Court File and Parties
Ontario Court of Justice
Date: July 31, 2025
Court File No.: Sault Ste. Marie 34/22-01
Between:
Anthony Erb Applicant
— And —
Jamie Ann Fabbro Respondent
Before: Justice Heather-Ann Mendes
Heard on: June 27, 2025
Reasons for Judgment released on: July 31, 2025
Counsel
N. Vaduva — counsel for the applicant
C. Tomlinson — counsel for the respondent
MENDES J.:
Overview
[1] The applicant father and the respondent mother are the parents of the child Wilder Moraine Fabbro-Erb born […], 2021.
[2] The child is turning four years old shortly. The parents agree that she should attend junior kindergarten in September, however they disagree as to which school she should attend.
[3] The father seeks that the child attend F.H. Clergue French Immersion Public School through the Algoma District School Board. The mother seeks that the child attend Grandview Public School which is an English school also through the Algoma District School Board.
Background
[4] By way of background, the parties were in a relationship from July 2019 through to January 2022. A final order was made on August 9, 2022, granting the parents joint decision-making responsibility for the child. In the event the parties were not able to agree on any decision relating to the child, the parties were to attend mediation prior to commencing a court application. The parties also shared time with the child on a 2-2-3 schedule.
[5] A motion to change was brought by the respondent mother in June 2024 seeking to vary decision-making responsibility such that she have sole decision-making responsibility for the child, that she have primary residence of the child, and that the applicant father have parenting time with the child on alternate weekends.
[6] The applicant father has replied to the motion to change and seeks parenting-time with the child on a week-about basis and other incidental relief in relation to decision-making responsibility for and parenting time with the child.
Position of the Parties
[7] The father submits that it is in the best interest of the child that she attend a French Immersion school given the importance and advantage of being bilingual in Canada and given his heritage of being half French-German.
[8] The father further submits that there are many benefits to being bilingual and is in agreement that if the child does not do well with adapting to the French Immersion program, he is prepared to reconsider enrolling the child in English school.
[9] The mother argues that the child should attend Grandview P.S. as this is where the children in her daycare are attending school and she has arrangements made for busing Monday to Friday from the daycare residence. The mother also submits that the child has medical issues with her bowels and constipation and that Grandview P.S. can support these issues as the junior kindergarten class has a bathroom in the classroom and multiple supports such as education assistants.
[10] Lastly the mother submits that while she is not disputing the father's heritage, she does not believe that the paternal family will be able to support the child with her French language education and she herself does not have familiarity with the French language.
[11] The parties agreed at the motion hearing that both schools are part of the Algoma District School Board. As such, the supports and resources for the child, in the classroom are the same at both F.H. Clergue French Immersion P.S. and Grandview P.S.
[12] The parties also both agreed that the child would qualify for busing before and after school during her junior kindergarten and senior kindergarten school years from a delegated residence, such as the child's current private daycare. As such, the child would not need to switch daycares nor leave her peers with whom she has attended daycare over the years.
Legal Framework
[13] When parents who have joint decision-making responsibility, as is the case in the matter before the court, cannot agree upon which school their child should attend, it becomes a matter of judicial discretion as an incident of decision-making responsibility as per section 28 of the Children's Law Reform Act.
[14] In determining which school is appropriate for the child to attend, that being French Immersion or English school, the governing principle is the best interests of the child as set out in section 24 of the Children's Law Reform Act.
[15] Justice Audet in the case Thomas v. Osika, 2018 ONSC 2712 summarized some of the principles to be considered by the court regarding choice of school as follows:
[37] …. a number of general principles have emerged from the caselaw to assist the decision-maker in making the decision in the child's best interests. They can be summarized as follows:
a) Sub-section 28(1)(b) of the Children's Law Reform Act specifically empowers the court to determine any matter incidental to custody rights. The issue of a child's enrollment in a school program must be considered as being incidental to or ancillary to the rights of custody (Deschenes v. Medwayosh, 2016 ONCJ 567);
b) It is implicit that a parent's plan for the child's education, and his or her capacity and commitment to carry out the plan are important elements affecting a child's best interests. In developing a child's educational plan, the unique needs, circumstances, aptitudes and attributes of the child, must be taken into account (Bandas v. Demirdache, 2013 ONCJ 679);
c) When considering school placement, one factor to be considered is the ability of the parent to assist the child with homework and the degree to which the parent can participate in the child's educational program (Deschenes v. Medwayosh, 2016 ONCJ 567);
d) The emphasis must be placed on the interests of the child, and not on the interests or rights of the parents (Gordon v. Goertz);
e) The importance of a school placement or educational program will promote and maintain a child's cultural and linguistic heritage (Perron v. Perron, 2012 ONCA 811);
f) Factors which may be taken into account by the court in determining the best interests of the child include assessing any impact on the stability of the child. This may include examining whether there is any prospect of one of the parties moving in the near future; where the child was born and raised; whether a move will mean new child care providers or other unsettling features (Askalan v. Taleb, 2012 ONSC 4746);
