Recent case: in-person school for child with complex educational needs

woman's hands with laptop and cellphone and paperwork

C.D. v. R.D. 2021 ONSC 6858: This is an interesting case which touches on the importance of in-person schooling for children who have complex educational needs in the midst of the COVID-19 pandemic. 

The father in this case sought sole decision-making authority and primary residence over the child. The father says that the child was enrolled in junior kindergarten before the parties separated in November 2019 but, almost immediately post-separation, the mother unilaterally moved the child to a different city and, since then, the child has not been enrolled in school. The mother stated that she is home schooling the child and works with the child several hours a day on his speech impediment. 

Justice Mandhane noted that the court was not provided with independent evidence as to the child’s academic progress or how is his speech impediment was improving with home schooling. 

Before the CAS and OCL were involved with the family, CAS encouraged the mother to enroll the child in school so that he had “positive social outlets with other children”. The OCL was forced to discontinue its involvement with the family because of the mother’s refusal to cooperate. However, the OCL did note that the child’s speech was difficult to understand.. 

The mother in this case says she is uncomfortable with enrolling the child in in-person school until he is eligible to be vaccinated. The child is 6 years old. She says that the father’s mother is immunocompromised and that she cannot risk exposing her to COVID-19. The mother did admit that both she and the grandmother were vaccinated and did not live together. There was also no suggestion that the child was required to have regular contact with the paternal grandmother. 

In arriving at her decision, Justice Mandhane stated that in making a parenting order the court must stay “laser focused on the best interest of the child” and that the parenting provisions of the Divorce Act must be interpreted consistently with children’s human rights and Canada’s obligations under international law.

Specifically, she states:

“A human rights-based approach to the parenting provisions of the Divorce Act, requires court to recognize, respect and reflect each child as an individual distinct from their parents, and to empower children to be actors in their own destiny. In practice, it requires judges to probe into each child’s lived experience, to meaningfully consider their views and preferences, and to craft an order that promotes that child’s best interest and overall well-being”. 

Since the outset of the pandemic, courts have consistently found that, where available, in-person classes are presumed to be in the best interests of the child. The parent who is requesting something other than in-person schooling (i.e. virtual schooling or home schooling) has the responsibility of presenting expert evidence as to why the alternative schooling is in the best interests of that particular child. 

The mother in this case was unable to demonstrate why home schooling was in the child’s best interests. Based on the evidence that was presented, it was clear that the child needed regular structure, socialization and ongoing therapy for his speech impediment which were best accessed in an in-person learning environment. 

Justice Mandhane stated that the mother had not satisfied her that here was any undue risk to the child in attending school in-person. In fact, neither he nor his mother are immunocompromised and many younger unvaccinated children have been attending in-person learning without any significant spike in infections. The real risks she stated were to the child’s mental health and emotional development if he were to be kept away from school any longer. 

The father was temporarily given final decision-making authority over the child’s educational needs and the mother was ordered to enroll the child in school and provide proof of the enrolment and attendance to the father regularly.