Decision-making with an abusive ex-partner is never an easy or straightforward process. Even when the ex-partner has had little involvement in making decisions or planning for the children, many of them have plenty of ideas about what they think the mother should or should not do. For women with school-age children, decisions about education are often highly contentious.
Now that the province has announced that there will be a return to the classroom this fall, we know there will be challenges for many women with ex-partners who use this issue as an excuse to attempt to intimidate, harass and control them.
The decision about whether or not to send kids back into the classroom is a difficult one for everyone, and there are different factors for every family to consider. Most parents are exhausted from the strain of supervising their children’s school work in the last school year, and parents with jobs have had an especially challenging time. Kids are desperate to see their friends. Parents will be weighing the importance of children being able to be back with their friends and learning in-person against the increased possibility of being exposed to the virus.
Below are some tips and suggestions to assist you as you support women whose ex-partners are not cooperating in a positive decision-making process.
Please note: Nothing in this resource is either legal or health advice. Also, please remember that each school board in the province is responsible for developing its own plan and protocols, so it is important to ensure that women have accurate and up-to-date information about what is happening where their kids go to school.
- Any decisions made by the courts related to whether or not children should return to in-classroom schooling will rely heavily on the specific facts of the family and the child.
- Courts will apply the best interests of the child test in making schooling-related decisions.
- Where an existing order, agreement or status quo arrangement of some length is in place, the court will look there, first, for a solution. We have seen this approach repeatedly in urgent cases the court dealt with early in the pandemic.
- There will be a high expectation by the courts that parents find a way to work this out on their own, which places women with abusive ex-partners in a difficult situation.
- Courts are going to focus on the specific child and their needs and the risks of exposure to COVID, including its impact on others in the family, which may prove to be a difficult balancing act in some families.
- Get as much up-to-date information as you can about how the school boards in your area are handling schooling for the fall, including information about how parents are expected to inform the board about what they want their children to do, so you can share this with your clients.
- Any woman whose ex-partner has signaled he will oppose her approach to schooling for the children or who she has reason to think will do so, should seek legal advice immediately. If she does not have a lawyer, you can connect her with the Luke’s Place Virtual Legal Clinic.
- Any woman who has a court order or agreement granting her decision-making responsibility should provide a copy of that document to her children’s school(s), keeping a copy for herself as well. She should also have a conversation with the appropriate school board official about her decision-making authority in case her ex-partner tries to present himself as the decision-maker.
- If there is no order with respect to decision-making, the woman should collect any evidence indicating that, historically, she has been the primary decision-maker about child-related matters. For example, is she the one who has typically attended parent-teacher interviews, taken kids to and from school, attended school events, gone on field trips? Is she the one the school calls if a child becomes ill or has other problems? Is she the parent who assists with homework, arranges for any special testing or supports the children may need, etc.? This will be very helpful information for her lawyer if her ex-partner opposes any schooling decisions the woman makes.
- Women should not engage in what the courts have been calling “self help” strategies. For example, if a woman has concerns that her ex-partner will not return the children from a visit in order to either prevent them from going to school or to require that they go, she should not withhold access, but should speak to her lawyer about bringing a pre-emptive motion to ensure they will be returned on time.
- Women should be prepared to provide the court with evidence about why it is not safe for them to engage in negotiations directly with their ex-partner .
Some factors the court will likely consider
- Status quo
- Best interests of the children
- Whether there are any immuno-compromised people living in either parent’s home or the family bubble
- The ages of the children and what in-person schooling protocols with be in place (e.g. wearing of masks, class size, etc.)
- Whether either parent is able and willing to home school the children
- The specific needs of the children (e.g., an extroverted child who has been struggling with the lack of social contact, a child who has thrived on distance learning, educational or health needs of the children)
- Transportation arrangements to and from school, including whether the child has to use public transportation
- Impact of in-person schooling on either parent’s employment