Court File and Parties

Court File No.: FS-23-35158 Date: 20240229 Superior Court of Justice - Ontario

Re: LF, Applicant And: MF, Respondent

Before: Shin Doi J.

Counsel: Stephen Codas and Rachel Hill, for the Applicant Daniel Melamed and Nikita Matthew, for the Respondent

Heard: February 15, 2024

Endorsement

[1] The parties married on December 19, 2011, and separated on April 4, 2022. The parties have two children, born on February 4, 2014 and October 16, 2018.

[2] The Applicant Mother brings a motion that the children attend a certain private school for the 2024/2025 year and that the associated tuition and expenses be divided between the parties as a section 7 expense with the Applicant paying 30% and the Respondent paying 70%. The Applicant also seeks an order for psycho-educational assessment for the children.

[3] I grant the Applicant’s motion, in part. I order that the children attend the private school for the 2024/2025 school year. I order that the parties share the associated tuition and expenses equally. I dismiss the order for psycho-educational assessment without prejudice to the Applicant to bring a further motion.

Best Interests of the Children

[4] In deciding the motion for schooling, I am guided by the best interests of the children.

[5] The older child is in Grade 4 in the private school. The child has one remaining year prior to graduation from the Lower School which ends in Grade 5. She has special needs. In the past, she dealt with difficult academic and social issues including bullying in the public school environment. She and her younger sibling do extremely well in the private school and love attending the private school. It is clear that it is in the best interests of the child to remain at the private school and not transfer schools at this stage. Also, a transfer would deprive her of the opportunity to graduate with her classmates whom she has known since age 2. Maintaining the status quo and stability is important for the child. I agree with the Applicant that the status quo should not be varied before the issue can be addressed on a fulsome record at trial unless there are compelling reasons (S(N) v. N(C), 2012 ONSC 4993).

[6] The younger child, born on October 16, 2018, is in Senior Kindergarten in the private school. While it may be easier to transfer the younger child to the public school as he has a shorter history in the school, it is in the best interests of the child to remain at the private school and not to separate the younger child from the older sibling (Turnbull v. Turnbull, 2018 ONSC 5060 at para 83). Stability, continuity, and security are important to both children during the separation of the parents and there is no good reason for a court to upset the school arrangements (Assaf v. Aoudeh, 2020 ONSC 5246; Askalan v. Taleb, 2012 ONSC 4746 at para 45; Thomas v. Osika, 2018 ONSC 2712 at para 37).

[7] I find no convincing evidence that a change of schools is in the best interests of the children.

Financial Considerations

[8] I am satisfied that the private school tuition and expenses are an appropriate section 7 expense in this case.

[9] The Respondent Father argues that private school would be costly and onerous financially. The Respondent relies on the factors set out in Williamson v. Rezonja, 2014 ONCJ 72 at para 52 to argue that private school tuition is not an appropriate section 7 expense.

[10] The tuition for the private school is the sum of $60,000 for both children. The Respondent has a full-time average income of approximately $350,000 and the Applicant works part-time earning an income of approximately $20,000. Their combined incomes do cover the tuition and expenses of the private school. The costs amount to 26.5% of their combined incomes. However, in addition to the parties’ incomes, the parties recently obtained proceeds from the sale of their matrimonial home and rental property. The proceeds from sale, even after payment of the Respondent’s debts, easily cover the one-year tuition and expense of the private school. Use of “capital” or savings for education is consistent with the family’s spending pattern prior to the separation. Further, the parties do not have to pay a lump sum for the tuition and expenses because the private school offers a payment plan: nine monthly automatic credit card payments beginning March 1, 2023 continuing to and including November 1, 2023 (Exhibit D to the Applicant’s Affidavit).

[11] Two households are being maintained with the Applicant living with her Father and the Respondent living in an apartment. There is no evidence that using the proceeds of sale for tuition and expenses would negatively impact the parties’ current living arrangements.

[12] The Respondent submitted that the parties did not attend private school but it is unclear whether private school was an option for the parties. There is some evidence that the Respondent expressly agreed to a private school education for the children prior to separation. I am not persuaded that the Respondent’s offer to supplement the children’s public school education with his own curriculum is an appropriate replacement for private school.

[13] In my view, “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 SCC 191, [1996] S.C.J. No. 52 (SCC)). As discussed above, the best interests of the children are for the children to attend the private school for 2024/2025. Equal sharing of the costs would lighten the financial burden for the Respondent and the Applicant submitted that she is prepared to pay an equal portion. Accordingly, the parties are ordered to share the tuition and expenses of the private school equally. Equal sharing of costs is consistent with the court order dated August 21, 2023 and the Applicant acknowledges that consistency.

Psycho-educational Assessment

[14] A psycho-educational assessment cannot be ordered at this time.

[15] The Respondent argues that the request for a psycho-educational assessment is missing the name of the proposed assessor, the assessor’s consent, and costs. Section 30(4) of the Children’s Law Reform Act provides that a court cannot appoint a person to conduct an assessment unless the person has consented to conduct the assessment.

[16] The Respondent further argues that a psycho-educational assessment of the younger child may not be appropriate given his age. The Respondent submits that the Ontario Human Rights Commission states that a student will not be considered for a professional assessment until Grade 3 (age eight).

[17] The Applicant explains that the Respondent had agreed to a psycho-educational assessment and then changed his mind. Accordingly, the Applicant did not have sufficient time to include the details necessary.

[18] I accept the Respondent’s arguments and submissions. Accordingly, the Applicant’s request for a psycho-educational assessment for the children is denied without prejudice to the Applicant to bring a further motion with the required details and consent.

Costs for the Motion

[19] Given the divided success on the motion, I am not inclined to award costs to either party. However, should the parties wish to make costs submissions, the parties may make written submissions up to 2 pages in length, double-spaced within 10 days.

Shin Doi J. Released: February 29, 2024