Family Law Blog

What Does The Court Decision On the Repeal Of The Sexual Education Curriculum Mean?

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On February 28, 2019, the Ontario Divisional Court released its decision on the constitutional challenge to the provinces repeal of the 2015 Sexual Education Curriculum brought by the English Public Teachers Union and the Canadian Civil Liberties Association and others. While the Court dismissed the challenge, the decision does not prohibit teachers from teaching the 2015 Sexual Education Curriculum.  To the contrary, to some extent, it requires teachers to teach at least some aspects of the 2015 curriculum or lessons that are very similar to it  Teachers at publicly funded schools will want to consult with their Board and their union about their rights and obligations.  The decision does not apply to private school teachers as they do not have to follow the Ontario Curriculum at all.  This page will provide an general overview and explanation of the Divisional Court’s decision about what sexual education curriculum is in place in public schools.

 

The challenge to the Ontario Government’s repeal of the 2015 Sexual Education Curriculum, resulting in the return to the curriculum as it existed in 2010, can be summarized as follows:

  1. The repeal of the curriculum violated teacher’s freedom of expression because the government has threatened to punish teachers who taught the 2015 curriculum.
  2. A prohibition on teaching topics such as “consent” and alternative lifestyles threatened the lives and the security of the persons of students, particularly students who could be harmed by a lack of understanding of the meaning of consent amongst students and a lack of information about alternative lifestyles that could result in harm to student who either have a LGBTQ+ lifestyles or are from families that do.
  3. A prohibition on teaching alternative lifestyles and focusing on heterosexual relationships offends the equality rights guaranteed in the Canadian Charter of Rights and Freedoms.
  4. The repeal of the curriculum particularly threatens the security of the person and equality rights indigenous persons.  As a result of the residential schools system and the “Sixties Scoop”, it is more important for indigenous children to learn about consent, bodily integrity and sexual assault at a young age to address the significantly higher rates of sexual violence faced by indigenous children. 
  5. The repeal of the sexual education curriculum unreasonably discriminated on elementary students on the basis of age and deprived them of information that is important to their wellbeing due to their age without a sound basis for doing so. 

 

The Court did not find any violations the Canadian Charter of Rights and Freedoms, nor of the Ontario Human Rights Code. But it recognized the validity of the above concerns.  However, it said that the Ontario Government was not preventing teachers from covering the “new” topics in their classrooms.  Moreover, the Ontario Human Rights Code may actually require teachers to cover these topics to avoid discrimination against disadvantaged groups who could be harmed by a lack of information on these topics.

 

Importantly, despite some initial “ill-considered pubic statements”, the Ministry of Education is not prohibiting teachers from teaching topics in the 2015 Sexual Education Curriculum.  The 2010 Sexual Education Curriculum does not prohibit teachers from covering the additional topics in the 2015 curriculum.  Further, there will be no repercussions for teachers who do teach the new topics. To the contrary, teachers may be required to teach topics found in the 2015 curriculum.  

 

Despite the repeal of the 2015 sexual education curriculum, the law may require teachers to teach elementary students about consent, body parts, LGTBQ+ lifestyles, the risks of technology, sexual violence and sexually transmitted infections. This is because:

  1. Nothing in the 2010 Curriculum prohibits teachers from covering these topics.
  2. The Ministry’s Policy and Procedure Memorandum (a directive from the Ministry of Education to publicly funded school boards) number 119 requires boards to have an equity and inclusive education policy that is comprehensive and covers the grounds of discrimination in the Ontario Human Rights Code.
  3. PPMs 128. 144, and 145 require school to ensure a “safe positive and inclusive school climate”.  
  4. The 2010 Curriculum requires that sexual education be provided in an accepting and inclusive manner that reflects the diversity of the student population and ensures that all students feels safe, comfortable and accepted. 
  5. The Ministry of Education’s position is that how teacher’s meet the above expectations is a matter of the teacher’s professional judgment and discretion.
  6. The 2010 Curriculum allows teachers to “amplify” instruction to include current examples.
  7. Section 169.1 of the Education Act and the section 1 of the Ontario Human Rights Code require teachers and school environments to be inclusive, tolerant and respect diversity. 
  8. The Ontario Human Rights Code requires to protect gender identity and gender diversity.

