Court Cases & Orders

Can a Parent Ask Court to Force Kid to Change Schools?

gifted boy
Written by Russell Alexander / (905) 655-6335

If a child has been declared eligible to a school for “gifted” kids, does this mean that one parent can force his or her attendance there, by way of a court order?

This was the issue in an Ontario case called Askalan v. Taleb, where the divorcing parents’ conflict centered on their disagreement around their son’s education. For much of his educational career, the boy had attended been attending a private school, for which the mother paid all of the tuition under the terms of the separation agreement she and the father reached. That agreement also stipulated that the parents would continue to jointly make important decisions about the child’s education, but that the mother could decide to pull the child out of private school if she could no longer afford it financially. In that case, the parents agreed to choose an alternate school together.

After the boy was assessed as being intellectually gifted, the mother wanted him transferred to a full-time gifted program at a different school. The father objected; among his concerns was the disruption to the child, and the 10 minutes in extra drive-time to get the boy to school from the father’s house.

Since they could not agree (and the divorce trial was still a long way down the road), the mother brought a motion asking for a temporary court order transferring the child to the other school.

The court started by dismissing outright the father’s accusation that the mother’s motive was strictly to save having to pay private school tuition. The separation agreement included a term allowing the mother to pull the boy out if money was an issue; the court also pointed out that the parents had collectively wasted the equivalent of three years’ tuition merely on arguing the motion before it. So the motive could not have been purely financial.

Next, given that the motion was heard in August, the court lamented its timing:

It is extremely unfortunate that the parents have not been able to come to an agreement as to what is in [their son’s] best interests with respect to schooling, as contemplated by the Separation Agreement. Although as I will come to, the cost of this litigation is troubling, even more concerning is the fact that the failure of the parties to resolve this issue has left [the son] in limbo as to where he will go to school this fall, since the spring of this year and this court with the challenge of making a decision that [the son’s] parents are best suited to make.

It is also unfortunate that this issue has been dealt with on the merits for the first time less than three weeks before the start of the new school year. …

In considering the merits of the mother’s motion, the court began by pointing out that the best interests of the child governed the determination of these kinds of matters – not the preferences or wishes of the parents nor any prior agreement between them. (And on that point, the court added that the couple’s separation agreement was not binding on the court, and did not have the same force as would a court Order.

In considering the unique facts against the best interest test, the court was allowed to consider many factors, including where the boy was born and raised; how many years he had been attending the current school; and any problems he was having there. It could also look to any decisions that were made by the parents prior to the separation or at the time of separation with respect to schooling.

Here, the mother was clearly motivated to enroll the boy in the gifted program so that he could excel academically and meet his full potential. And while the court agreed this would meet his academic needs, this was not the only factor: the court also had to consider the potential disruption, as well as the possible impact on the boy’s personality, confidence and self-esteem. On that point, the court gave considerable weight to the fact that the boy himself wanted to stay at his current school. It also heard that he had sent a text to his father, complaining that there were “too many changes” in his life, and asking that his school and friends not change.

Ultimately, after concluding that the emotional/social disruption might outweigh any academic benefit, the court declined to order that the boy be switched. The mother had not met the onus of showing the boy’s best interests would be served by the transfer; there was insufficient evidence to address how his needs might be accommodated at the current school versus how he might benefit from the gifted program.

The court also ordered an independent assessment of the boy, with the focus being how his best interests might be served by attending the gifted program. The court also cautioned:

My decision however should not be viewed by the Father as a victory. I want to make it clear to [the boy’s] parents that in my view it is extremely unfortunate, that once [the boy] was identified as a gifted learner, and accepted into a gifted program, that the positions of the parties became polarized immediately. Whatever their motivations, there is no evidence of the parents attempting to work together to determine what in fact is in [the boy’s] best interests in light of this new and important information. … Unfortunately, although I have no doubt both parents love [the boy] very much, they clearly forgot that they must put their differences aside and focus only on his best interests. …

There is very little the court can do if the parties insist on dealing with this issue in a high conflict manner. A final decision will be made by the trial judge. I urge them, however, to consider [the boy] and what is best for [the boy].

For the full text of the decision, see:

Askalan v. Taleb, 2012 ONSC 4746 (CanLII)

Stay in Touch

Keep learning about the latest issues in Ontario family law! Subscribe to our newsletter, have our latest articles delivered to your inbox, or listen to our Podcast Family Law Now.

Be sure to find out more about the "new normal", by visiting our Covid-19 and Divorce Information Centre.

About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.