Bandas v. Demirdache, 2013 ONCJ 679

Court File No. D-42148/07 DATE: 2013-08-30 Citation: Bandas v. Demirdache , 2013 ONCJ 679 ONTARIO COURT OF JUSTICE 47 Sheppard Ave East, Toronto, ON. M2N 5X5 B E T W E E N: Peter Bandas Applicant And Ikbal (Ibai) Demirdache Respondent R E A S O N S F O R D E C I S I O N ____________________________________________________________________________________ Mr. Steven Benmor, Counsel for the Applicant Mr. David Miller, Counsel for the Respondent ____________________________________________________________________________________ C.J. JONES, J.

August 30, 2013 INTRODUCTION : [ 1 ] The applicant and the respondent are parents of a six year old daughter, Zara Karima Demirdache, (referred to as “Zara” or “the child”) born June 24, 2007. She is described as a happy, sociable child. [ 2 ] This proceeding was commenced as a motion to change, brought by the applicant father (referred to as “the father”), as moving party, seeking to change the terms of the Order of Zuker, J. dated November 13, 2008 as to custody , the parenting plan for Zara, and matters incidental to custody, including the child’s school placement for the upcoming year.

A child support issue relating to Zara was settled by the parties prior to the commencement of the trial. [ 3 ] A trial was held on this motion to change, with oral evidence being heard over five days commencing July 22, 2013 to July 26, 2013. Submissions were heard on August 9 and 12, 2013. Following submissions, the court reserved its decision. [ 4 ] Evidence was heard by the court pertaining to the matter of the child’s school placement for the 2013-2014 academic year.

As well, evidence was heard touching upon the other issues in dispute between the parties including custody and the parenting plan. [ 5 ] In view of the approaching date for the commencement of the new school year, the court is releasing these Reasons for Decision, setting out the decision of the court on the issue of school placement only, with the remaining issues to be addressed in further written Reasons for Decision, to be released subsequently.

BACKGROUND FACTS : [ 6 ] Zara will be entering Grade 1 in September 2013. For both Junior Kindergarten (referred to as “JK”) and Senior Kindergarten (referred to as “SK”), Zara attended a publicly funded French school, École él émentaire Pierre-Elliott-Trudeau (referred to as “PET”), located in Toronto, Ontario.

PET is a school within the francophone public school board, Conseil Scolaire Viamonde . [ 7 ] For the upcoming school year, the father is seeking an order that the child be transferred either to a French Immersion program for Grade 1 or to a regular public school in the neighbourhood, where instruction will be in English. The basis for this request stems from the fact that, in general, the language of written communication between the school and the parents, the language of the school community, the language of instruction, and the language of all homework assignments at PET is French.

The father does not have the ability to communicate in this language. The father is concerned that, as a result, he will be excluded from involvement in the child’s schooling and education. [ 8 ] As the Grade 1 French Immersion class at the closest school, Dewson Street Junior P.S. (referred to as “Dewson” or “Dewson St. Jr.

P.S.”) is now full, if the court were to determine that the child should transfer to a French Immersion program for Grade 1, the father proposes that the child attend the program at Regal Road P.S. in Toronto. [ 9 ] If the court rules that the child is to be instructed in English at a regular public elementary school, the father proposes that the child attend one of three neighbourhood schools; either Givens-Shaw Junior Public School closest to the mother’s home, Montrose Junior Public School closest to the father’s home or Dewson St. Jr. P.S..

At Dewson, the English language instruction Grade 1 class is apparently still open to new registrations. [ 10 ] The respondent mother (referred to as “the mother”), who is fully fluent both in written and oral French, would like the child to remain at her current French school, PET, for at least the next three years. She is prepared to review the matter of the child’s school placement when the child enters her Grade 4 year.

THE LAW : [ 11 ] The merits of an application relating to custody, access or matters ancillary to custody are to be determined on the basis of the child’s best interests. [ 12 ] Clause 28 (1) (

b) of the Children’s Law Reform Act, R.S.O. 1990, c. C-12 as amended (referred to as “the Act” ) grants the court the power to determine any matter incidental to the right of custody. The child’s school placement is incidental to or ancillary to the rights of custody. [ 13 ] In considering the best interests of the child, the court is to consider all of the child’s needs and circumstances.

In making this determination, sub-section 24 (2) of the Act sets out a non-exhaustive list of factors that should be considered by the court pertaining to the child. [ 14 ] The ability and willingness of each parent to provide the child with guidance and education is included as an aspect of sub- clause 24 (2) (d). [ 15 ] The plan proposed by each parent for the child’s care and upbringing is a factor referred to in sub-clause 24 (2) (

e) of the Act . The plan would include the parent’s proposal for the child’s school placement and education.

[16] Taking these two factors together, it is implicit that a parent’s plan for the child’s education, and his or her capacity andcommitment to carry out the plan are important elements affecting a child’s best interests. In developing a child’s educational plan, theunique needs, circumstances, aptitudes and attributes of the child, must be taken into account. [17] The length of time the child has lived in a stable home environment is a factor referred to in sub-clause 24 (2) (c).

