In our previous blog, Olivia Koneval outlined strategies for parents thinking about sending their children back to school in the fall. Since that time, the Ontario Superior Court of Justice issued Chase v. Chase, 2020 ONSC 5083. In this decision, the Court outlined for the first time what should happen when parties disagree about in person versus online schooling during the COVID-19 pandemic.
The mother wanted the child to return to in person learning. The father disagreed and wanted the child to attend school online until such a time that the school board’s “safety protocols are proven successful and that leading health experts are able to offer more certainty, having data obtained from when children have been attending school and not just in isolation.” The mother brought an urgent motion seeking sole decision making power over educational matters.
The Court deemed the matter urgent and ordered that the child attend school in person at the mother’s chosen school but did not change the joint decision making regime since it worked well otherwise.
Urgency as a Self-Fulfilling Prophecy
The Court deemed the matter urgent and heard the motion despite finding that the need “to address this issue on an urgent basis [was] a self-fulfilling prophecy” because the parties did not deal with the matter from March to August 2020. The Court noted that in “normal times” this attempt to “jump the queue” would not be tolerated however, “[t]he child has a right to know the plan for the upcoming school year, and the parents need time to prepare for it.” The Court did not take into account the fact that the government and school boards only recently presented their back to school pandemic plans and it is not clear whether the Court had this information before it.
The Court also stated that parties should “engage in mediation with a professional or third-party trusted family member or friend” rather than bring an urgent motion and use the Court’s limited resources. The Court suggested the following “creative ways” to resolve disagreements about in person versus online learning during the pandemic:
“(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.”
Parties in Ottawa seeking to negotiate a “creative solution” with professional help should consult our blog on the Virtual Family Law Project (VFLP) to learn more about this service.
Going Back to School was in the Child’s Best Interests
The Court found that it was in the child’s best interests to go back to school and deferred to the judgement of the Ontario government which was “in a better position than the courts to assess and address school attendance risks.” The Court stated:
“[45] There is a 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 determined that September 2020 is an appropriate time to move on to a “new normal” which includes a return to school.”
The Court noted that an order for online school may be warranted if the student, or anyone in either parents’ home, would be at an unacceptable risk of harm.
In this case specifically, the Court found that the father’s plans for continued online schooling would not work because they failed to consider logistical issues in the mother’s household as well as the child’s social and mental health needs.
Overall, this decision fits into the COVID-19 case law by encouraging parties to follow their existing custody and access arrangements and negotiate a resolution to disputes before turning to Court. For more information on this body of case law, please consult our COVID-19 resource page.
This blog post was written by Kathleen Broschuk, a member of the Family Law team. Kathleen can be reached at 613-369-0362 or at kathleen.broschuk@mannlawyers.com.
