Court Cases & Orders

Ontario Judge Laments Spike in Urgent “Let’s Change Johnny’s School” Motions at This Time of Year

Written by Russell Alexander / (905) 655-6335

Ontario Judge Laments Spike in Urgent “Let’s Change Johnny’s School” Motions at This Time of Year

In a court decision released the other day, the (arguably infamous) Justice Pazaratz of the Ontario Superior Court of Justice began the ruling by lamenting the spate of last-minute urgent motions at this time of year, in advance of the upcoming September start of a new school session.   Justice Pazaratz wrote:

The pre-Labour-Day “Let’s Change Johnny’s School” urgent motion has become somewhat of an unwanted annual tradition in family court.

Sometimes it’s just the school.

Sometimes it’s the city where the child is to live.

Usually it involves an attempt to change the child’s primary residence from one parent to the other.

In this case there’s a request to suddenly change the country where three adolescents are going to live and attend school.

Quite commonly, these motions arise when an access parent unilaterally decides that children shouldn’t be returned at the end of a summer vacation.

And invariably this leads to “emergency” motions, and a flood of frightening – and entirely untested – affidavits and allegations.

Why the frantic rush?  

  1.    Because the selection of a child’s school has so many implications in terms of long-term parenting arrangements.
  2.    If a parent establishes enough concerns to justify quickly switching the child to the school in their city or neighbourhood, that instantly creates a new status quo which will have far reaching consequences.
  3.    Judges rarely disrupt children’s enrolment once the school year is underway.  So even if the initial concerns end up being unfounded or overstated, once the child becomes settled in a new school, the court will be reluctant to further disrupt this vitally important aspect of children’s daily lives.
  4.    So if you can win the “school issue” by Labour Day – even on a “temporary” basis – it has enormous strategic consequences for the parent.
  5.    And even more profound consequences for the child.

Lawyers know this.

 Judges know this.

And high conflict parents quickly learn this.

So every August (sometimes even September) judges receive these “the sky is falling” motions, in which one parent suddenly insists that problems which may have existed for years suddenly need to be resolved in days. 

Before the first school bell rings.

It’s a lot to have to decide in a hurry, based on incomplete information.

Judges don’t like being rushed.   And we don’t approve of brinksmanship.

So while judges dealing with custody issues always have to consider the big picture – this time of year, they especially have to guard against the potential for litigation strategy to conflict with a child’s best interests.  We must be responsive to real problems, while at the same time discouraging transparent attempts to re-set the status quo.

Sometimes in a parenting dispute, when you ask – and where you ask – is an important as what you ask for.

Justice Pazaratz’s comments set the stage for a detailed ruling that includes consideration of various allegations between the sparring parents:  the father who was living in Ontario, and the mother who had remarried and was living in Missouri with her new spouse.  The father applied to the court to prevent the mother from relocating the children to Missouri, and among his raised concerns was that the children might be exposed to COVID-10-related risks if they are forced to move.

This part of the ruling should be read in conjunction with some other recent COVID-19-related rulings in response to emergency motions on their children’s schooling brought by separated or divorced parents, including the one in Chase v. Chase that we covered recently.  [RA/JA include link to Himel judgment in Chase v. Chase, which was prepared in-house]

Stay tuned as we cover the substantive aspects of the decision in A.T.W. v. K.A.W. in the next blog.

For the full text of the decision, see:

A.T.W. v. K.A.W., 2020 ONSC 4894 

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About the author

Russell Alexander

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