Every August, a familiar dispute reaches family lawyers’ inboxes. One parent has moved, or plans to, and has registered the child at a new school; the other parent wants the child to stay where they are. Sometimes the disagreement is about a programme, a language of instruction, a faith-based school or a private school. Whatever its form, it has a hard deadline, because the first day of classes does not move, and that deadline is what turns a parenting disagreement into an urgent court application.
Guardianship and who decides
Under Alberta’s Family Law Act, decisions about a child belong to the child’s guardians, and in most families both parents are guardians. Each guardian is entitled to be informed of, consulted about and to make all significant decisions affecting the child, and the powers of guardianship expressly include decisions about the child’s education, including the nature, extent and place of education. Unless a parenting order says otherwise, neither guardian outranks the other on the question of school, which is why one parent registering a child unilaterally does not settle anything. For married parents, the same question arises under the Divorce Act as an allocation of decision-making responsibility, which the Court can give to one parent, to both, or to one parent for particular categories of decisions such as education.
What makes it urgent
Where guardians disagree, either may apply to the Court for a parenting order that decides the question. In the ordinary course, that application goes through the Court of King’s Bench’s regular family process, with its mandatory intake conference and the requirements that come before it. The Court treats a matter of parenting time, contact or communication with a child that cannot reasonably be delayed as urgent, and a school question with registration or first-day deadlines is regularly brought on that footing, through the Court’s Urgent Application Process, with a request to a duty justice, a draft application and a supporting affidavit. The other parent is entitled to notice and to respond, usually within days.
What evidence matters
The Court decides on the child’s best interests and nothing else. In a schooling dispute, that means evidence about the child’s current school, friends and community; the programs and supports available at each proposed school; the distance and travel from each parent’s home to each school under the existing parenting schedule; the child’s own views where the child is old enough for those views to carry weight; and the effect on the child of a move, especially a move partway through a school year. Documents from the schools themselves, registration confirmations, programme descriptions and the parenting schedule are worth more than either parent’s opinion of the other.
Mediation and arbitration
Because the deadline is the problem, many schooling disputes are resolved by the parents agreeing to have a mediator or arbitrator decide the school question quickly, with the child’s existing school preserved in the meantime and the court application adjourned or withdrawn. That route can be faster than a contested hearing and keeps the decision in the hands of someone with time to consider it, and it is one the firm proposes where the other parent will engage.
Keystone Legal represents guardians in school enrolment and other urgent decision-making disputes for matters proceeding through the Calgary Courts Centre. If a school decision has a deadline, call (587) 328-3328.
This article is general information about Alberta law and is not legal advice. Every situation is different, and you should speak with a lawyer about yours.
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