Mother and school aged daughter

The case of Chase v Chase, 2020 ONSC 5083, provides a decision that offers clear thinking about what should happen when separated parents disagree on whether children should return to in-class learning this fall.

Pursuant to a separation agreement signed by the parents in 2017, the child spends equal time with each parent on a 2/2/5/5 schedule and the parents share responsibility for decision-making.

The mother wanted the child, who is 9 years old, to return to in-class learning in September but the father wanted him to remain at home until the school board could provide greater certainty that its arrangements for in-class learning would be successful in controlling spread of COVID-19.

Justice Himmel first reviewed whether or not the situation met the test of urgency, noting that there are a number of cases before the court dealing with the same theme, many of which parents should have been able to resolve on their own. In deciding that this case needed to be dealt with by the court, she wrote:

“However, notwithstanding that the parents create the problem, jump the queue and should not have their matter heard without following the usual processes, I accept that it is the Court’s duty to deal with these cases expeditiously. The child has a right to know the plan for the upcoming school year, and the parents need time to prepare for it.”

After reviewing the relevant sections in both the Divorce Act and the Children’s Law Reform Act, Justice Himmel examined a recent case from Quebec which, while not binding on the Ontario court, she found to be “instructive.” That case ordered that the child be registered to attend school in person, noting that it is for the government and not the courts to determine whether or not it is safe for children to attend classes in person.

In the Chase case, Justice Himmel considers a number of factors in deciding that the child should attend school in person:

  • He is enrolled in French immersion, and neither parent speaks much French
  • He has difficulty with learning independently
  • Isolation has been a challenge for him
  • The mother works full-time from home and struggled to micro-manage her son’s at-home learning in the spring
  • The child’s need for physical activity can better be met at school

Justice Himmel felt there were significant problems associated with the father’s plan to have the child continue with at-home schooling and that such an approach would not be in the child’s best interests.

In making her decision, she wrote:

“The Ontario government is in a better position that the courts to assess and address school attendance risks. The decision to re-open the schools was made with the benefit of medical expert advisors and in consultation with Ontario school boards. The teachers’ unions and others have provided their input as well as their concerns, . . . 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. . .

“There is consensus between the Ontario government and medical experts that, at this juncture, it is not 100% 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. There is no end in sight to the pandemic and, as such, no evidence as to when it will be 100% safe for children to return to school. . . .The Ontario government has articulated in the media that they will not hesitate to shut down schools again if the number of COVID-19 case increases materially.

“All of the above factors weigh in favour of [the child’s] return to in-person learning in September 2020.”