COURT FILE NO.: FC-22-291 DATE: 2022/04/29

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

MARK THOMPSON Applicant – and – VANESSA SORRENTI Respondent

Counsel: Alison Campbell, for the Applicant Megan Lepage, for the Respondent

HEARD: April 6, 2022 (By videoconference)

RULING ON URGENT MOTION

Corthorn J.

Introduction

[1] The parties are the parents of one child, born in September 2013. The child, a daughter, is referred to in this ruling by her initials, “RGS”. For the previous and current academic years, RGS was registered as a student at an all-girls’ private school, Joan of Arc Academy (“the academy”). The academy is located in the west end of the City of Ottawa; it offers classes through Grade 8.

[2] The mother has sole decision-making authority. The mother recently registered RGS for Grade 4 at St. Philip School (“the school”) in Richmond, Ontario, for the 2022-23 academic year. In July 2022, the mother, her partner, RGS, and RGS’ infant, half-sibling will be moving to a new-build home in Richmond.

[3] The father lives in Vanier, in the east end of Ottawa. The father opposes both the removal of RGS from the academy and her registration at the school. The father’s motion is for an order that RGS be registered at the academy for the 2022-23 academic year.

[4] The father was granted leave to bring his motion on an urgent basis. The urgency arose because of the deadline for registration and the limited number of spaces at the academy. As of the date on which the motion and cross-motion were heard, there were four spaces remaining in Grade 4 for the 2022-23 academic year.

[5] The mother’s cross-motion is for an order for RGS to remain registered in Grade 4 at the school for the 2022-23 academic year.

[6] On April 11, 2022, the parties were informed (a) of the court’s decision – that RGS shall remain enrolled at the school, in Richmond, for the 2022-23 year, and (b) that written reasons for the decision would follow. This ruling provides the parties with the court’s written reasons on the motion and the cross-motion.

Background

[7] The parties were never in a relationship and never resided together. In December 2013 – approximately three months after RGS was born – the parties entered into a parenting agreement (“the agreement”). At paras. 2(i)-(iii), the agreement sets out the mother’s decision-making authority [1], the mother’s obligations to inform the father about RGS, and the father’s right to information:

(i) The mother shall have sole custody of the child, with reasonable access on reasonable notice to be exercised by the father.

(ii) The mother shall keep the father informed of all health, education, recreational activities, religious upbringing, and general well-being matters involving the child.

(iii) The father shall have the right to make enquiries and be given information as to the health, education, and welfare of the child. The mother agrees to co-operate in providing this information to the father.

[8] Paragraph 2 of the agreement concludes with a term that prohibits the mother from residing outside the City of Ottawa.

[9] Paragraph 2 of the agreement also addresses the father’s parenting time:

The mother shall exert every effort to maintain reasonable access on reasonable notice and unhampered contact between the child and the father; and to foster a feeling of affection between the child and the father. Neither parent shall do anything which would estrange the child from the other; which would injure the opinion of the child as to their mother or father; or which would impair the natural development of the child’s love and respect for each of their parents.

[10] At all material times, the father has resided in the Vanier area, of the City of Ottawa. When RGS was in Kindergarten and Grade 1, she and the mother resided in the Barrhaven area of the City of Ottawa. RGS attended St. Martin de Porres Elementary School (“STMP”) for Junior Kindergarten, Senior Kindergarten, and Grade 1.

[11] It is undisputed that RGS was negatively impacted in Grade 1 by the presence in her classroom of a student whom the mother describes as “explosive” and whom the father describes as “violent”. As a result of concerns for RGS’ physical safety and education, RGS was registered at the academy for Grade 2.

[12] It is undisputed that,

• both parties were concerned for RGS’ physical safety and the negative impact on RGS’ education because of the continued presence of the disruptive student in the Grade 1 class at STMP;
• the parties discussed their respective concerns in that regard;
• in the context of those discussions, the father offered to pay the tuition if RGS was enrolled at the academy for Grade 2; and
• but for the father’s offer to pay the tuition, the mother would not otherwise have been able to afford, financially, to enroll RGS at the academy.

[13] The mother’s uncontradicted evidence is that, prior to enrolling RGS at the academy, she met with the headmaster of and carried out research about the academy. The mother’s uncontradicted evidence is that she inquired of the father as to whether he wished to pose any questions to the school representatives; he declined the opportunity to pose questions. Last, the mother’s uncontradicted evidence is that she made the phone calls and took the steps required to enroll RGS in Grade 2 at the academy. For the 2021-22 academic year, RGS continued in Grade 3 at the academy; she will complete Grade 3 in June 2022.

