Court File and Parties

COURT FILE NO.: FS-22-31558 DATE: 20230809

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ruth Nancy Cibuku, Applicant (Moving Party) AND Aldi Cibuku, Respondent (Responding Party)

BEFORE: Kristjanson, J.

COUNSEL: Jen Yii Liew, Counsel for the Applicant Elizabeth Mourao, Counsel for the Respondent

HEARD: At Toronto by videoconference August 8, 2023

ENDORSEMENT

[1] This is a school choice motion. The parties have two children who have attended Branksome Hall, a private school, for the last 4 years. This fall 9-year-old NC will be entering Grade 4, and 8-year-old AC will be entering Grade 3. The parents disagree on enrolment at Branksome.

[2] The mother wants the children to continue, while the father wants the children to attend the local public school. By the time the mother attended TBST Court to schedule an urgent motion, there was only a spot for the daughter going into Grade 4 (NC). The daughter going into Grade 3 (AC) has lost her spot. The mother’s proposal is that AC start at the local public school, and transfer to Branksome if a spot opens. She wants NC to continue at Branksome.

[3] The decision had to be made by 5 p.m. the day the motion was argued. Following argument, I gave the parties my decision: both children are to attend the local public school. These are my reasons.

Facts

[4] As noted above, the two girls have been attending Branksome; the girls are going into Grade 3 and Grade 4 this fall.

[5] There is no Voice of the Child report on school preference. But a Children’s Aid Society has been involved with the family, there are school records, and NC sees a therapist. Given the importance of hearing the voice of children on issues important to them, I consider third party documents to ascertain the views of the children.

Branksome Issues re NC and Re-Enrolment

[6] In December 2022, 8-year-old NC was suspended. The school recommended NC engage with her therapist “regarding targeted behavioural strategies and interventions to shift the behaviour she is displaying at school.” The school wrote to the parents:

The purpose of this letter is to confirm your daughter's at-home day of reflection on Thursday, December 15, 2022. [NC] was suspended for conduct considered injurious to the moral tone of the school. Specifically, as a result of exhibiting repeated unexpected behaviours including lack of impulse control, attempting to control friendships and verbal aggression, which have contributed to other students feeling unsafe at school.

We are deeply concerned with the repeated physical and verbal behaviours being displayed at school. We want to support [NC] in expected behaviours at school, especially self-regulation and impulse control, so that she can have a positive learning experience here at Branksome Hall and look forward to supporting her growth in the new year.”

[7] The school appears to have identified most of NC’s problems as peer relationship issues. The solution was to have an additional teacher assigned to NC to help navigate social interactions. The father states that this involved “shadowing” all of NC’s classes as well as recreational time: for any 8-year-old, this would be challenging in terms of perception of self, and worries about perception by her peers. The school’s letter of March 2, 2023, states:

At school, we are seeing a decrease in large impulsive/reactive behaviours, although we still see attempts to control friendships and continuing targeted mean comments, most frequently during transitions and unstructured time. As we shared previously, we have an additional Associate Teacher in the room, at the School's cost, for the remainder of the year, to help [NC] navigate social interactions. We observe that [NC] is more successful with social interactions when supported by the Associate Teacher.

In terms of continued areas of growth, we want [NC] to honour space when requested by her peers and to seek out adults for support when faced with challenging social interactions and navigating social conflict.

[8] AC’s most recent report card reflects her challenges, highlighting that AC “has shown a need for one-to-one support in all academic areas”, and “While she is below grade expectations in many areas, she has made some gains with extra support in place.”

[9] NC’s report card also shows that she is struggling. It states in part:

[NC] benefitted from weekly sessions with the school social worker to support her understanding of building healthy friendships and setting boundaries....[NC] continues to develop her academic skills. She is working on her self-management skills and staying focussed during instructions and lessons, as she often misses important information. It is essential for her to remain attentive and actively listen during classroom lessons and discussions to maximize her learning potential. [NC] benefits from one-to-one support to complete all classroom tasks.

[10] There were mixed messages coming from Branksome. NC’s re-enrolment was paused in March 2023 given the behavioural issues discussed above. On May 4, 2023, the school wrote that they were only prepared for [NC] to stay for the upcoming school year if an added private teacher was placed in her class for one-on-one attention, at a cost of $30 - $36 an hour for 37.5 hours a week, so about $45,000 to $50,000 for the year, above the tuition and other costs. The father, who was opposed to the school in any event, was unwilling or unable to pay $120,000 or more for a year of primary school.

