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Child Custody

This is a case about whether the availability of virtual learning can help a parent who is arguing that their child’s school district be changed.


The father and mother in this case share two children who are both enrolled at a public school here in Ontario. The court noted that there is no existing agreement or court Order governing who has decision making authority over the children’s affairs.

The parties sold their matrimonial home and each moved to a different home, with the children living with the mother. Following the move, the mother asked that the children attend school in a new school district, whereas the father asked that the children remain enrolled at their current school.

It is to be noted that both parents preferred in-person attendance at their respective schools, with the mother arguing that if the children were to attend their current school, then they should do so virtually. In other words, she proposes that the children attend school virtually if a request for change in school is denied.


The court began its analysis by acknowledging that there are many cases at this time that set out the tests for withdrawing a child from in-person attendance at school due to the pandemic. As well, the court referenced a recent case, Nolet v Nolet, 2020 CarswellOnt 12509, where the court takes the view that in-person attendance is presumptively in the best interest of a child, absent compelling evidence to the contrary.

The court made note of the fact that the children do not have any existing health concerns that would compel them to be withdrawn from in-person learning. The court further stated that the “availability of on-line learning is not a means by which a parent will be permitted to unilaterally change a child’s school district. On these grounds, the court found that there is no basis for the position that the children should be withdrawn from in-person learning.

The issue of whether the children should remain in their current school or to transfer remained. The court stated the following regarding change in schools: “A request for a change in school registration before parental decision making and parenting schedules are decided is a powerful change in the status quo that can affect far more than where the child attends school.”

The court stated that while the parent with a clear decision-making authority will be given deference with regards to the children’s affairs, including schooling, in the absence of a clear decision making or parenting agreement, as is the case in this matter, it is premature to consider a change in schools. The court reiterated the importance of the children’s schooling with regards to the development of a parenting regime – that the parent closer to the children’s school has real advantage in becoming the primary caregiver while the other parent fades in the background. As such, the court characterized these claims of change in schools as “bootstrap custody claims”.

The court ordered that the children remain at their current school and attend in-person.

This case reminds us, as Justice Pazaratz in Cosentino v. Cosentino, 2016 ONSC 562 stated, that "parents should think twice about trying to move a child to another city in the middle of a custody dispute" because Courts may not permit the move.

For more information, please call us at Feldstein Family Law Group P.C. or contact our firm online.