Stability isgenerally considered to be a desirable feature for a child, when considering his or her best interests. [18] A review of the relevant cases where the issue of the child’s school placement has been considered yields a number of generalprinciples that have been considered in the determination of the issue. [19] Any assessment of the best interests of a child must take into account all of the relevant circumstances pertaining to the child’sneeds and the ability of each parent to meet those needs. (Gordon v. Goertz, (SCC), [1996] 2 S.C.R. No. 27, [1996]S.C.J.

No. 52) [20] The emphasis must be placed on the interests of the child, and not on the interests or rights of the parents (Gordon v. Goertz, atpara 49.) [21] 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 forthe court to do so. Thus, before a court will order a child to transfer schools, there must be convincing evidence that a change of schoolsis in the child’s best interests (Perron v. Perron, [2012] O.J.

No. 5502, 2012 ONCA 811, 301 O.A.C. 313, 113 O.R. (3d) 600, at para.38). [22] Other cases have made this point by reference to the need for cogent evidence to show that a change of schools is in the child’sbest interests. The reason for this is understandable from the child’s perspective. A school age child will likely have already formedattachments to the school he or she attends. Continuing the child’s existing school placement promotes stability in the child’s life. (Ursic v. Ursic, [2006] O.J.

No. 2178, 32 R.F.L. (6th) 23, 149 A.C.W.S. (3d) 38, , 2006 CarswellOnt 335, at para 32). [23] In relation to school placement, one of the factors to be considered is the ability of a parent to assist the child with homeworkand the degree to which the parent can participate in the child’s education. However, a parent may ensure the child’s progress usingsupports and other strategies, for instance by arranging for tutoring for the child, if required (Potter v. Dhieux, [2012] O.J. No. 3692,2012 ONSC 4498).

Other options would include accessing online references for homework help, including those focusing on Frenchstudies. [24] The importance of a school placement or educational program that will promote and maintain a child’s cultural and linguisticheritage has also been a factor that has been considered in a number of cases (Perron v. Perron, supra; Chauvin v. Chauvin (ON SC), [1987] O.J. No. 2280, 6 R.F.L. (3d) 403, 4 A.C.W.S. (3d) 194 (Ont. Dist. Ct.) . In the Perron case, the Ontario Court ofAppeal noted that: “Homogenous French-language education brings many advantages.

It promotes full mastery of the French language and thedevelopment of the child’s cultural identity (at para. 20).” and “In a linguistic minority environment, homogeneous French-language schools are generally preferable to French immersion programs forensuring that both languages, namely French and English, are maintained at the highest level (at para. 44).” [25] As to the specific outcomes of cases that have considered the issue of school placement or programming, whether it be atFrench school, in a French Immersion program, in an English instruction school, or placements with other specific educationalprogramming, a review of the case law reveals that the cases are very fact-driven.

This arises from the fact that, in determining the issue,the court is not making a pronouncement on what is best for children generally, but rather, is considering the best interests of theparticular child before the court.

[ 26 ] In taking into account the best interests of the child, Zara, the court has considered the relevant statutory provisions and the principles developed by the case law, as they are applied to the facts of this case. EVIDENCE : Focused Trial : [ 27 ] The trial proceeded as a focused trial, pursuant to Rule 2 of the Family Law Rules . Thus, by agreement between the parties, much of the evidence-in-chief relied upon by the parties was received by way of sworn affidavit.

Each of the parents supplemented their own affidavit evidence with a focused oral examination-in-chief, which was, by agreement, limited to one hour in length. Each parent’s evidence was subject to oral cross-examination by the other party. [ 28 ] The evidence-in-chief of any non-professional witnesses called on behalf of either party was provided by affidavit, delivered in advance of the trial.

In relation to any third party professionals who were involved with either the child or the family, the parents had the option of furnishing their evidence-in-chief by affidavit, or by oral testimony pursuant to a Summons to Witness. A cap of three hours was placed on any oral evidence called by either party for his or her case in chief. [ 29 ] As well, each of the parties had the option of cross-examining any of the witnesses providing evidence on behalf of the other, regardless as to whether such witness’ evidence-in-chief had been received by affidavit or orally.

By way of agreement between the parties, each parent was accorded a total of seven hours for cross-examination of the witnesses of the other during the trial. No restrictions were placed on the manner in which counsel could allocate the time for cross-examination among the panel of witnesses of the other. Therefore, time limits for cross-examination were not established per witness, but rather, were established by the global limit of seven hours in the aggregate for all of the witnesses of the other.

The manner in which the time for cross-examination was divided among the other parent’s witnesses was an issue of trial strategy, to be determined by each counsel in consultation with his or her client. [ 30 ] With these parameters in place, the parties were able to complete the hearing of the evidence in what would otherwise have been an exceptionally lengthy trial, within the five days allocated for this trial.

Witnesse s : [ 31 ] On the issue of the child’s school placement, the court heard from a number of witnesses, including both parents, the child’s Senior Kindergarten teacher for the most recent school year, the former principal of the child’s current school, PET, and an educational consultant, Ms. Corry Meretsky, retained by the father. [ 32 ] The court also received affidavit evidence from a number of parents of children attending PET, relevant to the school placement issue.

Much of this evidence corroborated the father’s evidence regarding the language of communication and instruction used by the school, the difficulties this entails for a parent who does not speak French, and the father’s efforts to involve himself in Zara’s education and school community, notwithstanding these difficulties. [ 33 ] The court has considered all of the evidence pertaining to the school placement issue in arriving at its findings of fact set out below.

