In Person School or Virtual School During COVID-19? (A Review of Recent Case Law)

Posted on 10 November 2020 Back to News

By: Victoria Hanton

Associate, HGR Graham Partners LLP

Email Victoria

The decision to either send children to school for in-person learning or keep them home for remote learning has been difficult for many families. Parents who are not on the same page regarding their child’s mode of education during COVID-19 are faced with additional complexities. Thus far, there have been a number of reported decisions from the Court on this issue, and it is expected that more cases will require a Judge’s input as the number of confirmed COVID-19 cases continues to grow. Like all decisions in Family Law, each case has been determined on its own specific set of facts.

One of the earliest cases regarding a parent’s right to decide whether or not their child should attend for in-person learning is Chase v. Chase, 2020 ONSC 5083. In Chase, the child’s time was divided equally between the separated parents. Although the mother wanted the child to attend in person school, the father wanted the child to stay home until safety protocols in the child’s school were proven to be successful. Neither household had any members with underlying medical conditions that would render them more vulnerable to COVID-19. Justice Himel adopted the reasoning set out in Droit de la famille – 20641, 2020 QCCS 1462 and relied on the messaging from the Ontario government regarding the safety of in-person learning:

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 [the “Sick Kids report”], 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…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.

Similarly, in Zinati v. Spence, 2020 ONSC 5231, the mother wanted the child to attend school in person and the father wanted the child to participate in virtual learning. In Zinati, Justice Akbarali outlined a helpful list of factors to consider when determining if a child should attend in-person or online schooling:

  • The court should proceed on the basis that the government’s plan is reasonable in the circumstances for most people, and that it will be modified as circumstances require or as new information becomes known.
  • When determining what educational plan is in a child’s best interests, it is not realistic to expect or require a guarantee of safety for children who return to school during a pandemic.
  • When deciding what educational plan is appropriate for a child, the court must ask what is in the best interests of the child. Relevant factors include: (i) the risk of exposure to COVID-19 that the child will face if the child is in or is not in school; (ii) whether the child or a member of the child’s family is at increased risk from COVID-19 as a result of health conditions or other risk factors; (iii) the risk the child faces to their mental health, social development, academic development or psychological well-being from learning online; (iv) any proposed or planned measures to alleviate any of the identified risks; (v) the child’s wishes if they can be reasonably ascertained; and (vi) the ability of the parent(s) with whom the child will be residing during school days to support online learning

In Joachim v. Joachim, 2020 ONSC 5355, the mother sought an Order for the children to attend school online for at least the remainder of 2020, while the father argued that the children should attend school in person. The mother produced medical evidence of the increased risks that the children’s stepfather, who was immunocompromised and had underlying medical issues, would be confronted with should the children be required to attend school in-person. It was also noted that there was a potentially increased risk of the mother and stepfather’s 15-month old child contracting COVID-19. Justice Summer found it to be in the children’s best interests that they attend school virtually for the 2020 fall semester. Justice Summer noted that the children’s best interests cannot be severed from the health and safety of their step-father and baby brother, and that they are inextricably connected to the wellbeing of both households.

As with most family law matters, these decisions are based on the specific facts of each case. If you and your child’s parent have conflicting views regarding your children’s attendance at school and you have questions about how to proceed, please contact one of the members of our Family Law Team to learn about your options.

*The content of this article is intended for general information purposes only and does not constitute legal advice or an opinion of any kind.  For information or legal advice on your individual circumstances, please contact Our Family Law Team.

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