 

The Court did hold that a government, as part of its policy decisions, is permitted to modify the Provincial Curriculum and the Canadian Charter of Rights and Freedoms does not require a particular curriculum. Since the concerns raised by the challenges have otherwise been addressed by Ontario Law to ensure that students are protected from harm, there is no basis to set aside the Government’s decision to repeal the sexual education curriculum. 

 

Despite all the rhetoric from the Provincial Government about repealing the 2015 sexual education curriculum, Ontario Law and Ontario Ministry of Education Policy, actually require teachers to continue to cover the “new topics” in the 2015 curriculum.   The curriculum just does not provide as much guidance on how to cover those topics, so teachers may actually have to refer to the 2015 curriculum, which teachers are allowed to do. 

 

The repeal of the 2015 sexual education curriculum was not unconstitutional because Ontario Law still requires teachers to cover the “repealed topics” with elementary school students.  The Ministry of Education is just not explicitly telling them how to do so.


More information about Ontario Education Law is available on this page.For additional information about education law, or to get legal help or protection for your child, contact Education Lawyer, John Schuman, call 416-446-4036 or use the contact form below.  You can also comment on this page, or share it on your social network using the buttons below.  Sharing is one of the best ways to make sure people who need this information get it.



Can My Ex Refuse To Change the Schedule To Stop Our Child From Going to Disney World?


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Disney World are a frequent source of conflict after separation, and the subject of many Family Court motions, perhaps because the non-travelling parent is jealous or fears that the trip could give the travelling parent an advantage in having a relationship with a child.  Judges do not care about those concerns, judge base these parenting decisions only on whether the trip is in the child's best interest.  Judges will generally allow small manipulations of the parenting schedule to allow a child to go on a vacation.

 

So, the issue is: what do you do when a parent unreasonable refuses a travel request?  Read this page for your options and the steps you may have to follow to go on the trip.  Unfortunately, if the other parent cannot be persuaded, and continues to unreasonably refuse to allow a parent and child to travel, it may be necessary to go to Family Court.  On the upside, if the judge is upset enough, the resulting Court Order may dispense with the necessity of getting travel consent in the future if the other parent is just being unreasonable.

Guide to the Basics of Ontario Family Law - 4th edition cover


You can get a lot more information about Ontario Family Law issues, including a comprehensive explanation of child custody, moving with the children, child support, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback

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However, if the trip is coming up soon, you may want to get in to see a lawyer pretty quickly to get advice specific to your situation and to get things in motion so the trip can go ahead.  Certified Specialist in Family Law, John Schuman, is known for his concern for children in separation and divorce and has won many child custody cases.  To contact John, call 416-446-4036, email him , or fill out the form below. You can use the same form to comment on this page.


Many thousands of people get family law assistance from this website everyday.  If you have found this page useful, please share it on your social network using the Facebook, Twitter, LinkedIn and Pinterest buttons at the bottom of the page.  Please comment on this page using the comments section at the bottom to share your thoughts on the best ways to resolve matters after a separation. 


If I Need Permission From My Ex To Move Away With Our Child, Does My Spouse Need Permission to Move Away From Us?

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When a child has one or two (or more) primary parents after separation, the (or each) primary parent needs permission from the ex to move any significant distance away.  This is because the move will interfere with the ability of the other parent (or parents) to parent the child. Whatever the parenting schedule may be, it likely will not work if it was based on parents living relatively close to each other, or just in the same city and now the parents are living in different cities.  It is the disruption in the parenting schedule that matters, so it may be that even if the parents still live in the same city, traffic  to the lengthy of the the commute will prevent the existing parenting schedule to work for the child even if the parents live in the same city.  It is whether the parenting schedule can still work for the child that creates the need for getting permission,  Both parents must agree that the move is in the child’s best interest and a part of that determination is whether the child will still be able to have the same relationship with both parents.




Ontario Family Law Podcast

5 - What say do children get?

