Court File and Parties

COURT FILE NO.: FS-21-24396 DATE: 202305 25 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Saif Al-Naib, Applicant AND: Zeinab Shnyin, Respondent

BEFORE: W.D. Black J.

COUNSEL: Kristen Normandin and Joanna Hunt-Jones, for the Applicant Shelly Kalra, for the Respondent

HEARD: May 16, 2023

Endorsement

Overview

[1] The only substantive issue before me is the question of the school at which the parties’ child should be enrolled in for Junior Kindergarten (“JK”) for the 2023-2024 school year. The child at the center of this motion is the parties’ daughter, Nyla, who will be four years old in October of this year.

[2] The applicant father’s position is that the child should attend the Rose Avenue Junior Public School, which is in the catchment area of the matrimonial home in downtown Toronto (the “MH”), where he still lives, and the respondent mother does not.

[3] The respondent mother’s position is that the child should attend the Crestview Public School in the catchment area of the mother’s residence in North York, to which she moved in December of 2021, following the parties separation earlier that year (on May 13, 2021).

[4] In the materials, it appeared that there was also a contested issue about the appropriate parenting schedule. At the hearing of the motion, however, I was advised that this issue is essentially off the table, and that both parties are prepared to live with the 2-2-3 arrangement suggested by Jared Norton, who conducted a thoroughgoing section 30 assessment. The applicant father’s position on the parenting schedule was a bit more nuanced than unequivocally agreeing to a 2-2-3 schedule. He purported to tie the schedule to the outcome of the motion regarding the choice of school, arguing in his materials for a 2-2-5-5 approach. However, neither party made oral submissions seriously contesting the proposed 2-2-3 arrangement, and so I proceed on that basis.

Role of the Best Interest of the Child

[5] As with virtually all decisions in the family arena in which there is a child or children involved, the primary and overriding consideration in the motion before me is the best interest of the child.

Considerations Guiding Decision re Choice of School

[6] The parties agree that the choice of a child’s school is incidental to decision-making and rights of custody, and that, where the parents are unable to agree, the determination becomes a matter of judicial discretion.

[7] The authority for the court to make such orders derives from s. 16.1 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.). In addition, s. 28(1)(b) of the Children’s Law Reform Act, R.S.O. 1990, c. C. 12, empowers the court to determine matters incidental or ancillary to custody rights.

[8] There is also an array of cases providing helpful guidance as to factors to be considered in the determination.

[9] In addition to confirming the primacy of the child’s best interests in the analysis, the cases underline the importance of fact-specific context. As Klein J. aptly put it in Deschenes v. Medwayosh, 2016 ONCJ 567, at para. 17, “the courts are not pronouncing on what is best for all children in a general sense but rather deciding what is in the best interests of this child before the court”.

[10] There are a handful of cases that set out various touchstones to guide the case-specific analysis of determining which school a child should attend. In Moussaoui v. Harkouken, 2021 ONSC 1986, drawing from the earlier decision of Audet J. in Thomas v. Osika, 2018 ONSC 2712, 13 R.F.L. (8th) 191, at para. 38, Shelston J. listed the following factors to be considered:

a. Sub-section 28(1)(b) of the Children’s Law Reform Act specifically empowers the court to determine any matter incidental to custody rights. The issue of a child’s enrollment in a school program must be considered as incidental to or ancillary to the rights of custody (Deschenes v. Medwayosh, 2016 ONCJ 567);

b. It is implicit that a parent’s plan for the child’s education, and his or her capacity and commitment to carry out the plan are important elements affecting a child’s best interests. In developing a child’s educational plan, the unique needs, circumstances, aptitudes and attributes of the child must be taken into account (Bandas v. Demirdache, 2013 ONCJ 679 (Ont. C.J.));

c. When considering school placement, one factor to be considered is the ability of the parent to assist the child with homework and the degree to which the parent can participate in the child’s educational program (Deschenes v. Medwayosh, 2016 ONCJ 567);

d. The emphasis must be placed on the interests of the child, and not on the interests or rights of the parents (Gordon v. Goertz, [1996] S.C.J. No. 52 (S.C.C.));

e. The importance of a school placement or educational program will promote and maintain a child’s cultural and linguistic heritage (Perron v. Perron, 2012 ONCA 811 (Ont. C.A.));

f. Factors which may be taken into account by the court in determining the best interests of the child include assessing any impact on the stability of the child. This may include examining whether or not there is any prospect of one of the parties moving in the near future, where the child was born and raised, whether a move will mean new child care providers or other unsettling features (Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.));

