Separating Parents and Language Rights for their Francophone Children

Canadian law recognizes that language is not simply a means of communication: it colours the content and meaning of expression itself. It is a vital mechanism for people’s expression of their own cultural identity.

As such, French is afforded special protections under the Canadian Charter of Human Rights and Freedoms. Among other things, it secures the right of Francophone parents to have their children attend homogenous French language schools. The relevant section is 23:

Language of instruction

23.            (1) Citizens of Canada

(a)           whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside, or

(b)           who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province,

have the right to have their children receive primary and secondary school instruction in that language in that province.

[…]

The Supreme Court of Canada has commented on this section, noting that its purpose is:

 … to preserve and promote the two official languages of Canada, and their respective cultures, by ensuring that each language flourishes, as far as possible, in provinces where it is not spoken by the majority of the population. The section aims at achieving this goal by granting minority language educational rights to minority language parents throughout Canada.

Mahe v. Alberta, [1990] 1 SCR 342

Although these Charter rights exist, it is still the parents who ultimately decide what kind of school their child attends. This can pose problems for separated parents – particularly when one comes from a Francophone background while the other does not.

The Ontario Court of Appeal encountered exactly this problem in the case of Perron v. Perron, 2012 ONCA 811. The Father’s first language was French, and had only learned English as an adult. The Mother was Anglophone with “some” knowledge of French. The parents were unable to agree on custody of their children, and so a trial was held.

The trial judge decided that the Mother should have sole custody. Interestingly, the Father was given such generous access that they, effectively, had equal parenting time. However, because the Mother was given sole custody, she had ultimate decision making authority over all major life decisions affecting the children – including the language education their children received.

This was unsatisfactory to the Father. At trial, he had asked the judge to Order that the children attend a homogenous French language school, rather than simply participate in a French immersion program. The trial judge declined to make any such order, characterizing the language argument as a “distraction” from the main issue of determining the children’s best interest. As a result, the children continued their enrolment in French-immersion.

There is a marked difference between French-immersion and homogenous French language schools. A homogenous French-languages school is conducted entirely in French. It responds to the cultural and linguistic needs of the Francophone community. In contrast, French immersion programs are bilingual, designed for English speakers, and conducted in an English-language majority environment.

The Father appealed the decision of the trial judge and, in the end, obtained a hollow victory.

The Court of Appeal agreed that the trial judge erred by failing to consider which language of instruction was in the children’s best interest. However, even though it had the ability to Order that the children attend a homogenous-language French school, it refused to do so. This is because the Appeal was heard two years after the trial judge’s decision. The children had become settled into their immersion program. The Appeal court refused to now uproot the children.

However, of particular importance is the following paragraph:

…[The] court should be particularly sensitive to the language of education in circumstances where there is only one Francophone parent and the English-speaking parent has been granted custody. In such circumstances, there is necessarily less contact with the French-speaking parent and the linguistic and cultural environment of the children is likely to become that of the linguistic majority.

And also:

…It is also important to emphasize that it is quite exceptional to include in a custody order a condition concerning the choice of school. As already mentioned above, educational decisions and other decisions relating to the incidents of custody are almost always left to the custodial parent (or parents). In general, it is desirable to leave the day-to-day decision-making about parenting to the custodial parent(s)…

In my view, depending on the trial judge’s appreciation of the evidence, the circumstances of this family could have warranted a conditional order for French-language education, tailored to the needs of this family.

This is an important case for Francophone parents to be aware of. It is a reminder that the legal system recognizes, and values, the importance of preserving Francophone culture from assimilation into the linguistic majority. The decision acknowledges that sole-custodial parents generally have final say over the education of their children; however, it also leaves room for Francophone parents to intervene for linguistic and cultural protection.

If you’re of French heritage and separated from your child’s other parent, then it may be worthwhile discussing your child’s language education well in advance of it becoming an issue. Your lawyer can help you incorporate the appropriate provisions into a formal agreement that can help avoid the expense and stress of a possible court battle.