7 - Custody of the Children - what it means and how it is decided

14 - Family Court Step by Step - Part 1 - Starting and Responding to Family Court Proceedings

35 - Resolving Children's Issues Outside of Court

However, if a “non-primary parent” moves, then that parent will be interfering with his or her own time with the child. However, that move will, presumably, not affect the primary parent’s time with the kids. More importantly, the move will not affect the child’s relationship with his or her primary parent. It will, obviously, affect the child’s relationship with the non-primary parent.  That relationship may not have been as important in the past. It will always be detrimental for a child to lose contact with one parent.  But, if where a parent is moving away from a child, that parent clearly views the relationship with the child as less important than whatever is prompting the move.  There may not be the level of commitment necessary for a strong relationship, which may be why that moving parent is not a “primary parent” in the first place.  Hopefully, even after the move, the child will maintain some contact with the moving parent, and hopefully that will be enough to meet the child’s need for some knowledge and understanding of the identity of both (or all) parents.  Unfortunately, judge have learned it is futile to try to force parents to have a relationship with their children.  It does not work out well, regardless of how important it is for a child to know their parents.  A parent who is not putting their child first, will not put their child first if forced to visit and that will leave to disappointment and problems for the child.


If both parents want to move further away from the child’s existing home, it will be hard for a non-primary parent to deny the other parent permission to move because the primary parent’s move will not affect the other parent’s time with the child.  If the primary parent is moving  to Australia or Europe, then the other parent might have a reason to oppose as such a large move could have even more devastating effects on that parent’s relationship with the child then would result from that parent’s own move.   However, chances are if the non-primary is already moving far enough way that he or she could not continue to see the child  on weekends, then there is no reason to oppose the primary parent moving.


Deciding whether to let one parent move away with the kids is one of the hardest questions judges face and they consider a lot of factors in deciding whether to allow a parent to move away with the kids.   The most important of these factors, perhaps the only one the judge will care about, when deciding any parenting matter, is what is in the child’s best interest.  Going back to the original question, if a non-primary parent is moving away anyway, it may not affect the kids at all if the primary parent subsequently moves too.


 


If one parent won’t give the other permission to move, then the moving parent should start family court proceedings right away.  Without the other parent’s consent, a parent cannot move a child away if it affects the ability of the child to have a relationship with both parents.  If one parent does just move away,  a judge could order that parent to bring the child back, or make a worse order, if the moving parent just cut off the child from a parent.   Any lawyer who tells anyone that he or she can predict, with certainty, how a judge will decide a “mobility case” (a case about moving with the kids) is lying.  Judges are all over the map on these cases and each case depends on its own specific facts.  But, if a parent moving with the kids won’t impact the other parent because the second parent is moving anyway, the first parent has a pretty good chance.  A non-moving parent who opposes a move may have to pay some or all of the moving parent’s  lawyers’ fees if the reasons for opposing the move are not reasonable.


Also, a parent having to spend a lot of money to exercise access is one of the few bases on which a judge can reduce child support below the Table Amount in the Child Support Guidelines.  That may not impact a parent’s decision to move, but it is something to consider.   It is harder for a parent to ask for a reduction of child support because of travel costs if the parent moved away and chose to incur those costs.  

Guide to the Basics of Ontario Family Law - 4th edition cover

 

You can get a lot more information about Ontario Family Law issues, including a comprehensive explanation of child custody, moving with the children, child support, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering ordering it from Amazon as a paperback.

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However, the best way to protect your kids, and your relationship with them, is to see a good family lawyer who has lot of experience in child custody and access cases.  Certified Specialist in Family Law, John Schuman, is known for his concern for children in separation and divorce and has won many child custody cases.  To contact John, call 416-446-4036, email him , or fill out the form below. You can use the same form to comment on this page.


Many thousands of people get family law assistance from this website everyday.  If you have found this page useful, please share it on your social network using the Facebook, Twitter, LinkedIn and Pinterest buttons at the bottom of the page.  Please comment on this page using the comments section at the bottom to share your thoughts on the best ways to resolve matters after a separation.


