Back to School and COVID-19: Courts Weight In

Many Canadian families with co-parenting agreements are finding themselves unable to agree about letting their children return to in-person classes this fall or stay home and attend online courses. This has caused the courts to step in when parents cannot find common ground.

Sending Children to School During the Pandemic Just One More Battleground for Parents

Despite the numbers being few, cases regarding whether children should attend in-person class or remain at home and attend classes online have begun popping up in family courts across Canada. In this new co-parenting battleground, the majority of presiding judges have been in favour of physical attendance since the Ontario government is in a better position than the courts to assess and address school attendance risk.

COVID-19 Causing Unprecedented Case Rulings

The core issue comes down to opposing attitudes and concerns regarding the safety of physical classroom learning for the children in the middle of these sometimes nasty disagreements between parents. Traditional classroom learning is still the most supported avenue in Ontario.

This opinion was echoed in Newmarket, Ontario[i] when Superior Court Justice Andrea Himel sided with the mother of a young boy in allowing him to attend school in-person. The boy’s father had felt safety protocols at the boy’s school were not proven effective and put his son at risk, so he wanted his child to attend classes virtually.

The rationale employed was that the decision to re-open the schools were made with the benefit of medical expert advisers and in consultation with Ontario school boards – the court should not interfere with this process unless the child or an adult in the household has any underlying medical conditions that may make them particularly susceptible to the adverse effects of COVID-19.

This recent case shines a spotlight on the reality that the pandemic will not be over anytime soon.  Not only did this Ontario Justice acknowledges that it may not be possible to provide a learning environment that is 100% safe, but she also acknowledged the challenges faced by parents in homeschooling their children (although not a deciding factor in and of itself).

Factors Considered by Judges in Ontario

The issue all courts have been juggling with is whether the social, psychological and developmental advantages of attending in-person learning outweighs the physical risks of returning to school.

The only test to be applied in custody and access matters is the best interest of the child.  Under the Family Law Act and the Divorce Act, the court determines the best interest of the child by considering the child’s needs and circumstances.

Toronto Justice Jasmine Akbarali[ii] shared her own determining factors when presented with cases involving the question of children attending school in-person or virtually this school year.

Six of these areas of consideration include:

  • Level of COVID-19 exposure risk
  • Family members in the household at greater health risk if infected
  • The overall risk to a child’s well-being, academic development, social growth, mental health if in an online learning environment
  • The ability to facilitate online learning in the household
  • Any additional proposed measures to reduce infection risks
  • Wishes of the child

Mediation is the Better Solution for Co-Parenting Disputes

While parenting styles may be different, and the pandemic may be highlighting this fact for many co-parenting families, it is important to understand that litigation is rarely the best first step. This reality is apparent in the way Canadian courts are addressing the issue of children returning to school when parents cannot agree.  Justice Himel encouraged parents to engage in mediation and employ creative solutions to this novel issue.  Taking time to do research and get accurate opinions from your child’s doctor may help ease the disagreement between parents. Mediation will allow more control over the final outcome where both parties will have a part in creating the best learning environment and experience for their children.

[i] Chase v. Chase, 2020 ONSC 5083

[ii] Zinati v. Spence, 2020 ONSC 5231