A recent case came out by the Superior Court of Justice in Hamilton l that dealt with the issue of changing the residence of where a child goes to school during a family court dispute. These instances involve cases where the school a child attends has already been settled in some fashion. In these cases, a parent will come forward and try to get their child to switch schools in say late August right before the school year begins. The parent will usually cite some sort of emergency as to why the child needs to change schools. Usually, a motion or request to change residency of the child also accompanies such requests with regard to changing the child’s school. That is to say, if the child’s school is going to be changed, then so to should the residence in that it is likely that the parent’s aren’t living too close to each other and it would be inconvenient to keep the existing school. These types of cases occur with parents who have custody or joint custody.
A recent family law case dealt with this issue where children resided in the United States with their mother based on a prior settlement agreement. The parents had joint custody. The children came to Ontario to spend summer with their father as was customary and in accordance with the prior, settled family court order. The father however, brought a motion a few weeks later in August to change the residency of the children and their school and cited emergency factors as a reason for the court to side with him. Such reasons included the mother’s cavalier attitude towards Covid-19, the risk of Covid-19 in the United States and the fact that one of the children was being bullied in school based on her sexuality. One of the most respected family court judges in Ontario, Justice Pazaratz, ruled in favour of the mother. In fact, this case can be cited as the “change Johnny’s school” case or family court motion. Justice Pazaratz held that it not only matters what you ask for but when and where. He noted that these last minute motions are all too common in family court and the judgment of the parent needs to be questioned as to when a parent brings such an emergency motion, when they had months and years in some cases to bring the matter to court or to gather evidence about their position. The problem the Judge noted, was that in these cases, evidence is hard to verify on short notice or on a last minute basis; there are a lot of he said she saids and hearsay runs rampant. The Judge also held that the jurisdiction of such a motion was in the United States, where the children ordinary reside and where such evidence is more readily available, i.e., school reports, doctor reports, etc.
So the answer to this question of whether you can change the school of your children ultimately is that…it depends. Yes, it always depends in law as there are rarely any straight answers, although for the most part, changing your child’s school and residence is difficult and the answer at least from an urgent point of view is: “No, you cannot change the school”. Changing schools for children is a major and significant life event. Add changing houses, bedrooms, friends, family, their world, and you can quickly see how difficult it can be on a child. However, as I have said, every case is different and needs to be treated differently. But you cannot and should not expect to change the status quo on an urgent basis unless you really have a strong, iron clad case. Again, I make a disclaimer in that every case is unique. If you find yourself in a pressing situation as changing your child’s school and you want some family law advice, please contact my office to schedule a free confidential consultation. I would be happy to meet with you and hear about your issues. Please call me at 905-789-9007 or email me at email@example.com.