What the death of Riya Rajkumar means for Family Law custody cases

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Millions of people were startled late last night to when the emergency tones went off for the Amber Alert for Riya Rajkumar, only to learn, minutes later, that she had been found, but not safe.  Riya did not return from an “access visit” with her father for her birthday.  Her mother contacted police because she received messages about the father harming Riya.   The police found Riya’s body in the middle of the night.  They also found her father, who was arrested for murder.  The whole event seems disturbingly similar to the murder of Luke Schillings in 1997 and other similar incidents that resulted in changes in Family Court in 2009.


Predictably, everyone wants to prevent this kind of even from happening again.  Almost immediately, there were calls to cut off “access” to fathers, for presumptions of supervised access, and for family courts to be vigilant and act on any hint of possible abuse to cut of all ties between children and parents.  Doubtlessly, Children’s Aid Socities will be under tremendous pressure to be more intrusive in the lives of separated families to make sure this does not happen again.


Having practiced Family Law for twenty years, these reactions do not seem so much as an overreaction, but a wrong reaction.  Fortunately, these cases are extreme.  Judges are vigilant about protecting kids.  Custody/Access cases entirely revolve around what is in a child’s best interest and there are no such things as “parental rights in Ontario.”  Parenting is a responsibility – a responsibility to ensure that your children group up in the best way possible and meet the fullness of their potential.   It goes without saying that what happened to Riya was not in her best interest.  We do not yet know how the system failed her.



High Conflict Separations are dangerous for kids.  Even without the threat of physical violence, high levels of conflict between parents is really harmful for kids.  Everclear even wrote a song about kids being harmed by parents fighting after separation.  Parents who are overcome with anger with their ex spouse frequently act irrationally and do terrible things, including making false allegations of abuse, that judges then have to sift through and try to determine what is real and what is a parent’s unreasonable act of anger or mistrust in the midst of conflict.   Neither mothers nor fathers have a monopoly on being on the “wrong side” of parenting conflicts.




Cutting off kids from their parents every time there is any suspicion of harm is not good for the kids.  Ask any social worker or psychologist and they will tell you that kids need to know their parents, and know who their parents are.  That is true, even if the parent is not a nice person.  Part of a child building a stable sense of identity is rejecting what they do not like in other people, including their parents.  Only serious safety concerns should prevent a child from having a relationship with a parent.   Conflict and fighting can cause serious safety concerns.


Ontario Family Law Podcast

27 - Domestic Violence- The Critical Information

35 - Resolving Children's Issues Outside of Court

31 - How Lawyers Help at Family Mediation

People involved in Family Court have know for a long time that we need to devote more resources to mental health, particularly parents and children going through the family court system.  If someone feels that it is necessary to self-harm or harm others, then the system needs to be quick to provide support.


It also goes without saying that reducing the conflict can reduce the stress and potential for harm to children.  Family Mediation, Parenting Coordinators, and Collaborative Practice, are all options for separated parents that avoid the increase in hostility, negative emotions, bitterness and anger that often accompanies Family Court.  The professionals in those disciplines are often good at reducing the conflict, while identifying any underlying concerns, while directing the parents, and children, to appropriate resources.  In addition, just speaking to a good family law lawyer, can give parents the advice they need to focus on what is important and away from their anger at their spouse. A good counselor/divorce coach can also help parents address their emotions in a positive way and decreases the risk for the kids. If out-of-court options are too dangerous, because a parent or child needs protection from a Family Court Order, than all these professionals advise the parent to go to court, or the police, or children’s aid society. 


Focusing on being right often makes things worse.  But a good lawyer will direct their clients, and their children to places of safety and provide a good impartial assessment of risk.  Many police forces also offer risk assessments, as do children’s aid societies.  Those can help parents decide when it is too risky to let a parent see a child.


Guide to the Basics of Ontario Family Law - 4th edition cover

Parents who are worried about their children’s safety do need to take the appropriate legal actions in response.  In times of crisis, then many options are off the table, and that is when it may be time for Family Court, or 9-1-1.   If you are not sure about your situation, get some professional advice and do not take the risk of letting your child being harmed by him or her to see the other parent or by not allowing that relationship.


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The best way to protect yourself, your children, your stuff and other things and people that are important to you, is to find out how the law applies specifically to your situation and what steps you should take to get things to work out for you. Contact Certified Specialist in Family Law (and author of the book to the left), John Schuman, by emailing him, calling 416-446-5869, or using the contact form below.  We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate). 


