Children’s language of education should be taken into account when determining their best interests in the context of a Family Law action
In Perron v Perron, at issue was what importance should be given to the language children are schooled in when determining custody. In this case, the mother was English speaking and the father was French speaking. They initially agreed that their three children would attend a French immersion school (teaching in both English and French).
Subsequently, the father decided that he wanted the children to attend a homogenous French-language school (teaching only in French). At trial, the judge granted sole custody to the mother because it was found that the father had serious shortcomings as a parent. The trial judge decided that the language rights of the children could not outweigh these serious parental shortcomings when deciding the children’s best interests.
The Ontario Court of Appeal held that the trial judge erred in failing to consider ordering homogenous French-language schooling as a condition of the custody order. The Court of Appeal acknowledged that the issue of whether the children should attend a homogenous French-language school is a relevant consideration in determining the best interests of the child under s. 24(2)(d) of the Children’s Law Reform Act.
Even though it is established in MacGyver v Richards that the custodial parent should generally be left with the day-to-day decision making of the children’s life, the best interests of the children takes precedence. The Court of Appeal summarized a list of factors that were present at trial and that would have supported ordering homogenous French-language schooling as a condition to the custody order.
These factors are:
(1) The desire of the parents during their marriage to have their children educated at a homogenous French-language school;
(2) The higher level of mastery of French and higher level of bilingualism likely to result;
(3) The maintenance of cultural and linguistic links with the French-speaking parent and family, as well as with the English-speaking parent and family;
(4) The greater degree of choice of universities and employment opportunities that bilingualism affords; and
(5) The certainty that the children would have the right to have their future children educated in French, as provided by s. 23 of the Charter.
Ultimately, the Court of Appeal dismissed the appeal because it had been two years since the custody order and it would not be in the children’s best interests to now order that they change schools. Having said that, it is an interesting “new factor” to pay attention to for couples considering, or in the midst of a separation.
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