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In the case of Thomas v Osika, the parties involved had a shared parenting arrangement for their four-year-old child. Justice Audet ordered that the mother could make decisions regarding health and the father would have final decision-making authority on matters pertaining to education, but only after properly considering the mother’s input.

The two parties found themselves in court because their child was about to start school but they had yet to reach an agreement about which school the child should attend. The parties also could not agree on which extracurricular activities the child should participate in.

With respect to school, the father insisted that the child attend school in the catchment of the parties’ former residence, and in the catchment of the residence he relocated to after leaving the matrimonial home in November 2017.

The mother insisted that the child attend school in the catchment of the new home she purchased in December 2017 after leaving the matrimonial home. Both schools are within a seven minute drive from both parties’ new residences.

The father raised the additional benefit of choosing the school in his catchment for the child because it is in the jurisdiction of the parties’ former home where the child lived since birth. The father also noted that most of the child’s friends would be attending this school. The father asserted that it is in the best interest of the child to attend this school, and that the mother’s preferred school choice was based solely on her convenience, and nothing more.

Regarding extracurricular activities, the mother insisted that the child attend Polish School on Saturdays, but the father believed that these classes would impede on his parenting time with the child. The father wanted to register the child in hockey, but when asked during the motion if he would expect the mother to ensure the child’s attendance at hockey, his counsel responded that the mother should not be expected to attend during her parenting time.

Case Analysis

Justice Audet acknowledged that when parties disagree about the school a child should attend, it is a matter of judicial discretion. Justice Audet explored various case law to decide which school the child should attend. Most notably, Justice Audet emphasized that the interests of the child were more important than the interests or rights of the parents.

Justice Audet found that it is in the best interests of the child to attend school in the catchment that he grew up in, and where his childhood friends would be attending. The court ordered that the child should attend the preferred school of the father.

Speaking about the dispute over extracurricular activities, Justice Audet said the following:

“Parents who insist on a joint custodial and time-sharing parenting regime should be expected to agree on the activities that their child will be enrolled in and, once they have agreed, should be committed to the child's regular attendance at those activities. It would not only be sad for this child to attend only one half of his hockey practices and games and one half of his Polish classes, it would also impede on his ability to fully participate and progress in these activities, and would make him a less desirable member of those groups (as he would constantly be absent).”

In the end, Justice Audet ordered that if a parent chooses to register the child in two activities, both activities shall not exceed a total required attendance of 2.5 hours per week, unless the parties agree otherwise. As a result, the child shall attend Polish school every Saturday and the parties will have to adhere to their extracurricular activity schedule, unless there is a reasonable exception.

Interestingly, recent amendments have been made to the Divorce Act through Bill C-78. The new amendments will impact decision-making responsibility for divorced parents. Once these amendments are passed, parental responsibilities will be determined in specific areas (i.e. such as who shall choose the school for the child). This will hopefully reduce judicial intervention in similar situations down the road.

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