You can get a lot more information about Ontario Family Law issues, including property division, support, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback.


Many thousands of people get family law assistance from this website everyday.  If you have found this page useful, please share it on your social network using the Facebook, Twitter, LinkedIn and Pinterest buttons at the bottom of the page.  Please comment on this page using the comments section at the bottom to share your thoughts on the best ways to resolve matters after a separation.

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Can My Spouse Get a Divorce Before Following Our Separation Agreement?

signing  separation agreement


Ontario Family Law Podcast

3 - What is a divorce? How do I get one?

10 - Child Support - Who Pays and How Much?

24 - How to Have a Valid and Enforceable Separation Agreement

32 - How to Change a Support Order

After separation, many spouses want their “exes” to live up to their obligations before getting a divorce.  To understand why that matters, it is important to understand what “divorce" means (which if more fully explained in this podcast). But to summarize, all the “divorce” means is that a person can get remarried.  Everything else (child custody, child support, property division, etc.) are separate issues.  It is possible to resolve “everything else” by way of a separation agreement, but only a Family Court Judge can grant the divorce. 


So, many people do not want their spouse to get a divorce until they have paid support, followed a custody order, or divided the property.  In most cases, doing those things is not required to get a divorce.  But, there are some considerations where there is a legal, valid and enforceable separation agreement in place. 



Unless the separation agreement says otherwise, parties are able to include terms from their separation agreement in a Divorce Order.  (and spouses can always ask the Court and the Family Responsibility Office to enforce the support provisions of a separation agreement by filing the agreement and Form 26B with the Family Court.)  If your spouse has not fulfilled the terms of the agreement, there may be an advantage in converting your separation agreement into a Court Order.  Doing so means the agreement can be enforced as a court order (using the FRO, garnishments, seizure of property, contempt of court powers or other enforcement tools).


If your settlement is made into a Court Order, then you can definitely stop your spouse from doing anything before the Court.  Additionally,  the Courts in Ontario almost always take the position that a person who does not obey Court Orders should not be able to ask for Court Orders against someone else.  The basis for this is fairness: it is not fair if only one side of a dispute follows what a judge says.  In addition, Rule 1(8) of the Family Law Rules gives judges a lot of powers to refuse to even hear from someone who is not obeying court orders.  Those powers include dismissing the person’s case, or striking their pleading and allowing the case to proceed uncontested, or refusing to let the party in default take any further steps before the Court.


The exception to the above is where a judge feels that parenting arrangements must be changed in a child’s best interest or when child support should be adjusted to make sure the child is receiving the proper amount.  Judges put children first.


If you spouse is not deliberately beaching a court order, and things are progressing as contemplated by the agreement, even if they are not finished, then there are very few reasons on which a judge will refuse a divorce:

So, if your spouse wants a divorce, and a ground for divorce exists (usually being separated for more than one year) and none of the above barriers exist, then your spouse will get the divorce.  Of course, if your spouse is not paying appropriate child support, that may block the divorce and you should speak to a lawyer about challenging the divorce.


If the agreement specifically says that your spouse is not allowed to go back got court before taking some specific steps, that may block your spouse from taking any other steps before the Court.  The effect of the agreement may be to prevent your spouse from changing anything in the agreement, until he or she has completed all the tasks required by the agreement.

Guide to the Basics of Ontario Family Law - 4th edition cover


You can get a lot more information about Ontario Family Law issues, including how to enforce a separation agreement, the requirements for divorce, and a comprehensive explanation of child support, spousal support, property division, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback

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However, to know for certain how the law applies to your daughter’s situation and to ensure she is doing the best thing for her (and any children), your daughter should speak to a Family Law Lawyer. Contact CertifiedSpecialist in Family Law (and author of the book to the left), John Schuman, by emailing him, calling 416-446-5869, or using the contact form below.  We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate). 


Many thousands of people get family law assistance from this website everyday.  If you have found this page useful, please share it on your social network using the Facebook, Twitter, LinkedIn and Pinterest buttons at the bottom of the page.  Please comment on this page using the comments section at the bottom to share your thoughts on the best ways to resolve matters after a separation.



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