While kids are in the midst of their summer vacations and likely not thinking about school at all, what happens in September may be on the minds of their parents, particularly if a decision around what school a child should attend is a disputed matter between separated partners.

The Ontario Superior Court of Justice recently considered precisely such a dispute and ordered that a child attend the school of choice of one of the parents.

What Happened?

The parties in question have known one another since approximately 2005 and were in a relationship until they separated in December 2016. For a brief period between early 2013 and October 2013 they were separated. The parties share one child, who is scheduled to start kindergarten in September 2018. Among the matters at issue between the parents was which school the child would attend.

Choice of School: Factors to Consider

The court noted that the decision as to which school a child should attend, in situations where parents are in disagreement, is ultimately a matter of judicial discretion. Over time, caselaw has developed a number of principles that the court can apply in exercising this discretion, namely:

  • 28(1)(b) of the Children’s Law Reform Act empowers the court to determine any matter incidental to custody rights. A child’s enrollment in a particular school must be considered incidental to such rights;
  • in developing a child’s educational plan, the unique needs, circumstances, and aptitudes of that child must be taken into account, and a parent’s capacity and commitment to carry out this plan are a further important element affecting a child’s best interests;
  • in considering a particular school placement, one factor to think about 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;
  • the emphasis should be on the best interest of the child, not on the best interests of the parents;
  • importance should be placed on the promotion and maintenance of a child’s cultural and linguistic heritage;
  • factors which may be considered in determining the best interests of the child include examining whether there is any prospect of one of the parties moving in the near future, where the child was born and raised, and whether a move will mean the child will have new child care providers or other unsettling changes.
  • decisions about schooling that were made by parents prior to separation, or at the time of separation will be considered;
  • problems with the proposed schools will be considered;
  • the decision on choice of school should be made on its own merits and should be based, in part, on the resources that each school offers in relation to the child’s needs, rather than on factors such as the proximity of the parent’s homes to a school or the convenience of having the child attend one school over another;
  • third-party ranking systems should not be a consideration since they do not take into consideration the best interests of each particular child;
  • if any aspect of a child’s life, including school placement, is to be disrupted by a court order, such as an order to switch schools, there must be a good reason for the court to make that order;
  • custodial parents should be entrusted with making the decision as to which school their child will attend. Where a sole custodial parent has always acted in the best interest of a child, there should be no reason to doubt that the parent will do so when it comes to deciding on a school;
  • each case is fact-specific and will depend on the best interests of the specific child in question, not the best interests of children generally.

The Parents’ Positions in This Case

Each parent insisted on the child attending a particular school. The father preferred Woodroffe Public School (which is in the catchment of the residence he relocated to after leaving the parties’ home) whereas the mother preferred Agincourt Elementary (which is in the catchment of the home she purchased after leaving the parties’ joint home). Each school is within a seven minute drive from each parties’ respective home.

Both parents spent a fair amount of time explaining to the court the reasons why they believed their school of choice was the best option for the child.

Woodroffe

The father insisted that there were a number of reasons for sending the child to Woodroffe, including:

  • the school is in the jurisdiction of the parties’ former home where the parties had lived from the time of the child’s birth, until their recent split;
  • the school is therefore where many of the child’s neighbourhood friends, as well as his friends from daycare, would attend;
  • the father had remained in the catchment area of this particular school after he moved out of the parties’ shared home to ensure that the child would be able to go to school there;
  • the father intends to remain in this catchment area to ensure this;
  • the mother’s insistence on Agincourt is based solely on her own convenience.

Agincourt

The mother likewise laid out a number of reasons for sending the child to Agincourt, including:

  • the school is very close to her home, and the child would not need to take the bus (whereas he would have to take the bus if he attended Woodroffe, despite its close proximity to the father’s new home);
  • the child would not have to attend daycare on the days he was in her care, as he could simply walk home;
  • the mother purchased a home in the Agincourt catchment area, whereas the father was only renting in the Woodroffe catchment area.

The Court’s Decision

The court noted that both schools offer a J.K. to Grade 8 French immersion program (which both parents agreed the child should be registered in). Both schools offer also offer before and after school daycare.

The court further noted that having the ability to walk to school is “not a factor that bears much weight on [the] decision”. Both parents work from their respective homes, they have control over their flexible schedules, they can drop the child off and pick him up whenever is required, or they can also choose to place him in daycare or keep him home before and after school as needed. Indeed, the court stated:

While it may be accommodating for [the child] to be able to walk home on the days he is with his mother, when she returns to a full-time work schedule (as will be required of her to maximize her income) [the child] may have to attend daycare regardless of his proximity to his mother’s home.  Whether he takes the bus or walks has no impact on the need for daycare in this case given the parties’ work arrangements.

In addition, the court noted that it did not agree that renting a home makes one parent’s living arrangement less permanent than owing a home. After all, plenty of people stay for years in a rental whereas plenty of others buy a home and move out in a shorter period of time.

The court pointed out that the parties had lived together in the Woodroffe catchment area until their separation in late 2017. That area is where most of the child’s friends are, and where he attended daycare. Had the parties had discussions about where the child would go to school before they separated (as was alleged by the father) then Woodroffe would have been the natural choice and it would have been a very important issue for the mother to canvas with the father before deciding to buy a home in a different catchment area.

The court concluded that it would be in the child’s best interests to attend Woodroffe Public School and made an order to that effect.

When the need for a family law lawyer arises, it’s often a deeply personal and emotional set of circumstances.  Jason Howie offers personal, customized services for clients in need of family law guidance.  You won’t be dealing with a large, faceless organization.  What you will find with Jason is a small firm dedicated to working with you directly, and putting your needs and the needs of your children ahead of all others.  You will be working with someone who will give your case the attention it deserves, and who is willing to put in long hours to ensure every care is taken to protect your concerns. If you have questions about challenging and highly emotional aspects of a separation or divorce, including questions surrounding child custody and important decisions surrounding your children, contact Windsor family lawyer Jason P. Howie, Professional Corporation, at 519-800-1039 or  online.