SCHOOL PLACEMENT OF A CHILD FOLLOWING SEPARATION

The school placement of a child of separated parents has become the subject of disagreement between parents and, in some cases, the objective of the litigation. Parents will argue that the decision to enroll a child in a particular school influences the child’s social growth and moral development and sets a precedent that may be fixed for many years to come and for subsequent children. Thus, a contest over a child’s education after separation often triggers each parent’s values, whether it be cultural, religious or language.

It was once thought that the custodial parent selects the child’s school. However, with the rise in the role of fathers, and the movement towards parenting plans as opposed to the historical custody/access regime, judges have assumed jurisdiction over such disputes. This is even in cases where one parent has sole custody of the child. Indeed, section 20 of the Children’s Law Reform Act provides that “the father and the mother of a child are equally entitled to custody of the child” and section 21 grants the court the power to “determine any aspect of the incidents of the right to custody or access and may make such additional order as the court considers necessary and proper in the circumstances.”

Thus, the custodial or primary parent’s decision regarding school placement is not beyond reproach. Plus, section 29 of the Children’s Law Reform Act and section 17(5) of the Divorce Act grants the court the power to vary an order for custody and make orders regarding school placement where there has been a material change in circumstances.

The leading appellate decision on school placement is Perron v. Perron [2012] O.J. No. 5502 (C.A.).

This was an appeal by the child’s father from an order granting the mother custody of the parties’ three children with the power to enroll the children in school. The father’s first language was French and he spoke to the children in French. The mother’s first language was English. When the parties separated in 2006, the oldest child was in junior kindergarten at an English school. The child was subsequently enrolled in a French immersion program at another school. The other two children later entered the same school. Their classes were taught fifty per cent in French and fifty per cent in English. The father had initially agreed to this choice of school, but later took the position that attending a homogeneous French school was in the children’s best interests. In awarding custody to the mother, the trial judge found the French immersion program they were enrolled in would provide the children with sufficient exposure to the French language, allow them to become fluently bilingual, develop their cultural identity and promote their relationship with their Francophone father. The father appealed.

This case highlights the distinction between “custody” of a child and a decision about a particular “incident of custody”, such as school choice. The Court of Appeal stated that while one parent may have sole authority to make decisions about the “incidents of custody”, the court also has jurisdiction to review a custodial parent’s decision to ensure that it accords with the child’s best interests. This case stands for the proposition that it may be in the best interests of a child for the court to consider a separate determination of schooling, distinct from the custodial parent’s general decision-making authority, and sharing the language and culture of both parents accords with the “maximum contact” principle set out in the Divorce Act and inherent in the Children’s Law Reform Act.

It stated that section 28 of the Children’s Law Reform Act grants the court the power to determine any incident of custody or access and may make such additional order as the court considers necessary and proper in the circumstances. Similarly, section 16(6) of the Divorce Act provides that when a court makes an order for custody, it “may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.”

Justice Rouleau wrote: “The importance of a school placement or educational programme will promote and maintain a child’s cultural and linguistic heritage.”

In the end, the appeal was dismissed, mainly because of the passage of time. But the Court of Appeal recognized that the language of the children’s education was an important consideration of their best interests. It stated that the trial judge should have turned his mind to the possibility of a conditional custody order in the circumstances of the case regarding school choice.

In Libbus v. Libbus [2008] O.J. No. 4148, the court stated that when deciding whether or not a school change is in the best interests of a child, a court should compare the benefits and detriments in each parent’s proposed plan for the child.

The issue in this case was whether the children’s Jewish identity could best be preserved through attending Uxbridge Public School, which they had been attending, or moving them to Woodland Public School in Thornhill, which was close to their mother’s house and situated in a Jewish community. The parties had joint custody of the children. Both accepted that raising their children in the Jewish faith was in their best interests.

When deciding the school placement, Justice Nelson examined the issues of religion, culture and ethnicity. He considered whether or not the children would suffer anxiety or any detrimental effect if they were to change schools.

In the end, the children were moved to Woodland Public School in Thornhill to prevent them from becoming conflicted over their religious and ethnic identity as they grew older. Justice Nelson found that the evidence indicated that without a school and community change, the children would be affected negatively.

In Potter v. Dhieux [2012] O.J. No. 3692, the father applied for an order requiring his 9 year old daughter to attend an English school with an extended French program. The mother wanted the child to continue at the French only school. The daughter had attended the French only school since kindergarten. The father argued that the child should attend the English school because it was closer to home, it had different teaching methods and he could help the child with her homework as it would be in English.

Justice Kershman allowed the application and found that the English school with the extended French program would allow the child to continue studying French so she would not lose her ability to be bilingual. The mother spoke French to the child at home so the child would continue to be able to communicate with the mother’s family. Moreover, the mother would not be marginalized by having the child attend the English school.

