Court File and Parties

COURT FILE NO.: FS-23-00107680-00 DATE: 2024 09 10

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: A.A.T., Applicant -and- A.O.T., Respondent

BEFORE: RSJ E.R. Tzimas

COUNSEL: J. Mukongolo, Counsel for the Applicant Email: jane@jnmlaw.com R. Buhari, Counsel for the Respondent Email: rabab@aplawyers.ca

HEARD: In Writing.

ENDORSEMENT

[1] Following on my endorsement of September 3, 2024, A.A.T. v. A.O.T., 2024 ONSC 4868, and specifically, paragraph 45 (a), both parties advised the court that they could not obtain a Voice of the Child Report by September 9, as requested.

[2] The Applicant filed an affidavit explaining her efforts to obtain a Report and elaborated on M.T.’s communications concerning her feelings for Havergal College (Havergal). But she went much further and submitted additional evidence and attachments that were neither requested, nor proper in the circumstances. I address my specific concerns more fully below.

[3] In his communication with the court, the Respondent, through his lawyer advised the court of the difficulties obtaining a Voice of the Child Report, either through the Office of the Children’s Lawyer (OCL) or privately. He submitted M.T.’s Report Card and he raised concerns about the relationship between the eventual sale of the matrimonial home the possibility that the children would move to a location outside of the Ingleborough Public School (Ingleborough) catchment. Following his review of the Applicant’s affidavit, he filed with the court a responding affidavit where he took exception to the Applicant’s additional evidence.

[4] My point of departure in this endorsement is to underscore the urgency with which the selection of M.T.’s school must proceed. The school year has commenced and a decision about where M.T. is to go to school is pressing. I am concerned by the entrenchment I am seeing in the responses by both parties, as opposed to any willingness to work towards a solution. I also concerned by the parties inability to follow the court’s instructions outlined in my endorsement of September 3, 2024.

[5] I begin with the affidavits that were filed by the parties. Insofar as the parties wished to verify their efforts to obtain a Voice of the Child Report, both through the OCL and the privately, the reporting on those difficulties was appropriate. What was entirely inappropriate was the seizing of the opportunity by the Applicant to submit the attachments concerning M.T.’s alleged communications. That evidence violates basic admissibility principles of evidence and is therefore inadmissible.

[6] In the same vein, the Respondent’s response is equally problematic. While it would have been totally appropriate for the Respondent to object to the Applicant’s evidence, it was entirely inappropriate to then engage with that same evidence and to cast aspersions against the Applicant for his own purposes. The Respondent cannot object to the Applicant’s evidence but then advance accusations against the Applicant or suggest that M.T. was coached by the Applicant to confront the Respondent.

[7] Under no circumstances can I allow the issue of M.T.’s school attendance to be used to advance each side’s perspectives on the reasons for their divorce. To do so would be to contribute to the escalation of the conflict between the two parents. The child’s best interests is my only concern, and it MUST be kept separate from any other distractions. Accordingly, neither the Applicant’s evidence concerning her daughter’s communications and exchanges, nor the Respondent’s responding evidence are admitted into evidence.

[8] Turning to the issue of obtaining M.T.’s views, it is most unfortunate that neither party could identify a private expert to obtain the requested evidence. As I read from both parties their explanations about needing 2-3 weeks for a private report, I cannot help but wonder why they did not proceed proactively with such a retainer and seek an extension of the September 9 deadline. For example, 2-3 three weeks from when they consulted the proposed assessors, would have meant that by today, the assessment would have been well underway, with its possible completion by next week. But there was no such proactivity.

[9] Generally speaking, I really have to question BOTH parents’ willingness to be proactive about putting before the court their daughter’s preferences. As I already discussed in my endorsement of September 3, 2024, they could have taken immediate steps on being advised by the OCL that a report would not be undertaken. They did not do that. They also could have proceeded with a private assessment immediately following the hearing on August 29, 2024. On the suggested timelines, at least some of the proposed assessors would have been either finished or close to being finished with their report and the court could proceed accordingly. That was also not undertaken.

[10] The parties’ dispositions on this issue is highly problematic and puts their willingness to act in their daughter’s best interests in serious doubt. If they are so confident in their understanding of their daughter’s preferences and views, it makes no sense that they would drag their feet and not come forward to court with the best possible evidence, without the need for court directions and orders.