For the purposes of these reasons, the court intends to highlight only two portions of this evidence in detail, firstly, the evidence of the father as to his involvement in Zara’s school, and secondly, the evidence of the educational consultant. Father’s Involvement in Zara’s Schooling at PET : [ 34 ] The bases for the father’s request to transfer the child’s school are his inability to communicate in French with the school, his difficulty in assisting his daughter with her school work in the French language and his concern that he will be excluded from

participation in the child’s education. There was a great deal of evidence given at trial, touching upon the extent of the father’s involvement in the child’s school to date at PET. [ 35 ] The father agrees that, thus far, his parent-teacher meetings with Zara’s teachers at PET have been conducted in English. Over the past academic year, Zara’s SK year, the father met with Zara’s teacher, Mme. Melanie Mathewson-Johnston (referred to as “Mme. Melanie”) in November 2012 and in March 2013 to discuss the child’s academic progress, and these meetings were held in English.

The father agreed that during these meetings the teacher reviewed the important elements of the child’s report card, although she would not provide a verbatim translation of the report. [ 36 ] The father testified that, for the past two years, he has had direct communication and correspondence with both of Zara’s teachers in English. During Zara’s Senior Kindergarten year, the father communicated with Mme. Melanie entirely in English for all one-on-one discussions and for any emails exchanged exclusively between the two of them (as opposed to emails sent to all parents of the students in the class).

When he picked up the child from school on Wednesdays, there would often be samples of Zara’s work and other information left in the folder in Zara’s backpack. It was the evidence of the teacher that she prepared these bundles of documents for the father. [ 37 ] The father also testified that Zara’s JK teacher, Mme. Jako, communicated with him by telephone and email in English, and that parent- teacher interviews with Mme. Jako were held in English. Similarly, it was the evidence of both the father and M. Fontaine, the former principal of PET, that they communicated with one another in English.

These communications were always cordial, according to M. Fontaine. [ 38 ] The documents filed with the court include several emails between the father and Zara’s teachers or school administration, in English, discussing various topics. The father agrees that the school principal over the last academic year, Mme. G.

Deschenes, also met with him and communicated with him by email in English. [ 39 ] Despite these ongoing one-on-one communications with the father in English, the father testified that the school declined to provide him with word-for-word translations of the child’s report cards or of the broadcast emails sent to the parents by the school, which are in the French language. It is clear that the father is not satisfied with these circumstances. He wishes to have all written and verbal communications with the child’s school in English, a commitment the school is unable to make.

The father noted that there is a large volume of these general broadcast emails sent in any year. [ 40 ] To attempt to address the father’s concerns, over the past academic year the father was paired with a bilingual parent for assistance. The father found that the volunteer parent would typically provide a cursory overview of any written documents, which he viewed as inadequate in relation to school notices and broadcast emails. The mother suggested that much of this communication relates to general school policies, such as the anti-bullying policy or school absences policy, common to many schools.

Other communications related to events or activities involving other classes within the school, other than Zara’s class, facts which the father did not dispute. Presumably, in relation to this material, a cursory overview would generally be sufficient. [ 41 ] The father testified that over the past two years, he has attended the meetings of the school council at PET, notwithstanding that these meetings are held in French. During the school council meetings, the father described that he may receive a casual translation of the proceedings from a parent seated next to him.

The father found it frustrating that he would receive a single sentence to relate a whole block of conversation. [ 42 ] The father also volunteered for tasks for the school council including preparing a report on the replacement or repair of the playground equipment. The father researched this proposal, although he had to enlist the help of another parent to present his proposal to the school council in French. For the past two years, the father has also organized the school fair, referred to as “ La F ête ”, including coordinating the parent volunteers, numbering seventy-five volunteers among them.

This event has been a fund-raising success for the school, as well as an enjoyable event for the students and school community. [ 43 ] In addition, the father has attended school concerts, class dance performances and drama productions involving Zara’s class and has chaperoned school trips for Zara’s class in both her JK and SK years. On a number of occasions the mother also attended these class outings, school events and performances.

Evidence of the Educational Consultant : [ 44 ] Ms. Corry Meretsky was called as a witness on behalf of the father at this trial. Counsel for the mother conceded that Ms. Meretsky was qualified to provide expert evidence as to school placement of children. An Educational Assessment Report prepared by Ms. Meretsky, setting out her opinion on the most suitable school placement for the child, was filed as evidence in this proceeding, along with her Curriculum Vitae. [ 45 ] Ms. Meretsky testified that she has been working as an educational consultant for thirteen years.

She holds a Bachelor of Education, a Master’s degree in Education and a Master’s degree in Social Work. She advised the court that there is no specific professional accreditation for an educational consultant, and no provincially regulated governing body or professional organization specific to educational consultants. Her qualifications are based upon the combination of her education and experience. [ 46 ] Ms. Meretsky’s testified that she was selected as an educational consultant and retained on behalf of the father.

The purpose of her retainer was to evaluate if the school program offered by PET is the most suitable school placement for Zara, and if not, to provide recommendations for her school placement. [ 47 ] The mother, the child, the child’s teachers and the school administration staff at PET were not involved in the educational assessment. Ms.

