IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         Ms. C and Mr. G are the parents of one child, P, now age 4.  It is common ground that each is a guardian of P.  For the first three years of her life, P lived with Ms. C, although Mr. G had significant parenting time with her.  Since May, 2020, Ms. C and Mr. G have shared parenting time on a week on/week off schedule.  P will attend kindergarten, beginning in September of this year, and each parent proposes that she attend a different kindergarten.  They ask that I decide which school she should attend.

[2]         In making this decision, P’s best interest is the only relevant factor:  Family Law Act SBC 2011, c 25 (“the FLA”), section 37.

[3]         Counsel referred me to NRG v GRG 2017 BCCA 407; [2017] BCJ No. 2350; 5 BCLR (6^th) 319 in support of the proposition that I should not decide which school P should attend, but rather that I should decide which parent should choose the school.  Were the matter free from authority, I would not accept that proposition.  At paragraph 40 of NRG, the Court referred to sections 45 and 49 of the FLA, and noted that those sections expressly empower the courts to make decisions of the kind in question here.  However, the Court also said that such decisions should generally be made by guardians, whose role should not be usurped by the courts.  Absent further authority, I would take this to mean that the powers conferred by sections 45 and 49 may be exercised to make decisions of this kind, but that such orders should rarely be made.

[4]         However, the matter is not free from authority.  In Dunn v Dunn 2018 BCSC 2502; [2018] BCJ No. 7206 at paragraphs 14 – 16, it was held that the courts have no power to decide questions of this kind, and that the court’s only power is to decide which guardian is to choose the school.  I am bound to apply the law as stated in Dunn.

[5]         Given that I am not empowered to choose the school, it seems to me that the relative merits of the two schools is not a factor which I should consider.  If I were to confer the decision-making authority on one parent because I prefer his or her choice of school, I would be doing indirectly what Dunn forbids me to do directly.

[6]         In an extreme case, if the school preferred by one parent would be clearly inappropriate or clearly contrary to child’s interest, that might indicate that the parent who prefers that school is not a good decision-maker.

[7]         The question is not which school would be better, but which parent is more likely to make a good decision in P’s interest.

[8]         Mr. G and Ms. C both seem to be mature, responsible people who care deeply about P.  It is not suggested that either of them lacks the emotional or intellectual capacity to make good decisions, nor that either is actuated by any improper or selfish motives.  This is not an extreme case, in which the school preferred by one parent is manifestly inappropriate.

[9]         The only basis upon which I could conclude that one parent will make a better decision than the other is that P has been in the care of Ms. C for significantly more time than she has in the care of Mr. G.  It is reasonable to think that Ms. C has a greater understanding of P’s needs than does Mr. G.

[10]      Ms. C will decide which school P should attend.