How do Ontario courts decide which school choice is best for the child?
Deciding which school your child should attend can be complicated by the fact that your ex-partner does not agree with your choice of school. Perhaps you want your child in a french school and the other parent wants an english school. Or maybe you live in different jurisdictions and the school becomes part of the analysis in deciding which parent will have the children full-time. Whatever the case, the law is clear that the best interests of the child will prevail. Justice Audet explains the jurisdiction in Thomas v Osika, 2018 ONSC 2712.:
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 (Deschenes v. Medwayosh, 2016 ONCJ 567 (Ont. C.J.));
Factors to consider
Courts are given discretion, guided by several principles, in deciding which school is in the best interests of the child. The court considers the parent's educational plan, their capacity and commitment to implement it, and the child's unique needs. Factors such as the parent's ability to assist with homework and participate in the educational program are also considered. The preservation of the child's cultural and linguistic heritage may also be valued. Stability and any potential disruptions caused by a change in schools are evaluated, along with any prior decisions made by the parents regarding schooling. The court should base its decision on the merits of each school and its resources in relation to the child's needs, rather than proximity or convenience. Third-party ranking systems should not influence the court's decision, as they don't consider the child's best interests. If a court orders a change of schools, there must be convincing evidence that it is in the child's best interests. Finally, these cases are highly fact-driven, and the court's focus is on determining what is best for the specific child involved.
The leading case on the subject is Thomas v Osika, 2018 ONSC 2712. Justice Audet outlines the important principles in the case:
b. 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 (Bandas v. Demirdache, 2013 ONCJ 679 (Ont. C.J.));
c. 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 (Deschenes v. Medwayosh, 2016 ONCJ 567 (Ont. C.J.));
d. The emphasis must be placed on the interests of the child, and not on the interests or rights of the parents (Gordon v. Goertz,  S.C.J. No. 52 (S.C.C.);
e. The importance of a school placement or educational program will promote and maintain a child's cultural and linguistic heritage (Perron v. Perron, 2012 ONCA 811 (Ont. C.A.);
f. 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 mean new child care providers or other unsettling features (Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.);
g. 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 (Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.);
h. Any problems with the proposed schools will be considered (Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.);
i. 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 offered 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 attendance at the nearest school would entail (Wilson v. Wilson, 2015 ONSC 479 (Ont. S.C.J.));
j. 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 (Wilson v. Wilson, 2015 ONSC 479 (Ont. S.C.J.));
k. 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 (Perron v. Perron, 2012 ONCA 811 (Ont. C.A.);
l. 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 (Adams v. Adams, 2016 ONCJ 431 (Ont. C.J.));
m. Those cases are very 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 (Deschenes v. Medwayosh, 2016 ONCJ 567 (Ont. C.J.)).
Thomas v Osika has been reaffirmed in many recent Ontario Superior Court decisions, including Dauber v Dauber, 2021 ONSC 5489 and McDermind v McDermid, 2021 ONSC 6807.
Obvious takeaways? In building a case to support your school choice, the same principle for parenting time and decision making orders applies with modification to the issue—what is in the best interests of the child?