September marks the return to the back in school routine. For many families it is not just the return to school but a bigger question looms: which school will the child attend? For families that are separating, the choice of school can cause conflict, with each parent wanting the child to attend the school in their respective area. Sometimes parents turn to litigation which allows the to court to decide the school issue. But how does the court make such a decision? What are the factors the judge considers when faced with two well meaning, caring parents, both wanting the best for their child and both stating their choice of school is the best?
One of the leading cases, Charron v Hollahan, 2020 ONSC 4423 (CanLII) is from Ottawa. In Charron, Justice Audet confirms and summarizes the factors used by previous courts, that she previously listed and discussed in Thomas v. Osika 2018 ONSC 3769 (CanLII).
In Charron, there is concise list of factors the court is to consider which emphasis the best interest of the child. The court stresses that each case is fact driven and the factors are considered in light of the unique child and case before the court. Each case must be decided on what is in the best interest of that unique child. Therefore, the court does not look at the interests of the parents. For example, just because a school is a five minute walk from one parent’s home does not ensure that will be the school the child attends. The parents’ needs, and convenience play no role in the court’s consideration of what is in the child’s best interests.
The court will consider the plan for each parent regarding the child’s education. The court will seek to understand if each parent considered the child’s unique needs, circumstances and the child’s attributes/abilities in their education plan. Which school best addresses that child’s unique situation? In that regard, the court will not give weight to the rankings of a particular school in the EQAO testing or the Fraser Institute rankings, because these reports are general and not specific enough to address the best interest of the child before the court.
The court will also consider each parent’s capacity to carry out this education plan. Can the parent assist the child with homework? Can the parent participate in the child’s education? Will a particular school promote and maintain a child’s cultural and linguistic heritage?
The court will also look to decisions the parents made prior to the separation or at the time of separation with respect to schooling and will consider where the child was born and raised. For example, did the parents buy their home in a predominantly French speaking area with the intention of placing the child in French Immersion?
The court understands that stability is paramount for children regarding their education. Therefore, to order a change of school the court must consider if the reason for change is valid. The Judge will consider if and how this change of school will impact the child’s learning. The court must ensure the change is in the child’s best interest and outweighs any negative impact to the child.
The best option for separating parents is to work together on issues such as school location. However, if that is not possible our Family Law lawyers at Low Murchison Radnoff can help by providing mediation services, collaborative law services and if needed litigation services. We also take Legal Aid certificates. If you would like to speak to one of our lawyers, please call 613.236.9442.[ssba]