In a precedent-setting ruling, the Ontario Superior Court ordered that the child return to school in-person amidst the global pandemic.

Background

The parties separated in 2016 and divorced the year after a 12-year marriage. They have one child together. At the time of the hearing, the parties had a Separation Agreement that gave each parent joint custody and an equal parenting/access schedule with shared vacations and holidays.

The child is in grade 4. Both parties agreed that no one in either of their households have any medical condition that make them more susceptible to adverse effects of COVID-19. On this backdrop, the mother sought an Order that the child attend school in-person, and the father sought an Order that the child remain home until the school board’s “safety protocols are proven successful and that leading health experts are able to offer more certainty, having data obtained from when children have been attending school and not just in isolation.”

Analysis

The motion was brought on an urgent basis. The court noted that there were several urgent motions that were filed with the court, with one common theme of parents disagreeing about whether the children should attend school in-person, or online. The court additionally stated the following: “School attendance in the midst of a pandemic is a challenging issue for many parents. Unfortunately, for some separated and divorced parents this is another battleground; one more arena where their child may become the prisoners of the war.” The court eventually found that there is a genuine sense of urgency of the children needing a plan for their upcoming school year.

The court pointed to two decisions from the Quebec Superior Court, which at the time were the only two decisions regarding children’s schooling amidst the pandemic. One case declined to order the children to return to school due to one of the family members being a “high-risk” individual.

The other decision ordered that the children return to school. The court noted that where the government had made the decision to allow the in-person classes to resume, it is not the courts place to question that decision, unless there is a convincing reason pertaining to the individual child, such as their pre-existing health condition. Secondly, the court reminded that right to education belongs to the child, and not to the parents. As such, decisions concerning a child must be made with their interests in mind and not the interests of the parents.

With these Quebecois precedents, the Ontarian court determined that the decision pertaining to the child’s plan for schooling would be determined by an application of the best interests of the child factors detailed in section 24(2) of the Children’s Law Reform Act. The court noted that given that the child has academic, social, emotional, physical, and psychological needs that can be better met by attending school in-person rather than virtually, the father’s plan of having the child remain home fell short in convincing the court that the decision is in the best interests of the child. In addition, the court noted that the child reacted negatively to home isolation, and a further isolation will only cause more harm to the child.

The court ultimately found that it was in the best interests of the child to return to school in-person. The court reiterated that in this case, there were no family members who would be exposed to an unacceptable risk of harm.

Though preliminary, this case informs us of the basic framework the courts may use to determine whether your children should attend school in-person or virtually. It reminds us that the pandemic, in itself, cannot be a sufficient reason for the courts to order that the children remain home.

For more information, please call us at Feldstein Family Law Group P.C. or contact our firm online.