COURT FILE NO.: FC-23-1540 DATE: 2024/04/12

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jennifer Alysia Grove, Applicant AND: Fahad Misayer Fahad, Respondent

BEFORE: Somji J.

COUNSEL: Applicant, Self-Represented Alyssa Bach, for the Respondent

HEARD: April 11, 2024

Endorsement re attendance and choice of school

[1] The parties entered into a consent order issued by Shelston J on September 27, 2023, of which one of the conditions would be that their nine-year-old child, Z.M., would attend Robert Bateman Elementary School (“Parenting Order”). Shelston J also ordered that the mother have care of the child on the weekdays and the father on the weekends as was the historical parenting arrangement of the parties. Since January 9, 2024, the child has not attended school while in the Applicant mother’s care since, a period of three months. The child has missed a total 70 days of school since its start in September 2024. The mother has unilaterally withdrawn the child from school and commenced homeschooling the child without the father’s consent and contrary to the interim Parenting Order.

[2] The Respondent father wishes for the child’s return to school and brings a motion to alter the parenting arrangement to ensure the child’s attendance at Robert Bateman School. The mother opposes the motion arguing that the current school is not a good fit for the child.

[3] The issues to be decided are one, whether it is the in the child’s best interest that she continue to attend Robert Bateman School, and two, whether the parenting arrangement should be modified to ensure the child’s consistent attendance at school.

Factual Background

[4] The parties began residing together in or around March 2013 and separated in 2016 when the child was two years old. Following separation, the father was not able to obtain consistent parenting time, but eventually this was resolved. Historically, the child has resided with the mother during the school week, and the father has had parenting time every weekend and for two weeks of each summer month of vacation.

[5] On July 10, 2023, the mother asked the father to care for the child for 4 to 5 weeks as she was being evicted from her residence and she agreed. The mother did not retrieve the child and the father enrolled her at Robert Bateman School located in his catchment area for the 2023-2024 school year. The mother then accused the father of withholding the child and commenced an Application in the family courts. Following an urgent motion, Shelston J ordered the return of the child to the mother’s primary care and a return to the historical parenting schedule which was Sunday to Friday for the mother and Friday to Sunday for the father. The child enrollment at Robert Bateman was maintained.

[6] At a case conference on November 27, 2023, the mother requested the child to be transferred out of French immersion and attend an English only program at another school in her catchment area even though the child has always been in French immersion The father agreed to have the child transfer to the English only program. Following the case conference, the child failed to attend school for 12 days over a period of less than a month. In early December, the school contacted the father that the child was not attending, the mother was not sending explanations for absences, and they were having difficulty contacting the mother. When the father pressed the mother for answers, he was told she was sick.

[7] On December 13, 2023, the principal advised the father that the mother had requested to transfer the child to another school. Moreover, it was not the same school she had requested the child to attend at the case conference. On January 18, 2024, the principal notified the father that the mother was now seeking to withdraw the child altogether from school and to homeschool instead. The father denied consent for her to do so.

Issue 1: Is it in the child’s best interest that she continue to attend Robert Bateman School?

[8] The governing test for determining decision-making responsibility, primary residence, and parenting time is the child’s best interests.: Children’s Law Reform Act, RSO 1990, c C.12, s 24, as amended SO 2020, c 25, Sched 2, s 6 (“CLRA”). Sub-section 28(1)(b) of the CLRA specifically empowers the court to determine any matter incidental to custody rights which would include choice of school.

[9] The best interests of the child framework requires primarily consideration of the children’s physical, emotional and psychological safety, security and well-being: CLRA, ss 24(1) and (2). However, s. 24(3) lists additional factors that must also be considered: CLRA, ss 24(3).

[10] Sections 24(1) and 24(2) of the CLRA state as follows:

Best interests of the child

24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. 2020, c. 25, Sched. 1, s. 6.

Primary consideration

(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. 2020, c. 25, Sched. 1, s. 6.

Factors

(3) Factors related to the circumstances of a child include,

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.

[11] Where parents disagree, the decision as to the choice of school that a child should attend is a matter of judicial discretion to be determined in accordance with the child’s best interests. As explained by Audet J at para 37 of Thomas v Osika, 2018 ONSC 2712, the following principles have emerged to assist a judge in making such decisions:

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 enrolment 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); and

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).

[12] Upon consideration of the above-noted principles and the best interests factors set out in the CLRA, I find that it is in the child’s best interest to return to Robert Bateman School for the following reasons.