g) The court will also look to any decisions that were made by the parents prior to the separation or at the time of separation with respect to schooling (Askalan v. Taleb, 2012 ONSC 4746);
h) Any problems with the proposed schools will be considered (Askalan v. Taleb, 2012 ONSC 4746);
i) A decision as to the choice of school should be made on its own merits and based, in part, on the resources that each school offered in relation to a child's needs, rather than on their proximity to the residence of one parent or the other, or the convenience that his attendance at the nearest school would entail (Wilson v. Wilson, 2015 ONSC 479);
j) Third party ranking systems, such as the Fraser Institute's, should not factor into a Court's decision. These systems of ranking do not take into consideration the best interest of the particular child in a family law context (Wilson v. Wilson, 2015 ONSC 479);
k) If an aspect of a child's life, such as school placement, is to be disrupted by an order of the court, there must be good reason for the court to do so. Thus, before a court will order a child to transfer schools, there must be convincing evidence that a change of schools is in the child's best interests (Perron v. Perron, 2012 ONCA 811);
l) Custodial parents should be entrusted with making the decision as to which school children should attend. When a sole custodial parent has always acted in the best interest of a child, there should be no reason to doubt that this parent will act in the best interest of the child when deciding on a school (Adams v. Adams, 2016 ONCJ 431);
m) Those cases are very fact-driven. The courts are not pronouncing on what is best for all children in a general sense but rather deciding what is in the best interests of this child before the court (Deschenes v. Medwayosh, 2016 ONCJ 567).
Analysis
[16] In the case before me, both parties have agreed to the following in relation to the schooling issue:
- The child is to be enrolled and attend junior kindergarten in September 2025;
- She is to be registered at a school through the public school board, that being the Algoma District School Board;
- The resources and supports in the classroom are the same in both schools;
- Both schools are in the same school district zone;
- The child is entitled to busing and she will not have to change daycare providers.
As such, the only issue for the court to determine is whether or not the child should be enrolled in French Immersion or English school.
[17] Being bilingual is a very valuable asset, especially later in life when making career choices and applying for jobs. Having the benefit of a second language can open other doors for students in their education and later on in the workforce.
[18] Attending a French Immersion school does not mean that the child is going to be taught solely in the French language, it is only a component of the day that will be taught in French. Further, there is no requirement that a child have any prior French language skills before being enrolled or attending French Immersion school.
[19] As with any child attending school for the first time, the parents are encouraged to keep in communication with the school and teacher so that the child's adjustment, progress and skill development can be monitored.
[20] Given that the proposal is not for a French school, but rather a French Immersion school, there is no hindrance to either parent communicating with the school despite not having French as a second language and communications with the school can be in English.
[21] Further, as not all children enrolled in French Immersion have parents or guardians that have French as a second language, the parents can inquire from the school, as well as the school board, about what resources are available to assist the child with her French education and to support the parents at home.
[22] The father has also agreed that in the event the child does not do well with the French Immersion program, he is agreeable to her transferring to an English school. He also suggests that it is easier for the child to transfer from a French Immersion program to an English program and not vice versa, given that the child's primary language is English. I agree with this submission.
[23] Given the young age of the child and that it will be her first time attending school, and that it is easier for her to be removed from a French Immersion program if she is not doing well as opposed to enrolling her at a later stage.
[24] As such, I do not see any disadvantage to her being enrolled in a French Immersion school for her junior kindergarten year, and find that it is in her best interests to do so given the numerous benefits of being able to communicate and speak a second language as well as the advantages later in life if she is adept to same.
[25] The father confirmed that he is prepared to hire a tutor to support the child with her French language education and that his family is also prepared to assist the child and encourage her development of the French language at home.
[26] While the mother suggests this has yet to happen over the past four years, I am hopeful that both parents will encourage the child's development and knowledge of the French language by engaging in activities with the child to support her learning the language such as listening to French audio books, watching French television programs or movies and encouraging the child to utilize the French she is learning at school day to day and in community or social settings.
Decision
[27] As such, for the reasons above, an order shall issue as follows:
The child Wilder Moraine Fabbro-Erb born […], 2021 shall be enrolled in F.H. Clergue French Immersion Public School.
Costs are reserved and if counsel are not able to resolve the issue, written submissions shall be received by the court limited to three pages, exclusive of exhibits.
a. The applicant, Mr. Erb's costs submissions shall be received by August 29, 2025.
b. The respondent Ms. Fabbro's costs submissions shall be received by September 12, 2025.
Motion to change adjourned to the settlement conference before Mendes J. via Zoom/hybrid August 14, 2025, at 10:30 a.m. courtroom 9.
Released: July 31, 2025
Justice H. Mendes Ontario Court of Justice