[11] On about June 19, 2023, the mother advised that the school had now determined that while an added teacher would still be needed in NC's class, the school would fund the cost. The school also stated that they were extending the enrolment to June 30, 2023. The father did not agree to attendance at Branksome. On June 30, 2023, the school advised that they would be withdrawing the children given that the parents could not voluntarily agree on their re-enrolment. The children's spots were offered to others on the waiting list.

[12] A TBST date was scheduled on July 4, 2023 in front of Justice Shore. Her Honour booked the school choice motion for August 8. Justice Shore also ordered on consent and without prejudice that the parties were to register the children at Branksome, and the Respondent must pay the deposit solely to keep Branksome open as an option. She also ordered that if the children attend a different school and the deposit is forfeited the Respondent shall get an immediate credit for money owing to the Applicant, in the amount of the deposit that he paid and lost for securing the children's place at Branksome. It is unclear whether Justice Shore was informed that neither student had been offered a spot, and thus the parents could not pay a deposit to keep a spot open.

[13] On July 19, 2023, Branksome wrote to the parents indicating that (a) there was no spot for AC, and (b) the school would hold the Grade 4 placement for NC until 5 pm on August 8, 2023, the date the school choice motion was argued.

Position of the Parents

[14] The mother’s primary arguments in favour of Branksome for NC, and local public school for AC unless a spot opens at Branksome, are as follows:

(a) This has been a high conflict matrimonial case. The children need the stability of continuing at a school they know, and where they have friends. (b) The children (particularly NC) have received significant extra support provided by the school. (c) The local school does not know the children and no supports are in place. (d) The school has activities that specifically cater to the children's passions including dance and swimming (they are avid dancers and NC is a competitive swimmer), and they have multiple facilities which the children enjoy including kickboxing, yoga, and rock climbing. (e) Before the marriage breakdown, the parties agreed to send the children to Branksome. (f) The class sizes are small. (g) The children will be lost at a public school. (h) The local public school only continues to Grade 5, meaning that in two years NC would have to change, and in 3 years AC would have to change.

[15] The father’s primary reasons for favouring the local public school are:

(a) The children have not done well at Branksome. (b) NC has had a rough time. If she stays at Branksome, then she stays with the same cohort and teachers, which is not in her best interests as she has been labelled a problem. (c) The cost is prohibitive, at about $40,000 per year per child. (d) Branksome is a 30-minute drive from the parties' home. The mother is consistently late getting the girls to school. The local public school, in the parties' catchment area, is minutes from the existing matrimonial home, the paternal grandparents’ home where the father currently lives, and is an area where the father intends to reside long term. (e) The mother, a former employee of Branksome, has inappropriately shared details of the high conflict separation, making him uncomfortable at the school, and creating an environment that is not in the best interests of the children. The mother denies this, stating that she confirmed the criminal charges and difficulties facing the children. (f) In December 2022, then 8-year-old NC was suspended from school following a series of incidents with other children; these included physical altercations. NC's re-enrolment for the coming academic year was placed on hold. The father has significant concerns pertaining to Branksome Hall's administration, their treatment of NC, and the children's educational performance, as discussed below. The school is not a good fit for the children.

The Views of the Children/Third Party Evidence

[16] I must consider the views and preferences of the children if they can be ascertained, placing weight on those views given the age and maturity of the children. I do not have a Voice of the Child report, nor a section 30 assessment. The parents provide very different accounts about what the children want. But there is evidence from the CAS records, the school, and the child’s therapist which I do consider, given the importance of this issue for the children.

CAS Records

(a) NC spoke to the CAS worker of being bullied at school. (b) The CAS notes record that the mother was worried that NC “is being targeted at school, blamed for things she did not do.” The CAS worker discussed the possibility of transitioning the girls to public schools, which might provide a “fresh start for NC in particular where she may no longer be targeted.” (c) The CAS notes record that the mother stated of NC: “[NC] says the school always blames her, she is an easy target, since she is used to taking the blame, she will just take the blame.” (d) The CAS notes record a discussion between the mother and the CAS worker: “I expressed my worries based on what has been described by Nancy that the school seems to have a certain perception of [NC] and how that will make her feel time and time again. With a new school, it is a fresh start. Discussed that she had mentioned [NC] is one of the few kids with separated parents in her class, and in a different school, they may be a more diverse range of family make ups as well.”

