An Ontario Court recently granted a mother’s request seeking an order that her child attend a specific School for the upcoming school year.

A Special Needs Child

The parties separated in 2008. The parties had one child, X, who was 13 years old and starting grade 8 in September 2018. The parties had shared custody of X since their separation.

In 2011, X was diagnosed with leukemia. He underwent treatment between 2011 and 2014, including chemotherapy and cranial radiation, which resulted in him missing an extensive amount of school.

In January 2014, X’s third-grade teacher noticed that X was having trouble reading and writing. Dr. B performed a neuropsychological assessment, which revealed that X had a specific learning disorder with impairment in reading, written expression and math. An independent education plan was designed to support X’s needs.

Unfortunately, X started to experience difficulties again in September 2017 when he began grade seven at a new school.

In March 2018, a new neuropsychological report was completed. X’s diagnosis was expanded to include “mild neurocognitive disorder due to the effects of treatment for leukemia, with mild behavioural disturbance” and Dr. B recommended that X be switched from the French school system to an English school.

The parties agreed to transfer X to the English school board. In April 2018, the father advised the mother that he had bought a new home in Barrhaven with his girlfriend, and that he would like to consider sending X to Cedarview Middle School (Cedarview) rather than a school in their current neighbourhood in Ottawa.

The mother brought a motion on an emergency basis seeking an order that the child attend the Summit Alternative Program at Fisher Park Public School (Fisher Park) beginning in September.

The Relevant Legal Principles

The court explained that there were a number of general principles that had to be taken into account when deciding which school a child should attend. Among other things, the court noted that:

• The unique needs, circumstances, aptitudes and attributes of the child, must be taken into account.
• The emphasis must be placed on the interests of the child, and not on the interests or rights of the parents.
• The decision should be made on its own merits and based, in part, on the resources that each school offers in relation to a child’s needs, rather than on their proximity to the residence of one parent or the other.
• These cases are very fact-driven.

The Court’s Decision to Send X to Fisher Park

The court granted the mother’s motion for the following reasons.

X’s Academic Needs

The court found that the regular English stream program at Cedarview would not satisfy X’s significant academic needs. While both schools had similar services to offer to X, the program at Fisher Park was tailored for children like X who had specifically identified learning disabilities with particular educational needs. The court noted that:

While many factors are relevant in the choice of school which will best meet [X]’s interests, in the particular facts of this case, I find that this factor ([X]’s education needs) is the most important.

X’s Wishes and Preferences

The court examined the evidence and concluded that it could not establish X’s wishes and preferences in a clear and definite manner. It was difficult to determine whether X’s expression of any preference was based on his own experience or whether he was unduly influenced by his father.

The court commented that even if X did prefer to go to Cedarview, he did not have enough maturity to understand or choose the school that was best for him from an academic perspective.

Logistics

The court went on to consider the logistics of both schools, including that the mother would have to drive 20 minutes south of Ottawa to take X to Cedarview, and then drive back in rush hour to get to work (and then again at the end of the day). On the other hand, if X went to Fish Park, the father could simply drop X off on his way to work without taking any lengthy detours.

The court concluded that it was unreasonable to make the mother drive over an hour in traffic twice per day to take X to school when there was a good alternative that would not add to either party’s daily commute.

X’s Community and Status Quo

The court recognized that no matter which school X attended, none of his existing friends would be there. As a result, the court concluded that whether or not X’s school was located in his neighbourhood had very little relevance in this case. The court noted, however, that it would likely be easier for X to make new friends in his school if there was a chance that some of them would also be a part of the same extracurricular activities in his neighbourhood.

Lessons Learned

In considering whether a child should attend a specific school, the court will consider a number of factors, including logistics, the child’s academic needs, community and status quo, and wishes and preferences.

If you have questions about your separation or divorce, contact Gelman & Associates. Our lawyers – who are knowledgeable and compassionate, but also tough when necessary – provide exceptional legal representation in all family law matters. Our goal is to always empower clients to make informed decisions about their future. We give all prospective clients a comprehensive family law kit during their initial consultation, as well as a copy of our firm’s handbook on separation and divorce. This information is full of resources that will help you understand and navigate the difficult and often complicated separation and divorce process.

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