In the early fall, there was a flurry of cases relating to whether children should go back to in-school learning or continue with online learning, some of which you can find summarized in our Case Law section.

The upcoming winter school break, coupled with COVID-19 cases rising at an alarming rate in many Ontario communities, is a good time to update our overview of these cases. There is little doubt that some families will be returning to court over the December holiday because they are not able to agree about whether children should go back to the classroom after the break.

Factors courts will consider

There have been a number of clearly articulated decisions written by Ontario family court judges that set out the factors the court will consider when making decisions about this issue.

One of the early cases that set some very helpful guidelines was Chase v Chase 2020ONSC 5083.

Other decisions that may be helpful to you are:

Zinati v Spence 2020 ONSC 5231: Justice Akbarali listed factors to be considered when deciding whether a child should remain at home or go back to in-classroom learning:

  • The risk of exposure for children if they go to school and if they do online learning
  • Whether or not the child or a member of their family is at increased risk of infection
  • The risk to the child’s mental health, social development, academic development or psychological well-being if they do not go back to school
  • Any steps that could be taken to minimize or remove these risks
  • The child’s wishes, where possible to ascertain
  • The ability of the parent(s) with whom the child lives to support online learning

In her conclusion, Justice Akbarali notes: “Absent an unacceptable level of risk to the child or their household, the court will lean towards deferring to the government’s decision to allow students back in school.”

J.N. v A.S. 2020 ONSC 5292: Further to her decision in Chase, in this case, Justice Himmel sets out factors for the court to consider when assessing “unacceptable” risk:

  • Is there an actual diagnosis for the vulnerable person?
  • What is the prognosis for the vulnerable person if they become infected?
  • What treatment is available for prevention and/or treatment if the vulnerable person becomes infected?
  • Are there precautions that could allow the child to attend school without placing the vulnerable person at an unacceptable risk of harm?

Joachim v Joachim 2020 ONSC 5355 and Manzon v Carruthers 2020 ONSC 6511 clarify that ordering a child to attend school online because of serious health concerns for other members of the family is not, in and of itself, against the best interests of the child.

J.E.S. v S.S. 2020 ONSC 6064: A parent was not permitted to transfer the children to another school district where the rate of infection was lower. The judge found that the school board where the children were already enrolled had taken the necessary steps to create a safe environment for students.

Kaszap v Volk 2020 ONSC 6129: In this case, a parent sought an order prohibiting the child from riding the school bus, but the court took the position that the school board’s decision that buses were safe was adequate and did not issue the order.

General court decision trends

It is clear from these cases that courts, generally, favour in-class learning for children, especially younger children and those with identified learning challenges. There is a high level of deference to government decisions to reopen schools and allow school buses to run. This may, of course, change in upcoming weeks as infection numbers continue to rise.

It is also clear that courts want to see parents cooperate, both in making decisions about schooling for their children and in supporting whatever decisions they make. This expectation of flexibility, shared decision making and ongoing cooperation is unrealistic and unsafe for women whose partners/ex-partners continue to bully, harass and abuse them. Sharing responsibility for at-home learning when abuse is a factor is not reasonable or safe, and courts need to acknowledge this directly.