Court File and Parties

Court File No.: FS-23-00037321-0000
Date: 2025-06-10
Court: Superior Court of Justice - Ontario

Applicant: Tamer Mostafa Elmasry
Respondent: Hafsa Alli

Before: M. Kraft
Applicant Counsel: David Tobin
Respondent Counsel: Fadi Matthew Kazandji
Heard: 2025-06-10

Endorsement

Nature of the Motion

[1] The applicant, Tamer Mostafa Elmasry (“the father”), brings a school placement motion for the 2025/2026 academic year, seeking an order that E., age 16, continue to attend Albert Campbell C.I.; I., age 13, attend Albert Campbell C.I. for Grade 9; and M., age 11, attend Grey Owl Junior Public School for Grade 6.

[2] The respondent, Hafsa Alli (“the mother”), brings a cross-motion seeking an order that for the 2025/2026 academic year, E., age 16, and I., age 13, both attend West Hill C.I.; and M., age 11, attend Meadowvale Public School for grades 6-8. In addition, the mother seeks an order for temporary sole decision-making responsibility over the children’s education to prevent the father from removing the children from their schools.

[3] Currently, E. attends Albert Campbell C.I. and I. and M. attend Madinatul Uloom Academy, a private school. M. has not been attending in-person school since May 2025. Both parents agree that the children should attend public school starting in September 2025. They differ as to which schools will be in the children’s best interests.

Issues to be Decided

[4] The issues for me to decide on this motion are as follows:

(a) Is it in E.’s best interests to remain at Albert Campbell C.I. or attend West Hill C.I. starting September 2025?
(b) Is it in I.’s best interests to attend Albert Campbell C.I. or West Hill C.I. starting September 2025?
(c) Is it in M.’s best interests to attend Grey Owl Junior Public School or Meadowvale Public School starting September 2025?

Background

[5] The parties were married on December 4, 2005. They separated on February 15, 2023.

[6] They have four children: M., age 18; E., age 16; I., age 13; and M., age 11. This motion does not concern the oldest child, M.

[7] The parties signed a separation agreement on February 20, 2023. The agreement provides that the four children shall reside with the mother. The father disputes the validity of this agreement in the within Application.

[8] The father is currently on medical leave from his employment after having been struck by a car as a pedestrian and sustaining injuries to his neck, leg, hips, and shoulders. In 2024, he earned $60,642 in long-term disability benefits. He is also vision impaired.

[9] The mother is self-employed and earns an annual income of about $120,167.

[10] Currently, the parties are following a temporary without prejudice parenting schedule order of Shore, J., dated November 13, 2023, where the children reside primarily with the mother and have parenting time with the father on Tuesdays, from after school to Wednesday morning and on Fridays, after school to Sunday at 8:30 p.m. While this amounts to the children having 6 overnights with the father out of every 14 days, the mother is responsible for taking the children to school 4 mornings out of every 5-day school week, and is responsible for picking up the children 3 days out of every 5-day school week.

[11] There is currently no order in place regarding decision-making responsibility for the children.

[12] The father resides in the parties’ prior matrimonial home in Scarborough. The mother moved to a new neighbourhood in March 2025, not far from the father. However, now that the parents are in two different houses, they have different local public schools in their respective catchment areas.

[13] There is a 9-day trial of this matter scheduled to commence on September 22, 2025. The issues of parenting, child support, spousal support and equalization of net family property remain outstanding. Leave was granted to the father to bring this school placement motion by me.

Past School History of the Children

[14] The following is the school placement history of the children:

(a) Until September 2013, the children were all home-schooled.
(b) From September 2018 to March 2020, the children attended Madinatul Uloom Academy (“MUA”). When MUA closed because of the Covid-19 pandemic, the children were then enrolled in a virtual TDSB school to complete the remainder of the 2019/2020 academic year.
(c) The children then continued to attend a TDSB virtual school for the 2020/2021 academic year and the 2021/2022 academic year.
(d) From September 2022 until March 2023, the children attended the American Islamic School, which was a private school that offered online courses. In April 2023, the mother decided that E., I., and M. should be home-schooled for the remainder of the 2022/2023 academic year. At that point, the mother unilaterally enrolled the children at MUA for the 2023/2024 academic year.

