When two parents separate, children from the marriage can quickly become the subject of some difficult choices. While the parents can spend months or even years negotiating the fine points of parenting time (formerly known as ‘access’) and decision-making responsibility (formerly known as ‘custody’), the daily lives of children stuck in the middle can remain in question. While we’re currently enjoying brilliant summer weather, many of our family law clients are asking the same question: how do I change my child’s school for this Fall if my former spouse does not agree?
This is unfortunately an issue that can drive a wedge between spouses, especially ones that have strong feelings on the issue or strong ties to a particular school. A parent may have very sincere reasons for wanting their child to attend, or not attend, a particular school. While practical considerations such as geography and convenience may play a role, there may be other factors such as quality of education or social ties that factor into the decision.
Best Interests of the Child
If the parents cannot come to an agreement between themselves over the child’s schooling, the court has the power under the Children’s Law Reform Act (“CLRA”) to prohibit “a party from changing the child’s residence, school or daycare facility without the consent of another party or an order of the court.” This is helpful for a parent who may be at war over the issue with a former spouse, but there is a key set of principles that guide these decisions in any circumstance, and that is in the best interests of the child.
Both the CLRA, along with the federal Divorce Act that determines the laws around divorce in Canada, outline a series of considerations when it comes to the best interests of the child. Those considerations include factors such as the child’s needs, their relationship with each parent, the history of the child’s care, future plans for the child’s care, the willingness of each party to care for the child, and the child’s views.
These may seem like sweeping considerations, but they become far more nuanced when looking at the issues surrounding a child’s education. Physical geography is a factor, such as who will be taking the child to and picking them up from school if required, and who will be caring for them after school. However, courts will look at even finer details, such as is one parent is better equipped than the other to assist with homework, or will the child have access to other resources necessary for their success.
While the best interests of the child are always paramount in making the decision, other practical considerations come into play as well. Parents who stay together can choose to relocate to cities or even countries at any time, but if the parents are separated and one wants to move then the significant impact on the child receives great weight. Even if the move is not one of great distance, a parent’s decision to relocate out of a certain neighbourhood or a school’s catchment area can have a significant impact on how a court renders its decision. Courts also give serious consideration to what had been done by the parents before the matter reaching their courtroom, as there must be serious reasons to ‘upset the apple cart’ so to speak.
Of course, in 2021, COVID-19 is also a factor to consider. We recently published an article about what happens in instances where one separated parent wants to vaccinate their child and the other does not – an issue that will only become more prevalent as the eligible vaccination age decreases. Naturally, as parents were concerned about the virus and the risks of in-person learning, several cases came before the courts with one parent formally seeking to move their children into a school deemed ‘lower risk,’ or that had a lower number of cases within its walls. There were also parents seeking court orders because they could not agree on in-person school at all, especially if one parent was adamant that the child continues with exclusively online learning.
The Ontario Superior Court of Justice considered the issue recently in a case called Zinati v. Spence, 2020 ONSC 5231, and acknowledged publicly that without expert evidence judges are not in a position to second guess the government’s determination that it is safe to reopen schools: “The court should proceed on the basis that the government’s plan is reasonable in the circumstances for most people, and it will be modified as circumstances require, or as new information becomes known.” In making case-specific COVID-19-related assessments though as to an individual child’s education, courts will look at specific factors such as if the child or their family is at an increased risk of illness as a result of the virus, what risks the child does face and how those will be alleviated, the ability of parents to handle online learning given their circumstances, and even the child’s own wishes in some cases. In Zinati v. Spence, 2020 ONSC 5231 given that family’s particular circumstances, the court ruled that the child should resume in-person learning.
The bottom line is that while courts will readily make decisions about parenting time and decision-making responsibility, they remain hopeful that, given a solid foundational arrangement, parents can come to a consensus on important decisions such as where a child goes to school amongst themselves and without involving the courts.
When those agreements cannot be reached amicably, our family lawyers are here to help. We know that our family law clients are loving and devoted parents who truly want what is best for their child, and believe that their wishes as a parent are aligned with those best interests. We advocate for our clients and help them make the case that their decisions will result in their child growing up in a loving and supportive environment. Contact us today to set up a consultation.