Superior Court of Justice, Family Court
COURT FILE NO.: FC-19-2528
DATE: 2022/12/01
RE: BOUCHRA SABBAR, Applicant
AND: EHAB ZALOK, Respondent (Moving Party)
BEFORE: Regional Senior Justice Calum MacLeod
COUNSEL: Jeremy Dolgin, for the Respondent John M.H. Guest, for the Respondent (Moving Party)
HEARD: October 20, 2022
DECISION AND REASONS
[1] This was presented as an urgent motion brought because the parents cannot agree on what school their youngest child should attend. Because they cannot agree, they are deadlocked and the child is not attending any school. He is going to daycare when he is in the care of the Applicant Father and is being home schooled, when he is in the care of the Respondent Mother. Consequently, the parties have come to court asking a judge to make this important decision for them.
[2] This is the kind of decision that judges are not infrequently called upon to decide and often in cases of urgency they must do so on limited or inadequate evidence. To say the least that is not ideal. In this case, however, it is particularly egregious.
[3] The need for court intervention should not have been made urgent by a standoff between the parents. Furthermore, the court should not be asked to make this decision on an evidentiary record far too thin for the court to assess what educational future is in the best interests of a four year old child.
[4] As I will discuss, however, the parties came to court and agreed that a decision was necessary. A decision must be made if the child is to be enrolled in school at the beginning of next term. One term of Junior Kindergarten is unlikely to be a life changing decision for the child and it would be disproportionate to require the parties to come back to court with better evidence.
[5] I am therefore directing that the child be enrolled in the same school as his elder brother until the court can determine on a proper evidentiary record, which parent should be entrusted with decision making.
Background
[6] The parties were married on June 16, 2006 and separated on September 1, 2019. They are parents of three children aged, 15, 13 and four. The motion concerns the youngest child, A.Z.
[7] This litigation was begun in 2019, shortly after separation. It appears there were several conferences and consent orders in June of 2020. Initially, there was agreement for the older two children to spend equal time with both parents on a week about schedule. A motion was contemplated with regard to A.Z., but on June 26, 2020, there was a consent order for all three children to be parented on the same schedule. There was also a child support order and an order requesting the involvement of the Office of the Children’s Lawyer. It does not appear that the OCL provided service.
[8] A further case conference was held on June 11, 2021. By this time, the applicant had changed counsel. On June 11, 2021, the parties agreed to a final order resolving their financial issues. There was also a case conference on June 11, 2021, which dealt with parenting issues and disclosure of police records as well as counselling for the two oldest children. It appears that by that date, one of the older children was residing with the Applicant Mother and the other with the Respondent Father and the children had each become resistant to spending time with the other parent. Still, the parents were able to agree to a parenting schedule. They continued to share time with A.Z.
[9] According to the Respondent Father’s affidavit in support of this motion, the two elder children are now refusing to spend time with the Applicant Mother. But the parenting of the older children is not the subject of this motion and this allegation is not relevant to what I am asked to decide. Similarly, there is an allegation that the Applicant Mother has withheld A.Z. from the father. This is denied by the Applicant Mother, but it is not an allegation I am asked to resolve. Suffice to say, however, that the court record reveals a significant amount of conflict over parenting and suggests that the children have been caught up in their parents’ conflict.
[10] The issue of schooling has never previously been raised in any of the case conferences or the motions. It presented itself in September when the Respondent Father sought an urgent motion date. It was his position that it was urgent because the Applicant Mother had blocked the registration of the child for Junior Kindergarten at Hopewell Public School. When the parties attended before Justice Ryan Bell on September 20, 2022, they both agreed that it was in the child’s best interests to have the school issue determined by the court as soon as possible. This motion was then scheduled.
The Issue and the Position of the Parties
[11] Both of the older children attended Hopewell Public School by agreement between the parties. Although neither parent lives in the catchment area for that school, they owned a rental property in that area which is now the property of the Respondent Father pursuant to the order granted in June of 2026. According to the Respondent Father, this entitles the children to attend Hopewell and he had assumed that is what would take place. Only one of A.Z.’s siblings still attends Hopewell and he will age out of the school at the end of this school year.
[12] Hopewell is an English language public school operated by the Ottawa Carleton District School Board. It has an early French Immersion program such that it is possible to be enrolled in French immersion from the first day of school. The Respondent Father believed that the parties had agreed to Hopewell and proceeded to register A.Z. for Junior Kindergarten. In response, the Applicant Mother advised the school that she did not consent to registration and the result is that A.Z. is not currently attending J.K.
[13] Both parents agree that it would be in the best interests of the child to attend Kindergarten. On the other hand, there is no evidence that the current arrangement which is daycare when A.Z. is in the care of the father and “home schooling” when he is in the care of the Applicant Mother is harmful to the child or is not providing for his current educational needs. It should be noted that in Ontario, education is mandatory for all children aged 6 – 18.[^1] Below the age of six, a child may attend Kindergarten or Junior Kindergarten, but is not required by law to do so.[^2]
[14] According to the Applicant Mother, the parties are not entitled to register A.Z. at Hopewell because they do not actually reside in the catchment area. Instead, she proposes registration at either École élémentaire catholique George-Étienne-Cartier or École élémentaire publique Gabrielle-Roy. These are both French language schools, the former operated by Conseil des écoles catholiques du Centre-Est and the latter by Conseil des écoles publiques de l’est de l’Ontario. These are schools for which the catchment area includes the Applicant Mother’s residence.
