Reprinted from The Lawyer's Daily
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
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:
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;
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
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
No comments:
Post a Comment