School offered both options, but which is in the child’s best interest?
The Ontario Superior Court of Justice has enumerated factors to guide the courts when determining whether in-person learning at schools or online learning from home is in the child’s best interests.
In Zinati v. Spence, 2020 ONSC 5231, the mother wanted her six-year-old child to return to school for in-person learning, while the father wanted to register the child for online learning from home. The child’s school, which shifted to online learning last March amid the COVID-19 pandemic, announced that it would reopen for in-person learning in September.
The issue before the Ontario Superior Court of Justice was whether it was in the child’s best interests to return to in-person learning or to continue with online learning, as the child’s school offered both options to its students.
The court ruled that the child should return to school for in-person learning in September, on an interim basis. The court found that the child would be reasonably safe at school, would benefit from the social interaction afforded by in-person learning and would not be in any particular risk resulting from a health condition. The court reviewed the available jurisprudence and considered a number of factors to reach this conclusion.
The court listed certain factors that would guide it in making its decision on the appropriate educational plan for the child. First, the court recognized that the government had access to public health and educational advice that would put it in a better position than the courts in terms of assessing whether the government’s return-to-school directive is safe or effective. Second, the court said that there is no guarantee of a child’s safety, whether the child returns to school or learns from home.
The court then listed factors that would help it in determining whether in-person learning or online learning would be in the best interests of the child, quoted in full below from the case:
- The risk of exposure to COVID-19 that the child will face if she or he is in school, or is not in school;
- Whether the child, or a member of the child’s family, is at increased risk from COVID-19 as a result of health conditions or other risk factors;
- The risk the child faces to their mental health, social development, academic development or psychological well-being from learning online;
- Any proposed or planned measures to alleviate any of the risks noted above;
- The child’s wishes, if they can be reasonably ascertained; and
- The ability of the parent or parents with whom the child will be residing during school days to support online learning, including competing demands of the parent or parents’ work, or caregiving responsibilities, or other demands.
The court applied these factors to the factual circumstances of the case and decided that the child should opt for in-person learning. The court found that the child had no health issues which would increase the risk of contracting COVID-19, and that online learning may jeopardize the child’s continued social development.
The mother and the father disagreed on whether the child preferred to go back to school or to continue learning from home. The court said that it could not determine the child’s wishes, especially considering her young age.