[14] In their respective affidavits, the parties engage in mudslinging with respect to the opposing party’s qualities as a parent. Each party alleges, amongst other things, that the opposing party does not provide RGS with the requisite level of academic support. The parties also engage in finger-pointing; each party attempts to blame the other for shortcomings in their daughter’s marks – specifically RGS’ marks in French.

[15] The mudslinging and finger-pointing are unfortunate. That type of evidence detracts from the evidence of each party’s genuine interest to see RGS succeed with and flourish in her educational pursuits.

The Issue

[16] The issue to be determined on the motion and cross motion is whether it is in RGS’ best interests to attend Grade 4 at the academy or at the school.

Positions of the Parties

[17] The father’s position is that by virtue of the manner in which the decision was made to enroll RGS at the academy, the parties ‘attorned’ to a consultative process. The father submits that the consultative process (a) replaced the mother’s sole decision-making authority as found in the agreement, and (b) created a status quo which the parties are required to follow. The father submits that the mother’s unilateral decision to enroll RGS at the school is in breach of the consultative process.

[18] The father submits that the mother has not met the onus she bears to establish that the change from the academy to the school is in RGS’ best interests.

[19] The father asks the court to consider that the order made at this time will be an interim or temporary order. A final decision will be made at a later date, when the father’s application is heard. The father submits that the court must, at this stage of the process, be cautious about the potential for a combination of interim and final orders that results in multiple changes of school for RGS.

[20] The mother’s position is that, pursuant to the agreement, she had and continues to have sole decision-making authority with respect to education. The mother submits that she has met her onus to establish that the change from the academy to the school is in RGS’ best interests.

[21] The mother asks the court to exercise caution in response to the father’s elevation of a consultative discussion to a consultative process, and the father’s submission that the latter replaced the relevant term of the agreement. The mother submits that acceptance of the father’s position in that regard would (a) be a distortion of the parties’ intention, (b) cause other individuals to think twice before including a similar term in a parenting agreement, and (c) have a chilling effect on consultation, when required of other individuals, under existing and future parenting agreements.

The Law

[22] The relief sought by each party falls within the scope of a “parenting order” as defined within Part III, s. 18(1) of the Children’s Law Reform Act, R.S.O 1990, c. C.12 (“CLRA”). When making a parenting order, “the court shall only take into account the best interests of the child” as defined in s. 24 of the CLRA: s. 24(1). Further, the court is required to consider “all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being”: s. 24(2).

[23] The factors related to “the circumstances of a child” are set out in s. 24(3) of the CLRA. For the purposes of the motion and the cross-motion, the factors listed at ss. 24(3) (j) and (k) are not relevant (family violence and other proceedings, respectively). The potentially relevant factors are those listed at ss. 24(3) (a)-(i):

(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; [and]

(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.

[24] Both parties rely on the decision of Audet J. in Thomas v. Osika, 2018 ONSC 2712, for a thorough review of relevant factors when determining which school the child is to attend. Specifically, both parties rely on the factors summarized at para. 37, items a-m, in Thomas. I shall not repeat those factors here.

[25] Both parties also rely on the more recent decision of Audet J. in Charron v. Hollahan, 2020 ONSC 4423. The decisions in Thomas and Charron are both on interim motions.

[26] The mother also relies on the decision of Fraser J. in Traplin v. Ruckstuhl, 2021 ONSC 1093. The decision in Traplin relates to a final order regarding choice of school for the parties’ child.

Analysis

a) Chronology of Events

[27] A chronology of recent events is helpful to understand how the issue with respect to the choice of school for the 2022-23 academic year arose:

• From late September 2020 into March 2021, the father was deployed to the Ukraine with the Canadian Armed Forces. The father did not have parenting time in person with RGS during that seven-month period. Instead, he had parenting time with RGS by video calls. The parties disagree as to the frequency and quality of the interaction between the father and RGS during the video calls.
• Upon the father’s return to Ottawa, in the spring of 2021, RGS resided with him for more than a week at the end of April. The parties disagree as to the duration of that parenting time. The father’s evidence is that his parenting time was from April 19-30; the mother says it was from April 21-30.
• In the spring of 2021, the mother informed the father that, in July 2022, she would be moving to Richmond into a new-build home. The mother did not, at that time, raise the issue of choice of school for the 2022-23 academic year.
• Pending the move to Richmond, the mother sold her Barrhaven home. The mother and her family are living in a home Carp. The home in which they reside is that of the mother’s partner’s mother.
• The father had parenting time with RGS in the summer of 2021. The parties disagree as to the dates on which that parenting time occurred. The parties also disagree as to whether that parenting time was specifically requested and arranged by the father or was incidental to the mother’s arrangement with the paternal grandmother to have RGS spend time at the latter’s cottage.
• For COVID-related reasons, the father was unable to have parenting time with RGS in September and for the first three days of October 2021.
• In the late summer of 2021, the father raised with the mother the possibility of increasing his parenting time. The mother did not object to an increase in the father’s parenting time. She requested that the increase occur gradually, over time. The father undertook to provide the mother with a proposed schedule for his increased parenting time. In a Whatsapp conversation with the mother in late September 2021, the father said, “We can take this slow and work out how it evolves”.
• In November 2021, the mother informed the father of (a) her plan to enroll RGS in the school for the 2022-23 academic year, and (b) her reasons for doing so. Through text messages, in December 2021 and January 2022, the parties discussed the choice of school for RGS for the 2022-23 year.
• On January 22, 2022, the mother told the father that she had completed a placeholder registration for RGS at the school in an effort to maintain a spot for RGS. The mother also said that she was “still happy to review” the subject and she was considering information sent by the father.

[28] In an email sent at 1:53 p.m. on January 27, 2022, the mother informed the father that “after reviewing all of the information” she had decided to enroll RGS at the school. In the same email, the mother undertook to continue to provide the father “with applicable information as available”.

[29] Ten minutes later, at 2:03 p.m., and clearly upset by the mother’s decision, the father responded with the following email:

I suggest you provide me your [lawyer’s] information so our lawyers can discuss, mine was clear that you do not have the legal right to do this based on the contract and precedent.

Both schools have been informed you do not have my consent for unilateral action, I will write to them to further advise them that should they accept unilateral action on your part that I will initiate legal proceedings against them.

Should you make another registration attempt I will take legal action against you immediately.

Should you file another fraudulent application with a school without my consent I will report the issuance of a fraudulent document to the applicable authorities as CPA requires me to do, CPA still determining what I am required to do with the first fraudulent application.

If you have not sought legal advice I strongly recommend you do so, the first round of a case like this will cost each of us at least $25K and I am prepared to go much further than that.

[30] The exchange of email messages on January 27, 2022, was concluded by the mother’s response that she relied on the agreement in making the choice of school and when informing the father of her decision in that regard. The mother attached a copy of the agreement to her email.

[31] The tone and substance of the father’s January 27, 2022 email, quoted above, is significantly different from that of much, if not all, of his communication with the mother included in exhibits to the affidavits filed on this motion. The threatening and litigious tone of the January 27, 2022 email, is the antithesis of the father’s historical willingness and attempts to resolve issues through discussion with the mother.

[32] The father’s level of upset at the mother’s choice of school may also be demonstrated by his decision to commence this proceeding. The father’s application was commenced on February 15, 2022. [2] That date is approximately two weeks after the mother informed the father of her decision regarding choice of school.

[33] The relief sought by the father on his application includes an order for joint decision-making authority and equally shared parenting time. As of the return date for the motion, the parties had not yet appeared at a case conference.

b) Decision-Making Authority re Education

[34] I turn next to consider the parties’ respective evidence on the issue of decision-making authority, as it relates to education. It is undisputed that as of December 2013, and pursuant to the agreement, the mother had sole decision-making authority including with respect to education. Subsequent to December 2013, did the parties agree to any change to decision-making authority with respect to education? As of 2022, which of the parties has decision-making authority for education and what is the source of that authority?

[35] The father’s position is that there has, since December 2013, been a change in decision-making authority for education. As evidence of that change, the father relies on the manner in which the parties discussed, arranged, and financed RGS’ transfer from STMP to the academy for the 2020-21 and 2021-22 academic years.

[36] I am not persuaded by the evidence or by the father’s position in that regard. I find that there has been no change to the mother’s decision-making authority with respect to education. The reasons for that finding include the following:

• The father did not provide the court with any case authority in support of the suggested elevation of the parties’ consultative discussion to a “consultative process”;
• The evidence does not support a finding that the parties engaged in a “consultative process” that detracts in any way from the mother’s decision-making authority as set out in the agreement; and
• The father’s offer, and subsequent agreement, to pay the tuition for RGS to attend the academy does not impact the mother’s decision-making authority. The father’s choice to pay the tuition is evidence of his willingness to support RGS’ academic pursuits. RGS is fortunate to have a parent whose financial position allows him to provide that type of support.

