R.D.L. PETITIONER - v. -, 2022 SKKB 219

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 219 Date: 2022 09 02 Docket: FLD-BF-00052-2021 Judicial Centre: Battleford BETWEEN: R.D.L. PETITIONER - and - R.C.S. RESPONDENT Counsel: Sherry L. Fitzsimmons, K.C. for the petitioner Jaylyn E. Lawrence for the respondent __________________________________________________________________________ FIAT SCHERMAN J.

September 2, 2022 __________________________________________________________________________ Background [ 1 ] The respondent/applicant, R.C.S., by notice of application for substantive interim relief filed August 18, 2022, asks the court to order the parties’ daughter, B.D.S., shall attend a French Immersion school rather than the English stream public school the petitioner, R.D.L., wishes B.D.S. to attend. [ 2 ] This difference of opinion between the parents has a long history.

In June of 2021, R.C.S. brought an application seeking an order that would: i. grant him equal - time shared parenting on a weekly rotating basis and equal parenting time during school holidays; ii. maximize the time the children would spend with each other;

iii. specify that B.D.S.’s residence remain in the Battlefords; and iv. require B.D.S. to attend a specific French Immersion school. At the time, B.D.S. was nearly five years of age and would be attending kindergarten in the fall. [ 3 ] In a July 29, 2021 judgment, Megaw J. declined to make an order, on an interim application, varying the parenting arrangement then in effect and stated the parties should proceed to pre-tria1 and trial to have such issues determined. With respect to the school issue, he said the following at para. 12 of his judgment: 12. The father also seeks an order with respect to school.

The child is enrolled in a school by the mother, who has deposed she thought she was doing what the parties had agreed to. I decline to change that registration now, again on an interim basis. The parties should proceed with this issue to a pre-trial conference to allow for some substantive discussion on what educational course might be best for this child .

If they cannot resolve the issue by agreement, they can proceed on to trial. [ 4 ] R.C.S. appealed this decision and the Court of Appeal handed down its decision on May 3, 2022, 2022 SKCA 52 , dismissing the appeal, but at para. 51 directed that the matter proceed to a pre-tria1 conference on an expedited basis. There was not agreement on fixing a date for such pre-trial conference, resulting in R.C.S. bringing an application to have such a date fixed. By fiat of June 30, 2022, Zuk J. ordered the parties to proceed to an expedited pre-trial on August 12, 2022.

He stated at para. 7 of his fiat that by so ordering: 7. ... there is at least a possibility that agreement may be reached whether the child shall attend French immersion beginning in September. If the parties are unable to reach agreement, this may leave sufficient time that a Chamber application be made in order to determine where the child shall attend school this September. [ 5 ] The parties were unable to reach an agreement at the pre-trial conference. Following this, R.C.S. brought the application presently before me.

Counsel for R.D.L. made the preliminary objection that I should not hear the application on the basis of that the matter was res judicata — that is, the Megaw J. judgment of July 29, 2021 directs that if the matter cannot be settled by agreement, it shall proceed to trial. [ 6 ] I concluded and held, during oral submissions, that the matter was not res judicata and that I would hear the substantive application. My reasons were essentially that: i.

Megaw J. expressly stated in para. 12 of his judgment that he was declining to change the existing school registration (which was a registration for kindergarten) “now, again on an interim basis”. Then he expressly directed that the parties should proceed with this issue to a pre-trial conference, which has occurred. However, his following words, “If they cannot resolve the issue by agreement, they can proceed on to trial”, are permissive in nature but do not constitute an order. ii.

The application before me is not the application Megaw J. was considering but rather is a new application filed August 18, 2022, after the parties were unsuccessful in resolving this issue at pre-trial. It is based upon a new circumstance and new affidavit evidence submitted by both parties. iii. The June 30, 2022 fiat of Zuk J. contemplated that if the parties were unable to reach agreement , the parties could make an application in Chambers to determine where the child shall attend school in September. iv. The parents cannot agree.

