In relation to the ongoing COVID-19 pandemic, an Ontario court recently ruled on a dispute between two parents about whether their child should attend school in-person or online in September 2020.
Parents Can’t Agree on Whether to Send Son to School in Person
The parents were married in 2004 and had a son in 2011. They separated in 2016 and were divorced in 2017. The parents have joint custody.
In August 2020, the mother filed an urgent motion for sole decision-making ability for educational decisions respecting their son. In particular, the mother sought an order that the son would attend school, in person, commencing September 8, 2020.
The mother cited several reasons for wanting the son to attend school in-person, including the fact that he struggles to learn independently, that he had struggled with social isolation due to the pandemic and that she worked from home full-time and would not be able to properly assist him with online learning.
In response, the father sought an order that the son would remain at home until such time that the son’s school board’s safety protocols had been proven successful and that leading health experts were able to offer more certainty, with data obtained from the experience of children actually attending school and not just in isolation.
While the father agreed that during normal times, the son’s academic, social, emotional, physical and psychological needs would be better met by attending school in person, he believed that the health risks were significant and that such challenges could be avoided through online learning.
Court Orders Son Back to School
The court began by commenting on the timing and purpose of the motion:
“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 need for a court to address this issue on an urgent basis is a self-fulfilling prophesy. Merely fail to resolve the issue from March to August 2020 and, voila, “the test for urgency is met”. In the normal course this approach would not be tolerated. However, notwithstanding that the parents create the problem, jump the queue and should not have their matter heard without following the usual processes, I accept that it is the Court’s duty to deal with these cases expeditiously. The child has a right to know the plan for the upcoming school year, and the parents need time to prepare for it.”
After reviewing case law from Quebec on the subject, the court stated:
“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. […]
There is a consensus between the Ontario government and medical experts that, at this juncture, it is not 100% safe for children to return to school. However, the risks of catching COVID-19 (and the typical effects of the illness) for children are being balanced against their mental health, psychological, academic and social interests, as well as many parents’ need for childcare. There is no end in sight to the pandemic and, as such, no evidence as to when it will be 100% 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 a return to school.”
Additionally, the court found that neither the son nor anyone in either of the parents’ households would be at an unacceptable risk of harm if the son returned to school in-person.
As a result, the court granted the mother’s motion and ordered that the son would return to school in-person in September 2020.
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Separation and divorce are challenging for everyone involved. When dealing with custody or access disputes, matters involving spousal and child support, the division of assets, and other family issues, emotions can be your worst enemy. Having an experienced family lawyer on your side can help you stay focused and resolve disputes as quickly and amicably as possible.
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