Last week, we wrote about a Quebec case in which a court ordered that two young children would be required to go back to school despite their parents disagreement. The case stemmed from the Quebec Government’s announcement that children in certain regions in Quebec could return to school on May 11thamid the continuing COVID-19 pandemic, at the parents’ option.
In another recent case, a Quebec court decided differently and ruled that a child would not be forced to return to school due to the father’s objection.
The parents have shared custody of their 6-year old son in Quebec. The parents separated in 2018.
Due to the COVID-19 pandemic, compulsory school attendance in Quebec was suspended on March 13, 2020. This suspension was partially lifted starting on May 11th in certain regions. Only primary students were targeted and return to class was on a voluntary basis. Thus, it was up to the parents to decide together whether or not to return their child to school.
Before the pandemic, the son attended kindergarten and had no academic or social difficulties.
The parents could not agree on whether to send their son back to school and went to court to decide the issue.
The father opposed the child’s return to school based mainly on the health of his current spouse who has lupus, an autoimmune disease. He claimed that the child’s return to school would create a significant risk to her. The father noted that he and the mother worked from home and were available to care for the son. The father offered to keep the child full-time if the mother’s schedule did not allow her to do so in the case that their son did not return to school.
The mother wanted their son to return to class on May 11th. She stated that their son had asked to go back to school and that it was important for him to see his teacher and his friends because he would be changing schools in September. Additionally, she noted that the father’s current spouse’s daughters were returning to school. The mother argued that her son had a right to his academic development and his socialization should be privileged above the health of the father’s spouse. In the alternative, the mother claimed that the father’s spouse could live outside of their home if she feared for her health. Finally, the mother offered to care for the son full-time if the father feared for his spouse’s health.
At the outset, the court explained that any decision regarding children must be made in their best interest. The court stated that it must make its decision by taking into account the moral, intellectual, emotional and physical needs of the son, as well as his age, his health, his character, his family environment and other aspects of his situation.
The court acknowledged that, with few exceptions, it is generally beneficial for a child to attend school for physical, psychological and intellectual reasons. However, the court then stated:
“In the current and exceptional situation due to the coronavirus (COVID-19), attendance at school would lead the son, according to the evidence on file, to be cut off from his father and from the activities he does with him for the next six weeks due to the severe medical condition of his spouse, who cannot take a higher risk of being infected.
Contacts, even daily through a technological link, cannot be compared to daily life with his parent.
The son benefits from adequate home environments and the presence of available parents who currently work from home and who have free time for him and who can ensure some academic activities, it being understood that the son is in kindergarten.” [translated]
The court therefore found that the son would reap the greatest benefits from a continuous and positive relationship with each of his parents with whom he can engage in activities, academic and otherwise, in place of school attendance for the last six weeks of the school year.
The court acknowledged the mother’s argument that the son wanted to say goodbye to his friends and his teacher, but stated that this could be accomplished through technological means or otherwise without requiring a return to class.
As a result, the court ordered that the son would not attend kindergarten for the rest of the school year and would continue with the shared custody arrangement with both parents.
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