[15] On November 14, 2023, the parties attended a case conference before Shore, J., at which a without prejudice temporary parenting order was made giving the father parenting time on Tuesdays, after school to Wednesday mornings and Friday, after school to Sunday at 8:30 p.m. (“Shore November 2023 Order”). The father is also paying without prejudice temporary child support to the mother of $1,854 a month for the four children of the marriage, based on his income of $79,673 in 2023. The order sets out that the children are to continue to attend MUA, subject to a spot becoming available at another school agreeable to the parties. The mother was ordered to continue to pay the school fees without prejudice to her right to seek contribution from the father on a retroactive basis. Finally, the OCL was requested to complete a VoC report.

[16] On June 13, 2024, the father brought a motion regarding parenting time during the school breaks and other holidays as the mother would only agree to parenting time as per the Shore November 2023 Order. Rhinelander, J. made an order on July 31, 2024 that:
a) the parties share the Winter Break and March Break equally;
b) the parties each have two, one-week periods of holidays with the children in the summer (non-consecutive);
c) the father’s parenting time will extend to Mondays when a Statutory Holiday falls on a Monday;
d) the regular parenting schedule will be followed on PA days; and
e) Eid Ul-Fitr and Eid Ul-Adha will be shared equally.

[17] On July 9, 2024, the mother brought a motion for retroactive child support and for a remedy to address what she referred to as “fraudulent conduct” on the father’s part with respect to the Canada Child Tax Benefits. The father brought a cross-motion to reduce his child support. Sugunasiri, J. reduced the father’s child support from $1,854 a month to $1,653 a month based on his income of $67,708. As a result, Sugunasiri, J. found that for the period starting February 15, 2023, which included the Shore November 2023 Order, the father owed the mother child support of $2,086.50 and in 2024, the father overpaid the mother child support of $1,206. Accordingly, the father was ordered to pay the mother $880.50 for the period February 15, 2023 to June 30, 2024. Sugunasiri, J. dismissed the mother’s motion for retroactive s.7 expenses and declined to make an order that the father’s actions regarding the Canada Child Tax Benefit was fraudulent. Ultimately, the mother was ordered to pay the father costs of this motion. Sugunasiri, J. criticized the mother’s choice to bring this motion and stated in her Endorsement as follows:

“Was this motion fruitful for this family whose parents each claim that they are struggling financially? No. With a settlement conference in the horizon, insufficient evidence and legal foundation for the claimed section 7 expenses, foundational and methodological disputes relevant to the calculation of proportionate s.7 expense payments, and only $880.60 in child support outstanding, this motion should not have been brought.”

[18] On November 22, 2024, the parties attended a TMC before Hood, J., at which he scheduled a 9-day trial of this matter to start on September 22, 2025. The parties agreed that E. needs therapy, that the father would pay for it and take him to and from his therapy appointments.

[19] On February 13, 2025, I heard an urgent case conference in this matter, at which I facilitated a form being signed to enable E. to start therapy, I requested the OCL to conduct an updated VoC report regarding the children’s school placements and scheduled today’s school placement motion. The OCL declined to prepare an updated VoC report.

[20] Accordingly, the children’s views and preferences were not before the court regarding school placement.

Issue One: Is it in E.’s best interests to remain at Albert Campbell C.I. or attend West Hill C.I. starting September 2025?

[21] In December 2023, E. began exhibiting problematic behaviour, at which time he was attending MUA in person. He was expelled from MUA after assaulting another student with a repellant spray.

[22] After E. left MUA, he was enrolled in Lester B. Pearson, the public high school in the catchment area where both parents resided at that time. While at Lester B. Pearson, E. struggled academically and behaviourally.

[23] E. assaulted a homeless person during school hours at a mall and is now facing criminal charges. This led to E. being suspended from Lester B. Pearson and being transferred to TDSB’s Caring and Safe Schools for the remainder of his term.

