Court File and Parties

Court File No.: FS-21-26059 Date: 2023-09-14 Ontario Superior Court of Justice

Re: Frano Sain, Applicant (Moving Party) And: Sara Shahbazi, Respondent (Responding Party)

Before: Kristjanson J.

Counsel: Ken Nathens, Denniel Duong, Counsel for the Applicant Enio Zeppieri, Counsel for the Respondent Mary Reilly, Counsel for the Office of the Children’s Lawyer

Heard: At Toronto by videoconference, September 12, 2023

Endorsement

Kristjanson, J

[1] Parents cannot resort to self-help remedies, ignore obligations under Separation Agreements, present a fait accompli to the court on an interim basis, and expect the court to approve. That is a recipe for chaos, and disaster, and is unfair to children caught in the middle. Yet that is what has happened here. Without notice to the father, the mother sold her home, bought a new home much farther away than her existing home, and registered the children in an evangelical Christian school near the new home. Yet the Separation Agreement provides for joint decision-making on education, and the children presently attend a Catholic school. I order that the children remain in their current school, and their residence during the school week be located no further than 55 km from their present school. This is in the best interests of the children, preserves the status quo established by the 2021 Separation Agreement, and will allow the parties to proceed to trial in an orderly manner.

Background Facts

[2] The parties separated in 2018. They have three children, now age 11, 9 and 7. At the time of separation, the parties lived in Toronto. The school-age children attended a private Catholic School, Mary, Mother of God (“Catholic School”) both before and after separation.

[3] The parties signed a Separation Agreement in 2021. Key elements of the Separation Agreement are:

(a) The parents have joint decision-making responsibility in all areas, including education and religion.

(b) The father agreed to pay the school fees for the Catholic School as section 7 expenses.

(c) The mother would take the children to and from the Catholic School from her new residence in Burlington.

(d) The father would pick up the children from the Catholic School from his residence.

(e) Primary residence is with the mother.

(f) The parties agreed that they would live near each other to facilitate the parenting time and the decision-making responsibility for the children.

(g) If the mother moved more than 100 kilometres from the matrimonial home, notice and objection provisions like the Divorce Act provisions would apply. [Note: The mother’s new home is about 97 kilometres from the matrimonial home.]

(h) In the event of a dispute over the terms of parenting, the parties were to appoint an agreed upon mediator and attempt to mediate the issue prior to commencing court proceedings. [Note: Neither party sought to mediate the school issue – although if the mother had told the father of her plans promptly, they might have had time to mediate.]

(i) The father was to pay a fixed and non-variable amount of spousal and child support for six years, save only for catastrophic change in his financial situation.

[4] Although the matrimonial home was in Toronto, the mother chose to relocate to Burlington following separation. This created a long commute for the children – about 50 to 60 minutes each way.

[5] On June 1, 2023, the father informed the mother that rather than paying the full $16,300.00 for child and spousal support, he was unilaterally reducing the monthly amount to $5,000.00, as he claims to be financially struggling. Unilateral reduction in support payments is not acceptable. It is a form of self-help remedy. The mother had a choice: she could have brought a motion to compel the payment of support. She could have registered the Separation Agreement with FRO.

[6] But rather than proceed to court on support, the mother executed an elaborate self-help remedy, drew the children into her remedy (to their detriment), did not inform the father, then when caught, sought to justify her actions. This is not how family litigation is to be conducted. And the mother must bear the consequences.

[7] Within a month of learning of reduced support payments, the mother sold her house in Burlington for $2.8 million, and bought a house in Brantford for $3.262 million, on July 4. The mother did not inform the father of the change in residence until August 10.

[8] Although no court had approved a change of school, and despite the shared decision-making responsibility for education in the Separation Agreement, the mother unilaterally enrolled the children in Providence Christian School (“Christian School”) on August 1, without telling the father. She did not discuss the school issue, or provide documentation: instead, her new partner took part in the school interview process – all behind the father’s back.

[9] The Respondent’s move would increase the commute time of the children to the Catholic School by about 40 minutes a day – a 2-hour 40 minute commute vs. a 2 hour commute. The Christian School is 15 minutes from the mother’s new Brantford home.

[10] Finally, on August 10, the mother told the father that she would be moving to the new home, 97 km. from the school, and sought his consent for the children to attend the Christian School. The father did not consent.

