Courts weighing in on back-to-school disputes between separated parents

Disputes between separated parents over whether or not to send their children back to school in person as the COVID-19 pandemic persists have been at the centre of two recent cases at the Ontario Superior Court of Justice, with the judges reaching opposite conclusions.

In the first case, decided Aug. 24, Justice Susanne Boucher was asked to decide the issue in respect of two children, one in Grade 1 and the other in Grade 3. The mother wanted the children to continue online learning, while the father wanted the children to attend in person. The mother grounded her position in the fact that one of the children has asthma and her belief the child would, consequently, be at “greater risk” if he attended school in person.

In reaching her decision that the children would attend school remotely, Justice Boucher noted the “situation is evolving almost daily with respect to the pandemic itself, and the school board’s plans for both educational formats.” She also found that while a report from Sick Kids Hospital that was referenced by the father recommended in-person attendance, “it is unclear whether the in-person plan actually conforms with expert reports and appears to lack some of the recommended safeguards.”

Continuing on, Justice Boucher wrote that it “would appear that the online option provides a better physical health safety plan for the children, which suggests that online would be in their best interests given the health concerns of the child with asthma.”

The very next day, Justice Andrea Himel released a decision, wherein she reached the opposite conclusion. The case centred on a dispute between parents over their nine-year-old son. The father sought an order that the child attend school remotely, while the mother wanted the child to attend in person.

In reaching her decision that the child should attend school in person, Justice Himel noted that 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.…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.”

Continuing in her analysis, Justice Himel noted there “is a consensus between the Ontario government and medical experts that, at this juncture, it is not 100 per cent safe for children to return to school. However, the risks of catching COVID-19 (and the typical effects of the illness) for children are being balanced against their mental health, psychological, academic and social interests, as well as many parents’ need for childcare.”

However, Justice Himel quickly points out an exception to the rule: If there is an unacceptable risk of harm to the child, or anyone in either parent’s home, remote learning will likely be preferred. As was the case in the matter before Justice Boucher, an assessment of the risk must include the presence of any underlying health conditions that make the child or other family members “particularly susceptible to adverse effects of COVID-19.” In the case before Justice Himel, no such conditions were present.

The father pointed to the impact of wearing a mask at school and how a mask “makes it harder to communicate clearly and read facial cues.” For Justice Himel, however, the father’s belief that mask wearing would impede the development of the son’s oral skills was insufficient to warrant online learning.

Lastly, Justice Himel turned her mind to the fears the child expressed in respect of returning to school in person. Justice Himel noted the parents could minimize those fears through appropriate messaging to the child that “support the Court’s decision” and by providing “reassurances that the Ontario government will continue to monitor risk and take appropriate steps to protect children.”

As part of her decision, Justice Himel cautioned parents generally in respect of this dispute, noting that “for some separated and divorced parents this is another battleground; one more arena where their (children) may become the prisoners of the war.”

To avoid what could become a tsunami of similar cases before the court, Justice Himel provided a number of creative solutions: “(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.”

These are unprecedented times. Separated parents must always keep their children’s best interests front-and-centre in making this difficult decision. While each dispute will be decided on its individual facts, parents should be guided by the comments of Justices Boucher and Himel, who were asked to step into the parents’ shoes and make the decision for them.

This article (which was featured on the front page) originally appeared in The Financial Post.