[24] After completing the Caring and Safe Schools program, in January 2025, E. was transferred to Albert Campbell C.I., which was chosen by the TDSB. E. is also enrolled in therapy. The father submits that the therapy, along with being at Albert Campbell C.I., has provided stability for E., resulting in reduced incidents of misbehaviour and improvement in his academics. For these reasons, he believes that it is in E.’s best interests to remain at Albert Campbell C.I.

[25] The mother disagrees and submits that E. should attend West Hill C.I., the public high school in her catchment area.

The Law

[26] The only consideration for the Court is what is in the child’s best interests. Divorce Act, s. 16(1).

[27] As set out in Thomas v. Osika, 2018 ONSC 2712 by Audet, J. at paragraph 57:

[57] The decision as to the choice of school that a child should attend, when the parents disagree, is ultimately a matter of judicial discretion. However, a number of general principles have emerged from the caselaw to assist the decision-maker in making the decision in the child’s best interests. They can be summarized as follows:

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 enrollment 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);

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);

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);

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);

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);

h. Any problems with the proposed schools will be considered (Askalan v. Taleb, 2012 ONSC 4746);

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);

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);

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).

[28] When a child is already enrolled in a program of education the starting point for the determination is clear: absent compelling circumstances, students will continue their education in September at the school at which they were enrolled in June. Disrupting a child’s school placement is to be avoided. School is often the most stable and neutral place for children whose parents are transitioning from one home to two homes. The court needs to ask if there are compelling circumstances that justify a change in school pending a final custody and access decision. See: D.B. v. M.R.B., 2019 ONSC 4925; and Darghawth v. Jaffer, 2025 ONCJ 104, para 41.

[29] E. was just moved to Albert Campbell C.I. in January 2025. During argument, counsel for the mother advised the court that E. had had problems at Albert Campbell C.I. In answer to a question from the Court, counsel advised that E. had skipped school and often went to the neighbouring West Hills mall. He further argued that E. had been climbing on rooftops and in March 2024, E. was caught by a building manager for trespassing during the school day. There was nothing in the record before me verifying that E. had been climbing on rooftops or was caught for trespassing. In any event, the mother submits that it would be in E.’s best interests to attend West Hill C.I., the high school in her catchment area because there are no tall buildings or mall close to this school and E. has good friends at West Hill. Further, she argues that it will make it much easier for her to do pick up and drop off of E. from school if he attends West Hill C.I. because it is closer to her house than where Albert Campbell C.I. is located.

[30] I am not persuaded that the mother has met her onus to establish that it will be in E.’s best interests to move from Albert Campbell C.I. in September to West Hill C.I. The mother has not put forward any compelling evidence to demonstrate that it would be in E.’s best interests to move from Albert Campbell C.I. in September 2025, where he will just have finished one term.

[31] The mother attaches an email from Mike Wright, the Caring & Safe Schools Advisor, dated May 15, 2025 as an exhibit to her affidavit in support of E. attending West Hill C.I. However, the mother does not refer to the entirety of Mr. Wright’s email which confirms that E. is eligible to attend West Hill C.I., given the mother’s change in address, however, Mr. Wright states, “Having said that, he does have the ongoing support and familiarity of his current school Albert Campbell C.I.”

[32] The fact that E. will be equally served academically as between West Hill C.I. and Albert Campbell C.I. means that a determination of what is in E.’s best interests ought not to rest on academics but, rather, on E.’s best interests in terms of focussing on assessing the impact of moving schools again will have on E.’s stability.

[33] I find that for the 2025/2026 academic year, E. should remain at Albert Campbell C.I. for the following reasons:

a. E. just started at this school in January 2025;
b. E. has had a successful academic term there;
c. E. has not had any disciplinary or behavioural issues at Albert Campbell C.I.;
d. The advisor of Caring & Safe Schools with the TDSB confirms that E. will have the ongoing support and familiarity at Albert Campbell C.I. if he returns for next year;
e. Stability for E. is desirable and particularly important given the difficulties experienced by E. in the past year or so;
f. While E.’s homelife has been changing, school ought to be a consistent and stabilizing force for him. Having E. change schools again in September 2025 will mean he will have changed school 4 times, from MUA, to Lester B. Pearson to Albert Campbell or West Hill C.I. in the span of just two academic years. That change is not in E.’s best interests and is avoidable;
g. While E. attending West Hill C.I. may make it easier for the mother to transport E. to and from school, until December 2023, the mother was transporting the children to MUA, which is much further from her home than is Albert Campbell C.I. In addition, at age 16, E. is old enough to take public transportation to and from school and to explore his independence in that regard. In other words, changing E.’s school to West Hill C.I. must involve more considerations than convenience for the mother and must be rooted solely in what is in E.’s best interests; and
h. Given the troubles E. has been through, I find that it would be best for his stability to not have to adjust to a new high school in September 2025. The parents followed the advice of the Caring & Safe Schools section of the TDSB and agreed with E.’s placement at Albert Campbell. There are no reasons on the record before me that persuade me the current school is not working any longer. There are simply no compelling reasons for E.’s school to be moved again for September 2025.

Issue Two: Is it in I.’s best interests to attend Albert Campbell C.I. or West Hill C.I. starting September 2025?

[34] I. is starting Grade 9 in September 2025.

[35] I. started acting out in 2024/2025 and the father believes it would be in I.’s best interest to attend the same school as E. and start Albert Campbell C.I. in September 2025.

[36] The father submits that it would be in I.’s best interests for him to attend Albert Campbell C.I. with his brother as it would give I. the stability and consistency of going to school with his brother which is an important relationship for both of them. The father also argues that Albert Campbell C.I. has many clubs, athletics teams, a Muslim Student Association and can provide I. with all he needs academically and from a co-curricular perspective.

[37] The mother argues that Albert Campbell C.I. is outside of the father's catchment area, as well as her catchment area, and therefore, I. is not eligible to attend that school. Again, she submits that I. ought to attend West Hill C.I. in her catchment area.

[38] The father’s evidence is that while Albert Campbell C.I. is not his neighbourhood school, he spoke directly with the principal, Icilda Elliston, and was told I.’s placement at the school is possible and that there is consideration for students with siblings who attend and are returning to a TDSB school.

[39] The mother’s counsel confirmed in answer to a question from the court, that it is her position that both E. and I. ought to attend the same High School.

[40] I have no doubt that both Albert Campbell C.I. and West Hill C.I. are fine schools who can meet I.’s academic needs. In terms of finding which of the two schools is in I.’s best interests to attend, I find that since E. will be attending Albert Campbell C.I., it is in I.’s best interests to apply to attend the same school as his older brother so both siblings can reap the benefits of stability and a fresh start at the same high school. If, as the mother suspects, the Albert Campbell C.I. school cannot accept I. as an out of area student, despite the fact that his sibling attends there, then the mother may enrol him at West Hill C.I. upon receiving written notice from the Albert Campbell C.I. that they cannot accept I.

Issue Three: Is it in M’s best interests to attend Grey Owl Junior Public School or Meadowvale Public School starting September 2025?

[41] The father submits that it is in M.’s best interests to start Grade 6 at Grey Owl Junior Public School in September 2025 as it is the school in the catchment area of the father’s home, where M. has always lived. M. has friends who attend Grey Owl with whom M. plays sports, which will make the adjustment of a new school easier for him.

[42] On May 7, 2025, M. was involved in an incident at school involving indecent exposure. This resulted in M. being suspended for 2 days and the parties were asked to sign a Behaviour Support Plan for M.

[43] The mother spoke with MUA administration and decided unilaterally that M. should not attend school in person for the remainder of the year to avoid possible expulsion. As a result, MUA has provided the mother with workbooks for M. to complete at home.

[44] The mother did not consult with the father when she spoke with the MUA administration. She did not discuss this with him, demonstrating that she does not respect the joint decision making responsibility she and the father currently share under the Shore November 2023 Order. Further, the mother has refused to give the father workbooks so he can assist M. with school work when he is with the father. Again, this refusal to cooperate with the father demonstrates that the mother is unable to place M.’s needs and best interests ahead of her own.

[45] The mother argues that Grey Owl Junior Public School is not in the father’s catchment area and, as a result, M. cannot attend there. She further submits that if M. goes to Grey Owl Junior Public School for Grade 6, he will only be there for one year since it ends in Grade 6. For these reasons, she argues that M. should attend Meadowvale Public School for Grades 6-8 in her catchment area. The mother also submits that Meadowvale Public School is a 3-minute drive to her house, a 16-minute walk from the house.

