When considering what is in the best interests of a child following separation or divorce, the children, depending on their age, may be interviewed to see what their feelings on the issue are. This does not mean, however, that the children’s feelings are the primary factor when the court renders their decision. In a recent Ontario Court of Justice decision, the court explores this very issue.

What Happened?

The couple in question was married in March 2003. They had two children, a son aged 10 and a daughter aged 8. They separated in November 2016. After their separation they lived separate and apart, but under the same roof until January 2017. At that time, the mother left with the children, moved into a shelter, and registered the children in a new school.

The father commenced an application for custody in December 2016. When the mother left with the children in January, he brought an emergency motion without notice seeking sole custody of the children and an order that the police locate and deliver the children to him.

When the father brought the emergency motion, the lawyers for the parties had been in communication. The mother’s lawyer had notified the father’s lawyer the day the mother left that she would be leaving with the children due to safety concerns.

The motion was heard in February and the court ordered that:

  1. The children’s primary residence will be with the mother from Monday after school until Friday morning, and are to be delivered to school;
  2. The children will reside with the father from Friday after school until Monday morning, when they are delivered to school;
  3. The children will return to their original school; and
  4. The matter is referred to the (“OCL”) for an immediate clinical investigation with regards to access and custody.

After several months of adjournments and the OCL initially declining to get involved whatsoever, the OCL agreed in June 2017 to provide a report on the issue of the children’s school, but declined to do a more complete investigation and report on the issues surrounding custody. The father and mother had both filed motions to alter the initial order: the father wanted sole custody and a revision of the parenting schedule, whereas the mother wanted the children to transfer schools to a school in her area.

The OCL is part of the Ministry of the Attorney General that represents children under the age of 18 in cases involving custody, access, and child protection, as well as civil, estates and trusts cases. Both lawyers and social workers/clinicians work for the OCL, and the clinicians prepare reports for the court.

Parties’ Positions and Interviewing the Children

The OCL assigned a clinical investigator to the file. The mother believed that it was in the children’s best interest to be registered at the school in her area for several reasons:

  1. The son was not doing well at his current school. He had been subjected to bullying, both physical and verbal, over the years;
  2. The son appeared to have few, if any, friends at school and he got picked on regularly. A new school could represent a fresh start for him;
  3. The school in her area was bigger and had more resources;
  4. The school in her area was also only a 5-10 minute walk from her home, whereas their current school is about 1.5 hours away from where she currently resides; and
  5. Both daughter and son were close and the daughter (who is younger) relied on the son to look after her.

The father did not agree. He wanted the children to remain at the school that they have been attending for about 5 years as the daughter had many friends there. He also wanted them to live with him during the week because it would mean less commuting from their mother’s house to and from school.

While the father acknowledged that the son had issues at school, there had been progress made, and he believed the mother was exaggerating the bullying to strengthen her case to have the children moved not because of their well-being, but because she did not want to do the commute every day. He believed some of the issues were due to the son having ADHD, which he had not been diagnosed with.

The clinician interviewed the children on two separate occasions, once at the home of the mother and once at the home of the father.  Prior to these interviews being conducted privately, the clinician observed the children and parents interact with each other. The interactions with the mother and children were comfortable and casual, while the interactions between the children and father were playful and high energy.

The son, during his first interview, was open to talking with the clinician and was friendly. He stated he wanted to stay at his current school,. despite the bullying, and spending most of the time during recess and lunches alone.. He thought the new school’s portable classrooms would be too hot in the summer and cold in the winter and he enjoyed the commute.

During his second interview, the son repeated his desire to stay at his current school. He told tell the clinician who the bully was, and stated that there had been meetings with the child who bullied him, that child’s parents, his own parents, and the principal. He said that if he and this child were in the same class, he would like to change schools.

The daughter had no complaints about her school, but her main concern was staying with her brother. She said that she and her brother look out for each other. She liked school and she had many friends at the school she is currently attending. And while she wanted to stay at this school, she preferred being in the same school as her brother rather than staying at the school they had both been attending.

The Decision

When determining what is in the best interest of the child, the Court is required to consider all the factors under section 24(2) of the Children’s Law Reform Act (“CLRA”).

In conducting its analysis in this case, the Court was of the opinion, based on all the evidence, that it was best if the children were registered at the school in the area where the mother resided. The bullying, the commute, and the proximity to the mother’s home were the main factors in this decision. The father was given full access to all information regarding the children’s schooling and was entitled to meet with the teachers and principal. The Court also ordered that the son should be assessed in order to determine if he had ADHD.

What Have We Learned?

One of the factors a court must consider under section 24(2) of the CLRA is:

(b)          the child’s views and preferences, if they can reasonably be ascertained.

This is only one of many factors, and it is not a sole deciding factor. However, it plays a role in the court’s ultimate decision, along with the age of the children giving their views and preferences.. The Court cannot use only one of these factors to determine what is best of the children. In this case, it was best for the children to have a fresh start, and to stay together, despite their desire to stay at their old school. The Court took the children’s views and preferences into consideration, and still found that the evidence weighed in favour of changing schools.

 Child custody, access, and other decisions about children can become very difficult once parents separate. The experienced and compassionate team of family lawyers at Borden Family Law is ready to help clients deal with the stresses of custody and access. Our focused area of practice means our clients benefit from our in-depth knowledge of the ins and outs of the family law system, the technical legal rules governing family law matters, and trial strategy. We serve clients in Oshawa, Brooklin, and the surrounding areas. To see how we can help you resolve your issue, call us at 905.576.6090 or contact us below. Ask us about flat fees.