Gelman & Associate's statement regarding COVID-19 - Read More

The upcoming return of the school year has many families concerned about whether their children will be safe at school as well as whether another shutdown to the academic year could occur should there be another rise in COVID-19. In a recent decision from the Ontario Superior Court of Justice, two parents could not agree on whether or not their child should attend school in person when classes resume.

Differing opinions on child safety at school

The parties were married in 2004, were separated in 2016, and divorced in 2017. The parents share equal custody of the child. The mother lives in Newmarket, while the father lives in Keswick with his new wife, who is an essential worker and has had to continue to work through the COVID-19 pandemic, but neither household has anyone in it with an underlying medical condition that makes them more susceptible to the adverse effects of COVID-19. However, it is the father’s opinion that it is not safe for the child to return to school, stating he wanted to wait to see if schools prove to be safe before sending their child into classes. The mother is asking the court to allow her to send the child to school in-person.

Decisions on the re-opening of schools

The court noted that only two decisions in Canada address the reopening of schools during the COVID-19 pandemic, and that both of these decisions come from Quebec. In the first decision, the judge declined to order a child to return to school as a family member suffered from an auto-immune disease which makes them high-risk if in contact with the virus.

In another decision, though not binding in Ontario, two children were ordered to return to school. In that decision, the court said that it is the responsibility of the government, not parents, to assess the safety of returning to school. The court added that it is in the best interests of the child to return to school.

Is it safe for the child in question to return to school?

The mother’s argument was that it is in the child’s best interests to return to school, stating that he is taking classes in French, and neither parent is able to properly assist him in that language. Additionally, the mother said the child learns better in a school setting than when studying independently at home, where the mother and father both have to work.

The father agreed that the child is better off at school in non-pandemic times, but that the health risks associated with COVID-19 are severe enough that he worries about the emotional and psychological harm the child could experience going back to class during the pandemic.

While the father told the court he could help his child with at-home learning, the child’s best interests would be better served at school, noting the social interactions he has been without for the last six months.

As a result, the court adopted the reasoning set out in the second decision cited, stating,

“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, 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.”

Contact Gelman & Associates to learn how knowledgeable family law lawyers can protect your custody and access rights. We strive to provide you with the information and resources necessary to make informed decisions about family law matters. To help you maintain positive mental health during a difficult period, we also offer our clients a free consultation with a psychological professional.