[13] First, the mother has not provided any satisfactory explanation supported by evidence for her decision to withdraw the child from school. The mother argues that she removed the child because the child is one, unhappy attending Robert Bateman; two, required to be in a split 4-5 grade which makes learning difficult because of her ADHD; three, has been bullied at school; and four, would be traumatized if she returned because she has recently removed her hijab.

[14] The mother alleges that the child has ADHD and cannot cope in a split grade. While the child’s physician recommended a psychoeducational assessment believing the child may have ADHD, no such diagnosis has been confirmed by any health professional. On the contrary, at that same medical visit of December 7, 2022, the attending physician noted there may be other factors affecting the child’s inability to focus such as the ongoing proceedings or the challenges of a French immersion program, but that the child otherwise enjoys going to school. The child was switched to English only, but attended only one or two days before the mother pulled her out of school. Finally, the mother has not provided any evidence from school professionals that the child suffers from ADHD and/or that split grade classes adversely impacted on her learning.

[15] Second, while I accept that the child may be experiencing bullying, I am not satisfied that this cannot be managed by supports within the school. The child reported in the Voice of Child report dated December 30, 2023, prepared by the Office of the Children’s Lawyer, that she has experienced name calling and bullying at school of which she informed both parents. The father acknowledges he spoke to the school principal about the incident. It is unclear what follow-up the mom has done, if any, to minimize it happening again. Pulling the child entirely out of school is not a solution as that strategy may compound other anxieties resulting from social isolation.

[16] Third, the mother stated in court that she decided to withdraw the child from school when she saw that her child was consistently unhappy after school and upon seeing the child’s “sad book” during the Christmas break on around December 28/29, 2023. The mother makes no reference to this in her affidavit. In fact, most of the mother’s materials consisting of an affidavit and voluminous exhibits do not relate to the issue of school attendance.

[17] Furthermore, as pointed out by the father’s counsel, the mother had already taken steps to switch the child from Robert Bateman to a school in her own catchment area as early as December 13, 2023, undermining the credibility of her submissions. It is also important to note that the mother’s other child attends the nearby school where she tried to transfer Z.B. Parental decisions around children’s schooling are not to be made on the basis of the parent’s convenience, but what is in the child’s best interest.

[18] Fourth, the mother submitted in court that the child has now removed her hijab and returning to Robert Bateman School which she alleges is 80% Muslim will be stressful for her. This issue was never raised or addressed with the father or his counsel prior the hearing. If true, it should be addressed with the child and could require counselling interventions to assist the child in expressing her views and preferences and for the parents on how to address the child’s choices. However, I do not find that it is a reason for the mother to keep the child out of school.

[19] Fifth, the parents have shared decision-making authority and an interim Parenting Order is in place which addresses choice of school. The mother is in breach of the Parenting Order. The mother is not a custodial parent in this case and has shared decision-making with the father. She was required to obtain the father’s consent before unilaterally removing the child from school and enrolling the child in homeschooling. She neither obtained consent nor returned the matter before court to obtain a variation of the terms of the order.

[20] As a consequence of her decision, the child has missed several months of school which will likely impact the child’s educational achievements for this year. The mother’s evidence of homeschooling consists of a few work sheets and does not establish that the child is receiving the learning she needs and in accordance with the grade four curriculum. It is reported that the child has already been struggling academically and by pulling her from school, the mother has risked the child falling further behind academically. In this regard, the mother has neither complied with a court order nor acted in the child’s best interests.

[21] Finally, there is no evidence that the return of the child to Robert Bateman School will be disruptive. On the contrary, it is preservation of the status quo imposed in September 2023. Prior to that, the child was attending an altogether different school. The parties consented to the child’s attendance to Robert Bateman in the fall of 2023 which is in the father’s catchment area and a 10-minute drive away. She attended one semester when the mother pulled her out.

[22] I do not accept the mother’s suggestion that the father is looking to put the child in a religious school. There is a court order in place on choice of school. There is no evidence the father has not abided by it. Moreover, the father has indicated he is willing to consider the child’s attendance at any other public schools within the catchment area should the child continue to experience social challenges at Robert Bateman School. In September 2023, he made efforts to determine if she could attend another public school even closer, but there were no spaces. Robert Bateman is 10 minutes away and the father is able to drive the child there or have the child take the bus. The father is currently not working and is on disability. Both he and his family members can assist with drives and school homework.

[23] For all these reasons, I find that it is in the child’s best interest to continue attending Robert Bateman Elementary School.

Issue 2: Should the Parenting Order be amended to ensure the child’s attendance at school?

