As Ontario schools prepare to reopen next Tuesday, parents across the province are deciding whether to send their children back to in-person school or continue with online classes from home. For many separated and divorced parents, the issue of school attendance has led to disputes requiring the assistance of lawyers, and in some cases, judicial intervention.

Ontario courts have heard a multitude of cases on the issue of school attendance over the past seven months. The precedent-setting Chase v. Chase, 2020 ONSC 5083, decided in mid-August 2020, remains the leading case on the issue. In Chase, the Superior Court of Justice considered the question of whether it is in the best interests of a child to return to in-person school in the midst of a pandemic. The issue was brought before the court by the mother on an urgent basis, seeking inter alia an order that the parties’ nine-year old child commence in-person classes when schools opened in September 2020. The father opposed this motion, raising concerns over the health risks and insisting that the child take classes online until the school board had implemented the appropriate safety measures.

Deference to the Ontario Government

When Chase was brought before the Superior Court of Justice in Ontario, there had only been two other decisions in Canada on the issue of school attendance during the pandemic. Both were from the Quebec Superior Court. In the first Quebec case, the court declined to order the children’s return to school on the basis that a family member suffered from an auto-immune disease. In the second Quebec case, the court ordered the two children to return to school, stating: “it is not for the courts, but rather for the competent government authorities, to assess the potential risks of contamination of the population in a pandemic situation and to take the necessary measure to limit the spread of the disease”. Justice Himel adopts this reasoning in Chase, stating that the Ontario government is in a better position to make decisions concerning school attendance than the court. Since Chase, Ontario courts have continued to defer to the COVID-19 related public health guidelines when deciding on disputes over school attendance.

The Best Interests of the Child

The central question in Chase was whether the child’s best interests are served by attending school in- person or through online learning. Justice Himel considered the arguments and evidence advanced by both parents before granting a temporary order requiring the child to attend in-person classes at the start of the school year, and for this arrangement to be reviewed at a later date. A number of different factors were considered, including and most notably, whether either party and their immediate families had any underlying medical conditions that made them particularly susceptible to the adverse effects of COVID-19.

It is worth noting that in making this decision, Justice Himel also recognized that not all parents are experiencing the pandemic in the same way, noting:

“The Father is fortunate to have a flexible working schedule and a second adult in the household. The Mother has neither. The Father’s plan fails to address how the Mother will be able to implement his plan, nor does it address the Mother’s concerns respecting the constraints on her ability to work if [the child is enrolled in the online education program.]”

The Law on Urgency

“This is the first of several urgent motions to be filed with the Court since August 17, 2020 and, without a doubt, there will [be] more forthcoming. […] There is a common theme to all of the cases currently before the Court; parents disagree about whether their child should attend school in-person or online.” (Justice Himel in Chase)

Although the court proceeded to consider the issue of school attendance as an urgent matter on the basis that the child had a right to know the plan for the upcoming school year and the parents required time to prepare for it, Justice Himel noted that the mother’s attempt to “jump the queue” would not normally be tolerated. The better approach in these types of cases would have been to engage in mediation with a professional or third-party trusted family member or friend.

Takeaways

The abundance of cases decided by the Ontario courts over the past seven months, including Chase, have provided considerable insight into how these decisions on the issue of school attendance during a pandemic will be made. Overall, the court has shown that it will consider each matter on a case-by-case basis, using a child-focused approach, and will likely continue to rely on the authority of the Ontario government to make decisions to open schools. For the full text of the decision, see: Chase v. Chase, 2020 ONSC 5083.

The content of this article is intended to provide general information only.

By: Tharmini Kuhathasan