Nicholls v. Roberts, 2023 ONCJ 164

ONTARIO COURT OF JUSTICE CITATION: Nicholls v. Roberts , 2023 ONCJ 164 DATE: March 30, 2023 COURT FILE No.: Toronto, File # FO-15-13365-00 BETWEEN: Laura Ann Nicholls Applicant — AND — Adrian Roberts Respondent Before Justice W. Kapurura Heard on February 16, 2023 Reasons for Judgment released on March 30, 2023 Erin Simpson .................................................................................... counsel for the applicant Megan O’Neill .............................................................................. counsel for the respondent JUSTICE W.

KAPURURA : Part One – Introduction [ 1 ] This is the respondent’s [1] motion seeking an order for French Immersion [2] school placement for the child A. R. (‘the child’) who is 8 years old. [ 2 ] The child is currently attending Grade 3 at […] Junior Public School, an English school in Toronto . [ 3 ] The father seeks to enroll the child in a French Immersion school when she starts Grade 4 in September 2023.

The applicant mother (‘the mother’) opposes the request and seeks an order allowing the child to remain at her current English school, where she will receive Core French language instruction. [ 4 ] Core French provides students with 40 minutes of French instruction per day, for a total of 200 minutes per week. [ 5 ] Pursuant to a separation agreement dated December 21, 2018, the parties have joint decision-making responsibility and have an equal time-sharing parenting arrangement based on a 2-2-3 parenting schedule. [ 6 ] At separation, the parties agreed that the child would attend an Extended French program at Grade 4.

In the Extended French program, students spent 50% of their day in French instruction from Grades 4 to 8, with the other 50% being in English. [ 7 ] However, the Extended French program is no longer offered by the Toronto District School Board (“TDSB”). The only two remaining options for French language instruction for the child are Core French offered at the child’s current school or French Immersion. [ 8 ] The parties agreed on October 17 th , 2022, to a temporary without prejudice order, pending the hearing of this motion, allowing

the child to be registered in a French Immersion school for September 2023. The order would allow her registration to remain secure in the event of an order being made approving French Immersion enrolment. [ 9 ] The primary issues for the court to decide are: i. Whether it is in the child’s best interests to change her current English school and enroll her in a French Immersion school, commencing Grade 4 (September 2023). ii. If not, whether additional terms should be made to ensure the child’s continued exposure to French language education.

Part Two – Brief background facts [ 10 ] The parties started living together in or around May 2014.

They separated on August 30 th , 2015. [ 11 ] The child, A.R., is their only child. [ 12 ] The father is a full-time teacher with TDSB. [ 13 ] The mother works as a personal trainer. [ 14 ] The parties were able to resolve issues arising from their separation by way of a separation agreement dated December 21, 2018. [ 15 ] The separation agreement provides details regarding decision-making responsibility, parenting schedule, communication, and dispute resolution mechanism, among other clauses. [ 16 ] The parties agreed that it would be in their child’s best interests that she becomes proficient in French.

The separation agreement has the following clauses: 3.21 The parents agree that it is in A.R’s best interests that she becomes proficient in Canada’s second official language (French). To that end, the parents agree that A.R. will attend Extended French starting in Grade 4 at the school assigned using the Toronto District School Board’s application process based on A.R’s home school being […] Junior Public School. 3.22 Further, the parents agree that in junior and senior kindergarten, A.R. will attend one extra-curricular activity per year that is in French.

Part Three – The father’s position [ 17 ] The father is bi-lingual in French and English. He states that he has been passionate about the importance of the child’s French language skills since her birth. He is a fluent French speaker and attended French Immersion education. He is a full-time high school teacher and is qualified to teach French. [ 18 ] He describes the child as a social child, who makes friends easily.

He believes that she will transition easily into new social groups and continue to have weekend playdates with her friends in each parent’s neighbourhood. [ 19 ] He states that at the time the parties negotiated their separation agreement, he sought the child’s enrollment in French Immersion commencing senior kindergarten.

The mother opposed and the parties settled on having the child enrolled in an English school until Grade 4, at which time she would transfer to an Extended French program where she would receive 50% instruction in French and 50% instruction in English. [ 20 ] The father states that the child continues to have exposure to the French language at his home. This includes speaking French at home, playing French music, and having French books and French worksheets. He now speaks with her exclusively in French in his home.