Meretsky testified that she contacted the mother and requested her participation in the assessment, however the mother did not respond to this request. [ 48 ] The mother indicated that she did not participate in the assessment, as she was not given the opportunity to provide any input into the nature of the assessment, the choice of assessor, the referral questions or the documentation to be provided to the assessor as part of the assessment process. [ 49 ] Ms.

Meretsky testified that she was unable to meet the child or observe the child in her school setting or in the homes of the parents, as she required both parents’ consent in order to do so. Similarly, Ms. Meretsky required the consent of both parents to speak with the child’s teachers and school administration at PET concerning the child. As the necessary consents were not forthcoming, she was unable to take these steps as part of the assessment process. [ 50 ] In her report, Ms. Meretsky sets out a description of her sources of data, and the information received by her as part of the assessment process.

The description of these sources was very broad and general for a number of items and at times, vague (ie. emails of the parties; pleadings in this proceeding including the parties’ motion materials and affidavits; the orders and endorsements in this case; etc.). In her testimony, Ms. Meretsky clarified that she had only the father’s pleadings and court documents, and not those of the mother. Ms. Meretsky also clarified that her interview with the father was a telephone interview, rather than an in-person meeting. [ 51 ] Ms.

Meretsky testified that she does not maintain case notes or interview notes as part of her assessment process. Rather, she begins a working version of her report, and continually adds to and revises the report as further information is received, to arrive at the final iteration, which forms the final assessment report. [ 52 ] Ms. Meretsky was unable to confirm with certainty the emails that were provided to her during the course of the assessment. She explained that her computer hard-drive had crashed, and she was unable to recover these electronic records.

However, it appeared from her evidence that, to the best of her recollection, her reference in her report to “emails between the parties” was in error, as she did not receive any emails from the mother or copies of email exchanges between the parents. Ms. Meretsky clarified that she did receive email communication from the father. [ 53 ] An issue arose during trial as to whether Ms. Meretsky also received and reviewed other email communications while the assessment was ongoing, for instance, copies of emails from the father’s counsel.

The witness was unable to answer in a definitive manner due to the loss of the electronic records. This issue gave rise to a motion by the mother, seeking to exclude the evidence of Ms. Meretsky, with the mother arguing that she was precluded from cross-examining the witness in relation to the content of any other email communications received by her during the assessment process and the effect such materials may have had upon her analysis and conclusions. The mother argued that, as a result, the reliability of the witness’ evidence was called into question.

The mother’s motion was ultimately dismissed, with the court holding that the issues raised by the mother could be raised by her as matters affecting the weight to be given to the witness’ evidence.

[ 54 ] Ms. Meretsky’s report was dated October 11, 2012 and was completed when Zara was in the first term of Senior Kindergarten. As such, the report is generally based upon information from Zara’s Junior Kindergarten year. [ 55 ] In her report, Ms. Meretsky made an assumption that 96.3% of the students and families comprising the school population of PET list their first language to be French. In making this assumption, Ms. Meretsky relied upon a third party source, for which no detailed reference was included.

This underlying fact was not proven in evidence at the trial. [ 56 ] This statistic is at odds with other first-hand evidence heard during the trial. M. Fontaine, the former principal of PET testified that the majority of the students at PET have one parent who does not speak French, and that only a minority of students in the school population live in families where both parents speak French fluently. [ 57 ] It was the evidence of Zara’s SK teacher, Mme.

Melanie, that among a classroom of 28 students, comprising approximately 56 parents, approximately 20 parents out of 56 had no fluency in French, and of those 20 parents, at least 10 do not understand French at all. Of that number, Mme. Melanie was able to identify two parents specifically who are anglophones, who do not speak French and who do not live with another parent who speaks French. The father is one of the parents the witness was referring to in this evidence. [ 58 ] In any case, the evidence provided by both M. Fontaine and Mme. Melanie contradicts the assumption relied upon by Ms.

Meretsky in her report. Ms. Meretsky did not verify this statistic from other reliable sources. In view of the fact that this statistic was not proven in evidence, and is contradicted by other first-hand evidence, the court does not accept the underlying assumption made by Ms. Meretsky regarding the percentage of students and families among the PET population who list their first language to be French. [ 59 ] In preparing her report, Ms. Meretsky also made other assumptions, relied upon as part of her assessment, that were contradicted by the evidence at the trial. Ms.

Meretsky believes that Zara is uncomfortable at PET. She speculated that Zara was experiencing frustration in a French only program. She assumed that Zara’s classmates had a better knowledge and use of the French language than Zara. She believed that Zara had only one school friend, being a child from her daycare. She made the assumption that Zara may play alone and may not feel accepted by her classmates as part of the group. She indicates that self-esteem is integral to a child’s development.

She states that it is questionable whether Zara feels positive about herself at PET, as there is not much information to suggest that Zara had established close social ties with peers within her class. [ 60 ] The foregoing assumptions are not supported by the evidence of Zara’s teacher, the mother’s evidence or the child’s JK report cards forming part of Ms. Meretsky’s report. It is the evidence of Zara’s SK teacher, Mme.

Melanie, that Zara has made “very good academic progress over the past academic year”. “Her French is very good, and she achieved all of the elements of the Ontario curriculum”. “She communicates with her friends in French, even with students who have difficulty in French”. In terms of her level of competence in French, Mme. Melanie provided evidence that Zara “speaks French very well” and that “her comprehension is excellent”. [ 61 ] Regarding Zara’s socialization, Mme. Melanie stated: “I find that Zara has many friends.