[37] I agree with the mother’s submission that to elevate the parties’ consultative discussion to a consultative process would have a chilling effect on (a) the inclusion of consultation requirements in parenting and other agreements in the future, and (b) the nature and extent of consultation based on existing agreements that include such a requirement. Consultation between parents is to be encouraged, not discouraged.

[38] In summary, I find that the mother continues to have decision-making authority with respect to education in accordance with the terms of the agreement.

c) The Mother has Historically Acted in the Child’s Best Interests

[39] As noted by Audet J. at para. 37, item “e” of Thomas, the parent with decision-making authority “should be entrusted with decision-making as to which school children should attend.” At the same paragraph, and relying on Adams v. Adams, 2016 ONCJ 431, Audet J. said, “When a custodial parent has always acted in the best interests of a child, there should be no reason to doubt that this parent will act in the best interest of the child when deciding on a school”.

[40] As has already been noted, the affidavit evidence includes mudslinging and finger-pointing by each of the parties. The subjects covered include assignments missed by RGS in her Grade 3 French Writing class – a class she is described by her mother as hating. The subjects covered also include which parent is better-able to assist RGS with her French language studies.

[41] The parties were not cross-examined on their respective affidavits.

[42] There is, however, an element of consistency in the evidence that RGS is, broadly speaking, doing well at school. A downward trend in any of her marks is rare. The drop in RGS’ marks, to the extent there is any, is minimal (with the exception of French Writing). RGS’ academic achievements are noteworthy, in particular when considered in light of the disruption that COVID has caused in education for the past two-plus years.

[43] I find that the mother has historically acted in RGS’ best interests with respect to decisions about education. My reasons for that finding include that the mother addressed concerns for RGS’ education when concerns arose with respect to the disruptive student in RGS’ Grade 1 class. In addition, the mother was thorough in her research before deciding to enroll RGS in Grade 2 at the academy.

d) The Decision to Transfer to the School

[44] Even with the finding made that the mother has historically acted in RGS’ best interests, the mother bears the onus of establishing that the transfer from the academy to the school for the 2022-23 academic year is in RGS’ best interests. For the court to grant the relief requested by the mother, the evidence in that regard must be convincing: see Thomas, at para. 37, item k, and quoting Perron v. Perron, 2012 ONCA 811.

[45] In Thomas, Charron, and Traplin, Audet and Fraser JJ. both considered the factors summarized at para. 37 of Thomas. They both also emphasized the importance of practical considerations: see, for example, Thomas, at para. 41 and Charron, at para. 27. A practical approach is in keeping with the fact-driven basis for decisions on motions of this kind: see Thomas, at para. 37, item m.

[46] Relying on the factors outlined in Thomas, Charron, and Traplin, I find that there is convincing evidence that the change from the academy to the school is in RGS’s best interests:

• As a result of COVID, and because of the nature of the student body at the academy, RGS has not had the opportunity to develop a network of friends at school with whom she regularly socializes outside of school;
• By attending a school in the area in which she will primarily be residing for the foreseeable future, RGS will have the opportunity to build a local network of friends with whom to socialize outside of school for the balance of her primary and secondary school years;
• In the summer of 2022, RGS will have the opportunity to make friends through participation in spring soccer and by attending summer camps, both in Richmond. Some of those friends may also be students at the school in September 2022, providing RGS with an opportunity to build on the friendships she develops in the summer;
• The increased driving time from the father’s home, in Vanier, to and from the school is outweighed by the elimination of driving time between the mother’s new home in Richmond and the school;
• RGS will not require after-school care if she attends the school; she will require after-school care if she continues at the academy;
• The decrease in driving time and the elimination of after-school care will, in combination, provide RGS with the opportunity to spend time with friends, to participate in extra-curricular activities, and to complete homework; and
• The change from the academy to the school does not have a significant impact on the support network available to assist the parties in the event of either an unexpected change in plans or an emergency. Ottawa-based members of that support network need drive only 20 minutes further to the school than they would to reach the academy. There will now also be people in Richmond to form part of the support network.

[47] More generally, I find that the mother has historically considered and continues to consider the quality of education that RGS receives, to be an important factor when making decisions about a school for RGS. I find that in making the decision to transfer RGS from the academy to the school, the mother considered quality of education as a factor.