[11] Sometime in the first two weeks of August, the mother told the children they would be moving to the Brantford house, and that they would be going to the Christian School. It was improper of the mother to do so, placing the children in a terrible situation. Since their mother told them they would go to the new school, they have adjusted to the information. No doubt the mother has been enthusiastic and supportive about the new school. She knew she required a court order or consent, but misled the children. This is exactly the kind of strategic move that places kids squarely in the middle of conflict, and causes them enormous stress. They have now missed the first week of school, and will blame their father.

[12] The Office of the Children’s Lawyer provided the views and preferences of the children through the OCL clinician. The two older children look forward to living in the mother’s new home. They look forward to attending the Christian School, which has more extracurricular activities and better playing facilities.

[13] The father heard nothing further after the August 10 letter seeking his consent to the Christian School. The Applicant was not made aware of any attempts to enrol the children in Providence until August 29, when he received an email directly from the school, indicating that the children had successfully been enrolled. Upon expressing his confusion, the Applicant was advised that the email was sent accidentally. Not once prior to this was the Applicant ever contacted by the school, or the mother, regarding proceeding with enrolment.

[14] The father informed the Christian School that he did not consent. The Principal of the Christian School wrote to the father on September 6, the day after the TBST attendance, stating that the mother’s lawyer had informed him that the mother had “full custody and all decision making rights for education”, which is not correct. The principal’s email states:

I also had a conversation with [the mother’s] lawyer this morning where he insisted that she currently has full custody and all decision making rights for education. As this was confirmed by the lawyer we will be moving forward with enrollment.

I am writing to formally confirm the enrollment status of the three children of Sara Shahbazi and Frano Sain at Providence Christian School. I understand that there may be some confusion regarding their custody and educational rights, and I would like to clarify their current situation.

Sara Shahbazi is the mother of the three children in question:…. While there is an ongoing custody dispute, I can confirm that as of September 5, 2023, Sara Shahbazi has full custody and educational rights for her children, as conveyed to us by Enio Zeppieri Esq. via telephone.

[15] Although the mother’s lawyer did not provide an affidavit, the mother’s lawyer informed the court that he did not tell the Christian School that the mother had full custody and educational rights. Instead, the principal must have misunderstood.

[16] Even then, the mother did not bring a motion – as was required to change the children’s school given joint decision-making responsibility and the father’s refusal. Rather, the father attended TBST Court to schedule an urgent motion to prohibit the mother’s relocation further than her home in Burlington, and to continue the children’s enrolment in the Catholic School pending trial.

[17] I find that the mother has failed, several times to comply with the Separation Agreement. The Separation Agreement provided that each parent was to have 3 weeks summer holidays. The mother refused any holidays 2022; the father was forced to bring a motion for travel to Croatia (the father has family in Croatia) in June 2023 to obtain summer holiday time. The Separation Agreement provides a right of first refusal if a parent will be absent for more than one overnight. The mother went to Italy leaving the children with her parents: she did not comply with the obligation to inform the father in writing, and offer a right of first refusal.

Analysis

[18] The parties both agree that the move to Brantford is not a relocation within the meaning of s. 16.9 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), but a change in place of residence within the meaning of s. 16.8. I consider the best interests of the children, but do not apply the relocation analysis.

[19] As stated by Justice S.B. Sherr in M.H.S. v. M.R., 2021 ONCJ 665 at para. 35:

[35] A temporary motion is meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will be fully canvassed at subsequent conferences or resolved at a trial. The status quo should be maintained until trial unless there is material evidence that the child’s best interests require an immediate change. See: Coe v. Tope, 2014 ONSC 4002; Costello and McLean, 2014 ONSC 7332; Munroe v. Graham, 2021 ONCJ 253.

[20] And I also emphasize my concerns with the mother’s self-help approach to the change in school and the change in residence, contrary to the Separation Agreement. As Kurz J. held in Phillips v. Phillips, 2021 ONSC 2480 at paras. 61-63:

[61] In Rifai v. Green, 2014 ONSC 1377, Pazaratz J. decried self-help parenting measures. He pointed out that one parent does not start out with higher status than the other:

25 The starting point, of course, is that at the outset both parents are presumed to have equal status, equal rights, and equal authority over decisions in a child's life. In the absence of a formal agreement or court order, neither parent has the right to unilaterally impose major changes in a child's life. Neither parent has the right to unilaterally interfere with or impede the other parent's contact or role in the child's life.

