A child’s education is one of those major decision made by a custodial parent.
Upon separation, if parents are engaged in a custody battle with each claiming sole custody, the court will favour a parent’s plan that is in the best interest of the child such as a plan that will maintain the status quo if the child’s education especially if the child is doing well in the current school.
In Wainwright v. Wainwright, 2012 ONSC 2686 (CanLIII), Nolan J. favoured the mother’s plan relating to the parties’ 4 year old which provided for the child to continue at her current daycare in the French Immersion program until she enters a French Immersion senior Kindergarten in the jurisdiction of St. Thomas, Ontario, where the child was residing. The father’s plan to relocate the child to London, Ontario failed. Nolan J. held in paragraph 123 that:
After considering the evidence of both Mr. and Mrs. Wainwright as well as Ms. Riddell-Lamers with respect to Ellie’s performance and adjustment in the preschool program, and Mrs. Wainwright’s understanding of how consistency is important for Ellie at this stage of her life, I find that it is in Ellie’s best interests that Mrs. Wainwright make the decision about where Ellie will attend school in St. Thomas. Ellie lives primarily in St. Thomas. Ellie has always lived primarily in St. Thomas since the majority of her time is spent in the care of her mother. This decision-making authority to Mrs. Wainwright is only in respect to schools in St. Thomas or London or any other location within 40 kilometers of London. If Mrs. Wainwright makes plans to relocate, paragraph 14 of Minutes of Settlement which is included in my final order is engaged.
Where parents have joint custody of a child, the parents are expected to make decisions relating to the child’s school jointly such as change of schools or relocation. Making decision unilaterally relating to the children’s education constitutes a material change as the parent making the decision lacks authority to do so without the consent of the other parent. For instance in Templeman v. Templeman, [1990] O.J. No. 1776, the judge found that the father lacked authority by changing the children’s schooling from French Immersion to a Christian school.
In A.C.W. v. T.M.P, 2014 ONSC 6275 (CanLII), Mew J. relied on the Templeman decision referred to above and held that where parents have joint custody, a move from Grimsby to Ajax, a distance of approximately 130km amounts to material change in circumstance sufficient to engage shared decision making of joint custodial parents.
For further inquiries on the topic or any other family law legal advice, please email me at jane@jnmlaw.com
Jane Mukongolo is a Divorce Lawyer practising in Toronto, Ontario.
