COURT FILE NO.: FC-23-1050

DATE: 2024/09/11

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ana Andrea Lissansky, Applicant

AND:

Francisco Alas, Respondent

BEFORE: Somji J.

COUNSEL: Applicant, Self-Represented

Michael Rappaport, for the Respondent

HEARD: September 5, 2024, oral decision given September 6, 2024

ENDORSEMENT

1The Respondent father Francisco Alas seeks an order that the parties’ two children attend their choice of schools in Ottawa within the catchment area of the matrimonial home where he resides with the children. The Applicant mother opposes the request and asks that the children be enrolled in a school in Gatineau, Quebec, where she has relocated.

2The parties’ have since their separation in March 2021 exercised a week on/week off parenting schedule with some modifications when the children have activities in town. There is no Temporary Parenting Order in place.

3The parties’ children are 12 and 13. The eldest L.A.A. is almost 14 and going into grade 9. The younger daughter M.S.A. is 12 and going into grade 8. The father’s position is that the children have always gone to school within the catchment area of the matrimonial home and have indicated their preference in a Voice of Child report to continue going to school in this community. Both schools are five minutes walking distance from the matrimonial home.

4The mother opposes the request. She argues that she can no longer afford to pay the travel costs from Gatineau to Ottawa to take the children to and from school during her parenting weeks. She purchased a home in Gatineau because she could not afford a home in the neighbourhood of the matrimonial home. She is severely financially strained and has been requesting the father to either purchase her interest in the matrimonial home or list the home for sale. To minimize her travel costs, she wants the children to be enrolled in a school in Gatineau. Alternatively, given the parents share a week on/week off schedule, she seeks to reside in the matrimonial home during the weeks the children are in her care to avoid travel costs.

5The issue to be decided is which school is it in the best interests of the children to attend?

Procedural history

6In April of this year, L.A.A.’s registration at Colonel By Secondary School was accepted. However, since May 8, 2024, the mother has refused consent to allow L.A.A. to attend Colonel By. She informed the school principal and the father that she will only consent to L.A.A.’s attendance if the father purchases her interest in the matrimonial home or lists it for sale.

7The issue did not resolve itself over the intervening months. Ms. Lissansky indicated at a case conference on July 12, 2024, that she intended to bring a motion on where the children should attend school this fall. Justice Summers who was assigned to case manage the file cautioned her that should such a motion be necessary, her motion materials should be served and filed well in advance of the return to school dates. No such motion was filed.

8On August 13, 2024, the mother sent a letter to the vice principle of Colonel By that she would not consent to her son attending that school there unless the father bought her interest in the matrimonial home. On August 14, 2024, the father sent a letter to the vice principal indicating that L.A.A. lives in the school catchment zone and that the mother was not permitted to enrol him in school outside of Ottawa. On August 19, 2024, the vice principal replied that either both parents’ consent or a court order is required to enrol L.A.A. at the school. Consequently, the father brought an urgent motion on August 27, 2024. Associate Justice Fortier granted the urgency request and the motion proceeded on September 5, 2024. School commenced earlier this week, and the school has fortunately allowed L.A.A. to attend school pending the outcome of this matter.

9While the father did not initially bring a motion regarding his daughter’s attendance at Henry Munroe School in Ottawa, the mother indicated during the motion hearing that she would not take either child to their respective schools in Ottawa. Consequently, the father seeks an order that his daughter attend her school of choice in Ottawa as expressed by her in the Voice of Child Report.

Issue: What choice of school is in the children’s best interest

10The governing test for determining decision-making responsibility, primary residence, and parenting time is the best interests of the children: s. 16 Divorce Act. The court may also determine any matter incidental to the parenting order including choice of school: S. 16 D.A.; Sain v Shahbazi, 2023 ONSC 5187 at para 25. Parallel provisions are set out in s. 24 of the Children’s Law Reform Act, RSO 1990, c C.12, s 24, as amended SO 2020, c 25, Sched 2, s 6.

