Child Support, Custody & Access

Can Online Learning Assist a Parent’s Unilateral Decision to Change School Districts?

Written by Russell Alexander ria@russellalexander.com / (905) 655-6335

Can Online Learning Assist a Parent’s Unilateral Decision to Change School Districts?

The ongoing pandemic has altered the way many people work and learn. In Canada we have seen a major shift to online learning in the educational realm due to the potential for infection. The Courts have continued to abide by the best interests of the child(ren) principle when dealing with all child-related cases.

Margie-Primero-Pimental-lawyer

Throughout the pandemic, the Courts have continued to abide by the best interests of the child(ren) principle when dealing with all child-related cases – Margie Primero-Pimentel, Associate Lawyer

The pandemic has created a unique dilemma with respect to what constitutes the best interests of the child in relation to their physical and mental health. Generally speaking, Ontario courts have shown to favour the child’s mental health in these circumstances absent compelling evidence to the contrary (Nolet v Nolet). This reasoning can be said to stem from a few factors, namely: (i) children are less at risk for this virus, (ii) health and safety protocols have been put in place in most schools and transportation spots, and (iii) not seeing friends and family in person can have a negative impact on the child’s overall long-term mental health.

The recent case of McGrath v McGrath was presented with the issue of whether the availability on online learning can assist a parent’s attempt to change their child’s school district. In the case it was quickly determined that it was in the children’s best interests to continue attending school in person. However, both parents had recently moved and the mother sought to change the school district of the children to her new residence. In its assessment of the issue, the Court identified that more often than not early motions for a change in school district are bootstrap custody claims [33].

Thomas v Osika sets out a list of criteria that should be considered when a parent unilaterally purchases a home in a different school catchment area. They can be summarized as follows:

a. Sub-section 28(1)(b) of the Children’s Law Reform Act specifically empowers the court to determine any matter incidental to custody rights. The issue of a child’s enrollment in a school program must be considered as being incidental to or ancillary to the rights of custody (Deschenes v. Medwayosh, 2016 ONCJ 567);

b. It is implicit that a parent’s plan for the child’s education, and his or her capacity and commitment to carry out the plan are important elements affecting a child’s best interests. In developing a child’s educational plan, the unique needs, circumstances, aptitudes and attributes of the child, must be taken into account (Bandas v. Demirdache, 2013 ONCJ 679(Ont. C.J.));

c. When considering school placement, one factor to be considered is the ability of the parent to assist the child with homework and the degree to which the parent can participate in the child’s educational program (Deschenes v. Medwayosh, 2016 ONCJ 567);

d. The emphasis must be placed on the interests of the child, and not on the interests or rights of the parents (Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.J. No. 52 (S.C.C.);

e. The importance of a school placement or educational program will promote and maintain a child’s cultural and linguistic heritage (Perron v. Perron, 2012 ONCA 811(Ont. C.A.);

f. Factors which may be taken into account by the court in determining the best interests of the child include assessing any impact on the stability of the child. This may include examining whether there is any prospect of one of the parties moving in the near future; where the child was born and raised; whether a move will mean new child care providers or other unsettling features (Askalan v. Taleb, 2012 ONSC 4746(Ont. S.C.J.);

g. The court will 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 (Askalan v. Taleb, 2012 ONSC 4746(Ont. S.C.J.);

h. Any problems with the proposed schools will be considered (Askalan v. Taleb, 2012 ONSC 4746(Ont. S.C.J.);

i. A decision as to the choice of school should be made on its own merits and based, in part, on the resources that each school offered in relation to a child’s needs, rather than on their proximity to the residence of one parent or the other, or the convenience that his attendance at the nearest school would entail (Wilson v. Wilson, 2015 ONSC 479);

j. Third party ranking systems, such as the Fraser Institute’s, should not factor into a Court’s decision.  These systems of ranking do not take into consideration the best interest of the particular child in a family law context (Wilson v. Wilson, 2015 ONSC 479);

k. If an aspect of a child’s life, such as school placement, is to be disrupted by an order of the court, there must be good reason for the court to do so. Thus, before a court will order a child to transfer schools, there must be convincing evidence that a change of schools is in the child’s best interests (Perron v. Perron, 2012 ONCA 811(Ont. C.A.);

l. Custodial parents should be entrusted with making the decision as to which school children should attend.  When a sole custodial parent has always acted in the best interest of a child, there should be no reason to doubt that this parent will act in the best interest of the child when deciding on a school (Adams v. Adams, 2016 ONCJ 431);

m. Those cases are very fact-driven. The courts are not pronouncing on what is best for all children in a general sense but rather deciding what is in the best interests of this child before the court (Deschenes v. Medwayosh, 2016 ONCJ 567).

In McGrath the Court stated that applying the above analysis at the current stage of the proceedings without relevant pleadings being exchanged was premature. The mother’s claim was ultimately rejected due to the fact that the mother provided no sufficient evidence supporting the claim that switching districts was in the child’s best interests.

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About the author

Russell Alexander

Russell Alexander is the founder of Russell Alexander Collaborative Family Lawyers and is the firm’s senior partner. At Russell Alexander, our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues, including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. We have locations in Toronto, Markham, Whitby (Brooklin), Oshawa, Concord, Lindsay, and Peterborough.

For more information, visit our website, or you can call us at: 905-655-6335.