The matter must either be decided now, with the benefit of the affidavit evidence filed by both parents, or deferred for a trial, which is not likely to occur for some considerable period of time. Deferring a decision has the effect of creating a practical status quo, albeit not necessarily a legal status quo. v.

Common sense dictates that it is in the child’s best interests to make the determination at the earliest possible opportunity, to avoid creating a status quo that may impact a subsequent decision as to what is in the child’s best interests, and to avoid the potential disruption and the negative impacts that a midstream change may have for the child. Background Facts and the Positions of the Parents [ 7 ] The issue I need to decide is what is in the child’s best interests. Some background facts are important: a.

B.D.S. attended kindergarten at Bready School in North Battleford which is a public elementary school in the Living Sky School Division. R.C.S. says it is in B.D.S.’s best interests to attend École Monsieur [ sic ] Blaise Morand [EMBM] which is a Catholic elementary school that offers French Immersion. b. These schools are within five blocks of each other in North Battleford. B.D.S.’s older brother, M., attends Bready School for the next two years, after which he will move on to a junior high school. c. R.C.S. lives on a farm some 16 miles west of North Battleford.

R.D.L. lives in the same vicinity, a five minute drive away from R.C.S.’s residence. d. There is a school bus service to EMBM that could pick up B.D.S. at either home and would deliver B.D.S. to EMBM or back home after an approximate 30 minute bus ride. The public school system does not provide bus service to students of Bready School who reside in this area. In the past R.D.L. has driven both M. and B.D.S. to Bready School. e. There is nothing in the evidence that suggests that the facilities and pedagogy available in either school is other than of good quality. Both are schools of similar size.

Based on preliminary projections, the class that B.D.S. would attend at Bready School would be

a split Grade 1 and Grade 2 class of 25 children, of which eight would be Grade 1 and the balance Grade 2, while at EMBM B.D.S. would be in a Grade 1 class of 23 children. The substantive difference is that EMBM offers French Immersion teaching and Bready School does not. [ 8 ] R.D.L. is not opposed to B.D.S. learning to speak French but says it is in B.D.S.’s best interest for her to attend Bready School by reason, inter alia, that: a. Her brother, M., attends Bready School and R.D.L. regards M. as B.D.S.’s safe place and constant; b. A change to EMBM will be stressful; c.

She believes Bready School to be a smaller, family orientated school and that B.D.S. will be intimidated in a larger school; d. B.D.S. has made close friends at Bready School; e. She is concerned that the bus transport to EMBM involves a transfer; and f.

Since she does not speak French, she will be unable to help B.D.S. in her homework. [ 9 ] Counsel for R.D.L . argues there is no reliable evidence that learning to speak French as a second language is a benefit to a child and argues that the court may not take judicial notice of there being such a benefit. [ 10 ] R.C.S.’s position is that it will be a significant benefit to B.D.S. to be able to speak French, not only for other benefits it will provide to her during her life, but also because French is commonly spoken in his family and that it is important for the benefits that it provides to the family bond. [ 11 ] In response to R.D.L.’s above noted concerns, R.C.S.’s affidavit evidence and position is that: a.

While B.D.S. and M. have an excellent relationship, B.D.S. is an intelligent, outgoing and confident young lady who is quite capable of comfortably coping with school without her brother present; b. The schools are of similar size, and he has compared the school schedules for the upcoming year and there is only one day where they have different holidays; c. The bus transfers involved are at a fixed transfer location where there is an established protocol that requires the bus drivers to physically see that each child properly transfers; d.

The parents of most French Immersion students do not speak French; the French Immersion program accommodates this and communication with the parents about homework is in English. Determination of the Child’s Best Interest. [ 12 ] Much of the affidavit evidence of both R.C.S. and R.D.L. was them recounting their positions and beliefs.

While it is necessary to know background facts and to understand the reasons for their positions, their evidence does not assist the court in deciding the central issue here, which is whether or not it is of benefit in Canada for a child to gain the ability to communicate in both French and English.

