Separated Parents Reprimanded by Judge in “Choice of School” Dispute


By Written on behalf of Campbell Bader LLP

In a recent decision, Justice Pazaratz, who is known for his direct, tongue-in-cheek written decisions, reprimanded two parents who were locked in a dispute over where to send their children to school. This choice of school decision serves as an excellent reminder for parents about what joint custody truly means.

What Happened?

The parties in question filed a motion asking the court for an order as to which Hamilton area school their two children (aged 12 and 7) were to attend for the 2018/2019 school year.

The previous school year, both children had attended Cathy Wever school (also due to a court order that the parents had obtained). However, both parents had since moved out of that school’s catchment area, and therefore the children were no longer eligible to attend there.

The parents, therefore, filed another motion requesting the court’s guidance and a decision on where the children should go to school.

The Custody Arrangement

The parents had an equal time-sharing arrangement in which the children were with the father from Monday to Wednesday, and with the mother from Wednesday afternoon until Friday. Weekends were alternated.

Each parent claimed that they had historically assumed a primary role in helping the kids with school related activities and homework.

Choice of School: The Parent’s Respective Preferences

Each parent had a preferred school that they wished to send the kids.

The mother wanted the children to attend Franklin Road School because, among other things:

  • It was within walking distance of her new home;
  • She does not have a driver’s license;
  • The school has smaller classes.

The father preferred the Prince of Wales School because, among other things:

  • It was within walking distance from his new home;
  • He has no car of his own, and is unsure whether he would have access to his new partner’s car to take the children to and from the mother’s proposed school which was further away that his preferred school;
  • The school offers a native program;
  • His new partner’s children also attend the same school so his children would have siblings at this school.

The Decision

Justice Pazaratz noted that despite the fact that each parent attempted to explain why their choice of school was better for the children, the relative strengths of each school were “difficult to gauge”:

  • Both school had almost identical EQAO scores;
  • While the father emphasized the native program at Prince of Wales, this does not appear to have been a significant priority for either parent in the past;
  • No matter which school is selected, the children will have an equal neighbourhood connection for about half the week;
  • No matter which school is selected, the children will have the convenience of being able to walk to and from school for half of the week;

Justice Pazaratz went on to say:

I am not able to conclude that either school is better or more suitable for the children.  It is quite clear that each parent has proposed a school based almost exclusively upon geographic proximity.  The “my school is better than your school” arguments appear to be a self-serving afterthought.

Justice Pazaratz noted, that in every decision involving children, the most important factor is the best interests of those children, and went on to say that for children of the ages that these children are, the focus should be less on their academic achievement and more on the daily experiences and quality of life associated with each parent’s proposal.

In this case, the main distinguishing feature between the parents’ respective proposals was the logistics of how the children would get to and from school. Justice Pazaratz noted that the mother’s proposed choice of school would have slightly less onerous transportation implications, and therefore, her proposal “is to be preferred”.

Justice Pazaratz ordered that both children therefore attend Franklin Road School.

Reprimand to the Parents

Justice Pazaratz had some choice words for the parents, noting, at the outset of the decision that, at the time of the hearing of the motion:

It’s Friday September 14, 2018.  So far the children have missed the first nine days of the school year because the parents can’t agree.

If that sounds like poor parental planning, the failing is compounded by the fact that this is the second year in a row where these joint custodial/equal time-sharing parents have had to go to court for a last-minute ruling on what should be a fundamental aspect of parenting.

He went on to say:

Selecting a school is not an easy decision.  But it’s an important decision, and it should have been made long ago.  If parents who have “joint custody” are intent on turning this issue into annual last-minute motions in Family Court, then maybe they’re not really “joint custody” material.

On the matter of joint custody, Justice Pazaratz noted:

Joint custody is more than just a “feel good” label.  It entails mutual rights and mutual responsibilities.

Joint custody is appropriate where parents have the ability and willingness to work together – to efficiently and amicably plan and problem-solve – for the benefit of the children.

But joint custody is not appropriate where the absence of clear decision-making authority will lead to interminable power-struggles, impasse and paralysis.

With high-conflict parents, the absence of a “tie-breaking vote” can have devastating consequences for vulnerable children who don’t want to – and shouldn’t have to – get caught in the middle.

Separation and divorce is challenging for everyone involved.  When dealing with custody or access disputes (including decisions such as choice of school), matters involving spousal and child support, the division of assets, and other family issues, emotions can be your worst enemy. Having an experienced family lawyer on your side can help you stay focused and resolve disputes as quickly and amicably as possible.

At Campbell Bader LLP our family team has collectively spent more than twenty years advising clients about family disputes, including those involving high net worth individuals or complex matters.

We value and incorporate collaborative family law principles into our practice, but we’re smart enough to recognize when that approach won’t work for you and we adapt our strategy accordingly. To learn more about how we can help you contact us online or at 905-828-2247.



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