There are four (4) or five (5) girls who would be considered her best friends and they like to do everything together whether in class or during recess.” [ 62 ] It is the mother’s evidence that Zara enjoys school at PET and loved both of her teachers, Mme. Jako from JK and Mme. Melanie from SK. Zara has received certificates of achievement for her efforts in class.

According to the mother, she has a lot of friends at school and has been invited to many birthday parties and playdates since she began school. [ 63 ] The father indicated that over the most recent academic year, Zara had substantially more friends than she did the previous year, and he identified four other girls as being close friends of Zara. The father agrees that it is important for Zara to learn languages, and that it is a good idea for Zara to learn French. [ 64 ] Zara’s JK Report cards, for each of the three school terms, were attached to Ms. Meretsky’s report.

The first term JK report card dated October 21, 2011 states that Zara is at ease in the class. She follows the established classroom routines very well. She is detailed and she perseveres to complete her tasks. She demonstrates a good general understanding of instructions. The report also commented that Zara listens, but participates very little in discussions and activities during circle time. In response, the mother requested further information about the circle time activities in the classroom, so Zara would feel more comfortable in this setting.

[ 65 ] Zara’s second term JK report card dated January 27, 2012, includes the comment that, by the date of that report, Zara was participating more often in circle activities. It was reported that Zara uses new vocabulary presented in other contexts and participates in discussion and in circle activities. The report notes that Zara has made remarkable progress in French and that she is able to express herself in French. She communicates her experiences and her discoveries. The report relates that Zara recognizes and always uses socially acceptable means to express her ideas, feelings and emotions.

She collaborates, shows consideration for others and respects the expected rules in group situations (ie. waiting her turn, not interrupting, sharing, helping and encouraging others). She uses words of courtesy with her peers and adults (for example, bonjour, s’il vous plait, merci ). The report describes the child’s progress in all domains, in positive terms. [ 66 ] Zara’s third term and final JK report card was dated June 28, 2012. This report indicates that Zara demonstrates self- confidence, although she finds it difficult to express pride in her achievements.

She always collaborates with her friends in various circumstances, for example, sharing her games, and participating in the completion of joint or group projects. The report states that Zara succeeds in resolving conflict with her peers in an appropriate manner (ie. by discussion to find a compromise). Zara accepts individual differences and always shows respect for diversity. The report indicates that Zara describes, recounts and explains her daily activities using increasingly more complex phrases.

The report card includes the teacher’s comment encouraging Zara to participate more in circle activities. [ 67 ] In

summary, Zara’s JK report cards are positive and do not support the assertions made by Ms. Meretsky in her report. Overall, the evidence demonstrates that Zara is thriving at PET, she has achieved many accomplishments, she has developed close friendships, she displays very good social skills, and her French language abilities are at least at grade level.

In relation to her Junior Kindergarten year, the reports provide evidence of Zara’s successful participation in a number of group activities, including her collaboration with her friends through sharing her games and participating in joint projects, and by using skills for resolving conflict appropriately. The reports indicate that at circle time, her participation had increased by the second term over that of the first, however her teacher continued to encourage her to boost her level of participation in that setting. [ 68 ] In her report, Ms.

Meretsky notes the father’s lack of capacity in the French language, the policy of the school, as well as the school board, to communicate with parents in French, and the difficulties this causes for the father. In reference to PET, she also notes that the school’s language of instruction is French and she comments upon the father’s inability to fully provide guidance to the child in her school endeavours, due to the language issue. [ 69 ] Ms.

Meretsky relates that the father feels that school work is an area that separates him from his daughter, as he is unable to assist her with her homework in the French language. The court notes that this difficulty would also arise for the father, were the child to attend a French Immersion school, in relation to the child’s homework in the French language. [ 70 ] Ms. Meretsky also notes that the father would face a struggle, in an effort to provide home support to the child in other ways. Ms.

Meretsky refers to a notation on the child’s JK report card dated October 21, 2011, encouraging the parents to expose their daughter, as often as possible, to the French language through conversations, TV shows, songs, films and books. [ 71 ] Referring to this notation, Ms.

Meretsky comments that the school appears to be unaware that the father cannot share the French language with Zara, or alternatively, that the school is aware that “Zara cannot benefit from this exposure to the French language when cared for by the father”, and is creating an expectation for the child that is “destined to fail”. [ 72 ] While it may be accurate that the father cannot share the French language with Zara through his own dialogue with her in French, there is no such barrier to the father attempting to promote the French language with Zara in his home through TV shows, particularly children’s programming in French, and through the use of songs, films and books. [ 73 ] In this regard, it was the mother’s evidence that, even before Zara’s entry into school at the JK level, the father had been using some French vocabulary and phrases with Zara and that he had asked the mother for references to books or videos in French, for his use as learning tools for Zara. [ 74 ] As well, were Zara to attend a French Immersion program, it is very likely that the same recommendation may be made for English-speaking parents to seek opportunities, outside of school, to expose their child to the French language. [ 75 ] It was Ms.