[15] Because the Respondent Father lives at the former matrimonial home and the Applicant Mother lives in Gloucester, both parties have to drive approximately 15 minutes to get to Hopewell. The other two schools are further from the father’s residence, being roughly located in Blossom Park and Heron Park respectively, but none of these schools are walking distance from the residence of either parent. The Applicant Mother, however, deposes that A.Z. would be bused to either of the schools she proposes and she deposes that driving is a hardship for her because of back issues.
[16] Besides geography, the other distinction is between French immersion in the English public board or primary French education in the French catholic board or French public board. The parties both agree that A.Z. should learn English and French as well as Arabic. The Respondent Father, however, deposes that he does not speak French and would have difficulty communicating with the schools in the French language school boards.
Analysis
[17] The difficulty with this motion is the complete lack of admissible and useful evidence about the best interests of the child. Most of the evidence concerns the wishes or views of the parents themselves, relates to inconvenience for one or other of the parents, or is suggestive of a self serving rationale or excuse for one or other of the parents having his or her way on this issue.
[18] I am in no position to rule as to which school is a better fit for this child. Hardly surprising, given the age of the child and the lack of any educational record, the evidence tells me nothing about the educational aptitude of the child. There is no evidence concerning the capacity of the child to thrive or otherwise in early French immersion or how he would fare in a French language school. Unless I take judicial notice of media articles or promotional materials from the school boards themselves then I cannot determine on this evidence whether education in French if the father does not speak the language would be better than French immersion in an English language school.
[19] The parties do agree that A.Z. should be taught English, French and Arabic. Apparently the Respondent Father speaks Arabic and English but not French. The affidavits do not disclose what language is normally spoken in each of their homes or how proficient the child is in these languages.
[20] There is a suggestion that at one time the child’s acquisition of language skills was delayed but the affidavit of the mother states that this is no longer a concern. The only evidence to assist me with the merits of immersion versus a school that presumptively operates in French is the mother’s evidence that the older children started in French school and then changed to immersion. She expresses the opinion and the view that their current level of French is not as good as if they had remained in French school. Even if I admit that opinion evidence, it does not of course address other aspects of academic performance. What it does demonstrate is that the choice of school board for kindergarten is not an irrevocable choice.
[21] The parties also advance arguments based upon religion. The father deposes that as a Muslim, he is opposed to the child attending a Catholic school. By contrast, the mother deposes that as a Muslim, she favours enrollment in a Catholic school where there is a focus on conservative value based education. She states that there are other Muslim children in the school and she has spoken with the school to verify that they do not teach Catholicism in the early grades. The latter is hearsay, but little turns on it because the position of the mother is that while she thinks the Catholic school is a better school, she will not insist upon it if the father objects.
[22] The Applicant Mother expresses the view that attendance at Hopewell is only possible by misleading the school about the address of the children. Needless to say, I do not have any evidence on this point from the school board and the board is not a party. Since an order made under those circumstances will not bind the school board, what I am really being asked to determine is which parent should have the final say over education for the time being.
[23] Given the complete lack of evidence by which I can assess the educational needs of this particular child or any admissible evidence to differentiate between the schools and given that there is no evidence that the child’s educational or social skills are suffering with the status quo, I would be inclined to the view that a judicial decision on this matter is not urgent.
[24] I would also be inclined to urge the parties to make further efforts to resolve this matter, particularly since failure to do will have implications for any kind of joint decision making over parenting issues in the future. Finally, there is no absolute right legal answer to this question. Nothing in the evidence suggests that the question of what school to attend or even what school board to enrol in is likely to an irrevocable life changing decision for the child.
[25] I am however troubled by considerations of proportionality. If I adjourn the matter to permit the parties to bring another motion on better evidence, the costs will escalate exponentially. As it is, both parents are represented by counsel. The costs already incurred would in all probability fund a year of education at a private academy.
[26] Both parties advised the court that it was in the best interests of the child that the court make this decision and make it in time for the child to be enrolled in school in the new year. Short of flipping a judicial coin, therefore, I am compelled to make a decision based on the flimsiest of information and evidence. The alternative is to continue the existing stalemate.
Decision on Schooling
[27] It is not disputed that the older children attended Hopewell and it was at one time the expectation of the parties that A.Z. would do likewise. It is also undisputed that Hopewell had accepted the enrollment until the Applicant Mother advised them that she was not consenting. A.Z.’s older brother still attends Hopewell and will do so until the end of the school year.
[28] The evidence does not persuade me that it would be detrimental to A.Z. to attend Hopewell for Junior Kindergarten from January to June of 2023. This should be sufficient time for the parties to reach a final agreement or put the matter on the trial list. It should also provide an opportunity to evaluate the J.K. experience.
[29] Accordingly, in my view, registration at Hopewell is close to the status quo. Since the parties insist on a decision and were clear that a decision was required, this is what I have decided.
[30] The mother is to consent to enrollment in Hopewell Public School and the child will attend Hopewell Public School unless the parties reach a different agreement or the court orders otherwise.
Costs
[31] I decline to order costs. Much of the affidavit material consisted of opinions of the parties or allegations of wrongdoing that were not material to the question of schooling.
Mr. Justice C. MacLeod
Date: December 1, 2022
COURT FILE NO.: FC-19-2528
DATE: 2022/12/01
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: BOUCHRA SABBAR, Applicant
AND: EHAB ZALOK, Respondent (Moving Party)
BEFORE: Regional Senior Justice Calum MacLeod
COUNSEL: Jeremy Dolgin, for the Respondent John M.H. Guest, for the Respondent (Moving Party)
DECISION AND REASONS
Regional Senior Justice Calum MacLeod
Released: December 1, 2022
[^1]: Education Act, RSO 1990, c. E.2 as amended, s. 21 [^2]: Education Act, s. 34