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We wrote last week about the return to school and the annual spike in trials related to moving a child from one school to another. Of course, COVID-19 has only added to the number of issues that parents must sort through as disagreements can arise about whether it’s safe to send a child to attend school in person. This was the situation in a trial recently decided by the Ontario  Superior Court of Justice.

Parents cannot agree on whether it is safe to return to school

The parents were married in 2004, separated in 2016, and divorced one year later. The mother works from home in Newmarket, while the father lives close by and will be working from home until at least January 20201. The father’s wife is an essential worker who has returned to work in the community.

There has been a separation agreement in place since January 2017. It states that each parent share equal time with the child on a 2/2/5/5 day schedule. The parents also share vacations and holidays.

Neither household contains people who have underlying medical conditions that would put them at an increased risk should they get COVID-19.

The parents had been working through some other issues related to custody and access when COVID-19 hit. Since they, they have added whether the child should attend school in person to their list of issues to resolve.

The mother took the position that it is in the child’s best interest to return to school. She stated that he will do better in French immersion, as neither parents speaks French. They also noted that he has been lonely while isolated at home. The mother added that the parents had a hard time home-schooling the child during the early days of COVID-19.

The father stated that he agrees in-person schooling is best during normal times, but that during COVID-19 there are simply too many health risks involved.

Mediation and other ways to resolve the issue

The court noted that there are other ways to address the question around school which do not require an urgent case before the court. The court wrote, 

“A better approach is to engage in mediation with a professional or third-party trusted family member or friend. I note some of the creative ways to resolve the school attendance dispute: (1) Enrol the child at the commencement of the school year, and review the plan at Thanksgiving, following an outbreak at the school, or at the first opportunity provided by the school board to re-consider the choice; (2) Delay in-person school attendance and review the decision when specific criteria are met; (3) Create a small pod of children who can learn remotely together with the assistance of a parent(s) and/or tutor; or, (4) Explore whether the child may attend school in-person during the morning, (leaving before lunch)  and participate remotely in the afternoon.”

However, the parties chose to take their matter to the courts. The court adopted the reasoning in a recent decision from Quebec, which stated tat the government is in the best position to state whether a return to school is safe.

The court noted that the Ontario government has not said it is 100% safe to return to school, but that we may never see a 100% guarantee of safety, and that a return to school is necessary. Since nobody in either of the child’s homes are at risk, the court ordered him to return to school in-person for the start of the academic year.

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.

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