g. The court will also look to any decisions that were made by the parents prior to the separation or at the time of separation with respect to schooling (Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.));

h. Any problems with the proposed schools will be considered (Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.));

i. A decision as to the choice of school should be made on its own merits and based, in part, on the resources that each school offered in relation to a child’s needs, rather than on their proximity to the residence of one parent or the other, or the convenience that his attendance at the nearest school would entail (Wilson v. Wilson, 2015 ONSC 479);

j. Third party ranking systems, such as the Fraser Institute’s, should not factor into a court’s decision. These systems of ranking do not take into consideration the best interest of the particular child in a family law context (Wilson v. Wilson, 2015 ONSC 479);

k. If an aspect of a child’s life, such as school placement, is to be disrupted by an order of the court, there must be good reason for the court to do so. Thus, before a court will order a child to transfer schools, there must be convincing evidence that a change of schools is in the child’s best interests (Perron v. Perron, 2012 ONCA 811 (Ont. C.A.));

l. Custodial parents should be entrusted with making the decision as to which school children should attend. When a sole custodial parent has always acted in the best interest 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 (Adams v. Adams, 2016 ONCJ 431);

m. Those cases are very fact-driven. The courts are not pronouncing on what is best for all children in a general sense but rather deciding what is in the best interests of this child before the court (Deschenes v. Medwayosh, 2016 ONCJ 567).

[11] The applicant advocates adding to the list set out above that:

Where there is a question of where to enroll a child in school for kindergarten (i.e. for the first time) and there is no issue of “residential responsibility” or “primary parenting”, an assessment of best interests of the child is the only proper criterion governing the choice of school. In the present case, as the parties have already agreed to a shared parenting schedule…and Nyla does not have one “primary residence, the only issue to be determined is what choice of school is in her best interests.

[12] Other cases have emphasized that part of the assessment of stability for a child is the question of where the child’s friends are (Thomas, at para. 46), the permanence and/or stability of either or both parents’ living arrangements (Thomas, at para. 46), the ability of one parent or another to assist the child with homework and the degree to which a parent can participate in the child’s educational program (Deschenes, at para. 15).

[13] Courts have also considered the availability and stability of additional childcare providers (Askalan).

The Parties’ Positions

[14] I turn now to analyze the various factors set out above, and related concerns, and in particular, the parties’ respective arguments on the criteria set out above that are relevant (or one or both of the parties maintains is relevant) to my determination.

Question of Primary Caregiver

[15] Implicit in the applicant’s argument excerpted in paragraph 11 above is the applicant’s assertion that the respondent has not been the primary caregiver for their daughter. As the applicant would have it, no weight can or should be placed on any suggestion that the mother has played a greater role in the care of the child.

[16] The respondent makes that very argument. She points out that when Nyla was born, with the agreement of the applicant, the respondent left the full-time job that she had at that time in order to be home to care for the child. This occurred roughly two years before the parties separated.

[17] Moreover, inasmuch as the applicant has continued to work full-time since Nyla’s birth and since the separation whereas the respondent has worked somewhat sporadically, the shared parenting arrangement has to this point entailed the respondent having substantially more parenting time with the child than the applicant has. The respondent estimates, and the applicant does not offer specific evidence to contest, that the child has spent about 70 per cent of her waking hours, since separation, in the company of her mother in North York. This is a function of the parenting time arrangement under which the parties have been operating up to now, in which the applicant has had parenting time for four to six days out of every 14 days, and the respondent has had parenting time for eight to ten days. This arrangement was established to accommodate the applicant’s work schedule, and indeed the uncontested evidence is that, at times when unanticipated work obligations have arisen for the applicant, the respondent has provided back-up parenting in those instances as well.

[18] As such, and returning to the applicant’s assertion set out in paragraph 11 above, the respondent has in fact provided a majority of the care for the child.

[19] While this is understandable given the parties’ respective work commitments, and the need for one party or both to generate income, the allocation of childcare between these parties to this point has implications for various of the factors that I must consider in my analysis.

Additional Aspects of Applicant’s Argument

[20] The applicant’s argument is that, until the separation and because the pandemic required him to work at home, he was closely and equally involved in the child’s care.

[21] He maintains that the parties had planned to be “downtown people” and to live in or near the MH.

[22] They also planned for their daughter to attend daycare. Their original plan had been for both of them to return to work, and they wanted childcare out of the home in part because they wanted their daughter to socialize with other children.