[11] At this point, in practical terms, the 2-3 week estimate for the assessment and the production of a report would not begin to run until later this week, if not early next week. By implication a report would not be produced before the end of this month. I would then require at least a couple of days to consider the report, possibly receive supplementary submissions and then render my decision, bringing us easily into October. The Respondent is correct to be concerned about a possible transfer six weeks or so into the school year. That of course is not dispositive of the problem. In the face of such difficulties, having attempted to obtain M.T.’s views, it is evident that what is needed from the court is a decision that will enable the parties to move forward on this issue. That means, working with the admissible evidence before the court.

[12] That evidence now includes M.T.’s Report Card. There are no concerns with the authenticity or reliability of its contents. While I caution myself that this document is but one piece of evidence concerning M.T.’s activities at Havergal, it is sufficiently detailed and as previously suspected, goes some significant way to providing valuable insights concerning M.T.’s overall performance and well-being at Havergal.

[13] In that review, what is most striking is the extent to which the commentary and the grades assigned to M.T.’s various courses, activities, and acquired skills, corroborate the Applicant’s concerns as outlined in her original supporting affidavit and effectively verify her reasons for concluding that it would be in her daughter’s best interests to return to Ingleborough in Brampton. For example, the Applicant reported on her daughter not making friends at the new school, feeling isolated, not having friends, and not being able to break into the existing peer relationships. The Report Card includes as assessment of “Collaboration” and treats it as a core skill across all the courses. “Collaboration” is defined in terms of the following measures:

• Accepts various roles and an equitable share of work in a group.
• Works with others to resolve conflicts and build consensus to achieve group goals and to complete projects.
• Responds openly to the ideas, opinions, values, rights and traditions of others.
• Shares information, resources, and expertise, and promotes critical thinking to solve problems and make decisions.
• Builds healthy peer-to-peer relationships.
• Builds healthy relationships with adults.

[14] Students are also evaluated on skills that touch on Initiative, Self-regulation, Independent Work, and Responsibility, and they are graded on the basis of the following matrix: N – Not Yet: Skill is not yet demonstrated and requires instruction; S-Sometimes: Skill is sometimes demonstrated and requires support from others; U – Usually: Skill is usually demonstrated and requires reminders or practice; and C – Consistently: Skill is consistently demonstrated.

[15] In keeping with the Applicant’s concerns that M.T. had difficulty making friends and felt isolated, M.T. received ‘U’s and some ‘S’s for collaboration, initiative and self-regulation. On initiative and self-regulation, some teachers noted M.T.’s lack of confidence and encouraged her to take more initiatives. All told, at the very least, her Report Card reflected concerns over the extent of her interaction with her peers. Although none of the teachers went as far as to suggest that she was isolated, the reporting was in keeping with the concern that M.T. had difficulty making friends and developing peer-to-peer interactions.

[16] In contrast to those qualities, when it came to evaluating her on Independent Work and Responsibility, M.T.’s scores, virtually across the board were ‘C’s, meaning that she consistently met the requirements for those qualities. While M.T. is to be commended for all her efforts, scoring so highly on her independence and responsibility, speaks to her conscientiousness to meet her responsibilities, but also has working alone, with the corresponding limited ability to make friends.

[17] M.T.’s difficulties in Mathematics, as recorded in her Report Card also corroborate the Applicant’s evidence concerning her daughter’s struggles in the subject and need for her to use her free time, when she could be making new friends, to get help. In M.T.’s Report Card, one finds a final grade of 65.68 and comments about her challenges and the need to “regularly make use of extra help opportunities, such as the math clinic”. Apart from corroborating the Applicant’s evidence on this issue, the mark and comments validate the Applicant’s concerns over her own inability to support her daughter and the effects that her constant need for help on M.T.’s self-esteem and ability to develop friendships with her classmates.

[18] In contrast to the Applicant’s concerns, given the contents of the Report Card, I am troubled by the extent to which the Respondent downplayed his daughter’s challenges and his efforts to redirect the court’s attention to his daughter’s performance in Music, and Track and Field. Admittedly, M.T.’s marks and performance in these two subjects were positive. However, they only go so far when it comes to forming an overall view of M.T.’s performance and well-being at the school. On the totality of the evidence before me, M.T.’s accomplishments in those two particular subjects do not diminish the reasons for which the Applicant concluded that it would be in her daughter’s best interests to transfer back to Ingleborough.

