Language Rights and Access to Justice for Franco-Ontarians

Posted on 4 May 2022 Back to News

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Canada recognizes two official languages, English and French. As a result, the Canadian Charter of Human Rights and Freedoms protects the right of Francophone parents to have their child attend a French language school. Although this right exists under the Charter, it is ultimately up to the parents to decide what school their child will attend. This decision is therefore an important parenting issue to be addressed between separated parents, particularly when one is Francophone and the other is not.  

 

As with any decision related to children, the court will focus on what is in the best interests of the child. When issues relating to French schooling for a child arise, the court may consider various factors including:  

  • The ability of the parents to assist the child with their homework;  
  • The ability of the parents to carry out the educational plan established by the school;  
  • The promotion of the child’s cultural and linguistic heritage within the education program;   
  • The parenting schedule and whether the primary parent, if applicable, is Francophone;  
  • The location of the school in relation to where the parents live;   
  • The child’s first language and their subsequent ability to adapt to the French language;  
  • The language spoken at home with the child when the parents lived together;  
  • The interest of the child to speak French; and  
  • The resources of the school in relation to the child’s needs.   

Perron v Perron 2012 ONCA 811 is a very important case on this issue, confirming the right of a Francophone parent to intervene in the child’s schooling for the linguistic and cultural preservation of the French language for their child. 

More recently, in Sussman v Fabrega 2020 ONSC 5162, the court focused primarily on two factors: 1) the ability of the parents to assist the child with their homework and 2) whether the parents identified as Francophone. In this case, although French was commonly spoken at home and the mother spoke French fluently, the father was Anglophone. The court found that neither parent culturally identified as Franco-Ontarian and therefore the cultural importance for the child to attend a French school was limited. The court ultimately found that enrolling the child in a French immersion program would be in the child’s best interests as it would allow for both parents to engage in the child’s homework and school education plan.  

 In Lauzon v Lauzon 2021 ONSC 5684, the court heavily weighed three factors: 1) the benefits for the child offered by the French School, 2) the status quo of the child’s upbringing and 3) the ability of both parents to participate in the child’s education. The mother was bilingual, speaking French and English, and the father spoke only English. The court ultimately concluded that it was in the child’s best interest to attend a French school as they had always attended a French school and had strongly benefited from the French education to date.  

It is important to note that the determination of whether or not a child will attend a French school will vary on a case-by-case basis and each scenario is distinctive. 

 As of February 1, 2022, in an effort to improve access to justice for Franco-Ontarians, French documents can now be filed at all Ontario courthouses in any type of proceeding, including family law cases. This development is a result of the recent changes to the Accelerating Access to Justice Act, 2021. Francophone litigants also have the right to request and receive the translation of any filed document into English or conversely documents filed in English into French.  

This article is intended for general information purposes only and is not intended to provide legal advice. Readers with concerns about how this affects particular situations or transactions should obtain the independent review and advice of legal counsel.

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