Back to School : How Does a Court Determine What School Your Child Should Attend When the Parents Cannot Agree

byAvneet Sidhu

Deciding what Kindergarten or elementary school to send your child to can be an exciting time for a parent. But what happens when a child’s parents cannot agree on what school to send their child? The recent Ontario Superior Court of Justice decision of Piper v. Hare 2021 ONSC 2139, provides direction to lower courts and courts of other provinces and territories when making a determination regarding choice of school.

The decision as to the choice of school that a child should attend, when the parents disagree, is ultimately a matter of judicial discretion and best interests of the child. However, a number of general principles have emerged from the caselaw to assist the decision-maker in making the decision in the child’s best interests. They can be summarized as follows:

  1. 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. (Please note that the CLRA is Ontario legislation and does not apply in Alberta).
  2. 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.
  3. 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.
  4. The emphasis must be placed on the interests of the child, and not on the interests or rights of the parents.
  5. The importance of a school placement or educational program should promote and maintain a child’s cultural and linguistic heritage.
  6. 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 necessitate new child care providers or other unsettling features.
  7. 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.
  8. Any problems with the proposed schools will be considered.
  9. 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 offers 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/her attendance at the nearest school would entail.
  10. 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.
  11. 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.
  12. 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.
  13. Those cases are very fact-driven. The courts are not pronouncing on what is best for all children in a general sense but rather providing a framework for deciding what is in the best interests of this child before the court.

The Courts of Alberta have adopted the above principles when making decisions regarding what school a child should attend, if the parents cannot agree. Given that Piper is an Ontario case, not all principles as listed above apply in Alberta courts.

Determining what school your child will attend can be an exciting process. If you and your co-parent cannot agree on what school to send your child, contact the lawyers at Soby Boyden Lenz LLP to provide you with insight on how Alberta court’s may make a determination regarding schooling for your child.

Other posts you might like:

Entitlement to Child Support for Adult Children

Will Corporate Retained Earnings be Considered Income for Support?