COURT FILE NO.: FS-19-248-02
DATE: 2023-06-06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Brandon Ernest Kivi
Applicant
- and -
Michelle Leigh Smith
Respondent
Counsel: Ms. T. Millward for the applicant, father Ms. L. Conti for the respondent, mother
HEARD: May 18, 2023, via zoom at Thunder Bay, Ontario
Madam Justice H. M Pierce
Reasons on Motion to Determine Child’s School Enrollment
Introduction
[1] The principal issue for determination is whether the parties’ son, Grayson Alexander Kivi, born January 25, 2019, should be enrolled in an elementary school offering French Immersion, (the mother’s position), or in a school where the language of instruction is English (the father’s position).
[2] A secondary issue is who should be identified as emergency contacts at the child’s school. The mother contends that only the parties should be listed as emergency contacts. In the alternative, she submits that her partner should be added as an emergency contact.
[3] The father submits that his grandmother, who assists with child care when he is not available, should also be listed.
Emergency Contacts
[4] It is discouraging that the parents cannot agree on such a simple matter as emergency contacts. Over the child’s school experience, there will be unanticipated emergencies for which a designated parent is not available, including weather, illness, accident, a change in work assignments, school closures, etc.
[5] Having Mr. Kivi’s grandmother and/or Ms. Smith’s partner on call is a net benefit to the parents as well as to the child. These individuals are part of the child’s life, and so can presumably be relied on in an emergency. An order will issue accordingly that Mr. Kivi’s grandmother and Ms. Smith’s partner, as well as the parties, shall be listed as the child’s emergency contacts at school.
The Law
[6] The next matter for consideration is the child’s school placement. It is of critical importance that both parents support the child’s schooling, whatever direction it takes, and not use their animosity towards each other to undermine Grayson’s education. A child’s schooling sets the foundation for his adult life. In a time of rapid change, no parent can anticipate the world that his or her child will grow into. At best, parents can try to give their child skills to meet these future challenges.
[7] The governing principle that the court must consider is the best interests of the child: see; s. 24(1) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, (as am.).
[8] The factors to determine best interests of a child are itemized at s. 24(2) and (3) as follows:
S. 24(2). In determining the best interests of a child, the court shall 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.
[9] For the purposes of this motion, the relevant factors relating to the circumstances of the child listed at s. 24(3) are as follows:
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage; and
(g) any plans for the child’s care.
The Parents’ Positions
[10] Grayson is an only child. He will start Junior Kindergarten this fall. Both parents work full-time. Pursuant to Justice Newton’s order of March 23, 2022, Grayson’s care is to be shared equally between the parents, having regard to their respective work schedules. The parents have not been able to resolve these arrangements.
[11] The mother submits that Grayson should be enrolled in a school that offers French Immersion. She prefers Ecole Elsie MacGill Public School which is a new school; alternatively, she submits that Ecole Gron Morgan has a suitable French Immersion program.
[12] The father argues that the child should be enrolled in Kingsway Park Public School where the language of instruction is English.
[13] Pursuant to Justice Newton’s order, the parents were to discuss and agree upon the child’s school enrollment in writing. Grayson’s wishes with respect to his high school were to be considered and the availability of bussing that best accommodated the parents’ work schedules and parenting was also to be considered.
[14] Unfortunately, the father ignored Justice Newton’s order and enrolled Grayson in the Kingsway school, without consulting the mother. His unilateral action is not in keeping with the parents’ agreement to make joint decisions for their child. In fact, it has embroiled them in further litigation and engendered distrust.
[15] Neither parent attended French Immersion programs when they attended school. The father is concerned that he will not be able to help Grayson with his homework.
[16] Ms. Smith makes the following arguments in favour of a placement at Ecole Elsie MacGill:
her grandmother was French-Canadian, and she wants the child to benefit from learning this part of his heritage and linguistic background;
since Grayson suffers from environmental allergies, he would benefit from being in a newly constructed building;
the school is centrally located in relation to the parents’ homes and workplaces;
the MacGill school offers two after-school programs whereas the Kingsway school has only one after-school program;
class sizes at MacGill school are smaller;
there is a large outdoor play area designated for kindergarten classes;
bussing is a neutral factor.
[17] Mr. Kivi favours placement at the Kingsway Park Public School for these reasons:
neither parent was educated in French Immersion and the mother has taken no steps to learn French; therefore neither parent will be able to help the child with homework;
it is foreseeable that the parents will conflict over schooling issues;
the child has made friends with the children who attend Kingsway, so he will start school with some friendly faces;
there is minimal difference in travel time between the schools; even if bussing is available, he will probably drive the child;
Kingsway is a safer environment, being small, away from busy roads, unlike MacGill which is near a river;
MacGill is a bigger school, which is not an optimum environment for safety or making friends, whereas Kingsway has recently created a new wing for primary grades and a new gymnasium;
Mr. Kivi has established friendships with other parents whose children attend Kingsway, which has created a network of support for both the father and Grayson;
Mr. Kivi’s grandmother, who provides care for Grayson, lives about 5 blocks from Kingsway.
Discussion
[18] The photographs of Ecole Elsie MacGill show a fenced-in area for junior grades, evidently with safety in mind. As to whether Grayson’s environmental allergies may be triggered in one school more than another, it is impossible to know.
[19] As to the father’s preference for Grayson starting school where he knows other children, these children will not be in Grayson’s class. However, Grayson is developing good social skills that he can put to use when he starts school.
[20] Every parent has apprehensions about his or her young child starting school. They enter an environment where parents cannot protect them, whether they arrive on the school bus or in their parent’s vehicle. It is a necessary exercise in trust, to send children to school. Nevertheless, a decision about education has far-reaching implications for the child; it should not be made based on a parent’s anxiety for the child.
[21] There is no evidence that Grayson will not succeed at school, or indeed at anything that engages him. Undoubtedly his parents will introduce him to activities that teach him skills that they don’t have: swimming, for example, music lessons, theatre school, sports. These will stimulate his mind, introduce him to new friends, enhance his self-confidence and enrich his life. The parents may not have had the same experiences growing up, but they will encourage him nonetheless.
[22] Undoubtedly, French Immersion education has grown in popularity in Canada for these reasons: parents want to give their children the opportunities they did not have to learn another language. Parents want to open doors for their children whose country has embraced multi-culturalism: for employment, travel, education, linguistics and culture.
[23] In Grayson’s family, he had a grandmother who was a French-speaker. Therefore, he will be able to put his new learning into a familial context.
[24] In my view, it is in Grayson’s best interests to have the opportunity of an expansive education from an early age. This includes the opportunity to master French. If he struggles, he can transfer to an English-only program; however transferring from English-only stream to French would not be possible.
[25] An order will issue that the parents enroll Grayson in Junior Kindergarten at Ecole Elsie MacGill. They are to use their best efforts to support Grayson’s education by cooperating and communicating respectfully with each other.
Costs
[26] Ms. Smith has been successful on the motion. In accordance with the costs submissions made by counsel on the motion, Mr. Kivi shall pay Ms. Smith’s costs fixed at $2,000.00 within 30 days.
“original signed by”
The Hon. Madam Justice H.M. Pierce
Released: June 6, 2023
COURT FILE NO.: FS-19-0248-02
DATE: 2023-06-06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Brandon Ernest Kivi
Applicant
- and –
Michelle Leigh Smith
Respondent
REASONS ON MOTION
Pierce J.
Released: June 6, 2023