He states that she can understand French conversations and provide concise replies. [ 21 ] When the child was three years old, the father enrolled her in her first French activity at Alliance Francaise, an organization that provides French learning programs.

The father states that he continues to take the child to tutoring classes with peers of a similar age on Mondays after school and on Sunday afternoons on the days she is in his care. [ 22 ] The father’s position is that Core French provides an insufficient level of instruction or exposure to the French language to play a meaningful role in the child’s French language development. [ 23 ] He states that the child requires dedicated French language instruction and an opportunity to practice her language skills outside his home.

In the absence of Extended French, he believes the next obvious choice is French Immersion. [ 24 ] The father states that the parties’ commitment to the child’s French language instruction is prevalent throughout their separation agreement, particularly clauses 3.21 and 3.22 cited above. [ 25 ] Given that French Immersion school will be based on the child’s current school, the father states that it is possible that other students from the child’s current class will transition with her. [ 26 ] The father accuses the mother of not being supportive of the child learning French and thwarting attempts at her becoming proficient in the language.

[27] The father identifies as Black. He is head of the Equity Department at his school which supports Black self-identified students.He states that his bi-lingual skills helped him overcome some of the employment-related racial challenges that he faced as a Blackperson. He believes that, given the child’s Black heritage, French language skills will help her overcome some of the racial challengesshe might face in the future. Part Four – The mother’s position [28] The mother’s position is that the child has learning challenges which will complicate her transition to the French Immersionprogram.

These challenges, according to the mother, were not showing when the parties agreed to have her attend an Extended Frenchprogram in Grade 4. [29] She relies on the child’s school report cards in support of this position. [30] The mother states that she never intended to have the child attend full French language instruction, which the father is nowproposing through French Immersion. [31] The mother would support the child’s proficiency in French through other methods such as extra-curricular activities, camps, andthe father speaking French in his home.

She disagrees with the father’s accusation that she has not been supportive of the child beingproficient in the French language. She supports the child continuing in the Core French program at her current school. Core French isalso mandatory for all TDSB students in English-language elementary schools. Around April 2022, the mother enrolled the child atSkyBlue Studio, a bi-lingual art studio. [32] The mother does not speak French. She only speaks English. She states that if the child is enrolled in French immersion, she willnot be able to assist her with homework when she is in her care.

The parents have a shared parenting arrangement. [33] The mother states that she is actively involved in the child’s education. She communicates with the child’s teachers regularly andplays educational games with her at home. If the school language instruction changes to only French, the mother states that her parentingrole would be diminished as the father would be the only parent capable of addressing the child’s day-to-day educational needs.

In hisresponse, the father states that the mother has access “to a plethora of French supports and the ability to improve her own Frenchabilities”. [34] According to the mother, even though she agreed to have the child’s French Immersion application being submitted pending thehearing of this motion, the father did not provide her with a copy of the application for approval before submission, as was required in theparties’ agreement.

She cites this as an example of the father trying to undermine her parenting role, which she says will become evenmore enhanced if the child is enrolled in French Immersion as requested by the father. Part Three – Ms. Kwok [35] In support of her position, the mother filed an affidavit of Andrea Terry Kwok (‘Ms. Kwok’) dated February 3, 2023. Ms.Kwok[3] is a resource teacher/vice principal with the TDSB. [36] The mother’s counsel stated that she was not seeking to qualify Ms. Kwok as an expert in any field of expertise. [37] At the request of the mother, Ms.

Kwok conducted two Wechsler assessments on the child on March 26, 2022, and December 2nd, 2022. Ms. Kwok states that throughout her career, she has administered several Wechsler assessments on students within and outsideher school. She states that she is ‘familiar with’ interpreting the results and is ‘confident in’ communicating a child’s needs to parents orguardians. She became a specialist in special education in 2019. [38] She describes a Wechsler assessment as: …an academic screening device that generates a percentile score for achievement by either grade or age.

The test measures broad skillsin reading, spelling, and math computation. It contains four subjects: word reading, reading comprehension, spelling, and numericaloperations. [39] She provided two reports which were filed in the parties’ joint documents brief. She identifies several challenges and providessome recommendations for the child. The father objected to her evidence being admitted at this motion. [40] The court will treat Ms. Kwok’s evidence as expert evidence.

