Perron v. Perron, 2012 ONCA 811

• Judge: Blair, Rouleau and Hoy, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 27, 2012
• Jurisdiction: Ontario
• Citations: 2012 ONCA 811;(2012), 301 O.A.C. 313 (CA)

Perron v. Perron (2012), 301 O.A.C. 313 (CA)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2012] O.A.C. TBEd. DE.013

Monique Denise Perron (now Waring) (applicant/respondent) v. Joseph Ferdinand Dave Perron (respondent/appellant)

(C51977; 2012 ONCA 811)

Indexed As: Perron v. Perron

Ontario Court of Appeal

Blair, Rouleau and Hoy, JJ.A.

November 23, 2012.

Summary:

The appellant father, whose first language was French, appealed an order granting custody of the parties' three children to the respondent mother. The mother, whose first language was English, had some knowledge of French and wanted the children to receive education in both French and English as in a French immersion program. The father maintained that the trial judge should have considered whether it was in the children's best interests to include homogeneous French-language education as a condition of granting custody to the mother. He asked that the mother be ordered to enrol the children in a homogeneous French-language school.

The Ontario Court of Appeal dismissed the appeal. The error here was the failure to consider ordering homogeneous French-language schooling as a condition of the custody order. However, given that more than two years had passed since the original order, it was not in the children's best interests to now order that they change schools.

Family Law - Topic 1863

Custody and access - Duties and rights of custodian - Education (incl. language of) - The Ontario Court of Appeal considered a parent's request for an order for French-language schooling, against the backdrop of the special status of the French language in both Canada and Ontario - See paragraphs 17 to 22.

Family Law - Topic 1863

Custody and access - Duties and rights of custodian - Education (incl. language of) - This appeal raised the question of what importance should be placed on the children's language of education in the context of determining custody - The Ontario Court of Appeal stated that one "aspect of the incidents of custody of the child", referred to in ss. 21(1) and 28(1) (b) of the Children's Law Reform Act, was the choice of the child's school - Further, s. 24(2) of the Act provided a non-exhaustive list of the factors to be considered when evaluating the best interests of the child - One of those factors was the ability and willingness of each person applying for custody of the child to provide the child with education (s. 24(2)(d)) - See paragraphs 23 and 24.

Family Law - Topic 1863

Custody and access - Duties and rights of custodian - Education (incl. language of) - At trial, the father asked for sole custody or, in the alternative, joint custody of the children - The mother asked for sole custody - The father, whose first language was French, also asked for an order stipulating the children's enrolment in a homogeneous French-language school - The trial judge granted sole custody to the mother - On appeal, the father maintained that the judge should have subsequently considered whether it would be in the children's best interests to include in the custody order a condition about the language of education - The Ontario Court of Appeal stated that "[t]he trial judge was not wrong to note the relative insignificance of the language issue as compared to the appellant's shortcomings when determining who would get custody of the children. At the same time, the statement that the language question is 'a distraction from what is in the best interests of the children' is incorrect. The language of the children's education is important to considering their best interests. The trial judge needed to understand this factor and give it the appropriate weight in his determination of the issues." - See paragraph 32.

Family Law - Topic 1863

Custody and access - Duties and rights of custodian - Education (incl. language of) - In response to the mother's application for custody, the father asked for an order requiring that the children enrol in a homogeneous French-language school - In the trial judge's opinion, the French immersion program proposed by the mother provided the children with sufficient exposure to the French language - On appeal, the father claimed that the trial judge should have made attending a homogeneous French-language school a condition of the custody order - The Ontario Court of Appeal held that it was an error not to consider the option of ordering French-language schooling as a condition of awarding sole custody to the mother, but declined to make the conditional order - The court was not well-placed to assess all the evidence relevant to the children's best interests - The court also emphasized that "it is quite exceptional to include in a custody order a condition concerning the choice of school" - More than two years had passed since the date of the original order - A change in schools at this stage would not be in their best interests - See paragraphs 28 to 55.

Family Law - Topic 1882

Custody and access - Considerations in awarding custody - Child's religious or educational training - [See all Family Law - Topic 1863 ].

Family Law - Topic 1916

Custody and access - Appeals - Standard of review - The appellant asked the court to order a change in the children's schools - The Ontario Court of Appeal set out the standard of review - "Custody orders made at trial are entitled to great deference on appeal ... Because of this restricted power of review, an appellate court may only intervene when there has been a material error, a serious misapprehension of the evidence, or an error in law. Even where such an error is found, the court must put the children's best interests first in fashioning a remedy. That is, for this court to order a change in schools on appeal, it would have to be convinced by the evidence that the order is in the children's best interests ... In the circumstances of this appeal, the appellant must first establish that there has been serious misapprehension of the evidence or an error in law. He must then demonstrate that there is convincing evidence that it would be in the best interests of the children to order a change of schools and that this is the appropriate remedy on appeal." - See paragraphs 25 to 27.

Cases Noticed:

Solski v. Quebec (Attorney General) (2005), 331 N.R. 256; 2005 SCC 14, refd to. [para. 18].

K.V.P. v. T.E., [2001] 2 S.C.R. 1014; 275 N.R. 52; 156 B.C.A.C. 161; 255 W.A.C. 161; 2001 SCC 60, refd to. [para. 25].

Ursic v. Ursic, [2006] O.A.C. Uned. 293; 32 R.F.L.(6th) 23 (C.A.), refd to. [para. 26].

Crites v. Crites, 2001 CanLII 32739 (Ont. C.J.), refd to. [para. 34].

Brown v. Brown, [2011] O.T.C. Uned. 2101; 2011 ONSC 2101, refd to. [para. 34].

Madden v. Richardson, 2004 ONCJ 10, refd to. [para. 34].

Chauvin v. Chauvin, [1987] O.J. No. 2280 (Dist. Ct.), refd to. [para. 34].

Gordon v. Goertz, [1996] 2 S.C.R. 27; 196 N.R. 321; 141 Sask.R. 241; 114 W.A.C. 241, refd to. [para. 39].

L.Y. v. B.J.F. and N.Y., [2004] N.S.R.(2d) Uned. 17; 2004 NSSF 22, refd to. [para. 40].

W.D. v. L.C., [2004] Sask.R. Uned. 4; 2004 SKQB 10 (Fam. Div.), refd to. [para. 40].

MacGyver v. Richards (1995), 84 O.A.C. 349; 22 O.R.(3d) 481 (C.A.), refd to. [para. 41].

Sawatzky v. Sherris (2002), 170 Man.R.(2d) 51; 285 W.A.C. 51 (C.A.), refd to. [para. 49].

Statutes Noticed:

Children's Law Reform Act, R.S.O. 1990, c. C-12, sect. 21(1) [para. 23]; sect. 24 [para. 24]; sect. 28(1) [para. 23].

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 16(6) [para. 34]; sect. 16(10) [para. 45].

Authors and Works Noticed:

Ontario, Ministry of Education, Aménagement Linguistique Policy for French-Language Education (2004), pp. 2 [para. 19]; 23, 42 [para. 20].

Counsel:

Mark Power, François Larocque and Jo-Anne Thibodeau, for the appellant;

Aaron Franks, Michael Zalev and Kathryn Junger, for the respondent.

This appeal was heard on March 27, 2012, before Blair, Rouleau and Hoy, JJ.A., of  the Ontario Court of Appeal. In reasons written by Rouleau, J.A., the Court delivered the following judgment, dated November 23, 2012.