In continuance of cases that deal with decisions regarding children’s schooling amidst the global pandemic, the court rules that the child’s genetic predisposition to a disease that, if diagnosed, would make the child high-risk to COVID-19, is not sufficient reason for children to be ordered to stay home.

Background

The parties have a 10-year-old daughter who is entering grade 5 in the coming school year. While they agree on the school that the child should attend, they disagree as to whether the attendance should be in-person or online. The parties have joint custody of the child pursuant to a Final Order, and the same Order stipulates that major education-related decisions affecting the child’s education shall be made by the parties in consultation with a school staff, and that their decision shall prevail should the parties not be able to reach an agreement.

In this case, the father sought an order that the child be registered for on-line/virtual learning for the coming school year, and the mother sought an order that the child be registered to attend school through in-person learning.

The father argued that the child should attend school virtually because she has contracted pneumonia in the past, and is genetically disposed to an autoimmune disorder, ankylosing spondylitis, with which he himself has been diagnosed. It is important to note that the child is undiagnosed of this condition, despite the fact that she is genetically predisposed to same. The father, in support of his argument, submitted the following letter from his own physician:

“This patient (the father) has an autoimmune disease (ankylosing spondylitis) . . . This disease may increase his risk of morbidity and mortality if he contracts the COVID-19 virus.

Ankylosing spondylitis is also known to be partially genetically transmissible to children.

Care should be taken to assess the benefits vs. the potential risks to self and family of returning the daughter to school.”

The father additionally relied on his sister’s Affidavit, whose own daughter has been diagnosed with an autoimmune disease that may be associated with ankylosing spondylitis, and was advised that she should not attend school in-person due to her condition.

The mother argued that in-person learning would provide the child with proper assistance with regards to her learning difficulties in both reading and writing skills. The mother relied on accounts of challenges that the child faced when she switched to online schooling after the schools were closed earlier in the year. She additionally relied on a letter from the child’s physician that stated that she does not have any conditions that would place her at an increased risk of COVID-19.

Analysis

The court relied on a statement from the precedent setting case, Chase v Chase, 2020 ONSC 5083, which essentially states that the government is in a better place than the courts to determine when it is safe for children to return to school. Similarly, the court relied on Zinati v. Spence, 2020 ONSC 5231, which effectively states that the government has access to public health and educational expertise that the court does not, and therefore are more authoritative in deciding when it is relatively safe for the children to attend school in-person. The court additionally noted that it is not realistic to expect or require a guarantee of safety for children who return to school during a pandemic. In effect, and as stated by the court in above-mentioned Chase, the decision as to the children’s schooling should be a careful balancing exercise of their physical health against their mental health, psychological, academic and social interests.

In applying these principles to the facts of the case, the court found that it was in the child’s best interest to attend in-person learning. While the court acknowledged that the child may be predisposed to developing an autoimmune disease, the court noted that it must proceed on the current facts which was that the child did not have any disorder. In addition, the court noted that given the child’s special educational needs, in-person learning would provide superior educational experience with direct support and supervision.

The court concluded by noting that while sympathetic to the father’s own health issues and the increased risk should the child return to school in-person, it is subordinate to the educational and social development of the child.

This case reminds us yet again how surprisingly difficult it can be to successfully argue that the children remain home amidst a pandemic.

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