She is a litigation expert as defined under subrule 20.2(1) of theFamily Law Rules (the Rules). [41] The court is required to apply the framework set out in White-Burgess Langille Inman v. Abbott and Haliburton Co, 2015 SCC23, in determining the admissibility of this evidence. This framework is as follows: Stage One – Consider the four threshold requirements set out in R. v. Mohan, (SCC), [1994] 2 S.C.R. 9 being: 1. Relevance; 2. Necessity in assisting the trier of fact; 3. Absence of any exclusionary rule and; 4. The need for the expert to be properly qualified.

Stage Two – The gatekeeper stage where the court decides whether the potential benefits of admitting the evidence justify the risks in doing so. It is a cost-benefit analysis under which the court must determine whether the expert evidence should be admitted because the probative value outweighs its prejudicial effect. [ 42 ] Where an expert appears to have adopted the role of advocate for a party, that witness will not be impartial, and the evidence should not be admitted. See: Bruff-Murphy v. Gunawardena , 2017 ONCA 502 . [ 43 ] Ms. Kwok did not sign an acknowledgment of expert’s duty (Form 20.2).

There is very little information about her qualifications. She did not attend court for the hearing of this motion and the father did not get an opportunity to cross-examine her on her qualifications. Therefore, this court does not have sufficient evidence to qualify her as an expert in any field of expertise. Further, in paragraph 23 of her affidavit, Ms. Kwok talks about her experiences as a ‘French Immersion mom’. This additional information is not relevant to this case. [ 44 ] The court finds that Ms. Kwok’s evidence is biased and not independent. The mother met Ms. Kwok on a community Facebook group. Ms.

Kwok went on to conduct the tests on the child at the mother’s home on both March 26, 2022, and December 2 nd , 2022. The child’s father was not contacted as part of the assessment. Even though the mother has a joint decision-making arrangement with the father, she did not disclose to the father that the Wechsler assessments were being conducted on the child. The assessments were conducted with neither his consent nor his knowledge.

He only became aware of the first assessment on November 18 th , 2022, when the mother attached the March 2022 Wechsler assessment report to her case conference brief. [ 45 ] On January 12 th , 2023, the father became aware that a second Wechsler assessment had been conducted on the child again in December 2022. The assessment had been conducted without his knowledge. This is concerning. [ 46 ] The court finds that Ms. Kwok’s evidence is not reliable. In her own affidavit, she states that she did not act under the TDSB, is not the child’s teacher and does not teach at the child’s school.

There is no record as to what information was provided to Ms. Kwok by the mother as part of the assessment. [ 47 ] Ms. Kwok’s evidence is also not necessary. There is other information available from the child’s school that would assist the court in determining the issues. [ 48 ] The probative value of the evidence does not outweigh its prejudicial effect. [ 49 ] The court will exclude Ms. Kwok’s evidence. Part Four – Legal considerations (school placement) [ 50 ] Clause 28(1)(

b) of the Children’s Law Reform Act (“the Act”), provides as follows: 28

(1) The court to which an application is made under

section 21, (

b) may by order determine any aspect of the incidents of the right to decision-making responsibility, parenting time or contact, as the case may be, with respect to a child; [ 51 ] Subsection 24 (2) of the Act provides that the court must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being in determining best interests. [ 52 ] Subsection 24 (3) of the Act sets out a list of factors for the court to consider related to the circumstances of the child. It reads as follows: Factors

(3) Factors related to the circumstances of a child include, (

a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; (

b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life; (

c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent; (

d) the history of care of the child;

(

e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; (

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

g) any plans for the child’s care; (

h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; (

i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particularwith one another, on matters affecting the child; (

j) any family violence and its impact on, among other things, (

i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issuesaffecting the child; and (

k) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (

l) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issuesaffecting the child; and (

m) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. [53] The child’s best interests are not merely “paramount” – they are the only consideration in this analysis. See: Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27 at para. 28; [54] The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents.

See: Gordon v.Goertz, (SCC), [1996] 2 S.C.R. 27. [55] When a child is already enrolled in a program of education, the starting point for the determination is clear: absent compellingcircumstances, students will continue their education in September at the school at which they were enrolled in June. Disrupting a child’sschool placement is to be avoided. School is often the most stable and neutral place for children whose parents are transitioning fromone home to two homes. The court needs to ask if there are compelling circumstances that justify a change in school pending a finalcustody and access decision.