Meretsky’s understanding that the father had made many attempts to seek assistance from the school through

communication in English and that he was denied assistance in English on all occasions. This factual assumption is not consonant with the evidence heard at trial, including the evidence of the father himself. [ 76 ] It was also Ms. Meretsky’s information that the father is not involved in Zara’s school at PET. The evidence heard by the court confirms that the father has not been excluded from the child’s schooling and education, due in large measure to his very considerable efforts to be engaged with the child’s school, despite his struggle with the French language.

These efforts are commendable. [ 77 ] In her conclusions, Ms. Meretsky states that Zara requires her parents’ support and assistance to succeed in school and in school life. While the court agrees generally with this statement, it is the evidence in this case that Zara has the support and assistance of her parents in both of these domains. [ 78 ] Ms. Meretsky goes on to state that each parent must be able to communicate with Zara’s teachers, and must be able to assist Zara with her school work. Absent both her parents’ involvement in her school life, Ms.

Meretsky states that Zara will miss a significant ingredient that would ensure her success. Once again, the evidence heard by the court is to the effect that the father has had regular ongoing communication with the child’s teachers and school over the past two academic years. As well, Zara is supported in school in many other ways by both her father and her mother. [ 79 ] The court recognizes that there may be limitations on the father’s ability to assist Zara with her school work, given his lack of facility in the French language.

The court expects this will be less of a barrier in some subjects or tasks than in others. While the father will not have the French vocabulary or grammar required for assignments in French, he may still offer assistance in subjects such as mathematics, art, physical education or research for projects in the sciences and humanities, for instance. As well, the court notes that the father may encounter the same difficulty, should the child be transferred to French Immersion program, in relation to his ability to assist with the child’s homework in the French language. [ 80 ] Ms.

Meretsky states that, in her opinion, it is not in Zara’s best interest to continue in the school program at PET, based on her understanding that the school excludes one parent from involvement in Zara’s education. This rationale is not borne out by the evidence. [ 81 ] Ms. Meretsky recommends that Zara move to a French Immersion program in the public school that is in the district of both parents’ homes. She identified this school as the French Immersion Program at Dewson St. Jr.

P.S. and noted it would be a ‘local’ school in ‘her’ community and therefore Zara could develop friendships within her school and her neighbourhood. [ 82 ] Unfortunately, the evidence heard at trial was to the effect that the French Immersion program at Dewson is not an available option for Zara, as the program is full. Ms. Meretsky did not consider or reference the French Immersion program at Regal Road P.S., which is the school the father now identifies as having the available French Immersion program for Zara.

It is the mother’s evidence that Regal Road P.S. is a one hour walk from her home, whereas PET is approximately a ten minute walk from each of the parent’s homes. The father states that Regal Road P.S. is between a four or five km. drive from each parent’s home, although in a different neighbourhood from the homes of each of them. [ 83 ] Ms. Meretsky also recommended that the father continue to make efforts to learn the French language, noting that this would strengthen the child’s commitment to learn French and serve as an opportunity to connect Zara to her father in a joint pursuit of the French language.

This recommendation would appear to be a worthwhile suggestion, to the extent that the father has the time and ability to begin to acquire a new language at this stage of his life. [ 84 ] In

summary, the court finds that a number of the critical assumptions made by Ms. Meretsky in her report were inaccurate, she did not have a full or complete picture of the child’s circumstances given her inability to engage the participation of the child, the mother and the school in the assessment, and as a result, her opinion and conclusions are not supported by the evidence in this case. In the result, the court accords very little weight to the report and opinion of this witness. FINDINGS OF FACT : [ 85 ] Taking into account all of the evidence heard at trial pertaining to the child’s school placement, the court finds the following

facts: 1. Zara has two parents who dearly love and care about her. Both parents are intelligent, well-educated adults. 2. Both of Zara’s parents speak multiple languages. In the case of the father, he speaks English, Czech, Slovak, German and Russian, with Czech being his first language. In the case of the mother, she speaks English, French, Japanese and some Arabic, with French being her first language. 3. Both parents were born outside Canada and subsequently immigrated to Canada. Both parents have a rich linguistic background and cultural history. The child, Zara, was born in Toronto. 4.

The mother, who was born in England of Egyptian parents, grew up in a French-speaking household and spoke French at home with her parents, siblings and grandparents. 5. The mother received primary school instruction in French at a private school in Ottawa, up to Grade 4. Thereafter, in Grade 5, she switched to a French Immersion program at a public elementary school. The mother was enrolled in an accelerated French program at a public high school, and subsequently studied French literature in university, completing the course requirements for a major in that subject. 6.

In the case of the mother, her parents, grandparents and siblings, the evidence confirms that the maternal family has a deep and rich cultural and linguistic history in French. 7.

a) The French language is the mother’s native tongue. The court makes this finding of fact, notwithstanding that the father disputes this statement in his affidavit sworn July 9, 2013, filed as his evidence-in-chief in this proceeding. At paragraph 392 of that affidavit, the father maintains that French is not the mother tongue of either parent. In cross-examination, a prior inconsistent statement was put to him. That statement was made by the father in an affidavit sworn by him on October 19, 2007, filed in the initial litigation between the parties.

In that earlier affidavit, the father stated that, prior to the birth of the child, the parents had agreed they would teach the child the French language, due to the fact that it is the mother’s native tongue.

b) The court accepts the father’s statement, made in 2007, to be accurate. The statement was made at a time when there was no dispute between the parents pertaining to a particular school to be attended by the child. Further, at the earlier date, there was no dispute between the parties wherein the identification of the first language of either parent was relevant to the determination of a matter in issue between them. For these reasons, the court finds the 2007 statement to be the more reliable evidence.

