How Do Courts Choose Which School a Child Should Attend?

How Ontario Family Courts Decide Which School a Child Will Attend

It’s hard to believe that summer is about half over, and that soon the kids will be returning to school.

With the COVID-19 pandemic not yet under control, the dominant issue in the minds of most separated and divorced parents will be whether their children will be returning to in-person classrooms, or else learning remotely – or perhaps some blend of the two.

However, some newly-separated parents may still be in dispute over which of two schools their child will attend in the first place, come the Fall semester.  It is therefore important to take a step back and reflect more broadly on the laws and principles that Ontario courts will consider, when asked to decide which school a child will attend.

In a recent case called Moussaoui v. Harkouken, each parent asked for a temporary order placing their only child in different schools. After noting that the child’s best interests were not merely “paramount” but were the only consideration, the judge drew from a prior ruling in Thomas v. Osika, where the court had compiled a list of all the leading cases, and synthesized them to provided a thorough summary of the governing elements.

From an overview perspective, the court first noted this:

• The cases are very fact-driven. The courts do not pronounce on what is best for all children in a general sense but rather decide what is in the best interests of this child before the court. (Deschenes v. Medwayosh)
• From the standpoint of authority to decide, the court is specifically empowered under the Children’s Law Reform Act to determine any matter incidental to custody rights. The issue of a child’s enrollment in a school program falls into this category. (Deschenes v. Medwayosh)
• Custodial parents should generally be entrusted with making the decision as to which school children should attend. (Adams v. Adams)
• 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)

Next, the court addressed how each parent’s plans for the child’s education are scrutinized and assessed, stating:

• 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. (Bandas v. Demirdache)
• 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)
• 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)
• The emphasis must be placed on the interests of the child, and not on the interests or rights of the parents. (Gordon v. Goertz)

There are also a number of more esoteric factors to consider, namely:

• The importance of a school placement or educational program may include considering whether it will promote and maintain a child’s cultural and linguistic heritage. (Perron v. Perron)
• Third party ranking systems, such as the Fraser Institute’s school rankings, should not factor into a court’s decision.  This is because those systems of ranking do not take into consideration the best interest of the particular child in a family law context. (Wilson v. Wilson)
• Any problems with the proposed schools can also be considered by the court. (Askalan v. Taleb)

Finally, the court noted there are some fact-specific details and other evidence that it may examine, including concerns around a child transferring from school to school.  The court said:

• A decision as to the choice of school should be made on its own merits. It is based, in part, on the resources that each school offers in relation to a child’s needs.  (Wilson v. Wilson)
• It is not based on the schools’ proximity to the residence of one parent or the other, or the convenience that his or her attendance at the nearest school would entail. (Wilson v. Wilson)
• Factors that 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. (Askalan v. Taleb)
• This in turn 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; and whether a move will mean new child care providers or other unsettling features. (Askalan v. Taleb)
• The court will also look to any decisions that the parents made with respect to schooling prior to the separation, or at the time of separation. (Askalan v. Taleb)
• 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. (Perron v. Perron)
• 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)

For the full text of these decisions, see:

Moussaoui v. Harkouken, 2021 ONSC 1986

Citing:

 Thomas v. Osika, 2018 ONSC 3769

Deschenes v. Medwayosh, 2016 ONCJ 567

Bandas v. Demirdache, 2013 ONCJ 679

Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.J. No. 52 (S.C.C.)

Perron v. Perron, 2012 ONCA 811

Askalan v. Taleb, 2012 ONSC 4746

Wilson v. Wilson, 2015 ONSC 479

Adams v. Adams, 2016 ONCJ 431