[23] Consistent with this plan, the evidence shows that they sought out daycare facilities close to the MH, and expected to have their daughter start in daycare at about two months of age.

[24] The applicant also points out that Nyla attends a dentist in the Yonge and Davisville area of Toronto, closer to the MH than to the respondent’s apartment, and that her paediatrician is at Yonge and Bloor, closer still to the MH.

[25] He maintains, pointing to school ranking services, that the Rose Avenue School is highly thought of, promotes diversity and inclusion, has a strong curriculum and a wide range of academic programs, and has received recognition for its environmental initiatives.

[26] He also notes that the respondent’s apartment is roughly 20 kilometers away from the MH, which he alleges means that he faces a round trip of “approximately 90 minutes to 120 minutes” for pick-ups and drop-offs. He does not own a car, and thus far has used the Zipcar short-term rental car service to get to the respondent’s apartment. He says that he will have to use public transit, which in turn, will carry challenges when travelling with his very young daughter, including the need for Nyla to rise very early in order to get to her school in North York on time (if the respondent’s choice of school prevails).

[27] He flags in particular that in addition to the negative consequences for their daughter, the long commute to North York means that he “is always late arriving to work as a result of having to commute back downtown in the mornings”.

[28] Pulling these threads together, the applicant summarizes his argument by saying:

It is in Nyla’s best interest to be enrolled at Rose Avenue Public School. Not only is Rose Avenue an excellent school, but this is the school in the catchment area of the matrimonial home, where Nyla has lived with Saif (and formerly, both parties) for all of her life. The parties historically chose service providers in proximity to the matrimonial home, including a dentist for Nyla, her paediatrician, and potential daycares.

[29] The applicant also emphasizes in particular the parties’ plans, before Nyla’s birth and early in her life, to “build a downtown life for Nyla around the matrimonial home”. He asserts that his proposal to enroll Nyla at Rose Avenue is consistent with the plans the parties made for her while they were married, and that the applicant’s “continued residency in the matrimonial [home] will afford Nyla predictability and consistency in her schooling”.

[30] Against this backdrop, the applicant labels the respondent’s “unilateral decision to relocate to North York” as a “significant departure from the status quo” and from the parties’ pre-existing plans.

Respondent’s Argument

[31] The respondent says, in response, dealing with the various tenets of the applicant’s argument in turn, that in fact, the applicant’s proposed school has nothing to do with the child’s best interests, but rather is all about making his own life more convenient.

[32] She points out that she moved with their daughter to the apartment in North York about a year and a half ago, such that for almost half of her life, being the half of her life of which she has been more consciously aware, Nyla has lived for a majority of the time with her mother in North York. The respondent has provided evidence from her landlord demonstrating that her tenancy is secure, stable and available over the long term.

[33] The respondent has also provided evidence in her materials taking issue with the applicant’s claims about the commute time required if Nyla goes to school in North York. While that evidence by and large comes from Google Maps, and therefore can only take the court so far, it is the only “independent” evidence before me and shows that, in fact, if Nyla goes to the Rose Avenue school her time necessarily spent in a car commuting will be considerably longer than if she goes to school at the Crestview School. The respondent emphasizes, consistent with the case law, that it is Nyla’s commute time, and not that of the applicant, that matters for purposes of the court’s analysis.

[34] The respondent points out, and the applicant does not contest, that Nyla has friends in the area of the North York apartment, including a best friend, who will also be attending at the Crestview School. While given Nyla’s age that is a factor which carries less weight than it might if she were an older child, it does modestly ease the disruption or anxiety a child might experience at a new school (or, in this case, going to school for the first time).

[35] The respondent’s mother – Nyla’s grandmother – lives with the respondent. The grandmother apparently used to live close to the MH, and has always been involved in caring for Nyla. She has a driver’s license and a car, and has been and remains able, to pitch in whenever necessary, as a caregiver and/or driver, including if and when the applicant needs assistance. In my view, the presence and participation of her grandmother in her day to day life is a considerable stabilizing feature of Nyla’s life in North York.

[36] The respondent notes in her evidence that she has also befriended parents of Nyla’s friends in the neighbourhood, and other neighbours who can, if required, cover pick-ups or drop-offs in a pinch. The applicant offers no such evidence.

[37] Like the applicant, the respondent also provides information in the nature of school-ratings, demonstrating that in various categories, including in particular across the board academically, the Crestview School attracts higher rankings than the Rose Avenue School.

