistance of a skilled professional, is far better for children than having the Court impose a decision on a family where parents cannot reach a resolution about an important matter affecting children. If parents, even those who have tremendous difficulty, can be part of the design of a parenting plan, they will no doubt be far more likely to follow the terms of the plan since they were invested in making up the terms and plan. The Act requires parents to act in the best interests of children, to the best of their abilities, and to protect their children from conflict that may arise as a result of separation or divorce. It also includes an expectation that parents will support the child's relationship with the other parent, unless it would be inappropriate to do so, for example, if there are concerns surrounding family violence. The amendments to the Act which enable the Court to order the parties to attend a family dispute resolution process, in my view, are a reflection of the growing body of research about the effects of separation and divorce on children which can be reduced if parents are able to develop parenting plans that meet the needs of children and promote children's healthy development.

[26] For these reasons, I find there is no compelling reason for the Court to make a determination about JAL's school placement for September 2022 now, given that it is only October 14, 2021. Further, in the spirit of the family dispute resolution process and the wife's suggestion to proactively attempt to resolve the issue of decision-making responsibility for the important decisions that impact JAL, there shall be no costs associated with the attendance before me on October 12, 2021. An Order for costs at this point would be inimical to the consensual dispute resolution process I have ordered.

[27] To be clear, however, this Order is not meant to be a means to delay a decision or to "run the clock." If either party unreasonably stalls or delays in the dispute resolution process, this matter may be returned to court.

[28] Accordingly, I made the following order:

a. Pursuant to s.16.1(6) of the Divorce Act, the parties shall make immediate arrangements to attend a family dispute resolution process with a mediator skilled in the area of high-conflict parenting and/or family law. The purpose of this process is to assist the parties in designing a comprehensive parenting plan that addresses all pertinent issues related to JAL. If the parties cannot agree on a mediator within ten days, then each party shall submit a name of a mediator he/she proposes to the Court, to be brought to my attention, and I will make the determination. I encourage the parents to review the Association of Family and Conciliation Courts (AFCC-Ontario) parenting plan guide which can be found at AFCC-O-Parenting-Plan-Guide-Version-2.0-August-2021.pdf (afccontario.ca) prior to commencing the family dispute resolution process.

b. If, after engaging in a family dispute resolution process, the parties do not reach agreement on the school placement decision for JAL commencing September 2022 by April 15, 2022, the parties shall notify the Family Law Office to advise that this issue remains outstanding and I shall make a determination on this issue, without the need for the parties to file additional motion material or re-attend on the motion, unless they agreed to do so on consent.

c. There shall be no costs of the motion.

M. Kraft, J.

Date Released: October 15, 2021