The start of the school year can cause stress or anxiety for many parents and children, especially if it’s the child’s first year in school. For parents who have divorced or separated, these feelings can be exasperated by other complications, such as deciding which school the child should attend if the parents live close to different schools. A recent decision from the Ontario Superior Court of Justice provides some insight into how the courts address issues such as this.

The back story

The parents started living together in the fall of 2013 and had one child, a son born in 2016. They separated in the summer of 2018, with both parents ultimately staying in the same section of Ottawa.

The parents’ work schedules allowed them to manage childcare before they separated, with the father working days and the mother working evenings. They continued to manage childcare in this way after their separation as well. Both parents said this arrangement worked for them, though the father stated he didn’t think that the son’s transitioning from one home to the other in the middle of the night, as sometimes occurred, was in his best interests.

The parents got into an argument in December 2018. The father was in a new relationship and was spending most of his time in a different part of the city. After an argument in which the police were called when the mother felt physically threatened by the father, he refused to return the son to her care until they agreed on a parenting plan (he wanted a one-week-on, one-week-off schedule). The mother agreed to this after three days, adding that she would try to find a house closer to where the father was living with his new partner, though the court would ultimately determine she was coerced into doing so.

In the end, the mother was not able to find a place to live in the east end of the city where the father lived. The parties continued to manage a one-week-on, one-week-off schedule, but that appeared to be coming to a forced close as the school year approached and the child would have to attend a single school. Each parent wanted the child to attend a school close to where they live.

The legal framework for a choice of school

The court pointed to its own 2018 decision which summarized the principles applicable in a court’s decision in relation to the choice of school. The decision as to which school to attend is largely left to judicial discretion, but the best inters of the children come into play. These interests include the ability for parents to assist with school work, the child’s educational needs, cultural and linguistic heritage offered, the stability of the child, prior decisions made by the parents, and more.

In this case, the court found that both parents have been closely involved in the child’s day-to-day care. However, the court was critical of the father’s refusal to turn the child back into the mother’s care in 2018. The court said the father has “taken other unilateral steps, without seeking the mother’s input or consent, which leaves me with some concerns about his willingness and ability to promote her relationship with (the child) and to allow her to continue to play an important role in (the child’s) life if he were to attend school in the father’s catchment.”

The court also considered the ability for each parent to care for the child before and after school, finding that going to a school close to his mother’s home would fit best with the parents’ work schedules and minimize the time he has to be in after school daycare.

To speak with an experienced Windsor lawyer about child custody or support, call 519.973.1500 or contact us online. Many of our clients are referred to us by former and current clients, and also by lawyers, counsellors and other professionals.