As well, the father’s earlier statement is aligned with the evidence of the mother and her witnesses in the proceeding. 8. Prior to the child’s birth, the parents discussed and agreed that the child would attend an elementary school where she would learn French, and PET was identified by them as a suitable choice as it is located a short distance from the father’s home.

The court accepts that, at the time of this discussion, the father did not have an understanding of the difference between a publicly funded French school in the francophone board, and a French Immersion program in the Toronto District School Board. Further, the court accepts that at the time of this discussion, the father was not aware that the language of communication used by schools in the francophone board would be French. 9.

The mother states that, at the time of the child’s initial school enrolment, she considered the father’s input relating to the choice of school for Zara, prior to finalizing her decision on the issue. The mother also compared the French language program available through the francophone board at PET with the French Immersion program at Dewson P.S. The mother’s stated reasons for choosing the French school included the following: a. The mother was of the view that the French Immersion program at Dewson was not strong.

The program did not begin until Senior Kindergarten, and then, only half-days for two hours per day. In contrast, the French Language program at PET was a full day program commencing in kindergarten.

b. The mother was of the view that French culture would be promoted at PET, whereas she was concerned that French culture would not be emphasized at Dewson to any significant extent. The mother noted that there were no signs or posters in French in the school hallways at Dewson. The principal and vice principal at Dewson did not speak French. The language of the playground at Dewson was not French. In relation to these factors, the reverse was true for PET. c. The mother would be able to support the child’s French language and homework at both schools. d.

The father does not have fluency or facility in the French language, and his preference was that Zara attend a French Immersion school. e. Although the mother considered the input of the father, she clearly did not feel that the father’s lack of capability in the French language outweighed the factors in favour of enrolment of Zara in a French school through the francophone board.

While the court accepts that the mother was acting in good faith in making this decision as Zara’s current custodial parent, it is clear that the father would have accorded much greater weight to this factor than the mother, and further, it would have been apparent that the father would be the parent who would have to labour under any disadvantage this may cause to him. 10. At PET, all classroom instruction and all homework assignments are in French. Thus, the child has now had two years of full-day instruction conducted entirely in the French language at PET. 11.

At PET, all Parent Council meetings are conducted in French. 12. Written correspondence produced for distribution to parents generally, from the school administration or school board at PET is in French, including report cards, school notices, newsletters, and school policy documents. 13. In general, the father does not speak, understand or write in French. There is evidence that he has taken two brief introductory French courses and may have knowledge of some basic French vocabulary and grammar. 14.

Zara’s first language is English, however after two years of attendance in French school, Zara now speaks and understands French. 15. Zara’s teachers at PET for the past two years have communicated verbally in English to the father, as they are aware that he is a non-French speaking parent. 16. Over the past two school years, the father had ongoing verbal and written email communication with Zara’s teachers in English. Zara’s teachers have frequently communicated with the father to advise him, in English, of upcoming school trips and school events involving Zara’s class.

As well, Zara’s teachers have been willing to meet with the father in English at the parent-teacher meetings to explain the child’s report card. 17. The father also communicates in English with school administration, including the current principal, Mme. G. Deschenes and the former principal of the school, M. Fontaine. 18. The school has suggested online French resources to the father. 19. Zara is a happy, healthy and well-adjusted child. She is also described as friendly and social. She loved her teachers in both her Junior and Senior Kindergarten years and she is flourishing in her current school.

20. Zara attends a French daycare, Garderie La Farandole, affiliated with the school, PET, outside of school hours. Zara has attended this daycare since October 2011. Both parents enrolled Zara in this daycare to provide after-school care during their days with her. Zara has friends at daycare. 21. Zara’s report cards have been positive for both Junior and Senior Kindergarten. She is making very good progress and her French language skills are at least at grade level in French. Zara has no behavioural, social or academic challenges at school. 22.

The father has made significant efforts to involve himself in the child’s school life, including attending the Parent Council meetings, chaperoning school trips and outings for Zara’s class, attending school concerts and other events to which parents are invited, participating in projects for the school council, notably the playground project and organizing the school fair or “La F ête” . 23. In relation to Zara’s report cards which are written only in French, at trial, the mother made the offer to translate these documents to English for the father.

The court notes that this offer was not extended to the father at any time prior to trial. The mother also agreed to share information with the father, by email, pertaining to events or activities of Zara’s class, particularly events to which parents are invited. A large volume of emails were filed with the court as Exhibits, which demonstrated that this has been occurring regularly over the past two years, in relation to many events. Initially, at the outset of JK, there were a few events that were not communicated in this manner to the father, which the father learned of in a last-minute manner.

ANALYSIS : [ 86 ] Zara is a child of multi-lingual, cosmopolitan parents. The court has no doubt that both parents would have envisioned that their daughter would be educated in a manner that would ensure that she would become proficiently fluent in at least two languages. [ 87 ] Further, virtually from the time she was born, both parents anticipated that the child would attend an elementary school where she would learn French. French language and culture are a part of her heritage.

