Herrera v. Raji, 2011 ONCJ 398

Toronto (North York) Registry No. D47741/09 DATE: 2011·VIII·10 CITATION: Herrera v. Raji , 2011 ONCJ 398 ONTARIO COURT OF JUSTICE BETWEEN: SANDRA HERRERA, Applicant, — AND — ABDULRAZAQ RAJI, Respondent. Before Justice Stanley B. Sherr Heard on 9 August 2011 Reasons for Judgment released on 10 August 2011 CIVIL PROCEDURE — Conduct of trial — Form of hearing — Affidavit and documentary evidence determinative — Court expressed its appreciation to parties for their agreement on format of

summary trial for single remaining issue about child custody — Under rule 2 of Family Law Rules , parties agreed to file affidavit evidence in support of their respective positions, with each would have up to 45 minutes to cross-examine other at hearing, after which they would have chance to make submissions — In fact, father chose not to cross- examine mother who cross-examined father briefly (about 15 minutes) — Both parties then made submissions —

Summary hearing lasted less than 1 hour.

CUSTODY OF CHILD — General — Incidents of custody — Form of education — Home schooling — Parties managed to resolve almost all parenting issues affecting their daughter (now 5 years old), including equal time-sharing arrangement — Only unresolved issue before court was format of her education for upcoming academic year — Mother, who was enrolled at university, wanted girl to attend senior kindergarten in public school system, whereas father wanted to have child “home-schooled” in program in which both parents would be deeply involved — After hearing evidence, court agreed with mother’s plan of public education, but allowed father to supplement child’s education thereby allowing best of both worlds — Court’s concerns with father’s vision of home-schooling included: (

a) father had no evidence to support his contention that black child and, in particular, his daughter, would be better served by home-schooling than by public education, particularly in light of her creditable performance in junior kindergarten; (

b) father’s plan of home-schooling presumed high level of communication and co-operation between parents, which, until now, had not been very evident and in which mother admitted that she could not participate in view of “full plate” of her own educational commitments; (

c) father’s plan was extremely vague and was really exercise in raw hope that his experiment would succeed somehow; exactly what role mother was supposed to play was unstated; (

d) high level of child’s school absences while in his care under equal time-sharing put his unreliability at issue; (

e) grammatical errors in father’s affidavit material put his written English skills and his ability to teach them to child in issue; (

f) public school offered dimension of socialization with her peers, opportunity to acquire interpersonal skill and benefit of guidance from teachers who were trained in early childhood development and education, all of which was important for child’s emotional development but for which father’s vague plan had no counterpart; and (

g) this was critical time in girl’s development and it was not in her best interests to be subject of vague experiment in home- schooling for 1 or 2 years. STATUTES AND REGULATIONS CITED Children’s Law Reform Act , R.S.O. 1900, c. C-12 [as amended],

section 24. Family Law Rules , O. Reg. 114/99 [as amended], rule 2.

CASES CITED Heath v. Zdep, , 101 A.C.W.S. (3d) 544, [2000] O.J. No. 4601, 2000 Cars​well​Ont 4641 (Ont. C.J.). Claire M. Hepburn and Hayley Peglar (student-at-law) .............................. counsel for the applicant Abdulrazaq Raji .................................................................................................... on his own behalf JUSTICE S.B.

SHERR:— 1: INTRODUCTION [1] The issue for this court to decide is whether the parties’ child, Zahra, born on 28 April 2006, should go to public schoolin September of 2011 or be home-schooled. [2] After lengthy litigation, the parties resolved all other matters between them on 13 June 2011 by way of separationagreement.

Several terms of that agreement were incorporated into a final court order that day, including the parties’ agreement to jointcustody with an equal sharing of parenting time. [3] The parties agreed that it was important for a decision to be made about Zahra’s schooling before the school year beganand asked the court to resolve this final issue in a

summary manner. A process for a focused hearing was agreed to on 13 June 2011pursuant to rule 2 of the Family Law Rules, O. Reg. 114/99, as amended. The parties agreed to file affidavit evidence in support of theirrespective positions and that each of them would have up to 45 minutes to cross-examine the other at the hearing. They would then havethe opportunity to make submissions. [1] [4] Both parties filed affidavits. The father was given permission to give supplementary oral evidence at the hearing. Hechose not to cross-examine the mother. The father was cross-examined briefly (about 15 minutes).

Both parties then made submissions. The hearing lasted less than one hour. 2: BRIEF BACKGROUND [5] The applicant (the mother) is 23 years old and the respondent (the father) is 27 years old. [6] The parties married on 12 August 2005 and separated on 26 April 2009. They continue to live apart. Zahra is their onlychild. [7] The litigation between the parties was often fractious. There were several contested motions and court appearancesover the past two years. To their credit, the parties both worked hard at resolving their differences and in protecting Zahra from theirconflict.

They made good use of the court’s mediator, Alison McArthur, and engaged in extensive negotiations. This resulted in thesettlement of all but the education issue. [8] Both parents are very committed to Zahra. She was described as a healthy and happy child with an outgoing andenergetic personality. Zahra thrives in the homes of both of her parents. [9] Zahra attended junior kindergarten at a public school for half-days in the 2010-2011 school year. She is scheduled toattend senior kindergarten in September of 2011, also for half-days. 3: THE FATHER’S PLAN [10] The father proposes to home-school Zahra.

He states that he has the necessary skills and educational level to take care ofher educational needs. He deposed that he hopes that the mother will also fully participate in this process. He stated his belief thathome-schooling would provide a richer education for Zahra than public school. He felt that the public school system would not meet theneeds of a black child as well as he could. He proposed that his plan be tried for one or two years.

