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The importance of timely family law custody appeals

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Timing is everything with family law custody

Perron v Perron is a family law custody case decided by the Ontario Court of Appeal where the issue of language education featured prominently. It contains interesting commentary not only on the status of French in Canada and education as an aspect of family law custody, but also on the importance of timely appeals and the impact of status quo.

The parties were married in 1996 and have three children. The father was a native French speaker who taught at a homogenous French language school. The mother was a native English speaker with some knowledge of French, whose mother was francophone.

When the parties separated in 2006, the three children were enrolled in French Immersion, a program to which both parents had agreed. The father changed his mind after separation and wanted the children enrolled in a homogenous French language program. The mother objected, stating her desire that the children receive education in both English and French, as was the case in French Immersion.

At trial, the father asked for sole custody, or in the alternative, joint custody of the children and the mother sought sole custody. As an incident of custody, the father also asked for an order stipulating that the children be enrolled in a homogenous French language program. After a ten day bilingual trial, the Superior Court judge awarded custody to the mother with access rights to the father. The trial judge’s reasons were silent on the issue of the children’s language education.

At trial, the father asked for sole custody, or in the alternative, joint custody of the children and the mother sought sole custody. As an incident of custody, the father also asked for an order stipulating that the children be enrolled in a homogenous French language program. After a ten day bilingual trial, the Superior Court judge awarded custody to the mother with access rights to the father. The trial judge’s reasons were silent on the issue of the children’s language education.

The Court of Appeal decision unequivocally recognizes the essential role of the French language in Canada and extolled the virtues of homogenous French language education. Interestingly, and despite the Court of Appeal’s confirmation that the trial judge erred in failing to consider ordering homogeneous French language schooling as a condition of custody order, the court had ruled against the father. Acknowledging that courts regularly include conditions such as those requested by the father, the court still declined to move the children to a homogenous French language school. Considering that more than two years had elapsed between the trial and the appeal, the court found it would be contrary to the children’s best interests to mandate a change in school. The children had spent all of their educational careers to date in an Immersion program. They were in Grades 5, 3 and 2 respectively at the time of the appeal and had never known anything but French Immersion. The court felt this fact was fatal to the father’s appeal. Despite the advantages the children would have enjoyed through homogenous French language instruction, a change in schools would not be made as it was not in their best interests.

PHOTOGRAPHY BY CHRISTOPHER MICHEL

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