Sole custody and school choice
Did you know that sole custody of a child does not allow the custodial parent to decide which school the children will attend?
First, a few principles.
Both the Civil Code of Québec (for de facto spouses and married spouses) and the Divorce Act (for married spouses) stipulate that the parents of children jointly exercise parental authority and make important decisions concerning their children’s well-being.
Since school choice is not simply a day-to-day decision, it must be made by both parents.
Failing agreement between the parents, it is up to the Court to decide (a.
604 C.c.Q. and 16.1 (4) Divorce Act).
On the other hand, in the event of a parent’s unreasonable refusal to cooperate (or abandonment by that parent, and in certain cases involving conjugal violence), a parent may apply to the Tribunal for authorization to make certain decisions alone.
This is known as an application to withdraw an attribute of parental authority or the exercise of an attribute of parental authority (a. 606 C.c.Q. and in fine 16.3 Divorce Act).
Obviously, the theory has its limits when one parent has sole custody, since it will certainly be in the child’s best interests to attend a school close to the custodial parent’s place of residence.
Where the issue may become more thorny is if either parent requests that the children attend a private school rather than a public one.
Case law teaches us that there is no presumption that the quality of education provided by a private institution is superior to that of the public system.
It will therefore be up to the parent who wishes his or her children to attend a private school to demonstrate that these costs are related to the children’s special needs, and that such attendance is necessary to meet those needs.
If you feel that school registration could become an issue for your children, we recommend that you consult a lawyer as soon as possible to find out your rights and your chances of success in the event of legal action.
A consultation two months before registration (generally January-February) is generally advisable to ensure that the case can be heard before the start of the school year.
