The Superior Court of Ontario released a decision determining whether a child should be ordered back to school during the COVID-19 Pandemic. The Mother wanted the grade 4 child to return to school upon commencement of the school year. The Father wanted the child to attend school online until the safety measures and protocols implemented by the school board and the province were proven to be effective at safeguarding against COVID-19. Importantly, both parties had jobs that permitted them to work from home. Neither parent nor the child had any underlying medical issues that could be exacerbated by COVID-19. In this case, the Court ordered that child to attend school in person.
In Quebec, a Court declined a parent’s application for the child to be returned to school as a family member suffered from an auto-immune disorder. In another decision, a Quebec Court noted that it is not the role of the Court to question the government’s re-opening protocols:
When the government decides to partially lift the containment measures linked to COVID-19 in order to allow, among other things, the resumption of academic activities at the primary level, there is no need for the Court to question this decision, unless one or the other of the parties demonstrates, by a preponderant evidence, that it would be contrary to the particular interests of their children to resume attending school, for example because of their condition health. […] The Ontario government is in a better position than the courts to assess and address school attendance risks. The decision to re-open the schools was made with the benefit of medical expert advisers and in consultation with Ontario school boards. The teachers’ unions and others have provided their input as well as their concerns. While the parties spent considerable time addressing a recently released report by the Toronto Hospital for Sick Children, I decline to consider same. There are experts on all sides of the COVID-19 debate, however, the decision to re-open schools and the steps being taken to protect children and staff fall within the purview of the Ontario government.
Importantly, the Superior Court of Ontario outlined compromises that the parties could utilize as an alternative to court intervention:
A better approach is to engage in mediation with a professional or third-party trusted family member or friend. I note some of the creative ways to resolve the school attendance dispute:
(1) Enroll the child at the commencement of the school year, and review the plan at Thanksgiving, following an outbreak at the school, or at the first opportunity provided by the school board to re-consider the choice;
(2) Delay in-person school attendance and review the decision when specific criteria are met;
(3) Create a small pod of children who can learn remotely together with the assistance of a parent(s) and/or tutor; or,
(4) Explore whether the child may attend school in-person during the morning (leaving before lunch) and participate remotely in the afternoon.
It is imperative for parents to understand the consequences of providing the Court with decision making authority over this issue. The court’s only consideration will be the best interests of the child, and whether the child’s best interests are best served via online school or in attending school in person. The parent’s interests and convenience receive little weight in this analysis.
The COVID-19 Pandemic has presented all of us with extraordinary circumstances and concerns, and it is a challenging time for separated/divorced parents who cannot reach an agreement.
If you would like further assistance on this issue please contact the lawyers at Foster LLP today.