As a child born in Canada, both French and English are official languages of her birthplace. [ 88 ] Therefore, the issue of Zara’s school placement can be whittled down to two possible options; that of continuing in French school or that of transferring to a French Immersion program.

It is the view of the court that the third option put forward by the father, namely that of a transfer of Zara to a neighbourhood school where the instruction is only in English, would not be an appropriate placement and would not be in Zara’s best interests. [ 89 ] Zara has an important and loving relationship with both of her parents. The father has concerns that his involvement in Zara’s life has been minimized in the past. He does not want to be a parent on the margins of his child’s life.

He has made considerable efforts to have an ongoing and meaningful parental role in his daughter’s upbringing. [ 90 ] The court has no doubt that the child’s attendance at French school has presented difficulties for the father. The father wishes to engage with the child’s school community and to be fully immersed in the child’s education. The fact that the school community is French speaking, that school events are in French and that the general written correspondence received from the school is in French has been problematic for the father.

However, through his own efforts, the father has still had significant involvement in the child’s education. With the cooperation of Zara’s teachers and school administration, he has had one-on-one communication with the school in English, both verbally and by email correspondence. He has attended school and class functions and school council meetings. He has made efforts to become visible as a parent in the school community. [ 91 ] The father now seeks a change of school for his daughter. There are a number of unknown factors for the child, if the court were to impose a transfer of schools upon Zara.

In terms of maintaining her French language and culture, the court has no statistics or reliable information as to the level of fluency and cultural connection of a student graduating from a French Immersion elementary school program, as opposed to a student graduating from a French elementary school in the francophone board. [ 92 ] The court has no information as to the attrition rates, during the elementary years, of students in French Immersion programs in the Toronto District School Board as opposed to students in French school through the francophone board. Nonetheless, the evidence

would suggest that the French language program in the francophone board is a stronger program than that of French Immersion schools, and that in general, francophone schools put much greater emphasis upon the absorption, by the students, of French culture and traditions, as well as language, than French Immersion schools. [ 93 ] If Zara were to transfer to a French Immersion program for Grade 1, she would be in a class of students who have had, at best, exposure to French through two hours of programming in Senior Kindergarten only.

Zara, who has spent two years in French school, would likely be far ahead of her French Immersion peers in terms of her proficiency in French. The concern for Zara, if she were transferred to French Immersion, is that she will find the level of study to be too basic, and the learning pace to be too slow. There is a concern that she may not be sufficiently challenged by or engaged in the Grade 1 curriculum in a French Immersion school for this reason. [ 94 ] For Zara, a transfer to a French Immersion program will involve a significant disruption to her school, her daycare and her friendships.

These are elements that have become an integral part of her life. Her school and her daycare are familiar environments where she has spent a sizeable amount of time over the past two years. Such a move would take her out of her immediate neighbourhood. For even the most adaptable and outgoing of six year olds, this degree of disruption may seem confusing and daunting. [ 95 ] The court has heard evidence that the child is social and adaptable. Nevertheless, there is a degree of confidence that comes with familiarity, especially for a young child.

Already at age six, Zara has established close friendships with her school mates, has become accustomed to being greeted by name in the school foyer by the principal, knows the lay-out of the school and can navigate its hallways, recognizes teachers and staff members, is familiar with routines and is aware of the expectations of both her school and daycare. Even the most self-assured child may experience some apprehension with a completely new environment, peers and authority figures. [ 96 ] Zara is blossoming at PET.

For a court to impose a change of schools upon a child, there must be compelling evidence that it is in the child’s best interests to do so. In the view of this court, the evidence is lacking in this case. Rather, the evidence heard at trial points to a continuation of the child’s enrolment at PET as being in her best interests at this time. ORDER : [ 97 ] For these reasons, the court makes the following final Order in relation to the child’s schooling: 1.

The father’s claim in paragraph 6, page 9 of his amended motion to change, seeking an order that the child attend a French Immersion school program or an English language instruction school in the Toronto District School Board, is dismissed. 2. There shall be no change to the child’s current school enrolment for the upcoming academic year. Therefore, for the 2013-2014 school year, the child, Zara, shall continue to attend school at École él émentaire Pierre-Elliott-Trudeau in Toronto, Ontario, within the francophone public school board, Conseil Scolaire Viamonde. 3.

So long as the child continues to attend a school within the francophone public school board, Conseil Scolaire Viamonde :

a) The respondent mother shall provide to the applicant father a translation of the child’s report cards, translated to the best of her ability, to be provided within ten days of her receipt of same from the child’s school.

b) Upon receipt by her of any school notice, the respondent mother shall use her best efforts to provide timely advance notice to the father, by email, of any school trips, outings or activities involving the child’s class, and in particular, of any school events involving Zara or her class to which parents are invited. Such email notice is to include the nature of the event, the date, time and location.

c) Prior to or at the start of each academic year, the parents shall jointly request that, if possible, preference be given to the placement of

the child, Zara, in a classroom of a teacher who is bilingual, or who has the ability to converse in English, provided the school is able to accommodate this request for the academic year in question and provided the school is of the view that such classroom placement will otherwise meet the academic, social, emotional and intellectual needs of Zara. [ 98 ] As to the balance of the issues at trial, the decision of the court will be incorporated in separate Reasons for Decision, to be released separately from these reasons. August 30, 2013 JUSTICE C. J. JONES