The Quebec Government recently announced that children in many regions in Quebec could return to school on May 11th, but parents were given the option of keeping their children at home. Two parents went to court last week because they could not agree as to whether to send their children back to school. The court ordered the children to go back to school.
The parents have joint custody of their two children, aged 11 and 9.
After the Quebec Government’s announcement on April 17, 2020 that primary schools would reopen in certain areas on May 11, 2020, the parents could not agree on whether they should let their children return to school in the context of the COVID-19 pandemic.
The parents and children lived outside of the Greater Montreal area, where a return to school has been further delayed due to the severity of outbreak.
The mother wanted the children to go back to school because she felt that their needs were not being be met by keeping them confined at home. The mother has worked as an essential worker since the start of the pandemic and has thus been unable to offer school supervision to children during her time with them.
The father opposed the children’s return to school, alleging that the children were not failing in school and that there was no reason to expose them to increased risks of contracting the virus. Additionally, given the many changes in the school environment and the fact that the children would no longer be with the same teachers or their friends by the end of the school year, the father did not see any advantages to their return to school. Instead, he believed that he was able to give them the necessary academic supervision at home.
The court-appointed children’s lawyer explained that the elder child wanted to go back to school to finish primary school and to improve her knowledge of French and mathematics in order do well in high school next fall. As for the younger child, the lawyer stated that he showed little interest in school.
The court sided with the mother’s position that the children should return to school on May 11, 2020, unless new government directives to the contrary were announced. The court outlined four reasons for its decision.
First, the court stated it was not its role to assess the potential risks of contamination of the population during a pandemic nor to take the necessary measures to limit the spread of a virus; that role fell to the competent government authorities.
As a result, there was no reason for the court to question the government’s decision to partially lift the containment measures related to COVID-19 in order to allow, among other things, the resumption of academic activities at the primary level. The court stated that it would fall to one of the parents to prove that it would be contrary to the special interests of their children to resume attending school, for example, because of a health condition. The court found that neither parent had presented such evidence.
Second, the court explained that all decision concerning a child must be made in his or her best interest and in respect for his or her rights. Additionally, under the Quebec Education Act, every child who resides in Quebec not only has the right to receive educational services, but also has the obligation to attend a school from the age of 6 to 16. Under the same legislation, parents must take the necessary means to ensure that their child fulfills their obligation to attend school; only in exceptional circumstances will a child be exempt from such obligations.
While the court recognized that the COVID-19 pandemic constituted an extraordinary situation leading to exceptional measures, it found that such measures were temporary in nature and did not modify the relevant Education Act provisions, stating:
“It is true that the government has decreed that returning to class starting May 11, 2020 is not “compulsory”. However, this does not take away from children’s right to receive educational services.” [translated]
Since the mother stated that she could not provide appropriate home-schooling, the court found that the father could not therefore deprive the children of their right to attend school.
Third, the court found that since the elder child had asked to return to school in order to improve her knowledge in certain subjects, it would be against her interests not to attend school until next September.
And while the younger child had not expressed any interest in school, the court did not believe it was in his best interest to remain out of school for another four months.
Finally, the court stated:
“[I]t is unlikely that the current situation will be very different next September.
Therefore, although the way of teaching with social distancing measures may very likely be very different from what was done before, there is no reason not to trust the teaching staff and educational institutions.” [translated]
As a result, the court ordered that the children should resume school effective May 11, 2020, unless new government directives were issued to the contrary.
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