[19] A third area of concerns, which serves to corroborate the effects of M.T.’s 2.5 hour commute to and from school daily is reflected in the quality of her homework. In her evidence, the Applicant raised concerns about M.T. not having enough time to complete her homework and having to use her free time in school to work on her assignments. In her Report Card, several teachers commented on M.T.’s lack of attention to detail, rushing in her written work, and not paying attention to detail. In English, for example, the teacher states: “To express her thoughts more confidently, M.T. is encouraged to take more time to carefully revise her work and seek peer-editing to ensure that her thoughts are thorough and clear”. In Health and Physical Education, the teacher notes, “a tendency to rush in her written work”. In Music, the teacher commented on the need for M.T. to develop concentration strategies.

[20] Taken together, these comments verify the Applicant’s concerns over the effects of M.T.’s daily commute to and from Havergal. But even in the absence of the Applicant’s expressed concerns, they allow me to infer that M.T.’s daily commute, to and from Havergal, is taking a significant toll on M.T.’s overall school performance. Even if some of the reported shortcomings were to be attributed to being in a higher grade and learning new skills, one cannot pay attention to detail if they are feeling tired. It stands to reason that a student, who is reportedly a responsible individual and wants to do well will turn strategies such as rushing through their homework to satisfy the school’s requirements. But M.T. would not have to rush through her homework if she were to have a shorter commute and have the time to complete her work in a timely way.

[21] All told, even without the views of M.T., at this juncture, the Report Card offers enough insight to allow for the finding that the Applicant’s concerns are credible and real, that however well-meaning, the Respondent is downplaying his daughter’s challenges, and that it would not be in M.T.’s best interests to remain at Havergal.

[22] Insofar as the Respondent raised concerns about the future sale of the matrimonial home and a potential move to a location outside of the catchment for Ingleborough, that submission does take him very far. M.T.’s current address allows her to return to Ingleborough. Even if the Applicant and the children were to move midyear to an address outside of the Ingleborough catchment, there is no evidence that the school would ask the children to leave immediately. One would reasonably expect M.T. and her sisters to be permitted to remain at that school until the end of the school year. Alternatively, the prospect of a further transfer, might be a relevant consideration for the timing of the sale of the matrimonial home and the Applicant’s identification of alternate accommodations.

[23] Which brings me to my endorsement of September 3, 2024, and specifically the steps to be taken to prepare for the sale of the home and the issues to be addressed before the home is actually sold. One of those issues touches on the children’s future residence. When I take all of those requirements into account, and given how slowly the parties acted on the issue of obtaining a Voice of the Child Report for their daughter, I question whether the sale of the home would occur as quickly as the Respondent suggests.

[24] In sum, these findings, together with my findings that were outlined in my endorsement of September 3, 2024, lead me to the conclusion that it is in M.T.’s best interests to return to Ingleborough to continue her school studies. Arrangements are therefore to be made for her transfer there forthwith.

[25] That leaves the issue of costs.

[26] At their court attendance on August 29, 2024, if she were to be successful, the Applicant asked for costs of $15,000 on a partial indemnity basis. Counsel said her hourly rate is $650 /hour. No bill of costs was provided. If he were to be successful, the Respondent sought costs of $3,500. No bill of costs was provided.

[27] Having regard for the overall outcome, the Applicant obtained orders consistent with the relief sought but she did not succeed on the specific terms. Having regard for the parameters of Rule 24 of the Rules of Civil Procedure, on the sale of the matrimonial home, my endorsement of September 3, 2024 included numerous steps that were not anticipated by the Applicant. She did not obtain a “carte blanche” to proceed with the sale of the matrimonial home. Her success is therefore mixed.

[28] On the daughter’s transfer, the issue ought to have been straight forward and uncomplicated. It was rendered complex by the Applicant’s incomplete evidentiary foundation to her motion and her limited proactivity on the delivery of a Voice of the Child Report. Finally, counsel cannot possibly expect to receive the costs claimed without a bill of costs. On the basis of an hourly rate of $650, in the absence of a detailed breakdown, 24 hours on the motions seems high.

[29] In the result, given the overall mixed success, I fix costs at $8,000, inclusive of disbursements and applicable taxes. Of that sum, $4,000 is to be paid within 30 days from the date of this order. The balance is to be paid out of the Respondent’s share of the net proceeds from the matrimonial home, whenever that sale is concluded.

RSJ E.R. TZIMAS Released: September 10, 2024