11The best interests of the child framework requires primarily consideration of the children’s physical, emotional and psychological safety, security and well-being: 16(2) D.A. However, s. 16(3) D.A. lists additional factors that must also be considered:

Factors to be considered

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(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.

12In addition, 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 CanLII 191 (SCC), [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).

13Upon consideration of the above-noted principles and the best interests factors, I find that it is in the children’s best interest to attend at their choices of school in Ottawa. While I have considered all the best interest factors, below I discuss only those that are most pertinent.

(a) History and Stability of Care

14The parties married in 2002 and separated in 2021. Following separation, the mother remained in the matrimonial home and the father moved out to one of the parties’ rental properties. In August 2022, the mother moved out of the matrimonial home and the father moved back in. In December 2022, the mother purchased a 5-acre water front home in Gatineau, Quebec, where she now lives with her new partner.

15During all these transitions, the children continued to live principally in the matrimonial home and attend schools within the neighbourhood.

16After the mother’s relocation to Gatineau, she managed the children’s transportation to and from school between Gatineau to Ottawa during her parenting weeks, a distance of about 20 to 30 minutes. The father indicates that his son does play sports, and if there is a basketball practice or game, his son will stay with him in Ottawa on those evenings. In short, while travel costs continue to be an issue for the mother, she has cooperated with modifications to the parenting schedule to allow the children to participate in afterschool activities.

17The children have always attended school in the neighbourhood of the matrimonial home. This is where their friends are. History and stability of care favours that the children continue to go to school within the catchment area of the matrimonial home.

(e ) Children’s views and preferences

18On November 16, 2023, Sandra Kapasky issued a Voice of the Child Report in which both children expressed that they would like to continue with the current parenting schedule of week on/week off and attend school within the neighbourhood of the matrimonial home.

19With respect to the issue of school, L.A.A stated that he is looking forward to high school at the start of September 2024 and that his plan was to attend Colonel By High School with his friends. He also expressed some worries about what school he would attend if he was not able to go to Colonel By particularly in the event the matrimonial home got sold and he had to relocate. He also stated that he finds it very stressful when his mother tells him that the matrimonial home will be sold and that his father cannot afford to buy the family home from her.

20L.A.A reported that he enjoys playing basketball and one issue that causes a problem for him is that his mother lives far away and does not want to take him to the basketball games and practices. He explained that his mother signed him up for boxing lessons in Gatineau and when the father refused to drive him to those lessons, the mother started to refuse to drive him to his basketball activity. Consequently, either his father has to drive him to basketball from his mother’s house or he misses out on games and practices. He acknowledged that more recently his parents developed a plan to allow him to stay the night at his dad’s place when there was a practice or game even if it was his mother’s parenting time. He indicated he would like to keep the parenting schedule as is with the accommodation to allow him stay the night at this dad’s when necessary to attend his basketball games and practices.

21M.S.A. specifically indicated that she would like to move to Henry Munroe Middle School for grades 7 and 8 in September 2024. She noted that the drive to school has been bothering her, but that it was less now, and she did not want to change the 50/50 parenting schedule. While her father reports that M.S.A. is an excellent student, M.S.A. expressed some concerns about her ability to focus while in school and wishes to be assessed for ADHD. She explained that her father took her to a therapist on one occasion which she found beneficial. She expressed that she would like to someone again, other than her parents, about her current situation which I understood to be referring to the stresses of the parents’ separation.

22This factor favours the children attending school in the catchment area.

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

23L.A.A. attended French school, but indicated that he will enter a French immersion program when he goes to Colonel By.

24M.S.A. also attended a French language school. The father indicates that she will be able to continue with French part time at her school.

25The father’s first language is Spanish. It appears the children speak Spanish and English.

26There is no evidence that their choice of school will undermine any linguistic heritage.

