“The parties agree that the choice of a child’s school is incidental to decision-making and rights of custody, and that, where the parents are unable to agree, the determination becomes a matter of judicial discretion.
The authority for the court to make such orders derives from s. 16.1 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.). In addition, s. 28(1)(b) of the Children’s Law Reform Act, R.S.O. 1990, c. C. 12, empowers the court to determine matters incidental or ancillary to custody rights.
There is also an array of cases providing helpful guidance as to factors to be considered in the determination.
In addition to confirming the primacy of the child’s best interests in the analysis, the cases underline the importance of fact-specific context. As Klein J. aptly put it in Deschenes v. Medwayosh, 2016 ONCJ 567, at para. 17, “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”.
There are a handful of cases that set out various touchstones to guide the case-specific analysis of determining which school a child should attend. In Moussaoui v. Harkouken, 2021 ONSC 1986, drawing from the earlier decision of Audet J. in Thomas v. Osika, 2018 ONSC 2712, 13 R.F.L. (8th) 191, at para. 38, Shelston J. listed the following factors to be considered:
a. 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 incidental to or ancillary to the rights of custody (Deschenes v. Medwayosh, 2016 ONCJ 567);
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);
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,1996 CanLII 191 (SCC), [1996] 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 or not 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);
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);
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);
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).”
Al-Naib v. Shnyin, 2023 ONSC 3125 (CanLII) at 6-10