If it was working, he said it couldcontinue and, if it was not working, he would agree that Zahra attend at either a private or public school. 4: THE MOTHER’S PLAN [11] The mother’s plan is to enrol Zahra in public school in the fall. The mother deposed that Zahra did very well in the publicschool system during the past year and provided her report cards in support. [12] The mother is attending the University of Toronto on a full-time basis and says that she cannot dedicate the time thatwould be necessary to effectively home-school Zahra.

She does not want to disturb the gains that Zahra has made in public school andexpressed concern that Zahra would lose the benefits of being taught by trained teachers and socializing with other children if the courtendorsed the father’s plan. She also expressed concern about her ability to effectively communicate with the father to the degree thatwould be necessary to make home schooling beneficial for Zahra.

5: ANALYSIS [13] The determination of this issue must be made in Zahra’s best interests.[2] [14] I find that it is in Zahra’s best interests to attend public school. The mother’s plan will best meet Zahra’s mental,emotional and developmental needs and provide her with educational continuity. I come to this conclusion for the following reasons: (

a) The evidence indicates that Zahra has already done very well in the public school system. She had positive report cards injunior kindergarten. She was described as a popular student, who has leadership ability. There is no reason to think thatshe would not continue to thrive in the public school system. The father offered no evidence to support his contention thata black child, and in particular Zahra, would be better served by home-schooling than with a public education. (

b) At this stage, it is very speculative how well Zahra would do if she was home-schooled. (

c) For home-schooling to be successful, it would be necessary, given the equal time-sharing arrangement, for the parties tohave a very high level of communication and co-operation. Both parties would need to be available to participate in thehome-schooling process. There would be the need for constant contact between them to co-ordinate their educationalefforts. Although the parties have made considerable gains in their communication with each other in the past two years,the evidence indicates that they still have a long way to go.

For example, the mother alleges that, in March of 2011, thefather unilaterally changed Zahra’s school without notifying her. The mother claims that she learned about this changefrom Zahra’s teacher. The father claims that he did consult the mother about the change. The mother also deposed thatZahra’s public school for September of 2011 was changed without explanation by the father. The father did not respond tothis evidence. (

d) The mother already has a “full plate” parenting Zahra and attending school herself. I agree with her that she does not havesufficient time to adequately participate in home-schooling and that this would be an unfair expectation of her. (

e) Although I am satisfied that the father is intelligent, educated[3] and well-intentioned, his home-schooling plan wasextremely vague. He relies on his “belief” that this plan will be better for Zahra. His plan, as set out in his affidavit,provided no detail about how Zahra would be home-schooled or how her educational needs would be met. He was unableto provide any further detail about this plan when he was examined at the hearing. He did not set out what role the motherwas supposed to play in Zahra’s home-schooling, given that she spends half of her time with her, or how he proposed to co-ordinate Zahra’s education with her. He just expressed a hope that she would participate. (

f) The father provided no detail in his plan about how he would find the necessary time to home-school Zahra, attend schoolhimself and financially support them. (

g) Although the father’s good intentions are not in issue, his reliability is. Last year, Zahra frequently missed school while inhis care. The absences resulted in a warning letter from the school principal. I agree with the mother that the history ofabsences supports the need for a more structured and supervised educational environment. (

h) The mother also raised a legitimate concern about the father’s written English skills, and his ability to teach Zahra theseskills. The father’s short affidavit contained several grammatical errors. The father minimized these concerns in hisevidence,[4] but did not explain why these errors were made and how he proposed to address any deficiencies he may havein this area. In Heath v. Zdep, , 101 A.C.W.S. (3d) 544, [2000] O.J. No. 4601, 2000 Cars​well​Ont 4641(Ont. C.J.), the court wrote at paragraph [20]: [20] . . . The grammatical errors themselves would not ordinarily be significant.

However,they become significant because Ms. Zdep is unwilling to consider community schooling forNicole. Ms. Zdep’s skills, therefore, do come into question. (

i) It is important to Zahra’s emotional development that she has the opportunity to both socialize with and learn how to workwith other children. I am confident that she will develop those skills in the public school system. She will have theguidance of teachers who are trained in early childhood development and education. I am not as confident, based on theplan proposed by the father, that she will develop those skills if she is home-schooled by him. (

j) The mother’s plan will ensure that both parents have the opportunity to fully participate in Zahra’s education. They willboth be able to participate in school activities and events. Both parents will have the opportunity to obtain independentinformation from the school about Zahra’s progress. In their separation agreement, the parties came up with a detailedplan of information sharing with any school that Zahra attends. (

k) This is an important time in Zahra’s development. It is not in her best interests to experiment with home-schooling for oneor two years, as suggested by the father, particularly in the absence of a concrete education plan. 6: CONCLUSION [15] I fully expect that both parents will be involved in Zahra’s education. They both have much to offer their child. With anequal time-sharing arrangement, the father will have the time and the opportunity to supplement Zahra’s education. She will obtain thebest of both worlds. [16] A final order will go on the following terms: (

a) Unless otherwise agreed to by the parties, Zahra shall attend school in the public school system. (

b) Zahra shall attend John McCrae Senior Public School in September of 2011. [17] If the mother seeks costs, she is to serve and file written submissions by August 19, 2011 at the trial co-ordinator’s officeon the second floor. The father shall then have until September 2, 2011 to serve and file any written reply. Submissions are not to exceedtwo pages, not including any offer to settle or a bill of costs.