Ontario Superior Court rules child must attend in-class school, despite Covid-19 pandemic

Government is better able than courts to assess school attendance risks: Judge

Ontario Superior Court rules child must attend in-class school, despite Covid-19 pandemic
As school begins, more disputes will arise in separated families over online or in-class learning.

An Ontario Superior Court judge has ruled that a child whose divorced parents are in a dispute over whether the boy should return to his school in Newmarket, despite the Covid-19 pandemic, must be registered and attend when classes begin after Labour Day.

“This is the first of several urgent motions to be filed with the Court since August 17, 2020 and, without a doubt, there will more forthcoming,” said Justice Andrea Himel in a decision made August 25. “There is a common theme to all of the cases currently before the Court – parents disagree about whether their child should attend school in-person, or online.”

School attendance during a pandemic is a “challenging issue” for many parents, Himel said. “Unfortunately, for some separated and divorced parents this is another battleground; one more arena where their child may become the prisoner of the war.”

However, she said the Ontario government “is in a better position than the courts to assess and address school attendance risks, and adds “the decision to re-open the schools was made with the benefit of medical expert advisers and in consultation with Ontario school boards.” As well, the Ontario government has said in the media that it “will not hesitate to shut down schools again if the number of Covid-19 cases increases materially.”

Himel’s ruling notes that while medical experts and the province agree that it may not be “100 per cent” safe for children to return to school, the Ontario government has determined that September 2020 is an appropriate time to move on to a “new normal” which includes the option of in-class learning. “With no end in sight to the pandemic, the risks of catching Covid-19 for children must be balanced against their mental and psychological, academic, and social interests, as well as many parents’ needs for childcare.”

The backlog caused by Covid-19, and the move to virtual court attendances have placed a tremendous burden on the family justice system, Himel said, noting the Ontario Divisional Court recently said the Newmarket Court is “one of the busiest family law jurisdictions in Canada,” and resources “must be used judiciously and proportionate to the issues.”

While this case was brought before the court on an urgent basis, Himel said she would encourage parents to use mediation to work out such issues, rather than delegate the authority “to make the decision respecting their child’s in-person versus online attendance at school to me, a judge who has never met the parents and who will likely never meet the child.”

Ontario family law lawyer Russell Alexander says that while the decision in this case only relates to this particular child and family situation, it will be instructive in showing how the courts may decide on such matters.

In this situation, the judge ruled the child should go to in-class school, Alexander notes, “but a different family with different facts” may produce a different ruling. “Let's say one parent has asthma or an underlying health condition. That may cause the court to say, well, maybe the child should not go to school.”

Oren Weinberg, a partner with Boulby Weinberg LLP, says that future disputes on in-class or online learning experiences for a particular family may centre on exactly what is “unacceptable risk.”

“The premise the judges in these cases seem to be working on is that if you have a healthy child, and there are no other health factors in the family, and schools are open for business, it is preferable for the kids to be in school, at least until the government says otherwise,” Weinberg says.

The challenge for the courts might be deciding what kind of expert evidence is going to be needed, Weinberg adds. “At the very least, there’s going to have to be something on paper from a treating physician saying it is not okay for this particular person to be exposed.”

Himel said in her ruling there are only two decisions reported in Canada respecting attendance following the reopening of schools during the pandemic. Both are decisions of the Quebec Superior Court from the spring when some schools reopened in that province.

In one decision, the judge declined to order the children’s return to school as a family member suffered from an auto-immune disease making them high-risk, which would have limited contact.

However, the second decision, while not binding, is instructive, Himel said. In that case, L’Honorable Claude Villeneuve ordered the two children (ages 9 and 11) to return to school, saying it is “not for the courts, but rather for the competent government authorities, to assess the potential risks of contamination of the population in a pandemic situation and to take the necessary measures to limit the spread of the disease.”

When the government decides to partially lift the containment measures linked to Covid-19 to allow the resumption of academic activities at the primary level, Villeneuve said there is no need for the Court to question this decision, ”unless one or the other of the parties demonstrates, by preponderant evidence, that it would be contrary to the particular interests of their children to resume attending school, for example, because of their health.” 

As well, he said that if one of the parents cannot, in a context of shared custody, offer the child “home schooling for acceptable and reasonable reasons, there is no reason to deprive the child of his right to attend his school when it is possible for him to do so.”

In the Newmarket, Ontario case, the mother has taken the position that it is in the child’s best interests to return to school because he struggles with learning independently and other “soft” learning skills. As well home isolation has been difficult, as he has limited contact with friends. Getting physical activity at school through recess and gym classes is also important.

The mother also works full-time from home and feels that it would be hard to fulfill the demands needed to help with online learning, especially since he is in a French immersion program.

The father agrees that in non-pandemic times, attending in-class school is preferable, but he feels the health risks to his son are significant. He also intends to spend additional time working with his son to get through the curriculum, using Google Translate and his knowledge of French to help (though he is not bilingual).

As for exercise, the father argued that he would be consistent in making sure his son had sufficient time biking, rollerblading or playing hockey in the driveway, as well as unsupervised outdoor play.

But Justice Himel said “there are significant problems” with the father’s plan,  including a failure to address how the mother will be able to implement his plan, and the constraints on her ability to work if the boy is enrolled in online learning. The father has the benefit of having a flexible work schedule and his current wife in the household to help.

The father’s plan also fails to address his son’s social needs after six months in isolation, nor does it address the impact of seeing his peers together at school in their cohort while he continues to study alone.

Himel’s ruling acknowledges there is at least one issue that may warrant an order for online learning rather than in-class instruction – “if the boy returns to school, will he or anyone in the home of both parents be at an unacceptable risk of harm.”

But the judge said in this case, there is no unacceptable risk, as there are no underlying medical risks for any of those in the households. As well, the father’s wife works outside the home as an essential worker, and, though the father works from home, he is out in the community as well.

There is always the chance of meeting “at least one person who is non-compliant with the mandatory mask and social distancing rules,” Himel said.

And if the son were to feel any guilt if he believes that he has infected a family member with Covid-19, another of the father’s concerns, this can be addressed by assuring the boy that people “catch viruses from many places.”

Weinberg says Himel, a recent call to the bench with a strong background in family law mediation, makes the case that parents should be trying to resolve these kinds of issues on their own or with the help of a case conference or mediator, rather than going to the court on an “urgent basis.”

“As Justice Himel expressed in her decision, there are a number of avenues that should be explored through case conference or mediation before coming to court.”

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