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As you may be aware, registration for Kindergarten begins at the end of January. For some of us, especially those who co-parent a child, this can lead to lots of questions, which you may not have previously discussed or agreed on. Will your child go to private school? If not, then will your child be enrolled in the Catholic school board or the public? Will your child be educated in English, French or start an early immersion program? What happens if parents do not agree on these decisions?

In Ontario, decisions regarding a child's education are considered 'an incident of custody'. What this means is that the custodial parent has the right to make these decisions. In situations where one parent has sole custody, that parent has the right to make these decisions and the non-custodial parent would only be able to challenge that decision based on the best interests of the child, which is a fairly flexible and subjective standard. Ideally, the parent with sole custody would consult with the co-parent given the significance of the decision, hopefully avoiding future conflict.

In joint custody situations, the parents are expected to discuss these issues and come to an agreement on what is best for their child. When two people with joint custody cannot agree on an issue such as education, it may be necessary to review the terms of your Separation Agreement or Court Order.

If you and your co-parent have a Separation Agreement, it is possible that one parent may have final decision making authority when neither of you can agree. More commonly, there will be a dispute resolution clause that requires written notice of the dispute and directs the parties to mediate prior to commencing a court application.

If you and your child’s co-parent are unable to reach an agreement, you may wish to consider further negotiation with lawyers or attending mediation. Other options could include arbitration of the issue. Finally, you may wish to apply to the Court. Depending on your circumstances brining the issue of Kindergarten education to the Court is a bit like a game of roulette. Particularly with young children, it can be very difficult to determine their best interests as there is little objective evidence available. Resolving these issues with your co-parent is almost always a challenging endeavour and compromises will likely have to be made on both sides. It’s better to make those compromises earlier rather than later, once the costs and emotions have escalated.


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This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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