June 9, 2022

Can I change my child’s school if I’m separated?

What to do if you want to change your child's school.

If you live in Ontario, this goes to the issue of a parenting decision. The legal term is decision-making responsibility. The choice of school is a parenting decision and you first need to ask who has that job? You alone or you plus the other parent?

Where decision-making (this used to be called custody) is joint, both parents must agree on the choice of school. If you have an older Court order or Separation Agreement that says you have sole custody (now decision-making), you can make the decision without involving the other parent.

Look at your agreement or court order to confirm whether decision-making or custody is sole or joint.

If you do not have an agreement or Court Order, you need to contact the other parent and find out if school enrollment is an issue. Keep in mind, in Ontario, you cannot register your child in a school zone where neither parent lives, barring certain exceptions. Even if both of you agree on a school, if neither of you live in the school zone, the school decides if your child can enroll. There is a very real risk that you will need to register your child in a school where one parent lives in the zone.

Registering your child without the other parent’s consent does not get you any closer to an agreement. It could reflect poorly on you that you have tried to decide on your own and exclude the other parent. This is seen as “taking the law into your own hands”. Not a good way to start.

Start with seeing if you both agree on the school. If you do, register your child.

If you do not, this is not something that can wait until the first day of school. You need to try engaging in discussions immediately or start Court.

Your decision on next steps depends on your situation. If you have a history of court and not being able to reach an agreement, then start court as soon as possible. Court is a slow process and the first day of school comes quickly.

Is it urgent?

There is a threshold for what the court will treat as urgent. It’s arguable that school enrolment should not be considered urgent because it’s a known deadline. It did not come out of nowhere and you had notice that it was coming. If you wait until August and try and bring an urgent motion, you risk not being able to get a court date because your matter might not be considered urgent.

You can also try and engage in discussions outside of court with the other parent. Your options to do that are negotiation directly between the two of you, negotiation with lawyers, mediation, collaborative law, and arbitration. In negotiation, you and the other parent or lawyers discuss what your options are try and come to a resolution. Negotiation can be between parents, between a lawyer and a parent and between both lawyers. If you reach an agreement through negotiation, you need to sign it in front of witnesses.

Mediation is where you hire an independent third-party to guide your discussions. If the issue is choice of school, a parenting mediator would be appropriate. If there are legal issues, such as a parent moving out of the school zone, then a mediator who is trained as a lawyer would be appropriate. Mediation can be conducted either with or without lawyers. A mediator will not do a mediation where one party has a lawyer, and the other does not. If you attend mediation without a lawyer, you can still get legal advice from a lawyer afterwards. Mediation is a very useful tool to try and get a resolution without spending as much as you will on court and can be a faster resolution than court as well.

You should get legal advice before signing an agreement.

Unfortunately, you cannot force the other parent to sign anything if you negotiate or mediate.

Collaborative law involves you both having lawyers and committing to working together to settle the issue. The lawyers cannot go to court under that system, which is explained more fully at our sister site, swarbricklaw.ca.

The other option is arbitration. This is where you hire an arbitrator to impose a decision on you. This is like hiring a private judge. You must pay the arbitrator. If you are in court, you are not paying the judge, but you are paying legal fees for your lawyer. Depending on how last-minute you’ve left things, you may have to consider arbitration if you cannot get an agreement. The more time you have before school starts, the more it makes sense to try court instead of arbitration because there are no set timelines for arbitration, and it could be costly. Court has specific timelines that must be followed.

You may be stuck in court if you cannot reach an agreement. The drawback of going to court aside from the cost and stress is that the judge is generally the least informed person when it comes to deciding for your child. Any way that you can come to an agreement outside of court puts the decision-making into the parents’ hands. Inside court, it’s out of your hands and you are stuck with getting a decision imposed on you.

In short, September comes quickly and if you do not have an agreement on which school your child is being enrolled in, then you need to contact the other parent immediately and see if you can get one. If you cannot agree, it’s time to consider hiring a lawyer, negotiation, mediation, arbitration, or court. If you are doing court on your own, remember we can give you as much or as little help with court as you need. Just give us a call and we can clarify things.

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