The decision where to enroll your child in school is an important one for parents. Many factors are often considered when making this decision, including school location, whether the school offers programming or language options that meet their child’s needs, aptitudes and interests, and whether the school offers before and after school care options.
When parents are separated and residing in different school jurisdictions, they may have different views on the best school choice for their child. If separated parents are unable to resolve these differences, one or both of them may ask a Court to decide.
In two recent Decisions of the Superior Court of Justice (Charron v. Hollahan, 2020 ONSC 4423; and Sussman v. Febrega, 2020 ONSC 5162), the Honourable Justice Audet reviewed and confirmed the principles applicable to a Court’s decision in relation to choice of school:
The decision as to the choice of school that a child should attend, when the parents disagree, is ultimately a matter of judicial discretion. However, a number of general principles have emerged from the caselaw to assist the decision-maker in making the decision in the child’s best interests. They can be summarized as follows:
a. Sub-section 28(1)(b) of the Children’s Law Reform Act specifically empowers the court to determine any matter incidental to custody rights. The issue of a child’s enrollment in a school program must be considered as being incidental to or ancillary to the rights of custody (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 important elements affecting a child’s best interests. In developing a child’s educational plan, the unique needs, circumstances, aptitudes and attributes of the child, must be taken into account (Bandas v. Demirdache, 2013 ONCJ 679 (Ont. C.J.));
c. 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 (Deschenes v. Medwayosh, 2016 ONCJ 567);
d. The emphasis must be placed on the interests of the child, and not on the interests or rights of the parents (Gordon v. Goertz, 1996 CanLII 191 (SCC),  S.C.J. No. 52 (S.C.C.);
e. 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.);
f. Factors which may be taken into account by the court in determining the best interests of the child include assessing any impact on the stability of the child. This may include examining whether there is any prospect of one of the parties moving in the near future; where the child was born and raised; whether a move will mean new child care providers or other unsettling features (Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.);
g. The court will also look to any decisions that were made by the parents prior to the separation or at the time of separation with respect to schooling (Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.);
h. Any problems with the proposed schools will be considered (Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.);
i. A decision as to the choice of school should be made on its own merits and based, in part, on the resources that each school offered in relation to a child’s needs, rather than on their proximity to the residence of one parent or the other, or the convenience that his attendance at the nearest school would entail (Wilson v. Wilson, 2015 ONSC 479);
j. Third party ranking systems, such as the Fraser Institute’s, should not factor into a Court’s decision. These systems of ranking do not take into consideration the best interest of the particular child in a family law context (Wilson v. Wilson, 2015 ONSC 479);
k. 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 in the child’s best interests (Perron v. Perron, 2012 ONCA 811 (Ont. C.A.);
l. Custodial parents should be entrusted with making the decision as to which school children should attend. When a sole custodial parent has always acted in the best interest of a child, there should be no reason to doubt that this parent will act in the best interest of the child when deciding on a school (Adams v. Adams, 2016 ONCJ 431);
m. Those cases are very fact-driven. The courts are not pronouncing on what is best for all children in a general sense but rather deciding what is in the best interests of this child before the court (Deschenes v. Medwayosh, 2016 ONCJ 567).
In both of these recent cases (Charron v. Hollahan, and Sussman v. Febrega), Justice Audet placed particular emphasis on the parents’ ability to put the child’s interests ahead of their own and their willingness and ability to promote the child’s relationship with the other parent. This included consideration of whether one parent has taken unilateral steps regarding the parenting schedule or the child’s education without seeking the other parent’s input or consent. Each parent’s ability to fully participate in the child’s education also played an important role in the Court’s decisions.
If you are the separated parent of a pre-school aged child, it makes sense to start with a conversation with the child’s other parent (or parents) about where the child will be enrolled prior to enrolling the child anywhere. If you are not able to agree on the school choice, seek legal advice early in order to determine whether the disagreement can be resolved through alternative dispute resolution mechanisms, such as mediation and/or arbitration, or whether a Court proceeding will be necessary. Feel free to contact our offices with any questions.