As a second wave of COVID-19 spreads across Canada and much of the world, it’s natural for some parents to question whether or not it is safe to send their children to school. Even with parts of Ontario in “lockdown”, schools are still open, leaving some to question whether it’s responsible to do so. We can expect an increase in court decisions related to this second wave. A recent decision from British Columbia shows how the courts continue to approach this issue.   

Parents disagree over whether schools are safe

The father applied to the court seeking an order requiring the parties’ two children to attend in-person schooling. The application was opposed by the mother, who wanted to homeschool the children during the pandemic. Their children are eight-years-old and four-years-old respectively. If homeschooling for the year was not to be an option, the mother asked that she be able to homeschool for at least a “transition” period.

Ontario and Quebec provide guidance

The court noted that there is little authority out of British Columbia in relation to requiring in-person schooling during the pandemic. The court stated that while British Columbia and Ontario may have different operating guidelines for schools, the decision from Zinati v Spence in Ontario is of “particular assistance.” The decision states that it is not the role of the courts to determine whether large government-run schools are safe to send children to. The courts do not have experts available to second-guess the decision making of the government. While there is no guaranteed safety for any child, a number of factors can be used to determine what is in the best interests of the child, including:

  • The risk of exposure to COVID-19 that the child will face if she or he is in school, or is not in school;
  • Whether the child, or a member of the child’s family, is at increased risk from COVID-19 as a result of health conditions or other risk factors;
  • The risk the child faces to their mental health, social development, academic development or psychological well-being from learning online;
  • Any proposed or planned measures to alleviate any of the risks noted above;
  • The child’s wishes, if they can be reasonably ascertained; and
  • The ability of the parent or parents with whom the child will be residing during school days to support online learning, including competing demands of the parent or parents’ work, or caregiving responsibilities, or other demands.

 Applying the factors to this case

When schools first closed in the spring, the mother homeschooled the children while she had primary parenting responsibilities. The father works outside of the home and would not be able to assist with homeschooling.

At the time the issue was heard, the children had not yet returned to school due to the mother’s opposition to doing so. The court found it was in the children’s best interests to return to in-person schooling, particularly for them to maintain connections with others in order to foster their developmental well-being. While there is some risk that the children could come in contact with someone who has COVID-19 and pass it along to others, there is no guaranteed safety from the virus anywhere, and a general risk such as that is not enough to keep the children at home.

The court ordered the children to return to school at the earliest possible moment.

Separation, divorce, and other family disputes are generally stressful and emotional. 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 at NULaw online or at 416-481-5604 to book a consultation.

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