See: D.B. v. M.R.B., 2019 ONSC 4925. [56] In Thomas v. Osika, 2018 ONSC 2712 (S.C.J.), para. 37, the court stated that the decision as to the choice of school that a childshould attend, when the parents disagree, is ultimately a matter of judicial discretion. The court summarized several general principles,some of which are as follows: a. Sub-section 28(1)(

b) of the Children's Law Reform Act specifically empowers the court to determine any matter incidental tocustody rights. The issue of a child's enrolment in a school program must be considered as being incidental to or ancillary to the rights ofcustody (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 importantelements affecting a child's best interests.

In developing a child's educational plan, the unique needs, circumstances, aptitudes andattributes of the child, must be taken into account (Bandas v. Demirdache, 2013 ONCJ 679 (Ont. C.J.)); c. The emphasis must be placed on the interests of the child, and not on the interests or rights of the parents (Gordon v. Goertz, (SCC), [1996] S.C.J. No. 52 (S.C.C.); d. The importance of a school placement or educational program will promote and maintain a child's cultural and linguistic heritage(Perron v. Perron, 2012 ONCA 811 (Ont. C.A.); e.

The court will also look to any decisions that were made by the parents prior to the separation or at the time of separation withrespect to schooling (Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.); f. 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 inthe child's best interests (Perron v. Perron, 2012 ONCA 811 (Ont. C.A.); [57] Compelling and cogent evidence must show that a change in schools is in a child’s best interests. See: J.E.S. v.

S.S., 2020 ONSC6064. [58] Of paramount consideration is the school that will give the child the best competitive advantage, or provide the greatestconfidence and motivation, or that will facilitate the child’s relationship with others, including his parents and classmates, or bestpromote his all-around development. See: Schloegel v. McCroary, [2012] BCSC 1606. [59] The language of children’s education is important in considering their best interests. See: Perron v. Perron 2012 ONCA 811. [60] It is not the task of the court to determine the best school by any measure, standards, or comparison.

The issue for this Court issolely to determine which school is in the best interests of the child. See Schloegl v. McCroary, 2012 BCSC 1606, para. 37 (per MadamJustice Watchuk). [61] A school age child will likely have already formed attachments to the school he or she attends. Continuing the child’s existingschool placement promotes stability in the child’s life. See Ursic v. Ursic (ON CA), [2006] O.J. No. 2178, para. 32. [62] In situations of joint decision-making responsibility, the court is most reluctant to dictate where a child should go to school.

If theparents cannot agree, the best interests of the child will govern. In the event a parent suggests changing schools, it must be demonstratedthe change will be in the best interests of the child. While each instance is very fact specific, factors which may be taken into account bythe court in determining the best interests of the child include assessing any impact on the stability of the child. See Askalan v. Taleb, 2012 ONSC 4746, para. 32. [63] In Van de Perre v.

Edwards, 2001 SCC 60, the court stated that race can be a factor in determining the best interests of the childbecause it is connected to the culture, identity and emotional well-being of the child (para 40). [64] In Perron v. Perron, 2012 ONCA 811 (para. 40), the court stated that the question of the children's language of education musttake into account all the factors set out in s. 24(2) of the Act as a whole.

Linguistic and cultural considerations alone cannot dictate theresult. [65] Adult preferences or “rights” do not form part of the (best interests) analysis except insofar as they are relevant to thedetermination of the best interests of the child. See: Young v. Young (SCC); E.M.B. v. M.F.B., 2021 ONSC4264; Dayboll v. Binag, 2022 ONSC 6510 Part Five – Analysis [66] The court has reviewed the materials filed by each party in support of their position. [67] The child is 8 years old. There is no counsel appointed for the child.

As such, there is no independent information before thecourt regarding the child’s views and preferences. [68] The child has been at her current school for five years now. She has developed many friendships with her peers and teachers. [69] It is not disputed that both parents value the child’s proficiency in the French language as evidenced by the relevant clauses intheir separation agreement.

Given that the Extended French program is no longer available, the parents differ on how to accomplish theirgoal to have the child proficient in French. [70] A review of the child’s report cards shows the following comments from her teachers: Date School commentGrade 1 –November 16,2020 During independent reading time, A.R. does not always use her time well toread quietly by herself or with a friend. Instead, she tends to talk to friendsor draws instead of reading.Grade 1 –February 9,2021 As school continues, A.R. will continue to be reminded to focus on herwork instead of drawing pictures or socializing.