[24] The father argues the mother has a history of interfering with the child’s attendance at school and will not ensure the child goes to school notwithstanding a court order requiring so. He seeks a reversal in the interim parenting arrangement so that he would have the child during the week from Monday to Friday and can ensure she goes to school. He proposes the mother have parenting time with the child every weekend from after school on Friday to Sunday evening.

[25] Upon consideration of the best interest factors set out in s. 24 of the CLRA listed above, I find it is in the child’s best interests to reverse the current interim parenting arrangement. Below, I discuss those factors which are most relevant to this case.

[26] As already noted, I find it is in the child’s best interest to attend school, and I am satisfied that Robert Bateman is a suitable school for her. The mother has a history of neglecting the child’s education. The child is only in grade 4 and has been enrolled in four different schools since she started kindergarten. The mother also failed to register the child for school when the schools transitioned to online learning during COVID-19 resulting in the child missing grade one entirely. The child also missed 55 days of school in grade 2 and 48.5 days of school in grade 3 all of which was during a parenting schedule when the mother had primary care of the child during the school week.

[27] While the mother states she is prepared to homeschool, I am not persuaded by the evidence filed that she is able to do this effectively to ensure the child’s proper education. I find the father is better positioned to ensure the child’s attendance at school which is a critical aspect of the child’s needs, given her age and stage of development: 24(3)(a).

[28] The mother has demonstrated an inability to comply with court orders. The issue of school is not a new issue. It was the subject of an earlier motion resulting in Shelston J’s Parenting Order. The mother did not abide by the Parenting Order nor did she keep the father informed of her actions in trying to change schools or withdrawing from school altogether. It was the school principal who alerted the father to these situations. The ability and willingness of each person in respect of whom the order would apply to communicate and co-operate with one another on matters affecting the child is a factor for consideration: 24(3)(i).

[29] The mother breached the Parenting Order with respect to the father’s parenting time. As of the date of the motion hearing, the mother had not allowed the father’s parenting time to take place on three consecutive weekends. The father was only able to see the child recently for a few hours on the Eid holiday. The mother has also started tracking the child’s whereabouts with an air tag to monitor the child’s movements while in the father’s care fostering mistrust between child and father. The mother has failed to comply with the terms for the pick ups and drop offs and has failed to share with the father the contact information for the child’s doctor.

[30] The mother presently lives about 25 minutes away from Robert Bateman School and must drive the child back and forth because there is no bus. The child does not like the long commute and expressed in the Voice of the Child Report that she would prefer a school closer to her mother’s place. The mother’s other child goes to a school within the catchment area.

[31] I find the father is better positioned to ensure the child’s attendance at Robert Bateman given its current location. The father presently lives with his parents and members of the paternal family who also provide support for transportation. The father has previously helped the child with homework, and he is willing to continue to do so with the assistance of his family. I find that at this time the father is better positioned to meet the child’s need for continued education: 24(3)(h).

[32] It is unclear what the mother’s long-term plan of care is: 24(3)(g). The father is concerned the mother may wish to move to Waterloo, Ontario, notwithstanding there is a non-removal order in place. Children’s Aid Society (“CAS”) became involved in the summer of 2023 with respect to the mother’s housing conditions and also intervened when the mother attempted to remove the child from Robert Bateman on the first day of school without permission or notice. The child was released at that time into the father’s care. The mother was reported to be displaying aggressive behaviour toward school staff and law enforcement. The child also reported concerns about the mother aggressive behaviour and yelling. In contrast, the father resides with members of the paternal family and appears to be firmly situated in Ottawa. There is no evidence that he is unable to meet the needs of the child during the week. Furthermore, he is committed to ensuring the child’s attendance at school and moving forward in obtaining the psychoeducational assessment recommended so that the child may be able to obtain an individualized learning plan (IEP) and the necessary supports to succeed at school. While both parties should contribute equally to the costs of such an assessment, it is recommended that the father proceed with obtaining this assessment and any tutoring required even if the mother is not prepared to advance him the funds to do so for the benefit of the child.

[33] While I appreciate that the child has historically been in the mother’s care from Monday to Friday, I do not find that the reversal in the parenting arrangement would adversely affect the child or her relationship with either parent or sibling: 24(3)(b) The new parenting arrangement provides the mother with parenting time every weekend. Moreover, weekend parenting time would allow for the child to have more relaxed time with the mother and her younger sibling something she requests. Furthermore, accommodations can be made for the mother to have additional parenting time where there is a PD Day. Having said this, I appreciate that the father may also wish to enjoy some time with the child when she is not in school. Finally, the parenting arrangements can be revisited for the summer months when the child is not in school to allow the mother increased parenting time.

