We have written a few blogs over the last number of months dealing with the issue of whether it is safe for children to return to school, or whether education during COVID-19 is an educational matter or one of health. One of the most interesting parts of the law is the nuance in various situations. In a recent decision from the Ontario Superior Court of Justice, the court was asked to rule on whether a child’s predisposition to a disease is enough to allow a parent to keep her from school.

Parents cannot agree on school attendance

The parties have a ten-year-old daughter who is in grade 5. While the parents were able to agree on which school the child should attend, they were not able to agree on whether she should attend school virtually or in-person. The father sought an order that she attend school virtually. The mother, on the other hand, wants the child to attend in-person.

The dispute was largely the result of whether it would be healthy for the child to attend school. The father stated that she had pneumonia in the past and that she is genetically disposed to an autoimmune disorder called ankylosing spondylitis, with which the father has also been diagnosed. While the daughter does not have the condition, he states there is a “probability” she carries it. As a result, he claimed in-person schooling would be a threat to both his and the daughter’s health.

The mother told the court that the child has difficulties in reading and writing and has had an Individual Education Plan designed for her. The mother said that attending school through this plan would be the best way for the child to succeed at school. The mother also presented a letter from the child’s doctor, stating she does not currently have any medical conditions.

What is in the best interest of the child?

The court recognized that each of the parents is looking to secure the best interests of the child, but have different opinions on how to best do so. The debate about in-person or virtual schooling is a common one for many people, even those without underlying health concerns.

The decision cited a recent statement from the court in another decision from earlier in the year where the court stated that the Ontario government is in a better position than the court when it comes to assessing school attendance risks. With the government concluding along with medical experts that while it is not 100% safe to return to school, the balancing of mental health, psychological, academic, and social interests means that in-person schooling is appropriate at this time.

As for the child’s likelihood of developing the condition her father has, the court relied on the physician’s statement that she does not currently have a medical condition that would put her at risk. With that being the only medical evidence available at the time, the court found it was safe for the child to return to school, adding that the benefits of her doing so outweigh the potential risk to her father, who has the condition.

Separation, divorce, and other family disputes are tough to work through even when there isn’t a global health pandemic occurring. The situations that many families are currently in may compound these stresses. If you are contemplating a separation or divorce, your best short term plan is to contact an experienced family lawyer immediately to understand your options, and to formulate a strategy for moving forward. Contact the knowledgeable, effective, and compassionate family lawyer Lex Arbesman at NULaw online or at 416-481-5604 to book a consultation.

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