Grade 1 – June25, 2021 A.R. is encouraged to work on completing her work more independentlyand not rely as much on assistance from her teacher.Grade 2 – 2021November 16 Independent work: A.R. often needs prompts to focus on her assignmentsand follow instructions. She is encouraged to develop the ability to workwell without supervision and follow instruction independently. Self regulation: A.R. is encouraged to persevere when responding tochallenges.

Next steps: A.R. should work on improving her ability to complete work inthe classroom without talking or distracting others during independent workperiods, as well as listen to the teacher during lessons.

Grade 2 – 2022 February 15 A.R. should work on improving her ability to complete work in the classroom without talking or distracting others during independent work periods, as well as listen to the teacher during lessons. Grade 2 – 2022 June 28 Independent work : A.R. needs prompts and reminders to stay on task and not socialize during quiet work periods. [ 71 ] After receipt of the child’s February 2022 report card, the father contacted the child’s teacher by email to discuss her progress. The teacher wrote that her concern was that the child’s priority was social and not academic.

She stated that the child had not yet mastered all her math facts in addition and subtraction. She further stated that math and writing were a concern due to the child’s minimal efforts. [ 72 ] The consistent message from her teachers is that when faced with challenges, the child struggles to persevere. She requires prompts to stay on task. [ 73 ] The comments above from the school raise concern about whether the child will be able to have a smooth transition to a French Immersion program.

She appears to be struggling in her current studies. [ 74 ] In his affidavit, the father states that there is no reason to believe that his daughter would not be successful in French Immersion. He states that she continues to meet all academic provincial standards and her most recent report card shows that she is progressing well. The father’s counsel submitted that the child’s Grade 1 and Grade 2 report cards ‘do not tell the whole story’. [ 75 ] The father appears to pay little attention to the comments from the child’s school.

Even though the child’s most recent report card from February 2023 does not show any concerns, in considering the best interests of the child, the court must assess all the evidence globally. [ 76 ] The parents filed the child’s results from a Cognitive Abilities Test (CogAT) that was conducted by TDSB in October 2022.

The report states that the test measures the development of verbal, mathematical, and spatial reasoning abilities that are essential for success in school. [ 77 ] The results from the CogAT are used by school personnel to gain a better understanding of a child’s learning strengths, needs, and to provide educators with key information for differentiating instruction, and to plan assessment and instruction for a child in order to improve student achievement. [4] [ 78 ] The CogAT results show that the child did not complete one

section of the test and attempted approximately half of the questions in another section. The ‘age scores’

section of the results compares her performance to students across the nation who are of the same age as her. She scored at age of 6 in the verbal

section and scored at age 4 in the non-verbal section. [ 79 ] The father contacted the school for clarification on the CogAT results after they were sent to the parents.

The school reported that there were several factors that could have contributed to the child’s results and stated that the school had experienced many glitches during the tests. [ 80 ] While the court will put less weight on the CogAT results due to reliability concerns, however, the test results are consistent with the comments from the child’s teachers. [ 81 ] Full language instruction in French, coupled with a new school environment will obviously bring in new challenges for the child. Is this child, before this court, ready to face those challenges?

The evidence before the court shows otherwise. [ 82 ] Steve Benmor, in his paper titled, ‘ School placement of a child following separation’ (October 31, 2019), states that; ...there have been many cases on school placement decided after Perron . The conclusion to draw from these cases is that the final result is fact-driven.

The courts are not pronouncing on what is best for all children in a general sense, but rather deciding what is the best interests of this child before the court. [ 83 ] It is important to note that the Extended French program which was contemplated in the parties’ separation agreement was a compromise between the English-speaking mother and the French speaking father as the child would receive 50% instruction in French and 50% instruction in English.

The program was a perfect balance in terms of accomplishing the parents’ goal to have their child achieve proficiency in the French language with each parent being able to participate in the child’s day-to-day educational needs. [ 84 ] The parents have joint decision-making responsibility with a shared parenting arrangement. The mother argues that if the child were to receive full French language instruction at school, her role in decision-making may be diminished as it will be practically challenging for her to be involved in the child’s education, including her homework. [ 85 ] In Deschenes v.

Medwayosh , 2016 ONCJ 567 (para. 15 ), the court stated that 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. [ 86 ] The court acknowledges that one parent’s inability to either speak or understand French, per se , is not a bar to placement of a child in French Immersion ( see Sussman v. Fabrega , 2020 ONSC 5162 ) .

However, in the Sussman decision, the court had evidence that the child was fully capable of performing well in a French-only education setting. [ 87 ] In this case, the court does not have evidence that this child, before this court, will perform well in a French-only education setting.

