Parents across Canada have had to grapple recently with the decision of whether to send their kids to school in person or keep them home while they participate in online learning. With the pandemic still a concern, and even beginning to surge again in some areas, this has not been an easy decision. Parents having to balance concerns about the possibility of infection with the need for childcare, and their children’s need for socialization. For parents who are divorced and sharing parenting time and decision-making power, this can be a particular challenge if they disagree on how to manage the school year.

Recently, an Ontario Superior Court judge faced this issue and noted that the case was one of several urgent motions filed with the Court in a three-week period. Given that similar disputes are likely occurring in other provinces as well, we will take a closer look at this decision as a possible indicator of how courts across Canada will handle the issue.

In the Ontario case, the parents shared custody and access to their nine-year-old son. The parents were required to make a decision with respect to how their son would attend school at the start of the new school year; in person or online. The mother regularly works from her home, and the father is working from home until at least early 2021 due to the pandemic. The mother preferred that their son returns to school in person, while the father wanted him to remain at home until it could be established that the return to school was safe, based on observing the outcome of the first part of the year.

Taking A Child-Based Approach

The judge found that the issue had to be determined by considering the child’s best interests, first and foremost. The boy in question had been notably having a difficult time after six months of living in isolation and rarely seeing his peers. He was missing his friends and suffering from a lack of socialization. Further, he was enrolled in a French-immersion program, and neither parent was bilingual. As a result, neither parent could be particularly helpful with respect to assisting their son with his schoolwork; something that would be required if he were to remain at home.

No Unacceptable Risk of Harm

In addition to the factors relating to the child’s best interests, the Court also looked at whether anyone in the family would be required to bear an “unacceptable risk of harm” if the child were to return to school. Neither parent nor the father’s partner had underlying medical conditions that made them more likely to suffer the serious effects of COVID-19. In addition, while the father worked at home, he was required to be out in the community regularly, and his wife was an essential worker. As a result, both risked infection just by living their regular lives.

In addition, the Court noted the careful consideration behind the provincial government’s decision to reopen schools to 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…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.

Decision Likely to Have an Impact In Similar Cases Across Canada

Taking the best interests of the child, and the advice of the government and provincial medical experts into consideration, the Court found that the son would return to school in-person at the start of the school year. Parents across Canada facing similar disputes with co-parents should take note of the Court’s reasoning, as it would likely be similarly applied in decisions in other jurisdictions. For families where an immediate family member faces a higher medical risk due to underlying factors, a Court may find that the risk of a child returning to school would be ‘unacceptable’ in such a case. Without additional risk factors, however, Courts are likely to find that the government of a province is in a better position to properly assess the risk of opening the schools than the courts.

The family law lawyers at Mincher Koeman are exceptionally experienced with respect to child custody and access disputes following the breakdown of a relationship. We will work with you to ensure a custody and access arrangement that fits your family’s specific circumstances. Contact our office today by calling us at 403-910-3000 or contact us online.

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