[62] He described the parent who engages in self-help tactics that belie a child’s best interests as raising questions about the new status quo and the moving parents’ own parenting skills, writing:

22 A parent who engages in self-help tactics despite the best interests of the child will generally raise serious questions about their own parenting skills and judgment. In many cases, courts conclude manipulative, selfish or spiteful parents simply can't be entrusted with custodial authority they would likely abuse. Izyuk v. Bilousov ( supra ); Clement v. Clement, 2010 ONSC 1113 (SCJ).

[63] Fallis v. Decker, 2013 ONSC 5206 is another case in which Pazaratz J. considered the tactic of mobility self-help. In that case, the mother moved and then came to court arguing a new status quo. Pazaratz J. would have none of that argument. He described her tactics as “brinksmanship”. He asserted at para. 27 that “[p]arents take unilateral action at their own peril. The court simply cannot sanction self-help in circumstances where the best interests of children may potentially have been jeopardized.” He added that “[p]articularly at an early stage of litigation, the court should be reluctant to allow any disruption of the status quo.”

[21] There is a strong line of judicial disapproval of self-help tactics in family law. It demonstrates poor judgment. It harms children, who are often caught in the middle, unsure whether a parent’s word can be relied on, and who absorb the stress of their parents. It drives conflict between parties, rendering settlement impossible. It wastes court time and the money of the parties. The consequences are often addressed through costs.

[22] The issues of school choice and the mother’s residence are linked. The sequence of events surrounding the mother's move, and the timeline and way information about the move was disclosed to the father, cannot be overlooked. The mother had months to notify the father of her plans, yet she deliberately chose not to do so, demonstrating her disregard of her obligation to consult and mutually make education decisions.

[23] I find that the mother impermissibly resorted to self-help when she unilaterally and covertly decided to enrol the children in the Christian School. I find that the mother failed to respect both the letter and spirit of the joint decision-making responsibility set out in the Separation Agreement. On any decision about the child’s education, the parties both must agree. The obligation to make joint decisions on major decisions affecting the child are the fundamental basis of the Separation Agreement. And major decisions require discussion and the prompt and full sharing of information. The mother’s covert actions reflect other actions taken to marginalize the father’s involvement in the children’s lives. This includes her refusal of the required three-week summer holiday (requiring a motion, where she was ordered to pay costs of $10,000), and failing to honour her obligation to provide a right of first refusal when she went to Italy without informing the father. I am shocked that in August she told the children they would move, and would go to a new school, given her legal obligations. This will confuse the children, and create a real risk of demonizing the father. I make orders, below, to attempt to protect the relationship of the children with their father given the damage caused by the mother’s precipitate actions contrary to the Separation Agreement.

[24] But my decision on school choice and residence is not designed to penalize the mother for her improper resort to self-help. That will be addressed in costs. Rather it is made in the best interests of the children, considering all relevant factors.

School Choice Decision

[25] 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. 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, considering 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.

[26] In Thomas v. Osika, 2018 ONSC 2712 at para. 37, Justice Audet set out several factors relevant to the exercise of a judge’s discretion on a school choice motion, including these subparagraphs:

a. 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);

e. Whether the 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. The 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. Decisions 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);

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.));

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).

[27] I have very little information, from either parent, about the unique needs, circumstances, aptitudes and attributes of each child, why each of the schools meets their needs. It perhaps reflects the fact that this is an urgent motion (because the mother failed to notify and discuss the issue promptly with the father). But at trial, the court expects much more evidence about each of the schools. In part, this is because they are private religious schools. They may or may not receive government funding. Teacher credentials may or may not be the same as required in public schools. Class sizes may or may not be comparable. The type and amount of religious instruction (given that the parents are of different religions), may be relevant. Cost may be a factor: I presume the Christian School also charges tuition, but I have no information. Cost may affect a necessity analysis. A good case showing the kind of evidence that the parents should call at trial is the decision of Justice T. Price in Roberts v. Symons, 2023 ONSC 4757.

