Ross McBride
How does the Court decide which school a child should attend

How does the Court decide which school a child should attend

Parents going through a separation are encouraged to discuss their plans for their child’s schooling well before September. To ensure that last minute and costly motions are avoided, parents should consider attending mediation well in advance of September. When parents are ultimately in a deadlock on the issue of which school their child should attend, the issue may be left to a judge’s discretion.

The following is an excerpt from the Honourable Justice Audet’s review of the case law in Harron v. Hollahan, 2020 ONSC 4423 (CanLII), which was a motion heard on June 30, 2020 dealing exclusively with the issue of where a child should attend school in September 2020.

Here are some factors the Court will look at in determining which school a child should attend:

  • The unique needs, circumstances, aptitudes and attributes of the child. Bandas v. Demirdache, 2013 ONCJ 679 (Ont. C.J.).
  • 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).
  • Whether the school or educational program promotes and maintains a child’s cultural and linguistic heritage (Perron v. Perron, 2012 ONCA 811 (Ont. C.A.).
  • The resources at each school offered in relation to a child’s needs, rather than on the proximity to the parent’s residence (Wilson v. Wilson, 2015 ONSC 479).
  • The stability of the child. The Court will look at factors such as: Where was the child born and raised? Is there any prospect of one of the parties moving in the near future?  Will a move mean new child care providers or other unsettling features? Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.).
  • What arrangements were made by the parents prior to separation or at the time of separation with respect to schooling? Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.). 
  • Courts are reluctant to change the status quo. There must be convincing evidence that a change of schools is in the child’s best interests (Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.); Perron v. Perron, 2012 ONCA 811 (Ont. C.A.).

 Each case is fact driven and turns on what is in the best interests of the particular child before the Court. Ultimately, 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] S.C.J. No. 52 (S.C.C.). In essence, the Court will focus on the child’s unique needs, and not simply what is most convenient for the parents.

In Harron v. Hollahan, noted above, Justice Audet reviewed the relevant factors and found that both schools proposed by the parents were fully equipped to meet the child’s needs, however from a practical perspective, Justice Audet held that it would be in the child’s best interest to attend school closer to his mother, given the parents’ respective work schedule. This would ensure the four year old child would spend less time in traffic and more time with each of his parents, while minimizing the time he needs to spend in before and after school daycare. (Audet J. at para 27).