NC’s Therapist

[17] In March 2023, Branksome paused NC’s re-enrolment to allow time to see improvements. In other words, she was not allowed to re-enrol for Grade 4. On March 31, NC’s therapist wrote a letter to Branksome stating, in part, that: “[NC] has encountered numerous changes both in her home and school environments so exposing her to more changes at this moment may not be advisable for her healing journey.” It is unclear why the therapist was writing to Branksome, although I infer that the letter was written to support NC’s re-enrolment at Branksome after her suspension for behavioural issues and the related pause on re-enrolment. The letter was appended to the mother’s affidavit. It is not an expert opinion, and I cannot rely on this as an expert opinion in the absence of an affidavit from the therapist, explanation about the foundation of her statement, and the opportunity given to cross-examine by the father.

[18] A note from NC’s therapist in June 2023 records NC’s session, which I consider as statements to a third party expressing the child’s views:

“[NC] expressed their thoughts about possibly not going back to Branksome, [NC] expressed being happy but also being stuck in between.

[NC] expressed what happened at the end of the school year with their friend and how the school addressed the situation by not letting them play together.”

Analysis

[19] The school choice decision is a parenting order within the meaning of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 16. When making a parenting order, the court must consider only the best interests of the children. There is no order for temporary decision-making responsibility.

[20] A child's school selection must be determined purely based on which proposal is better for the child. Each case must be decided on the unique circumstances and needs of each child, taking into account the relevant factors. In so doing, a judge must consider “the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained,” in accordance with s. 16(3)(e) of the Divorce Act.

[21] In Thomas v. Osika, 2018 ONSC 2712 Justice Audet set out several factors relevant to the exercise of a judge’s discretion on a school choice motion:

[37] The decision as to the choice of school that a child should attend, when the parents disagree, is ultimately a matter of judicial discretion. However, a number of general principles have emerged from the caselaw to assist the decision-maker in making the decision in the child’s best interests. They can be summarized as follows:

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 being 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 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).

[22] On the evidence before me, NC has had some significant difficulties at Branksome. She has had behavioural issues. There is no evidence that she cannot attend a public school, or that her needs would not be met at a public school. NC herself recounted to the CAS that she was being bullied. The CAS notes record the mother reporting that NC says the school always blames her, she is an easy target, and since she is used to taking the blame, she will just take the blame. This is a heart-breaking, defeatist comment from an 8-year-old. NC told her therapist she was happy to change schools, although acknowledging that she was divided.

[23] Nothing in the record indicates to me that NC is better off staying at Branksome, and a great deal persuades me that it is in her best interest to attend the local public school.

[24] Besides the incident for which she was suspended, there was another incident where the parents of a peer complained about NC. The school’s reaction was to prohibit NC from playing with the child. NC discussed this with her therapist. The school seems to have a certain perception of NC, NC feels she is blamed for everything, and will still be blamed for everything. A new school offers the potential of a fresh start. I find it is not in NC’s best interests to continue alone at Branksome.

[25] AC must begin the year at the local public school, as there is no spot open for her at Branksome. I find it is in her best interests to start, and finish, the year at the same school.

[26] I also place weight on the fact that the children would be attending two different schools. In February 2023, the initial re-enrolment deadline came and went: the parents did not re-enrol AC. At the time, only NC’s re-enrolment was paused. I infer from this that the parents recognized that it would not be in the best interests of the children to have one child attend Branksome while the other attended the local public school. So long as NC’s ability to re-enrol was up in the air, the mother took no steps to compel AC’s re-enrolment, although enrolment deadlines came and went. This may have been because of the extra cost of paying for a teacher to shadow NC for the year: when that block was removed on June 19, the mother began to prepare for a motion. The father’s opposition to Branksome has been consistent since April, and did not change when the added cost of the shadowing teacher was removed.

[27] I find that having NC continue at Branksome, while AC attends the local public school, is not in the best interests of either child. The children are one grade apart. AC would be happy to return to Branksome, but she can’t. If only NC goes to Branksome, it sets the sisters up for competition and would complicate AC’s transition to the local public school.

