REASONS FOR DECISION

[1] The applicant mother brings a motion:

(a) To vary the school that the respondent has chosen for L, the parties' 5-year-old daughter, for enrolment in September 2022; and

(b) For an Order requiring further disclosure from the respondent.

[2] The parties were married on April 3, 2016, and separated on December 8, 219.

[3] The parties have a child, L, now 5, born February 3, 2017.

[4] The father has decision making over L's schooling as per a temporary order of Leiper J. dated October 25, 2021 that states:

Subject to further agreement by the parties or further court Order the Respondent shall be entitled to make the decision as to where the child L shall attend school, in consultation with the Applicant, Manna Begum ("Applicant"), and considering where they live to ensure the school is approximately equidistant between the two households. Enrolment by the Respondent shall take place for the school year beginning in September 2022.

[5] Also, pursuant to the temporary order of Leiper J., the father has the following parenting time with L:

• Alternative weekends

• Thursday from 5:00 p.m. until Friday morning, on the weeks preceding a weekend in which he does not have parenting time; and

• Monday overnight on the weeks following a weekend in which he does not have parenting time.

[6] On January 28, 2022, the respondent sent the applicant an email where he indicated that he had looked at a variety of schools between their homes and that Étienne Brûlé Public School made the most sense for L. He provided several reasons for his choice of school and invited the applicant to consent. Étienne Brûlé is located at 50 Cloverhill Road (main intersection is Park Lawn Road and The Queensway in Etobicoke).

[7] On January 30, 2022, Mr. Benmor, counsel for the applicant at the time, responded to respondent's counsel that the respondent "has now considered the various school options for L for September and has agreed with your client's proposal to have her registered at Étienne Brûlé for kindergarten."

[8] On February 2, 2022, the respondent sent an email attaching L's completed school enrolment and inviting the applicant to let him know what next steps should occur "to prepare for L's education and well-being."

[9] On March 18, 2022, the parties attended before Papageorgiou J. at a Case Conference and agreed that, as a compromise, enrollment would occur at the Waterfront School, roughly equidistant from where parenting exchanges were to occur, namely 110 River Street. However, Waterfront School advised that it would not accept L, as she is not in the school's catchment area.

[10] The parties agree that schools in the TDSB are requiring that the child live in the catchment area before registration. The evidence now suggests that Étienne Brûlé would not accept L as she does not reside in the catchment area.

[11] The applicant planned on moving to the Lawrence and Birchmount area in Scarborough on or around May 15, 2022. When this motion was initially argued in April, the applicant wanted to enrol L at General Crerar Public School located at 30 McGregor Road (main intersection Lawrence Avenue and Birchmount Road) in Scarborough.

[12] The respondent lives on Michael Power Place in Etobicoke (near Bloor Street West between Kipling and Islington Avenue).

[13] By way of my endorsement dated May 11, 2022, I directed the parties to continue to see if they could agree on a school for L for the 2022/23 school year that would be prepared to register her. Ultimately, while the respondent claimed that the parties could not agree on a school, the applicant indicated that Nelson Mandela Public School is roughly equidistant from the parties' residences and that this school is prepared to accept L for registration for the 2022/23 school year. This school accepts that L has sufficient connections to its catchment area, including through her maternal grandparents residing in the vicinity.

[14] A combined Settlement/Trial Management Conference is scheduled on July 11, 2022.

[15] In Chyher v. Al Jaboury, 2021 ONSC 819, Audet J. set out the legal test for varying a temporary order pending trial.

[16] Summers J. concisely set out in her June 2021 decision (2021 ONSC 4358) the legal test that must be met for a temporary order to be varied pending trial. I reproduce her legal summary here, and adopt it as mine:

