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Separated or divorced parents may disagree about their child’s education, such as whether the child should attend school or be educated at home. When parents disagree, the issue may have to be determined by a judge who will consider the child’s best interests. Parents must show that their proposal prioritizes the child’s educational needs rather than their own convenience. Courts can also consider which option best serves the child’s emotional and psychological well-being. However, a parent should avoid unilaterally changing their child’s schooling, as this act may breach an existing court order.
“Best Interests” Determines Choice of Child’s School
In Grove v. Fahad, the parties entered a consent order that set out which school their child would attend. The child was to be in the mother’s care during the weekdays, with the father taking care of the child on the weekends. Subsequently, the child did not attend school for three months, with the mother unilaterally withdrawing the child from school and commencing homeschooling without the father’s consent. The father sought to have the child return to school and brought a motion to alter the parenting schedule to ensure the child attended school. The mother opposed the motion and alleged the school was not a good fit for their child.
When the matter came before the court, the judge explained that decision-making responsibility, residence, and parenting time were based on the child’s best interests. Section 28(1)(b) of the Children’s Law Reform Act (CLRA) also allows courts to “determine any aspect of the incidents of the right to decision-making responsibility, parenting time or contact,” which would include determining the choice of school. The Children’s Law Reform Act states that in determining the child’s best interests, the court must consider all factors related to the child’s circumstances, giving “primary consideration to the child’s physical, emotional and psychological safety, security and well-being.” When parents disagree on the school choice, the issue is determined by assessing the child’s best interests.
Returning to Former School Found to be in Child’s Best Interests
After consideration, the judge found it was in the child’s best interests to return to the former school. Importantly, the mother had no satisfactory explanation for withdrawing the child from school. She did suggest that she removed the child because she was unhappy attending the school, had been bullied, and would have been in a split 4-5 grade. The mother alleged that the child had ADHD and would have difficulty learning in a split-grade class.
However, while the child’s physician believed the child may have ADHD and recommended a psychoeducational assessment, no formal diagnosis was made. In fact, the physician also suggested that other factors could be impacting the child, such as the ongoing proceedings or the difficulties of the French immersion program. The mother had no evidence that the split grade classes adversely affected the child’s learning.
Education is a Critical Aspect of a Child’s Wellbeing
When it came to the child’s bullying, the court was not convinced that this could not be managed with school support. Further, removing the child from school altogether was not viewed as a solution “as that strategy may compound other anxieties resulting from social isolation.” Additionally, while the mother stated she decided to withdraw the child in December 2023 after seeing how the child was consistently unhappy after school, the father pointed out that the mother had taken steps to move the child to a school in her own catchment area much earlier. This undermined the mother’s credibility.
The judge remarked, “decisions around children’s schooling are not to be made based on the parent’s convenience, but what is in the child’s best interest.” The parents had shared decision-making authority, and an interim parenting order was in place that addressed the choice of school. The mother was in breach of that order when she unilaterally removed the child from school and decided to pursue homeschooling. She needed the father’s consent before doing so, which she did not obtain, nor did she seek to vary the terms of that order. There was also no evidence that the homeschooling the child received met the grade four curriculum. There were indications the child was already struggling academically, and by removing her from school, the mother risked the child falling further behind.
Court Grants Father Sole Decision-Making Authority on Matters Involving Child’s Education
The judge also considered whether the existing parenting order should be changed to ensure the child’s attendance at school. The father proposed reversing the parenting arrangements so that he would have the child from Monday to Friday to ensure the child attended school, while the mother would have parenting time every weekend. The court found the mother had a history of neglecting the child’s education as the child had been enrolled in numerous schools and had missed grade one entirely. The judge was also not confident the mother would be able to homeschool effectively. Instead, the father was “better positioned to ensure the child’s attendance at school, which is a critical aspect of the child’s needs”.
As such, there was sufficient evidence to warrant changing the parenting order, with the father having sole decision-making authority over the child on education matters.
Court Ensures Child’s Attendance at School
Parents may also need to consider ensuring their child consistently attends school. In T.I. v. F.I., the parents were attempting to co-parent with a shared time arrangement. However, it was a high-conflict separation, and their child’s schooling and extracurricular activities was one of the areas the parties disagreed on. The father was concerned that the respondent’s mother was not consistently sending the child to school. She acknowledged that the child was often absent from school when the child was in her care. However, she alleged that the child was struggling with the parenting arrangements and that the child was absent when she was upset and wanted more time with her mother. The mother also indicated she was concerned about the child’s emotional well-being and prioritized that over school attendance and the child’s extracurricular activities.
The father’s motion sought a temporary order requiring that the child attend school every day unless the parties agreed to an approved absence while also requiring the child to attend her extracurricular activities during the weeks the child was in the mother’s care.
Keeping Child Out of School is Not the Solution
The judge had no doubt that the child was having difficulties with the transitions between the parents but attributed it to the conflict between the parties. The court explained that, in these circumstances, keeping the child out of school was not the solution, but stopping the conflict was. On that basis, the judge found there was no evidence that the child’s emotional or mental well-being required her to remain at home when she was in her mother’s care. Instead, she needed a regular routine, with school being a place where she could be free from parental conflict. The judge also concluded that the child was aware of the mother’s feelings about her attending school and was telling her what she thought her mother wanted to hear. While the child may have expressed that she did not want to go to school, the judge remarked that it “remains a parent’s responsibility to ensure she supports that transition to school. It should not be the responsibility of the principal”.
In this case, consistently attending school was in the child’s best interests. Practically, it avoided leaving the child with extra work to catch up on and provided a predictable routine regardless of which parent she was with.
Parents Must Prioritize Their Child’s Educational Needs
If parents disagree about the type of schooling that is best for their child, the child’s educational needs and wellbeing must be prioritized. Educational and social opportunities are key aspects of a child’s development, and courts will consider the evidence to decide the type of schooling that will ensure the child’s needs are met. If parents wish to explore the issue and reach an agreement, they should discuss the issue with the other party in a productive way. Negotiation or mediation may help the parties have constructive discussions in order to resolve the dispute.
The Family Lawyers at Johnson Miller Family Lawyers Help Clients Resolve Complex Parenting Disputes
Disputes about decision-making responsibility and parenting time can be contentious and emotionally fuelled disputes. These issues often involve complex matters that are difficult to navigate. At Johnson Miller Family Lawyers, our trusted team of knowledgeable family lawyers regularly help clients work through various complicated parenting disputes and child-support matters. To speak with a member of our family law team about your parenting dispute, call our office at 519.973.1500 or reach out to us online. We proudly represent clients in Windsor, Essex County and the surrounding regions.