[48] The father addresses the issue of quality of education by providing anecdotal evidence regarding private versus public school, by providing third party statistics, and by expressing his opinion as to the benefits of a private school education over a public school education. I place no weight on any of that evidence.

[49] First, the father’s private school experience is personal to him; it is not representative of private school students across the board.

[50] Second, as noted by Audet J. at para. 37, item j, in Thomas, third party ranking systems should not factor into the court’s decision; such systems do not address the best interests of the child involved. The statistics about academic achievement at one school or another, upon which the father relies, do not address RGS’ best interests. The statistics are, in any event, inadmissible. Statistical evidence and evidence as to the significance of statistics must be provided by a witness with expertise in the requisite area.

[51] Third, the father is not an expert in the field of education, qualified to fulfill the duty that an expert witness has to the court. In Beazley v. Johnston et al., 2022 ONSC 1739, the court found that the plaintiff was not entitled to provide expert opinion in the context of motions for summary judgment in a medical negligence claim. The court reviewed the law with respect to a party acting as their own expert witness:

• An expert witness has a “duty to the court to give fair, objective and non-partisan opinion evidence”: Beazley, at para. 13, quoting White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 10;
• It is “trite law to say that a party cannot function as his or her own expert, regardless of the professional qualifications of the party, since expert evidence must be ‘fair, objective and non-partisan’”: Beazley, at para. 20, quoting Marshall v. Jackson, 2021 ONSC 2361, 154 O.R. (3d) 715, at para. 7; and
• It is improper for a party to engage in what is considered the expert’s task: Beazley, at para. 20 and Marshall, at para. 8.

[52] I find that the father is not in a position to fulfill the duty that an expert has to the court.

[53] In summary, I find that the mother’s decision to register RGS in Grade 4 at the school for the 2022-23 academic year is in the child’s best interests.

e) Other Matters

[54] The father submits that the final decision on this application for joint decision-making and equally shared parenting time may lead to a different result. That possibility exists; it does not, however, persuade me that something other than the practical approach taken in both Thomas and Charron should be taken at this stage of the proceeding.

[55] The father questions the delay, from the summer of 2021, when the mother informed him of the move to Richmond, to late 2021 and early 2022, when the issue of choice of school was addressed. The father submits that the delay in that regard represents a deliberate effort on the mother’s part to negatively impact his parenting time with RGS.

[56] It is undisputed that the move to Richmond is not in breach of the terms of the agreement. The agreement provides that the mother may move within the City of Ottawa. Richmond falls within the boundaries of the City of Ottawa.

[57] I agree with the father that it would have been preferable, if not ideal, if the mother had raised the issue of choice of school at the same time that she informed the father of the move to Richmond. The evidence falls short, however, of establishing that in dealing with the move to Richmond and the choice of school separately the mother was carrying out a deliberate strategy intended to negatively affect the father’s parenting time. There could be any number of innocuous reasons why the mother dealt with the choice of school several months after informing the father of the impending move.

Disposition

[58] For the reasons set out above, the court orders that RGS shall remain registered in Grade 4 at the school, in Richmond, for the 2022-23 academic year.

Costs

[59] If the parties are unable to resolve the issue of costs of the motion and cross-motion, they shall each deliver written costs submissions as follows:

a) The parties’ submissions shall be limited to a maximum of four pages (excluding the bill of costs);

b) Written submissions shall comply with the format prescribed by r. 4 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194;

c) Copies of any case law or other authorities relied on shall be provided with the submissions and shall comply with r. 4 of the Rules with respect to font size;

d) Submissions, including copies of case law or other authorities, shall be filed with the court electronically in accordance with the most recent notice to the profession in that regard; and

e) The parties shall deliver their respective written submissions by 4:00 p.m. on Friday, May 13, 2022.

[60] If no submissions are delivered pursuant to subparagraph (e) above, there will be no further order with respect to the costs of the motion and cross-motion.

Madam Justice Sylvia Corthorn

Released: April 29, 2022

Footnotes

[1] In this ruling, the court uses the terms decision-making authority and parenting time. The agreement refers to “custody” and “access”, because it pre-dates the recent amendments to the relevant legislation in which the terms “decision-making authority” and “parenting time” are used.

[2] The application is not part of the motion record. The timing of the application was addressed during oral submissions. I relied on the electronic court file to obtain the date of issuance. The description in the court file of the notice of application includes the notation “NOT FILED” (all upper case as in the court record).