Judge Says Parents Involved in Dispute Over Choice of School for Their Children Both “Behaved Unreasonably”


In a recent “choice of school” motion where duelling parents were each hoping that the court would order their children to attend a particular school, a family court judge noted that both parents had engaged in “poor parental planning” and “behaved unreasonably.”

A History of the Parties

In 2017, the court ordered that the children in question attend Cathy Wever school, an elementary school in Hamilton, Ontario. Both children attended that school in the 2017/2018 school year. This was considered “a bit of a compromise” for the parents. However, both parents subsequently moved out of that school’s catchment area, and the school would no longer accept the children for the 2018/2019 school year.

Neither parent was aware of this until just before the school year began. They subsequently requested another court order stipulating where the children were to attend school instead.

Each parent filed detailed materials in support of their respective positions regarding choice of school.

The Parents’ Childcare Arrangement

The parents had joint custody and equally shared time with the children. The children were with the father Monday through Wednesday morning, and with the mother from Wednesday afternoon until Friday. Weekends were alternating.

Both parents work from home and have some flexibility.

Each parent claimed that they had historically assumed a primary role in assisting the children with school related activities.

The Mother’s Position

The mother wanted the children to attend Franklin Road School which is within walking distance of her home. She has no driver’s license due to health issues, nor did she have a car available.

The mother argued that Franklin Road has smaller classes and that the children would therefore receive more personalized attention.

The mother had a younger child who would be attending Franklin Road, and pointed to the importance of a “sibling connection”.

The Father’s Position

The father wanted the children to attend Prince of Wales School, which is within walking distance of his home.

He has a driver’s license but no car. His new partner, who was allegedly willing to drive the children to the father’s choice of school, has a car. The father said he was unsure whether the partner would be willing to drive the children to the mother’s choice of school, which was in a different part of the city.

The father also argued that Prince of Wales offers a native program. He also pointed to a “sibling connection” and noted that his new partner’s children also attend that school.

The Court’s Assessment of the Parents’ Respective Positions

Justice Pazaratz noted that the relative strengths of two proposals are challenging to gauge, and that:

I am not able to conclude that either school is better or more suitable for the children.  It is quite clear that each parent has proposed a school based almost exclusively upon geographic proximity.  The “my school is better than your school” arguments appear to be a self-serving afterthought.

He pointed out that:

  • The EQAQ scores for both schools are almost identical;
  • While the father had noted that his choice of school had a native program, this had not been a significant priority for either parent in the past;
  • There would eventually be a “sibling connection” for the children at both schools.

In addition, Justice Pazaratz went on to say that it was impossible, based on the affidavits filed, to determine whether either parent would offer the children an advantage in terms of school related activities, and that no matter which school is selected, each parent will still have the chance to be significantly involved in educational issues.

Best Interests of the Children

Justice Pazaratz stated that, as with all parenting disputes, the best interests of the child were paramount.

For children of the ages of those at issue in this case (7 and 12), the focus should be less on academic achievement and more on the daily experiences and quality of life offered by each parent’s choice of school.

In this respect, Justice Pazaratz noted that no matter what school is chosen, the children:

  • Will be going to a new school since the previous school, Cathy Wever, was no longer an option;
  • Will have an equal neighbourhood connection for about half the week; and
  • The children will have the convenience of being able to walk to school for half the week.

Justice Pazaratz went on to say that the main distinguishing feature between the two proposals was transportation/logistics related.

Some Criticisms for the Parents

Justice Pazaratz had, as is typical in his decisions, some criticism for how the parents were making decisions in this case, noting, among other things that:

It’s Friday September 14, 2018.  So far the children have missed the first nine days of the school year because the parents can’t agree.

He went on to say:

If that sounds like poor parental planning, the failing is compounded by the fact that this is the second year in a row where these joint custodial/equal time-sharing parents have had to go to court for a last-minute ruling on what should be a fundamental aspect of parenting.

Justice Pazaratz also specifically noted, with respect to the parent’s joint custody arrangement and the decision about choice of school, that:

Selecting a school is not an easy decision.  But it’s an important decision, and it should have been made long ago.  If parents who have “joint custody” are intent on turning this issue into annual last-minute motions in Family Court, then maybe they’re not really “joint custody” material.

He further noted:

   Joint custody is more than just a “feel good” label.  It entails mutual rights and mutual responsibilities.

   Joint custody is appropriate where parents have the ability and willingness to work together – to efficiently and amicably plan and problem-solve – for the benefit of the children.

   But joint custody is not appropriate where the absence of clear decision-making authority will lead to interminable power-struggles, impasse and paralysis.

   With high-conflict parents, the absence of a “tie-breaking vote” can have devastating consequences for vulnerable children who don’t want to – and shouldn’t have to – get caught in the middle.

The Final Decision Regarding Choice of School

Justice Pazaratz concluded that:

Focussing on the narrow differences between the respective proposals – and in particular focussing on the best interests of the children, and the hopefully slightly less onerous transportation implications associated with Franklin Road School – I believe the mother’s proposal is to be preferred.

He ordered that both children attend Franklin Road.

If you have questions about ongoing disputes with your former spouse, including disputes related to child care related matters such as choice of schooling, custody and access issues, or best interests of the child, contact the highly experienced family lawyers at Jason P. Howie in Windsor.

With more than 25 years of experience guiding husbands and wives through the stress and strain of separation, divorce, support and custody, Jason P. Howie understands your frustrations and fears. Jason has seen all of the possible permutations when it comes to separation and divorce. Jason is Certified as a Specialist in Family Law by the Law Society of Upper Canada and his experience and success practicing family law has earned him respect and distinction in the legal communities of Windsor and Essex CouChpinty.  Call Jason P. Howie at 519.973.1500 or contact us online. Many of our clients are referred to us by former and current clients, as well as by lawyers, accountants and other professionals.

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