Parents have many difficult decisions to make in the course of bringing up a child. When those parents are separated, divorcing, or divorced, the decision can become even more difficult.
For one thing, there will be an overlay of court-ordered (or agreed-to) arrangements as to sole, joint, or shared custody that must be considered. This gives rise to practical complications. For instance, the child might be living intermittently in two different locations. This is usually during the school year, in keeping with those custody arrangements. In turn, this can impact whether the child meets the eligibility requirements for the desired school. Each school has a unique geographical catchment area.
If they are facing a looming divorce, most separated parents no longer have a true “unified front”. Even when it comes to making important educational decisions about the child they have together.
- Article Continued Below -
Toronto’s Experts in Family Law and Divorce
Despite these challenges, the process of choosing a school – whether public, private, homeschool, or online – involves myriad factors that should be considered. None of them are given predominance over the other.
The Factors to Consider When Choosing a School
When parents are separated or divorced, they must take a holistic, child-centered approach to their child’s best interests. That includes considering:
- The child’s unique needs, circumstances and aptitudes;
- The parents’ own capacity and commitment to fostering the plan for their child’s education. (Including the ability to actively participate, by monitoring assignments and helping the child with homework);
- What resources each school offers, in relation to their child’s unique needs;
- What decisions were made around schooling by the parents prior to separation, or at the time of their separation;
- The disruption to the child, if a new school is being considered for him or her post-separation;
- How best to promote and maintain the child’s cultural and linguistic heritage;
- Any identified problems with the proposed school(s); and
- Where the child was born and raised. Whether there is any prospect of one of the parents having to move in the near future.
Each family situation is unique. It bears repeating that the emphasis must always remain on what is in the child’s best interest, not what is in the parent’s best interests. For example, the geographical proximity of a school to one or both parent’s home is not a prime factor. Say the proposed school does not address the child’s educational needs and promote his or her best interests. This school would not be ideal for the child.
A Real-Life Illustration
When separated or divorcing parents cannot agree on where their child should attend school, they may call upon a court to resolve the dispute. The courts’ focus is always on what’s best for the child. Parents may be surprised to find that even their strong and well-meaning preferences can be overridden.
This is illustrated in a case called Askalan v. Talebwhere the divorcing parents had agreed by way of separation agreement that they would jointly make important decisions about their child’s education. However, they could not agree on whether their son should be forced to switch to a school for “gifted” kids, as the mother wanted. The father was vehemently opposed to the change. The new school was not in either parent’s catchment area. The child himself preferred to stay at his current school, where most of his friends were.
Conclusion of the Case
The parents’ dispute came to a head less than three weeks before the start of the new school year. The mother brought the matter before the court where the judge commented it was “extremely unfortunate” timing. It left the boy “in limbo as to where he will go to school this fall”.
In making a ruling, the judge noted that the best interests of the child was the “only test”, and that parental preferences and so-called “rights” played no role in the decision. Courts should be reluctant to dictate where a child goes to school, and parents should be encouraged to resolve the matter amongst themselves. But if they cannot, then the best interests of the child will always govern.
Here, the judge conceded that the boy was exceptionally gifted intellectually, when viewed in isolation. The gifted program’s enriched curriculum would maximize the boy’s full academic potential. However, this was not the only consideration. The timing of the mother’s request and the boy’s own preference to stay at his current school both affected the decision. The judge concluded that forcing him into the gifted program was not in his best interests.
Addition to the Case
The court added:
My decision however should not be viewed by the Father as a victory. I want to make it clear to [the child’s] parents that in my view it is extremely unfortunate, that once [the child] was identified as a gifted learner, and accepted into a gifted program, that the positions of the parties became polarized immediately. Whatever their motivations, there is no evidence of the parents attempting to work together to determine what in fact is in [the child’s] best interests in light of this new and important information. The Father in particular did not respond with an open mind to consider whether or not the Mother’s proposal might in fact be in [the child’s] best interests. … Unfortunately, although I have no doubt both parents love [the child] very much, they clearly forgot that they must put their differences aside and focus only on his best interests. …
There is very little the court can do if the parties insist on dealing with this issue in a high conflict manner. A final decision will be made by the trial judge. I urge them however, to consider [the child] and what is best for [him]. … It is not uncommon for children to change schools, and that may well be in [the child’s] best interests. His parents are the best people to decide that, if they can put aside their differences and focus only on their son.
The Bottom Line
It is highly recommended that parents, even those that don’t meet eye-to-eye, reach an accord on where their child should attend school. Otherwise, they might find themselves in court with an undesired solution imposed on them.
 2012 ONSC 4746 (CanLII).