The following is a list of factors judges have considered in a number of recent Ontario family court decisions that dealt with cases whether or not children should attend school in-person.
Please remember that family court decisions are based on the individual facts of a family’s situation. You cannot assume that these factors will determine the outcome of a case with which you are involved.
- Courts will not generally explore whether or not government decisions about reopening schools were correct, because they lack the expertise to do so
- “The court should proceed on the basis that the government’s plan is reasonable in the circumstances for most people, and that it will be modified as circumstances require, or as new information becomes known.” (Zinati v Spence 2020 CarswellOnt 12519 (S.C.J.))
- “In my opinion in the current circumstances in Ontario, the presumption is that it is in the best interest of a child to attend in-person schooling, absent compelling evidence to the contrary.” (Nolet v Nolet 2020 CarswellOnt 12509 (S.C.J.))
- Whether or not a child should attend school in person is a question that courts will determine by assessing the potential risks and benefits for that specific child
- Neither in-person nor on-line learning is 100% safe
- The court’s decisions will be based on what is in the best interests of the child, including such factors as:
- The risk of exposure to the virus both in and out of school
- Whether the child or a member of their family has health factors that place them at increased risk from COVID-19
- Risks to the child’s social development, mental health, academic progress or psychological well-being from in-person vs on-line learning
- Plans to alleviate any of the identified risks
- The child’s wishes, where they can reasonably be ascertained
- The ability of the parent(s) to support online learning