R.D.L.’s counsel argues that there is no admissible evidence that establishes this to be so and that the court cannot take judicial notice that this is so . [ 13 ] I accept that, with the exception of R.C.S.’s evidence regarding the benefits to B.D.S. in being able to communicate with his family in French, there is no admissible expert opinion or other evidence that French Immersion schooling provides the cognitive, intellectual, social, economic or other benefits to children. [ 14 ] Given the locational proximity of the homes of the parents and the schools, the absence of transportation issues, and the fact that I have concluded that there is nothing to choose about the relative merits of the pedagogy in the two schools in question, I have concluded that the application must necessarily focus on whether I can take judicial notice of the potential benefits of a French Immersion education to a child and, if so, whether such potential benefits outweigh the concerns R.D.L. has. [ 15 ] In R v G.M.C. , 2022 ONCA 2 , the Court of Appeal states concisely the basic principles of judicial notice as follows: [34] The principles of judicial notice were recently explained by Brown J.A. in R. v.

J.M. , 2021 ONCA 150 , 154 O.R. (3d) 401 , at paras. 31-38 . For the purposes of this appeal, only the following principles need be stated. First, courts may only take judicial notice of facts that are (1) “so notorious or “accepted”, either generally or within a particular community, as not to be the subject of dispute among reasonable persons”, or (2) “capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy”: J.M . , at para. 31 .

To the same effect, see R v Find , 2001 SCC 32 at para 48 , [2001] 1 SCR 863 . [ 16 ] While counsel for R.D.L . argued that I should not take judicial notice of the potential benefits of a French Immersion education, I am satisfied that I can and should. I am satisfied that it is generally accepted and not the subject of dispute among reasonable people that being multilingual has many benefits. This general acceptance exists internationally but is especially pronounced in countries that are bilingual like Canada.

Beyond this general acceptance, the benefits are capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy. The published papers of neuroscientists, psychologists, economists and other scientists and academics consistently support the cognitive, intellectual, social and economic benefits of being bilingual or

multilingual. [ 17 ] In Larter v Guenther , 2013 SKQB 346 , 430 Sask R 31 , Schwann J. (as she then was) ordered the registration of a child in French Immersion over the opposition of the father. After noting at para. 24 that there was “no independent evidence touching on such things as the long-term benefits of French Immersion programming ...”, she went on at para. 25 to state: 25 … 7. Finally, the opportunity to become bilingual ultimately stands to Rylan’s benefit and he should be given every opportunity to realize on his potential.

While I appreciate the father’s concern for adaptation and adjustment problems which may be exacerbated with the French Immersion program, that viewpoint is entirely speculative and a preemptive concession of failure on his part. Rylan, I believe, should be given every opportunity to try the French Immersion program. 8.

It is easier to transfer back to the English program than it is to move from the English program to the French program. [ 18 ] While Justice Schwann did not expressly state that she was taking judicial notice of the benefits of a bilingual education, it is clear that this is what she was doing in giving weight to such benefits in her decision. To a similar effect is the decision in C.D.S. v D.L.S. , 1999 ABQB 619 , 251 AR 197 . [ 19 ] While R.D.L. expresses a variety of concerns, these concerns are but concerns and there is no good reason to conclude these concerns will become actual problems.

B.D.S. is, on the evidence before me, an intelligent, social and adaptable young lady. The concerns do not outweigh what in my opinion are the clear benefits to B.D.S. of French Immersion schooling. The best time to start French Immersion schooling is clearly Grade 1. I am satisfied that the benefits that B.D.S. will obtain from French Immersion schooling outweigh any potential harms. If it turns out that for some reason B.D.S. does not benefit from French Immersion education, it is, as Schwann J. said, easier to transfer back to the English program than the reverse.

Conclusion [ 20 ] I am satisfied that it is in the best interests of B.D.S. to attend French Immersion schooling. Accordingly, I order that the child, B.D.S., born -------, 2016, shall be enrolled in and attend École Monseigneur Blaise Morand elementary school commencing the 2022/2023 school year, until further written agreement of the parties or order of this Court [ 21 ] The applicant, R.C.S., shall have the costs of this application to be taxed. J. B. SCHERMAN