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We have recently blogged about a number of cases where the courts were tasked with making decisions about children’s schooling during the COVID-19 pandemic. Given the time of year, there has been a myriad of these types of cases appearing before the courts. In yet another recent case, an Ontario court considered a father and mother’s competing motions related to the school attendance of their child.

The Child’s Health

The parties, who were separated, had one child. The child was ten years old and going into grade five.

The parties shared joint custody of the child. While they agreed on the school where the child should register, they could not agree whether she should attend in-person or online.

The father claimed that the child should be registered for online learning because she was at high risk of developing complications if she contracted COVID-19. Specifically, the father argued that the child was genetically disposed to an autoimmune disorder, ankylosing spondylitis. He acknowledged that the child had not yet been diagnosed with this condition, but maintained that it was probable she had the disease because he had been diagnosed with it himself.

On the other hand, the mother argued that the child had learning difficulties. As a result, she believed that in-person learning would provide the child with the best educational opportunity. The mother also submitted a letter from the child’s physician, which stated:

I am the Family Physician for [the child]. To the best of my knowledge, she does not have any current medical condition that would place her at an increased risk of COVID-19 complications should she contract the virus.

In-Person Learning is Best

In finding that it was in the child’s best interest to go to school in person, the court relied on a statement from another case we blogged about, Chase v. Chase, which explained:

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…

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. There is no end in sight to the pandemic and, as such, no evidence as to when it will be 100% safe for children to return to school. 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.

In determining what was in the best interests of the child, the court also considered the following factors that were listed in another recent case, Zinati v. Spence:

  1. The risk of exposure to COVID-19 that the child will face if she or he is in school, or is not in school;
  2. 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;
  3. The risk the child faces to their mental health, social development, academic development or psychological well-being from learning online;
  4. Any proposed or planned measures to alleviate any of the risks noted above;
  5. The child’s wishes, if they can be reasonably ascertained; and
  6. 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.

In the end, the court found that the benefits of the child attending in-person learning outweighed the risks. The court relied on the fact that the child’s own family doctor confirmed that the child did not have a medical condition that would put her at an increased risk of COVID-19 complications if she were to contract the virus. The court also explained that in-person learning would provide the child with the best educational opportunity (especially in light of her learning difficulties) and would help prevent the child from experiencing social isolation.

Connect With Us

If you have questions about your rights, it is best to speak with a lawyer. At Gelman & Associates, we understand that this is an uncertain and stressful time. We remain open to help our clients, but are taking precautions to keep safety paramount. Our goal is to always empower clients to make informed decisions about their future. To help you maintain positive mental health during a difficult period, we also offer our clients a free consultation with a psychological professional.

In order to be available to clients and prospective clients, our phone lines are open Monday to Friday from 8:00 a.m. to 8:00 p.m. Call us at 1-844-769-0737, or contact us online if you have a family law matter you need help with.

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