This case involves an appeal by a father of an order granting the mother custody of the parties’ children.

On appeal, the father claimed that the trial judge should have considered whether it was in the best interests of the children to order homogenous French language education for the children as a condition of awarding custody to the mother.

The father further asked the court to order the mother to enroll the children in a homogenous French language school.

Background

The parties were married in 1996 and had three children. The father was a native French speaker who worked as a teacher in a homogenous French language school. The mother was a native English speaker with some knowledge of French and francophone roots.

The parties separated in 2006. At the time of separation, the children were all enrolled in a French Immersion program. While the father was initially agreeable to this educational program, he subsequently changed his mind and wanted the children to become enrolled in a homogenous French language program. The mother objected on the basis that the children should receive education in both English and French as they did under the French Immersion program.

Lower Court Holding

At trial, the father asked for sole custody, or in the alternative, joint custody of the children. He also asked the court to make an order stipulating that the children must be enrolled in a homogenous French language program.

After evaluating the parties’ parenting skills and the children’s best interests, the Superior Court granted custody to the mother with access rights to the father.

The trial judge’s reasons did not address the issue of the children’s education.

The father appealed.

Analysis 

At the outset of its analysis, the Court of Appeal recognized the role of the French language in Canada and extolled the virtues of homogenous French language education.

The court then established the standard of review for the trial judge’s decision, stating that custody orders made at trial are entitled to considerable deference and can only be interfered with where there has been an error in evidence or law. Even where such an error is found, the court emphasized that the best interests of the child must prevail in an appeal court’s analysis.

Having established it to be a common practice among courts to include conditions such as that requested by the father in custody orders, the court found that the trial judge erred in not even considering the option of ordering French language schooling as a condition of awarding sole custody to the mother.

However, in considering whether or not the Court of Appeal should itself make the order for French language schooling, the court found that as more than two years had passed since the date of the order, the overall situation and needs of the children had changed. In particular, the children had spent three additional years at their elementary school.

As such, the court ordered that despite the advantages the children would have enjoyed through homogenous French language instruction, a change in schools would not be in their best interests.

Clearly, this case is a cautionary tale to parties who do not immediately appeal decisions with which they are less than satisfied. As the case suggests, it is important to expediently move forward with an appeal to avoid the development of a status quo that may be difficult to displace.