Child parenting school disputes occur when parents disagree on the location of the school, the type of school or whether the child of separated spouses should go to a private or public school. In today’s blog, family lawyer Fraser MacLean explains how child parenting school disputes are resolved.
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So how are child parenting school disputes resolved? It is not uncommon that separating parents will often have polar opposite views on how to raise their children. One such common disagreement is which school the child should go to. French Immersion or English? Closer to mom’s or dad’s house? Public or Private? Religious or non-religious education? What happens if the two guardians/parents disagree on the choice of schools, for one reason or the other? The Family Law Act provides some clarity, however, making the proper legal argument may require a seasoned family lawyer.
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Under section 49 of the Family Law Act “a child’s guardian may apply to court for directions respecting an issue affecting the child, and the court may make order giving the directions it considers appropriate.” In some cases, the “direction” of the court to the guardians might be which school their children should attend, which does not apply in each case. The courts have previously taken position that the courts should not intervene in making guardianship decisions as it is up to the guardian only. The Court of Appeal in NRG v GRG, 2017 BCCA 407, held that in child parenting school disputes, choosing a specific school for a child to attend was one of parental responsibilities that only guardians, and not courts, ought to make.
In a recent pre-trial interim application in Supreme Court of British Columbia of Reda v Birch BCSC 1844, the father argued that, NRG v GRG, 2017 BCCA 407, stands for the proposition that choosing a school is a parental responsibility, and he applied to the court for interim parental decision making when it comes to choosing a school. The mother applied to court for a direction from court under section 49 of the Family Law Act, which affects the child, meaning which school the child will attend. Supreme Court of British Columbia is to follow decision of the Court of Appeal, however, Justice Baker had the following to say:
[17]I do not agree that NRG v GRG, 2017 BCCA 407 prevents a guardian from seeking directions from the court on an issue in dispute. This is precisely what the language in section 49 of the [Family Law Act] contemplated. I do not agree that NRG takes away from the specific language of section 49 of the [Family Law Act]… I find that it is appropriate in the case of specific disputes between guardians for one of them to apply for directions to this court.
On February 2, 2022, the Father applied for leave to appeal in Reda v Birch 2022 BCCA 60 in front of The Honourable Madam Justice Stromberg-Stein of the BC Court of Appeal and lost leave to appeal, which, in lay terms, means that the order of The Honourable Justice Baker would remain in place. This is significant because there is indeed a high threshold in awarding one set of parental responsibilities to one guardian over the other, especially at an interim hearing where there was no testing of the evidence, meaning there has been no oral testimony or cross-examination. The Honourable Madam Justice Stromberg-Stein, had the following concluding words:
[36] … The judge in this case applied NRG, which clearly states, at para 40, there will be occasions when courts will be called upon to resolve disputes. While NRG cautions courts not to take over the entire parenting regimen, as the judge did in NRG, it does not say courts can never make decisions on a specific aspect of a child’s life, including education. Nor does it say judges cannot give directions on matters typically considered parental responsibilities when guardians seek guidance under section 49.
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If you are involved in a child parenting dispute and have questions over child parenting school disputes please contact our lawyers across Canada through any of our numerous offices in British Columbia, our offices in Calgary and our office in downtown Toronto.