[28] The court must look to any decisions that were made by the parents before the separation or at the time of separation about schooling: schools should be changed only if there is a compelling reason. The children have attended the Catholic School since separation in 2018 (as they became old enough to attend school). In 2021 the parents signed an agreement which specifically recognized the Catholic School (and the father’s obligation to pay). In the two years following the signing of the Separation Agreement, the children attended the Catholic School. It is the status quo, and importantly, the parents implicitly recognized it was in the best interests of the children during the marriage and after separation to attend the Catholic School. There is no evidence that the Catholic School did not meet the needs of the children, or that from an academic perspective, the Christian School would provide missing academic needs.

[29] When considering school placement, one factor to be considered is the ability of the parent to assist the child with homework and how much the parent can participate in the child's educational program. The Applicant’s evidence is that he is involved with the children's school. The choice of the Catholic School was agreed upon by both parties, and acknowledged in the Separation Agreement. Moving the children's school would be prohibitive with respect to the Applicant's ability to be involved with their education. The father relocated to move closer to the Catholic School. The mother, though, has chosen to move farther away in the period between separation and trial.

[30] Beyond this, the parties' choice of the specific religious denomination of the school (Catholic) was agreed to during the marriage and in the Separation Agreement. In the father’s view, maintaining their enrolment at a Catholic school is crucial to maintaining the children’s faith and religious practices, as well as their heritage. The mother points to the enrollment of the children in Bible school and Bible camp, which are more reflective of her post-separation faith.

[31] The mother’s submission is that evangelical Christianity and Catholicism are substitutes, as they share many common beliefs. I cannot agree. There are significant theological differences between different denominations of Christianity. A simple example is the role of the Pope in Catholicism – a role not accepted in Protestant Christian denominations. Accepting that there may be differences between the tenets of religious faith and practices taught in a Catholic school and an evangelical Protestant school, this is an important issue that could be decided at trial, but is not appropriate for an urgent short interim motion.

[32] This is clearly a very high conflict case. The relationship of the children and the father is strained: each party blames the other. In this situation, I place weight on the stability of remaining in the same school, with the same teachers and friends that they have always known.

[33] The mother argues that the Christian School has better facilities, and better extracurriculars. The mother’s evidence is that the Christian School is on a large rural property, with many sports teams and clubs, and good technology. On the other hand, the Catholic School is small, in Parkdale, and does not have sports teams or outdoor recreational activities, and poor technology. But I cannot decide based on school sports and extracurriculars when there are so many opportunities for sports and extracurriculars outside school. There is a dearth of evidence on the needs of these specific children, and why it would be compelling to change their school immediately.

[34] The views and preferences of the children are in the affidavit of the OCL Clinician. The children toured the school with their mother. Two of the children are happy to attend the Christian School. The third declined to share his views.

[35] As for her new school, one child stated that she is very excited. The child told the OCL that her mother told her about the change in schools before they left for Croatia with their father in August. Their mother took them on a tour of the new school. M. said she would miss her friends at her old school but she has friends who attend the new school and some of the teachers who teach at the new school attend her church. Except saying she would miss her friends at her old school, M. said nothing negative to the OCL about the move or the change in schools.

[36] Another child, N., stated he was very excited about attending the new school. N. stated they have had a tour of the new school and the school has a lot more sports offered than his old school. N. advised the OCL that many of his friends from church and his summer camp attend the new school. N. advised the OCL that the change in schools will not be stressful as he has so many friends at the new school. N. said nothing negative to the OCL about the move or change in schools.

[37] As discussed above, there must be convincing evidence that a change of schools is in the child's best interests. I simply do not have convincing evidence, material evidence that the children’s current school should be immediately changed. As a result, I order that the children continue to attend the Catholic School pending trial.

[38] I also make an order that neither party shall blame the father for the court’s decision, nor discuss the litigation with the children. The parties shall simply communicate that a judge made the decision. The OCL is requested to communicate the decision and relevant information to the children as the OCL, with clinician support, deems appropriate. If the OCL considers it appropriate, the OCL may request a judicial meeting with the children.

[39] I also convert the November 24 Settlement Conference to a Combined Settlement Conference/Trial Management Conference, to obtain an early trial date given the conflict.

Limit on Distance from Catholic School

[40] Since the children are continuing in the Catholic School, I make an order that the mother may not move the children’s residence further from the school than her existing home until the trial decision. The mother has resided about 55 km, or a 50-60 minutes’ drive from the school, since 2021. That is the outer limit of an acceptable commute for young children. Her new home is an extra 40 minutes’ drive.