[38] I must approach all such evidence with care. The cases referenced above caution that third-party ranking services are necessarily largely premised on overarching and collective statistical information and do not – and cannot – focus on an individual child’s particular interests in a family law setting. Nonetheless, the positive information provided about both schools suggests that neither features particular problems, and that both would be reasonable and appropriate choices for Nyla.

[39] Crestview School does offer dance programs, whereas Rose Avenue does not, and the respondent deposes that Nyla “loves dance”. Again, given Nyla’s age, the love of dance can at best be seen at this stage as a current enthusiasm, and it remains to be seen if it will remain an abiding passion. As such, at most very minimal weight can be placed on this factor.

[40] Crestview School also features smaller class sizes than Rose Avenue School. Given that this presumably yields more focus and attention on each child, this is another modestly positive consideration in its favour.

[41] In addition to taking issue with the applicant’s conception and calculation of the required commute if the child lives in North York, the respondent also challenges the accuracy and force of the applicant’s claim that the family plan was always to live downtown and be “downtown people”.

[42] In that regard, the respondent points to evidence suggesting that, before separation, the parties were at least considering moving to the suburbs. There is evidence that, at that stage, the parties had communications about real estate listings for houses located in the suburbs, including in North York. The applicant admits that this was at least something on the table for consideration.

[43] The respondent also emphasizes that, although she is currently developing a business as a “divorce coach”, and in recent years has tried her hand at other business ventures, she remains much more flexible with her time and availability than the applicant does. While this consideration arguably to some extent cuts both ways, the respondent’s point, which is fair, is that if there is any issue regarding Nyla while at school in North York, she would be nearby, and available quickly, which would not necessarily be the case for the applicant as an employee with work hours determined by his employer. It also means that the respondent can facilitate pick-ups from school at 2:45 p.m., when school ends, whereas the applicant cannot as easily do so.

[44] There are other factors to which the respondent points, including the fact that Nyla has asthma such that she sometimes requires very attentive care (and has at least once been admitted to hospital), and that again the respondent (with the help of her mother as necessary) can respond to any such needs quickly and meaningfully.

[45] The respondent makes various observations with a view to undercutting a number of the applicant’s assertions in the evidence.

[46] She also points out that the applicant’s conduct in the litigation has left much to be desired, and that certain judges have remarked about his suboptimal conduct in their endorsements.

[47] While such conduct is to be avoided, and is not laudable, nor is it dispositive.

Determination and Discussion

[48] What is dispositive, in my view, is the overall weight of the respondent’s evidence compared to that of the applicant. Put simply, her evidence meets and matches many more of the criteria set out in the case law canvassed above than does that of the applicant.

[49] I find that Nyla is as much or more ensconced in her North York neighborhood than her downtown environment.

[50] She has more and better and more flexible caregiver “coverage” in North York than downtown.

[51] The presence and availability of her grandmother as a caregiver, and to assist on a moment’s notice is a not insignificant factor, and the greater flexibility of the respondent as compared to the applicant, and the greater availability of friends and neighbors to help are also reassuring.

[52] The fact that Nyla has friends who will attend the Crestview School with her is a modest factor in favour of that choice, as is the smaller class sizes, the overall excellence of the school, and the fact that it offers a variety of programs, including dance.

[53] The evidence about the relative commute times for the child (as opposed to her parents) also weighs in favour of the Crestview School. While it is unfortunate that both the child and both parents will have to spend time commuting, this is not uncommon requirement for school children in the GTA.

[54] For all of these reasons, and others touched on in my discussion of the evidence above, I find that, on balance, the Crestview School is a better choice for Nyla than the Rose Avenue School.

[55] As such, I find in favour of the respondent, uphold her proposed choice, and reject the proposed choice of the applicant.

[56] As noted above, and while this did not appear to be at issue any longer, I confirm that the parties are to follow the 2-2-3 parenting time plan recommended in Mr. Norton’s section 30 assessment.

Costs

[57] I see no reason why costs should not follow the event.

[58] The respondent has filed a bill of costs seeking partial indemnity costs, including HST, in the amount of $8,855.15.

[59] The applicant’s bill of costs puts his costs very close to those of the respondent. He claims $8,650.21 on a partial indemnity basis.

[60] I find no basis to award costs on a higher scale than partial indemnity (and cannot imagine that there would be a meaningful offer to settle given the issue involved).

[61] Given the proximity of the respective parties’ costs numbers to one another, I also find no reason to stray from the range they are both in.

[62] Accordingly, the applicant is to pay the respondent’s costs of the motion, in the amount of $8,800.00.

W.D Black J. Date: May 25, 2023