[46] The mother’s evidence about M. not being permitted to attend Grey Owl Junior Public School is not correct as Grey Owl Junior Public School is a school in the father’s catchment area. The father acknowledges that Grey Owl Junior Public School ends in Grade 6 and argues that M. will then travel with his cohort to the middle school. While Meadowvale Public School is close to the mother’s house, Grey Owl Junior Public School is also not far from her home and is very close to the father’s home. Furthermore, the father named 7 friends of M., all of whom are his soccer teammates, who attend Grey Owl.

[47] On the record before me, I find that it is in M.’s best interests to attend Grey Owl Junior Public School starting in September 2025. Given the way in which M. was made to leave MUA, and the fact that he has had to complete Grade 5 from home, I am persuaded that having friends and a community at school with M. will be in his best interests. The mother was not able to point to M. having existing friends at Meadowvale Public School. It is clear that M.’s behaviour started escalating in March of 2025 and having a new school and fresh start will likely be a positive factor for M. Having friends and a community at this new school will make the transition far easier for him.

Costs

[48] Both parties submitted Bill of Costs.

[49] Since the father is the successful party, he is presumptively entitled to costs pursuant to Rule 24(1) of the Family Law Rules.

[50] The touchstone considerations of costs awards are proportionality and reasonableness: Beaver v. Hill, 2018 ONCA 840, para 12. In Boucher v. Public Accountants Council (Ontario), paras 28-29, 37, the court held that costs must be fair and reasonable, and consistent with the reasonable expectations of the parties.

[51] Rule 24(4) provides that a successful party who has behaved unreasonably may be deprived of all or part of their costs or ordered to pay all or part of the unsuccessful party’s costs. It is on this basis that the applicant argues the respondent ought not to be awarded costs.

[52] Based on the messages sent by the mother to the father on OFW about E.’s and I.’s school placement, I find the mother’s position as restrictive and unreasonable. Furthermore, the mother’s continued insistence of minimizing the role of the father and failure to include him in highly important conversations with MUA about E. and M. are indicative of the mother’s inability to respect that it is in the children’s best interests for both parents to have involvement in their school particularly when they are being disciplined by the school and place the children’s best interests first.

[53] In my review of the father’s Bill of Costs, his full indemnity costs of this motion were $8,472.17.

[54] The mother’s Bill of Costs demonstrates that her full indemnity costs were $3,955.00, basically half of the father’s costs.

[55] The father’s counsel spent a total of 20 hours on the motion and the mother’s counsel spent 8.75 hours. This difference is partially explained because the father prepared a reply affidavit.

[56] I find that the father’s lawyer’s fees are reasonable and proportionate to the issues being decided. The mother ought to have expected to pay the father’s reasonable costs if she were unsuccessful on the motion.

[57] In these circumstances, I find that the mother’s conduct ought to pay the father costs of this motion in the fixed sum of $6,000, inclusive of HST.

Order

[58] This court makes the following order:

(a) Commencing September 2025, E. shall continue to attend Albert Campbell Collegiate Institute;
(b) The applicant shall immediately apply for I. to attend Albert Campbell Collegiate Institute as an out of area student and a sibling of a current student. If the school accepts I. as a student for September 2025, the school shall advise both parents in writing. If Albert Campbell Collegiate Institute cannot accept I. as a Grade 9 student for September 2025, I. shall be enrolled at West Hill Collegiate Institute. The respondent shall not take any steps to enroll I. at West Hill Collegiate Institute until after the complete application process at Albert Campbell Collegiate Institute is complete and a decision by the TDSB is rendered.
(c) Commencing September, M. shall attend Grey Owl Junior Public School.
(d) The registration of E., I. and/or M. at the schools referred to above is without prejudice to either party’s position about decision-making responsibility or parenting time for E., I. and/or M.
(e) The mother shall pay the father’s costs of this motion in the fixed sum of $6,000, inclusive of HST, within 30 days.

M. Kraft
Date: June 10, 2025