Child Support, Custody & Access

Court Strikes Balance Between Mom’s Choice of School, and Dad’s

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

Court Strikes Balance Between Mom’s Choice of School, and Dad’s

In Moussaoui v. Harkouken the separated parents had been doing a good job so far at crafting a parenting arrangement that worked for them and their 5-year-old child. They had an alternating week-about schedule, and were able to make important decisions jointly, including agreeing on his daycare.  Initially, they had also agreed to enroll their child at a school called Manor Park for the Fall of 2020.  This was all despite the fact that they had major communication hurdles, and now conversed mainly through text message.

However, they ended up in court because in August of that year, the mother went ahead and enrolled the child in a school called Knoxdale, behind the father’s back – i.e. without his knowledge or consent.  Knoxdale was close to a new home that she also did not tell the father she had purchased, and also near her work.  She texted him the news only after-the-fact.

The parents each asked the court for permission to enroll the child in a school of their choosing.  The father wanted the child to attend in-person at a third school called Robert Hopkins, which was not close to the mother’s new home and would involve some cooperation around pick-ups and drop-offs. The mother asked to have her unilateral choice confirmed, but if the court declined she also had some alternative school options.

The court noted that those factors would dictate making an order that has the child’s best interests at heart – as that test is viewed from the child’s perspective, not the parents’ – Lori Dubin, Associate Lawyer

In resolving the issue, the court took into account the provisions of the recently-amended Divorce Act, which came into effect on March 1, 2021 and required it to consider various child-centric factors when making these kinds of decisions. The court noted that those factors would dictate making an order that has the child’s best interests at heart – as that test is viewed from the child’s perspective, not the parents’.

The court applauded the fact that the parents cared for the child equally, and could make many decisions jointly.  Viewed objectively, both the father’s and the mother’s school choices were equally appropriate to the child’s needs.

But the court reproached the mother for acting unilaterally in switching the child from the agreed-to Manor Park to Knoxdale.  Neither parent had the right to make a unilateral decision regarding their child’s best interests. The court wrote:

The court does not condone self-help remedy by parties. Acting unilaterally and then requesting that the court confirm such unilateral action is misguided. The mother had a lawyer as evidenced by the two letters sent to the father. She should have commenced an application and brought an urgent motion to address the issue of the child’s school. … 

In the end, the court looked at all the factors, including the alternating parenting schedule, the parents’ prior agreement, the mother’s improper self-help measures, and the father’s long delay in raising an objection. After considering the child’s best interests, the court struck a balance:  it ordered him to Knoxdale until June 2021, but then switch to the father’s school – Robert Hopkins – in September 2021.

For the full text of the decision, see:

Moussaoui v. Harkouken, 2021 ONSC 1986 

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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.