[41] No matter if it is the father who bears the onus, or if the parties share the onus, I am satisfied that the longer commute is not in the best interests of the children.

[42] The mother states that her reasons for moving to the 97 km distance were primarily financial, considering the father’s unilateral decision to stop paying the support required under the Separation Agreement. The mother sold her house for $2.8 million, and bought a new home for $3.262 million. She will be able to sell this new property to obtain funds to rent a property closer to the school for the Monday to Thursday evenings. She may bring a motion to compel the payment of support in accordance with the Separation Agreement. But what she cannot do is make the children drive an extra 40 minutes a day. The mother has no family members in Brantford and does not work outside the home.

[43] I am not prohibiting the mother and children from residing in the Brantford property on non-school days. Rather, I am making an interim order setting out where the children shall live while in the care of the mother when they attend school.

[44] The parents signed a Separation Agreement in which the parties agreed that they would live near each other to facilitate the parenting time and the decision-making responsibility for the children. They also agreed that if the mother moved more than 100 kilometers from the matrimonial home, notice and objection provisions like the Divorce Act provisions would apply. The mother’s new home is about 97 kilometers from the matrimonial home. But the court is not bound when the decision by the parents is not in the best interests of the children. I set 55 kms, the distance the mother lived from the Catholic School before she implemented her self-help plan, as the limit on a reasonable commuting distance for younger children, and a distance the children have commuted for two years. The limit applies only to the residence of the children while they are in school – generally, Monday to Friday.

[45] No matter if it is the father who bears the onus, or if the parties share the onus, I am satisfied that moving the children beyond a 55 km commuting distance, with the disruption and exhaustion it will cause for the children, is not in their best interests.

Costs

[46] The Applicant has been successful, and is presumptively entitled to costs. I encourage the parties to settle the costs issue. If unable to do so, the Applicant must serve his costs submissions by September 22 (limited to six pages plus Costs Outline plus Offers to Settle). The Respondent is to file responding costs submissions by September 29 (same limits). Reply, if necessary, limited to four pages, by October 5.

Order

[47] I released the Order on the day of the hearing with reasons to follow, to ensure that the children were able to attend school, as they were not attending either school for the first week. The Order set out here is amended by omitting the names and birthdates of the children, and the name and address of the Catholic School.

[48] On a temporary and without prejudice basis, this Court orders, pursuant to the Divorce Act (R.S.C. 1985 c. 3 (2nd Supp.), as am.), that:

1. The Respondent shall be prohibited from changing the residence of the children, during the school week on days on which the children have school, to any distance which is more than 55 km from the children’s current school, pending trial of this matter.
2. The children shall continue to attend their current school, pending trial of this matter, and the Respondent is prohibited from removing the children from their current school.
3. Neither party shall blame the Applicant for the court’s decision, nor discuss the litigation with the children. The parties shall simply communicate that a judge made the decision. The OCL is requested to communicate the decision and relevant information to the children as the OCL, with clinician support, deems appropriate. If the OCL deems it appropriate, the OCL may request a judicial meeting with the children.
4. The Settlement Conference, currently scheduled for November 24 at 12 noon, shall be converted to a Combined Settlement Conference/Trial Management Conference.
5. The parties shall complete questioning, which is set for October 24 and October 27. No party shall change or cancel those questioning dates without Court order.
6. The Applicant has leave to amend the Application in respect of shared parenting time, by September 19. The Respondent has leave to amend the Answer in response to the new claims, by October 5. The Applicant has leave to file an Amended Reply, if necessary, by October 12.
7. The parties must file a Joint Trial Scheduling Endorsement form and upload to Caselines in the Applicant’s bundle by November 17th. The Applicant is to circulate the TSEF by November 7. The Respondent shall insert her portion, and cross-examination times for Applicant’s witnesses, by November 13, and circulate. The OCL shall insert the OCL witnesses/cross-examination time and circulate by November 15. By November 17, the Applicant shall complete the form, add up the time required for trial, serve, file, and upload to Caselines.
8. The parties must also serve, file, and upload to Caselines their Settlement Conference briefs, including Offers to Settle, as required by the Rules.

Released: September 14, 2023 Kristjanson J.