[34] The child’s views and preferences must also be considered: 24(3)(e). The Voice of the Child Report indicates the child does not have consistent views and preferences regarding the parenting schedule. In each of her interviews, the child provided conflicting evidence oscillating from one, she does not know what she wants; two, she wants the current arrangement (weekdays with mom and weekends with dad); and three, she wants an alternate schedule of weekdays with dad and weekends with mom so that she and her mom could do fun stuff which she cannot do because of school. The child also expressed frustrations with various aspects of her parenting time with each parent. The clinician took the view that based on these inconsistencies, it is possible that her views and preferences have been influenced and are dependent on whose care the child is in when interviewed.

[35] Temporary parenting orders should not be interfered with lightly and should ordinarily be maintained until trial unless there is evidence that the children’s best interests demand an immediate change: Coe v Tope, 2014 ONSC 4002 at para 25. Failure to ensure attendance at school constitute grounds for changes in interim parenting orders: Borsoi v Mogg, 2017 ONCJ 12 at para 235, 260, and 261.

[36] On the evidence before me, I am not satisfied that the mother will ensure the child’s continued attendance at school should the child continue to reside with her during the week. I find that there is sufficient evidence warranting a change in the interim Parenting Order.

[37] Upon consideration of the whole of the evidence, I find that it is in the bests interests of the child that she reside with the father during the week to ensure her attendance at school, that the mother have weekend parenting time, and that the father have decision-making authority on matters of education following reasonable consultation with the mother so as to minimize delays and further conflicts around school decisions. The new parenting regime will commence this Sunday April 14th to ensure the child’s attendance at school on Monday April 15, 2024.

[38] There will be a temporary, without prejudice, Order as follows:

1. The father shall have sole decision-making authority of the child on matters of education. The parties shall share decision-making on all other issues.
2. The mother will have parenting time from Friday April 12 to Sunday April 14, 2024 at 7:00 p.m.
3. Commencing Sunday April 14, 2024 at 7:00 pm the child shall reside primarily with the father and the mother shall have parenting time with the child every weekend from Friday afterschool to Sunday at 7:00 PM.
4. The mother’s parenting time may be extended on weekends upon written agreement by the father where there is either a PD Day or statutory holiday.
5. The mother shall pickup the child from Robert Bateman on Friday after school. If there is no school on the day of the transition, the parties shall meet at the T&T parking lot for the exchange.
6. The mother shall drop off the child on Sunday at the T&T parking lot or any other exchange place agreed on by the parties.
7. The child shall continue to be enrolled at Robert Bateman Elementary School for the 2023-2024 school year and attend in-person classes in the English only program.
8. The father shall make the final decision to determine if the Z.M. shall continue to attend Robert Bateman or transfer to another school in his local catchment for the 2024-2025 school year and any years thereafter upon reasonable consultation with the mother.
9. The parties shall share the cost of Z.M.’s psychoeducational assessment equally.
10. The parties shall share the costs equally of any tutoring recommended by school professionals to assist the child in catching up with missed school.
11. The mother shall provide the name, address and telephone number of the child’s primary doctor.

[39] The father has indicated that notwithstanding any change in the parenting schedule, he is agreeable to continuing to pay child support (presently less than $100/month) and will not seek to obtain the Child Tax Benefit at this time which the mother receives. His priority is that the child goes to school. The financial issues may be revisited after a period of stability in the revised parenting arrangement.

[40] The variation of the Parenting Order is focused on ensuring the child’s attendance at school. The circumstances are different in the summer. The parties are encouraged to negotiate a summer parenting schedule, and if not resolved, schedule a case conference or settlement conference on this particular issue.

[41] Finally, it is recommended that the parents speak with the school staff about concerns around bullying, supports for the child, and any concerns the child may have around wearing her hijab. The latter may also be an issue the parents may wish to identify with the child’s OCL counsel to ascertain the child’s views on it as it is not addressed in the VOC report.

Costs

[42] The father is the successful party on this motion and presumptively entitled to costs. The parties are encouraged to resolve the issue of costs. If the parties cannot resolve the issue of costs for this proceeding, they may file brief written submissions not exceeding two pages exclusive of Bills of Costs. The father shall file her submissions by May 3, 2024. The mother shall file her submissions by May 17th and father will have until May 24th for a brief reply. Costs submissions are to be sent to scj.assistants@ontario.ca and to my attention.

Somji J. Date: April 12, 2024