(g) any plans for the child’s care;

27The father indicated during the motion hearing that should the matrimonial home be sold, he will endeavour to find a rental unit within the catchment area to ensure his children can continue to go to school within the same area and the community they have grown up in. Ensuring their stability is his primary goal.

28Furthermore, his new partner is home by 3 pm to greet the children after school. His mother is also available, as she has been in the past, to help after school including tutoring for math. The father is usually home by 5 or 5:30 pm.

29Contrary to the children’s express wishes, the mother indicated that her plan is for the children to be enrolled in a school in Gatineau, Quebec. The children have never gone to school in Quebec and have no friends in her suggested schools. She provided no information about her proposed schools.

(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 and (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;

30Upon review of the mother’s affidavit and upon hearing her submissions, I am not persuaded that the mother will comply with a court order requiring the children’s attendance at their choice of school. She indicated at the hearing that she will not take the children to school in Ottawa during her parenting weeks as she cannot afford to drive them.

31I note that the mother already has to come into Ottawa twice a week for her own job. Hence, the travel costs at issue amounts to 6 days for two parenting weeks a month. After some discussion at the motion hearing, the father indicated he would be prepared to assist with the mother’s costs of travel by contributing $200/month. He also offered to modify the parenting schedule to have the children reside at the matrimonial home during the school week to minimize the mother’s travel.

32At this juncture, the court does not have sufficient evidence to warrant imposing a Temporary Parenting Order that has the children residing with the father during the school week. I also note that the children have indicated they like having a 50/50 schedule and wish to spend time with their mother.

33However, the mother was cautioned in court that should she not comply with the court order regarding choice of school and fail to take her children to school, the court can impose a parenting order to ensure the children’s attendance at school.

34While I understand the mother’s frustration with the delay in resolving the parties’ financial matters, I find the mother’s use of the children’s choice of school and refusal to provide consents as a form of leverage to compel the father to sell the matrimonial home indicates she is not focused on making decisions that are in the children’s best interest.

35Finally, I find the mother’s failure to consider the children’s views on choice of school, her assertion that she will unilaterally enrol them in a school in Gatineau, and her indication that she will not take the children to school in Ottawa during her parenting weeks suggests she is unlikely to co-operate with the father and conduct herself in the best interests of the children.

36I find this factor also favours the children attending their school of choice in Ottawa.

Conclusion

37In conclusion, upon consideration of the best interests factors and the principles set out in Thomas v Osika, I find it is in the best interests of the children to attend their choice of school in the catchment area of the matrimonial home in Ottawa. For L.A.A., this would be Colonel By High School and for M.S.A. it would be Henry Munroe Middle School. There will be a Temporary Order specifying their attendance at these schools.

38At this time, I will not order the father to pay $200, but would encourage him to do so to assist the mother until such time as the parties are able to resolve their financial issues, including the sale of the matrimonial home. It is clear form the motion hearing that this is the primary dispute between the parties and efforts should be made to resolve the issue as soon as possible or proceed to a motion or focused hearing related to the sale of the home and the division of proceeds. While I understand that equalization and division of property is complicated by the mother’s alleged withdrawals of lines of credit, it is in the parties best interests to either resolve or have these financial issues adjudicated as soon as possible. It is clear from the VOC Report that their financial disputes are causing considerable stress on the children and the mother.

39Ms. Lissansky’s request for partial possession of the matrimonial home is not before me, and I decline to make such an order. If she wishes to make such an application, she may bring a motion to do so.

40Should there be any discrepancies between the oral and written decision, the written decision shall prevail.

Costs

41The father is the successful party and presumptively entitled to costs. I would encourage the parties to resolve the issue of costs, and if unable to do so, they may file brief written submissions for my consideration. The father may file his submissions by September 30th, the mother by October 15th and a reply by October 22nd. These are to be sent to scj.assistants@ontario.ca and to my attention.

Somji J.