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Many parents have recently found themselves in disagreement over whether or not in-person learning at school is safe for their children with the rise of COVID-19 cases across much of the country. Parents may find themselves in disagreement, and naturally there is often divided opinion between parents, especially for those who are separated and divorced and do not see to eye-to-eye on issues of parenting.

 

In a recent case of Zinati v. Spence 2020 ONSC 5231, the Ontario Superior Court of Justice considered at motion the issue of whether it is safe for a child to attend school in-person.

 

Parents disagree over whether or not school is safe for a child

 

The mother and father of the child, who was 6 years old and was to start Grade 1 this year, exercised de facto joint decision making. Like many children, the child's last year of school was interrupted by the COVID-19 shutdown. The child's school resumed in-person learning in September 2020. However, the father did not wish the child to attend in-person schooling, while the mother supported that the child return to in-person learning.

 

The issue before the court was to determine if it was in the child's best interest to return to in-person learning at her school, or to continue with online learning. 

 

To make matters even more complicated, the child's stepmother is a front-line health care worker who therefore may be of exposed risk of getting COVID-19. Both homes were also shared by a grandparent. However, the court did not consider the grandparents to be at increased risk other than risks associated with age. The court was satisfied that the stepmother was following health guidelines established by her profession. The child had no health issues of her own that would put her at an increased risk if she were to contract the virus.

 

How has the court been dealing with cases involving children and return to school during the concerns relating to COVID-19?

 

There have been a number of decisions recently released relating to the question of safety for students returning to school during COVID-19.  In Chase v. Chase 2020 ONSC 5083, Justice Himel of the court heard an urgent motion in writing where the parents could not agree about whether or not their child should attend school in-person or online. In Chase v. Chase, the court referenced two cases from Quebec, which is unusual because Quebec decisions are rarely binding on Ontario courts. In one of the Quebec cases, a return to school order did not occur because a family member was at high risk of contracting the virus because of an autoimmune disorder. In the other case, the court found that the government and provincial health authorities were in the best position to determine if a return to school decision was safe.

 

In our case at hand, the court examined a child-focused approach to the school attendance issue and quoted the earlier Ontario decision in Chase v. Chase, which stated at paragraph 42:

 

"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."

 

The Court's View

 

Justice Akbarali held that while no child is entirely free of the health risks associated with COVID-19 while attending school, the risks have not found be severe enough to warrant keeping children who are not at a higher risk of health complications from attending at in-person learning. The court found that there were not sufficient grounds to warrant requiring the child to attend school virtually or to delay the child's return to in-person learning. 

 

The court also held that there would be no order as to costs because the issue "novel, important, and an all-or-nothing issue." The court found that since neither party acted in bad faith or took unreasonable positions that there was to be no costs of the motion.

 

If you are dealing with a complication arising from a situation of schooling for a child during COVID-19 as it applies to your family law and parenting matter, we invite you to contact an experienced lawyer at our firm for more information about how we may be of assistance.

 

Aubrey Sherman is the managing partner at Sherman Law LLP in Kitchener, Ontario. His practice focuses on family law, estate planning, and estate administration. The team at Sherman Law LLP in Waterloo Region has over 40 years of experience providing clients with creative and innovative solutions. If you wish to discuss your family law or estate planning matter in further detail, please contact our office to arrange for a consultation. We can be reached by phone at 519-884-0034 or by email.

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