[28] Both children will benefit from the change to the local public school in terms of not being late. I am concerned with the significant number of late arrivals and absences for both children. This school year AC had 60 days of late starts and missed 7 days of school. NC was late on 49 days and missed 15 days of school.

[29] While the mother attributes most of the lateness to the father bringing the children home late, so they are tired, the mother’s admittedly selective chart of “late returns” on weeknights has 17 instances of late drop-off between August 2022 and July 2023. Only 7 of these appear to be school nights, and 4 of the 7 occasions have the drop-off between 8:15 to 8:30 (rather than 8 p.m.). Late drop-offs on school nights would explain 3 of 60 late days. The mother states that the chart is not complete. But given that the chart was designed to illustrate the mother’s narrative that the father was keeping the children out late so that they were tired to go to school, I infer that the mother put in her most important, compelling examples. Nothing in the chart explains the lateness of the children because of the father’s late drop-offs.

[30] The school wrote to the mother on March 2, stating: “We also require consistent daily attendance. [NC] continued to be late about 50% of the time in the month of February and this impacts her day. When [NC] arrives on time, she is able to set herself up for success, with the support of an adult, and have a positive start to her school day.” But the mother’s chart shows the father late for only two drop-offs in February, February 1 and February 28, each time at 8:30 rather than 8 p.m.

[31] The children are with the mother every night for school the next day. I find as a fact that the lateness is due to the mother’s failure to drive the children to school on time, not the father’s late drop-offs. Whether the children are tired, or acting out because of the parent’s high conflict separation, or unhappy with their weeknight parenting time with their father, one of the key aspects of parenting is to get kids to school on time. And the mother has failed to do so.

[32] Getting kids to school late is unfair to the children, and not in their best interests. When children can’t walk to school because of distance, they deserve to have an adult deliver them at the start of school in time to hear the announcements, and settle in for the day in a predictable manner. The mother has been unable to implement a morning routine to get the children to get to school on time. For the sake of NC and AC, I hope that the mother will come to realize the importance of getting her children to school on time, for their sake.

[33] Attempting to drop one child at Branksome and the other at the local public school would only aggravate the lateness issues. The local school is a few minutes away, and there are not likely to be traffic issues. If NC were to attend Branksome while AC attends the local public school, the mother would have to drive to Branksome, drop off NC (perhaps taking AC for a one hour round trip before school), then turn around and drop AC off on time as well. Since the TDSB has a later start time, and AC is only 8 years old, the mother is unlikely to leave AC at home while she drives NC to Branksome. This would likely subject AC to significant daily driving time, which is not in her best interests.

[34] While the mother is anxious about the children entering a new environment, the father is anxious about the children staying at Branksome. There is no evidence that Branksome satisfies some specific and identified need that cannot otherwise be addressed appropriately in public school. Indeed, there is evidence that NC has already been labelled, and that she might benefit from attending a different school.

[35] Since there is no spot for AC at Branksome, she will be attending the local public school. If she starts class in September at the local public school, it will be disruptive to move during the school year. And it is not in her best interests to attend the local school while her sister attends Branksome. It would be much harder on AC to not attend when her sister is attending their old school. It is better for both to start together at the local school.

[36] In Ontario, public schools are required to provide individual education plans (IEP) for exceptional pupils under the Education Act, R.S.O. 1990, c. E.2, and O.Reg. 181/98. It is not clear that either NC or AC is an exceptional pupil. An exceptional pupil is a student who has behavioural, communication, intellectual, physical, or multiple exceptionalities that require them to have a special education program or service. But if either AC or NC requires an IEP, this may be implemented in the local public school. The parents may continue to hire tutors as they do, and NC will continue her therapy to assist in behavioural issues, if those issues persist once she is out of Branksome.

[37] For these reasons, I find that it is in the best interests of NC and AC to both attend the local public school.

Order

1. NC and AC are to attend Presteign Heights Elementary School for the 2023/2024 school year and ongoing, or until further court order or written agreement of the parties.

Costs

[38] The father has been successful on this motion, and is presumptively entitled to costs. I encourage the parties to settle costs. If there is no agreement, the father is to provide written submissions, limited to 6 double spaced pages, plus Costs Outline, plus Offers to Settle (if any) by August 21. The mother is to respond (same limits) by August 28. Brief reply, if necessary, 3 pages, by August 31. All submissions are to be sent through the Family Portal and directed to my attention.

“Justice Kristjanson”

Date: August 9, 2023