[88] Further, the best interests of the child are adversely impacted by the poor communication between the parents. The parents’affidavits are fraught with accusations against each other. The father makes serious allegations against the mother about herunwillingness to support the child’s French language education. The mother makes serious allegations about the father trying toundermine her parenting. Based on the materials filed, it appears that the parents do not trust each other. [89] The parties communicate through the Our Family Wizard application.

The child’s last name is hyphenated with both parents’ lastnames.

However, the mother states that the father has communicated to the child that in his home, the child’s last name is the father’slast name, and has proceeded to use only his last name when registering the child for extra-curricular activities. [90] The court is concerned about further parenting challenges between the parties resulting from the child’s enrolment in FrenchImmersion. [91] There is a significant risk that this will increase the child’s exposure to adult conflict and compromise her emotional welfare.This is not in her best interests. [92] In his own affidavit, the father states that he has been speaking French with the child since birth.

However, the father hasobserved that when he speaks to her, she is hesitant to respond exclusively in French. Even though he believes that this challenge can beovercome, it is still a challenge that he has identified. [93] As per the challenges identified above, the court is concerned about bringing instability to the child. [94] The court has considered the father’s argument that given the child’s Black heritage, the proposed French immersion schoolwould provide the child with the necessary linguistic tools that she needs to mitigate any racial challenges she might face. [95] Clause 24(3)(

f) of the Act requires the court to consider the child’s cultural, linguistic, religious, and spiritual upbringing andheritage. [96] However, the ultimate consideration is the best interests of the child. [97] The court has considered the child’s heritage and the other factors listed under

section 24 of the Act. The child’s challenges ather current school, and the challenging relationship between her parents do not give the court the confidence it requires to support amove to French Immersion. [98] When the parties agreed to an Extended French program, the child was only four years old. She is now 8 years old. In MacGyverv.

Richards, (ON CA), the court wrote that a child's best interests may vary from child to child, from year to year, andpossibly from month to month. [99] When the father contacted the school in March 2022, to inquire whether the child was meeting her provincial standards, thechild’s teacher sent an email to the father on March 24, 2022, stating, “Yes, she is but math and writing are a concern due to her minimaleffort.

She does not always try her hardest”. [100] For the reasons above, the court finds that it is not in the child’s best interests to move her from her current school and enroll herin French Immersion. [101] There is still ample opportunity for the child to continue working on her proficiency in the French language through thefollowing: a. The father is a qualified French teacher and speaks almost exclusively in French with the child in his home. Given the sharedparenting arrangement between the parents, the child spends a significant amount of time in her father’s home. b.

Core French at her current school will provide her with 200 minutes of French instruction every school week. c. The parents agreed that the child will attend one extra-curricular activity per year that is in French. d. The parents agreed that each parent has one week in the summer months to register the child for camp.

This provides each parentwith an opportunity to register the child in French language camps. [102] In his affidavit, the father makes a request that if the court does not approve his request for French Immersion, then the childshould take at least one French class per summer dedicated to French language education. The program may include day camps andovernight camps. He offers to pay for the program. The court considers this request to be reasonable. The court will make relatedtemporary orders to ensure that the child continues to have further exposure to French language education.

Part Six – Orders [103] For the reasons above, a temporary order shall go on the following terms: a. The father’s motion seeking to transfer the child from her current school to a French Immersion school is dismissed. b. The child shall attend the Core French program offered at her current school. c. Pending further order of the court, the child shall take at least one French class, one week per summer, dedicated to French languageeducation. Such a program may include day camps and overnight camps.

The father shall select the program (after consulting with the mother) and shall be responsible for the full cost of the program. The activity shall be selected by no later than March 1st each year orone month before summer vacation selection begins, whichever comes first.

d. The child shall continue to take one French extra-curricular activity per school calendar year. If the French extra-curricular activity is located beyond a 4-kilometre straight line radius from the child’s school, the father shall be solely responsible for the child’s transportation to and from the extra-curricular activity. [ 104 ] If either party seeks costs, they shall serve and file written submissions by April 21, 2023. The other party will then have until May 12, 2023, to serve and file their written response (not to make their own costs submissions).

The submissions shall not exceed 3 pages, not including any bill of costs or offer to settle. They are to be either delivered or emailed to the trial coordinator’s office. Released: March 30, 2023 Signed: Justice Wiriranai Kapurura