Wise Law Blog: November 2020

Many separated and divorced parents have faced wrenching decisions about their children’s schooling this fall, due to the COVID-19 pandemic.

For many such families, agreement about schooling has been elusive, and unsurprisingly, there has been an explosion of case law on this topic over recent months.

This article will canvas this recent jurisprudence and highlight several factors that the courts have looked at when making back to school parenting decisions.

Government and school board decisions

In Chase v Chase (2020 ONSC 5083), one of the earlier Ontario "back to school" decisions, the court made clear that while sending children back to school in the COVID era is not without risk, the government's decision to open schools must also be trusted.

Similarly, in J.E.S v S.S. (2020 ONSC 6064), the court was not compelled to transfer children to a different school district on the basis that the children's current school district a higher rate of confirmed COVID-19 cases. In declining the parent's request, Faieta J. expressed that the TDSB was taking enhanced measures to reduce the risk of contracting COVID in high risk communities.

By the same token, Shelston J. refused a parent's request to bar a child from taking the school bus. The Applicant argued, and the court agreed, that absent evidence to suggest otherwise, parents can rely on the school board’s decision that school buses were safe during COVID.

Relevant Tests

In what has become an oft-cited test, Akbarali J. in Zinati v. Spence laid out the following factors when considering the best interests of the child for schooling purposes:

i. The risk of exposure to COVID-19 that the child will face if she or he is in school, 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 risks noted above;

v. The child’s wishes, if they can be reasonably ascertained; and

vi. The ability of the parent or parents with whom the child will be residing during school days to support online learning, including competing demands of the parent or parents’ work, or caregiving responsibilities, or other demands.

Courts will also consider the relative risk involved for the child’s family if they were to attend school in person. Absent an unacceptable level of risk to the child or their household, the court will lean towards favouring the government’s decision to allow students back in school. In J.N. v. A.S. (2020 ONSC 5292), Himel J. set out factors to consider when assesing what constitutes an “unacceptable risk”:

(a) a diagnosis for the vulnerable person;

(b) a prognosis for the vulnerable person if he/she catches Covid-19 (if the medical practitioner can provide same);

(c) any available treatment that is relevant to the prevention and/or treatment if the vulnerable person falls ill with Covid-19; and,

(d) whether there are any precautions that can be put in place to enable the child to attend in-person school without placing the vulnerable person at an unacceptable risk of harm.

The courts have established that the best interests of the child are “inextricably connected” to the well-being of the child’s families. In Joachim v. Joachim (2020 ONSC 5355), and later applied in Manzon v. Carruthers (2020 ONSC 6511), the court was clear that ordering online learning because of serious family health concerns is not a deviation from, or exception to, the best interests of the child.

Based on this emerging caselaw, below are five points that parents and counsel should be aware of when dealing with the back to school vs. home learning issue:

1. Child’s learning abilities:

Courts have been cognizant of the ages and learning abilities of the children. For younger children and children with demonstrable learning differences, the court will likely determine that attending school in-person is in the best interests of the child. One example is a child who has been diagnosed with an Independent Education Plan (IEP).

2. Strong medical evidence is crucial

Be prepared to show the court strong medical evidence to support an argument either for against sending a child for in-school learning. Some characteristics that the court will look for in medical evidence include:

a) A doctor’s diagnosis and prognosis;

b) The date of the medical assessment;

c) Whether there are conflicting reports between medical practitioners;

d) The “closeness” of a family member who may be at risk. For example, a court will likely rule that it’s not enough to keep a child at home because their school attendance poses a serious medial threat to their grandparents or other family members who are not part of the usual family routine or “social bubble”.

3. Be flexible with your fellow co-parent

If one parent is unable or incapable of supervising their child during school hours, a court will look favourably on a parent who is willing to “trade” some of their weekends, evenings and holidays so that the child can be in their care during school hours in order to facilitate online learning.

4. Make decisions together- or beware the consequences

If a child’s education falls under the purview of a joint custody agreement, be prepared to show the court that the parents have been collaborative in whatever decisions made for their child’s schooling. In Kaszap v. Volk (2020 ONSC 6129), the court found a parent who unilaterally enrolled their daughter in school without the consent of the other custodial parent in contempt of court for violation of a court order mandating joint decision making for their child’s schooling.

5. Limit the court’s scope by agreeing on basic and uncontroversial facts

The court has shown that they are comfortable taking judicial notice on widely known and relatively uncontroversial facts. It may be worthwhile for both parties to agree to a statement of facts before trial, to minimize the court’s judicial scope and to show the court that the parties are willing to work together.

- Simran Bakshi and Joshua Prizant

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