[22] The case law reflects two approaches to the variation of interim orders. See Calabrese v. Calabrese, 2016 ONSC 3077 (Ont. S.C.J.) where the court indicates the strict material change test is not a prerequisite to varying an interim parenting order and says the overriding principle is always the best interests of the child. However, Henderson J. goes on to say in Calabrese that many courts have recognized it is not in the best interests of the child to make interim changes pending a full vetting of the evidence at trial and concludes that changes to temporary orders will be rare. It is the second approach that I adopt. It requires a material change in circumstance that results in a compelling reason to vary the previous interim order. See Radojevic v. Radojevic, 2020 ONSC 5868, 2020 CarswellOnt 14013, 324 A.C.W.S. (3d) 233 where Kurz J. agrees with Justice Mitrow in Miranda v. Miranda, 2013 ONSC 4704 (Ont. S.C.J.), that the threshold is a material change in circumstances that compels a change in the parenting terms in the best interests of the child. Mitrow J. sets out the following summary in Miranda, at para. 26:

26 A party wishing to disturb an interim status quo or vary an interim order faces a strong onus to produce cogent and compelling evidence to show that the physical, mental and moral welfare of a child would be in danger in maintaining the status quo: McCarthy v. Scheibler, 1999 CarswellOnt 3419 (Ont. S.C.J.) at para. 14. Variation of interim custody and access orders will usually only succeed if a child is at risk, or for some other compelling reasons. There is a presumption in favour of the status quo absent compelling reason to change the status quo: Gusikoski v. Gusikoski, 2001 CarswellSask 323 (Sask. Q.B.) at para 10. In Green v. Cairns, 2004 CarswellOnt 2322 (Ont. S.C.J.) at para. 14, Wood J. referred to the well- founded reluctance by courts to vary interim orders on an interim basis and stated that an interim order should only be varied on an interim basis where the evidence establishes "clearly and unequivocally" that the present arrangement is not in a child's best interests. In Greve v. Brighton, 2011 ONSC 4996, 2011 CarswellOnt 8814 (Ont. S.C.J.), Ricchetti J., after reviewing various authorities, states at para. 24 that on a motion for an interim order to vary an existing interim order, the court should only do so where the moving party has demonstrated a change in circumstances as a result of which there are compelling reasons to vary the interim order to meet the child's best interests.

Decision on Schooling

[17] I find that while the applicant initially argued the motion on the basis of "varying" the previous interim order, in her written submissions, she correctly advised that she was, in fact, seeking enforcement of the existing court order of Leiper J. I find that I am therefore required to interpret Justice Leiper's order and I agree with the applicant that the import of Justice Leiper's order is that, while decision making regarding schooling is given to the respondent father, it is also necessary for him to comply with that part of Justice Leiper's order that states "and considering where they live to ensure the school is approximately equidistant between the two households."

[18] The previous suggestions of Étienne Brûlé and Waterfront schools no longer work as these schools are no longer willing to enroll the child. I find that the applicant's suggestion of the Nelson Mandela Public School best represents compliance with Justice Leiper's order. It does not appear that the respondent is opposed to this choice of school. I direct that, on an interim basis, L be enrolled for the 2022/23 school year at the Nelson Mandela Public School.

Disclosure Motion

[19] The other part of the applicant's motion related to seeking greater disclosure from the father. In his written submissions, the respondent appended Exhibit "H" to his affidavit of May 27, 2022, which contains his position as to whether and to what extent he has provided (or will provide) the disclosure that the applicant seeks. In some instances, his position is that the applicant's request is unreasonable as it calls for irrelevant or excessive disclosure given principles of relevance and proportionality.

[20] I find that "Exhibit H" represents a reasonable response by the father to the applicant's disclosure request. I direct that the respondent make disclosure consistent with, and no more than what he has undertaken to do in, Exhibit "H" to his affidavit dated May 27, 2022.

Costs

[21] As I find there has been mixed success on the applicant's motion, I direct that there be no costs awarded.

Order

[22] The parties shall provide me with an Order by June 20, 2022 consistent with this decision by sending a draft Order in WORD format to Annette.Elek@ontario.ca.

Pinto J.

Released: June 17, 2022

COURT FILE NO.: FS-20-14671

DATE: 20220617

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Manna Begum

Applicant

– and –

Luke Klippenstein

Respondent

REASONS FOR DECISION

Pinto J.

Released: June 17, 2022

Begum v. Klippenstein , 2022 ONSC 3606

Case Summary

REASONS FOR DECISION

Decision on Schooling

Disclosure Motion

Costs

Order

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legal Tests 1