Should Language Factor Into a Custody Determination?
In an interesting recent Ontario Court of Appeal case called Perron v. Perron, the parents of three children were linguistically divided: the mother’s first language was English; while the father’s first language was French. The question was what importance should be placed on the children’s language of instruction, in the specific context of awarding custody.
The father came from a French-speaking family, was a teacher in a French-only school, spoke to his children in French, and wanted them to adopt both the language and the culture. He felt that the children’s best interests dictated that they should have a homogeneous French-language education.
The English-speaking mother did have some knowledge of French, had some bilingual family members, and could help them with their French-language homework. However, she felt that the children should receive their education in both languages, via a French-immersion program.
After a 10-day (bilingual) trial, the mother was granted custody, but the father was unsuccessful in having a condition attached, that the children were to receive only homogenous French instruction in a French-language school. He appealed to the Court of Appeal, on the basis that the trial judge should have considered the children’s best interests in connection with the French-language requirement.
The Court of Appeal agreed. It reflected on the importance of the children’s language of instruction in this context:
The education offered in a homogeneous French-language school is quite distinct from what is provided in a French immersion program. A homogeneous French-language school responds to the cultural and linguistic needs of the Francophone community. In contrast, the French immersion program is designed for English speakers in an English-language majority environment and provides bilingual instruction – usually 50 per cent in French and 50 per cent in English.
Homogenous French-language education brings many advantages. It promotes full mastery of the French language and the development of the child’s cultural identity. This type of instruction also allows the child to become bilingual in French and English, because a homogeneous French-language school helps the child to develop a high level of skill in both French and English … In addition, in a social environment dominated by English, a child will generally communicate in English in many aspects of daily life and, as a result, acquire knowledge of the language of the majority … It should also be noted that bilingualism provides a number of advantages in terms of employment …
Apart from these advantages, where children have one Francophone parent, knowledge and mastery of the language and culture of the linguistic minority promotes and helps maintain the bonds between the children and the Francophone parent.
With this in mind, the trial court had made an error in failing to consider these factors as part of the overarching determination of the children’s best interests as part of the custody determination. At the least, it likely should have made French-language instruction a condition of the mother’s custody of them.
On the other hand, the children’s current best interests also had to be considered by the Court hearing the father’s appeal; at this stage it had been three years since the original trial order had been made and they had spent those three years attending a French-immersion program at another school. Despite the acknowledged potential advantages to homogenous French-language instruction, it would be unduly disruptive and not in the children’s best interests for the children to be ordered to switch schools now.
For the full text of the decision, see:
Perron v. Perron, 2012 ONCA 811 http://canlii.ca/t/ftw26
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