The court found that stability was important, but the child was adaptable. She travelled regularly between the parties’ homes, enjoyed outdoor activities, went to Paris several times each year and vacationed in many other places. The child was sociable and would adapt well to the new school and make new friends easily. The child had two cultures and was able to communicate in both languages. Attending an English school with an extended French program would therefore not cause the child to lose her French culture.

In Moyer v. Douglas [2006] O.J. No. 5124, the parties were unable to agree on the future schooling of their children. The father, who had limited command of French, opposed a Francophone school because he would not be able to help his children with their homework if French was the language of instruction. He was, however, open to a French immersion program for his children at an Anglophone school.

Mr. Justice Perell ultimately ordered parallel parenting, with the mother being assigned religion and health care, and the father being assigned education including the right to select the child’s school – such as his preference for French immersion.

In summary, there have been many cases on school placement decided after Perron. The conclusion to draw from these cases is that the final result is fact-driven. The courts are not pronouncing on what is best for all children in a general sense, but rather deciding what is in the best interests of this child before the court. That is why the marshalling of the evidence is critical.

10 Tips for Marshalling the Evidence on a Child’s School Placement

1.      Do not settle a divorce case without discussing the client’s cultural, religious and language values regarding her child’s school placement. If possible, resolve the issue with clear language as to school placement including its cost allocation and what circumstances constitute a material change. Alternatively, establish a dispute resolution mechanism such as an Educational Assessment, Mediation, Arbitration or Parenting Coordination. Be very careful of allowing a status quo to be established even if the issue is pre-school, as some judges have commented that the pre-school child has already formed attachments to the school or classmates from pre-school and that continuing the child’s existing school placement promotes stability in the child’s life.

2.      Retain an Educational Assessor to review the child’s past academic history and report cards, interview the teachers and principals and then do the same with the proposed new school. Then obtain an expert opinion on the merits of the change.

3.      Frame the case about the child’s best interests (eg. the child’s cultural, religious and language needs). Avoid any reference to the parents’ views, wishes or preferences due to factors such as re-marriage, convenience, new religious beliefs, etc. However, reference should be made to the school placement that will afford both parents meaningful involvement in the child’s school life (eg. language of instruction).

4.      Compile an evidentiary history of the client’s reasonable, balanced and child-focused decisions. Likewise, compile an evidentiary history of the other parent’s self-centered views, wishes and preferences.

5.      Compare the social, academic and geographic differences between the various school options. In Perron, the father provided a significant amount of evidence at trial on the challenges faced by the French-speaking linguistic minority in an English-language environment such as Hamilton. His evidence illustrated the risk of linguistic assimilation and cultural alienation in a minority linguistic setting and the essential role played by homogeneous French-language schools in maintaining French language and culture. The Court of Appeal commented that the whole of this evidence equipped the trial judge with the data to properly assess what language of education would be in the children’s best interests. Lead evidence of what school and curriculum will best equip the child for her future of learning and employment and give her the greatest competitive advantage. Provide evidence from the school as to what grade or year is the common feeder or introductory year for incoming students. Providing Google maps of the parents’ respective homes and the walking and driving distances as between the homes and the competing schools is helpful evidence for the trial judge. Research the Ministry of Education, private school ratings or blogs on past public evaluations or families’ historical experience with the subject school (eg. Fraser Institute https://www.fraserinstitute.org/studies/school-report-cards).

6.      Build a case for the competing communities and circle of friends who would be attending the same school with the child and what effect this has on the child’s social capital, growth and development. A listing of the child’s cousins and close friends that attend the same school and their closeness is an important consideration.

7.      Demonstrate the child’s resiliency, flexibility and adaptability to change or alternatively the child’s resistance, anxiety or any other detrimental effects if the child were to change schools. Place specific attention on the child’s learning profile including any psycho-social or learning disabilities.

8.      Consider the alternatives to a change of school such as supplementing the child’s cultural, religious and language education with after-school programs, community involvement and travel. This is where the subject of cost and affordability is relevant.

9.      Ensure that any analysis treats each child and his learning profile uniquely. Lead evidence of the child’s academic and social experience of the past school including evidence of past accommodations, individualized educational plans (IEP) and Identification, Placement and Review Committee (IPRC). Testimony from teachers and school personnel, as well as the child’s pediatrician and/or therapist, is typically necessary. Written proof of the school’s acceptance of the child to the new school, and why, is also important.

10.    Carefully manage the client’s expectations by advising him of the unpredictability of the outcome in court and the benefits of settlement based on compromise and the careful consideration of alternatives.

Sole, shared or joint custody orders, or parenting plans, generally do not end the dispute over a child’s school placement. Mediators, parenting coordinators, arbitrators and judges remain useful in cases of disagreement over a child’s education. If such a case must go to trial, ensure that the judge or arbitrator has a complete evidentiary record including the material facts of the child, family and schools, as well as expert evidence.