août 27. 2020

Should Kids Study In-School or On-line? A Court Decides.

Chase v. Chase, 2020 ONSC 5083 (CanLII)

It is instructive, to other parents, to note Himel, J.’s admonishment of the parents, herein, waiting until the last moment (i.e. mid-August), jumping the queue and bringing an emergency motion for the Court to decide what the parents should have tried harder to resolve, themselves.


[23] The need for a court to address this issue on an urgent basis is a self-fulfilling prophesy. Merely fail to resolve the issue from March to August 2020 and, voila, “the test for urgency is met”. In the normal course this approach would not be tolerated. 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.

And…

[28] I note that in this case (and in all others currently before the Court) the Mother and Father have delegated the authority to make the decision respecting their child’s in-person versus online attendance at school to me, a judge who has never met the parents and who will likely never meet the child. I would encourage the parents to return to mediation as this is a process that empowers them to make these important decisions.


Parents should probably consider that this case is a ‘test case’, of sorts, and save their time and money, avoid court and try to mediate a resolution themselves. As part of this Judgment, Himel, J. states:


[24] A better approach is to engage in mediation with a professional or third-party trusted family member or friend. I note some of the creative ways to resolve the school attendance dispute:

(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.

[25] Some of these cases would resolve with the benefit of an urgent case conference, if sufficient time and resources were available. While court-based mediation services are readily available (and are free or subsidized), a review of the various motion materials before me suggests that none of the parents attempted mediation, and all of the litigants waited until mid-August 2020 to bring this matter to the Court.




Reviewing the Caselaw


Himel, J. quotes at length a recent Quebec case ordering a 9 year old and 11 year old back to school - 20641, 2020 QCCS 1462 (CanLII). That Court indicates that a presumption or deference or reverse onus (upon the moving parent) will be given to the Quebec government’s decision on this issue:


[9] The adoption of numerous recent ministerial orders shows that the government is taking the necessary measures as the situation evolves.

[10] When the government decides to partially lift the containment measures linked to Covid-19 in order to allow, among other things, the resumption of academic activities at the primary level, there is no need for the Court to question this decision, unless one or the other of the parties demonstrates, by a preponderant evidence, that it would be contrary to the particular interests of their children to resume attending school, for example because of their condition health.

[11] This proof has not been made.


There appears to be another case in Ontario, released the day before this decision, wherein Boucher, J. declined to order in-school attendance for Gr 1 and Gr 3 siblings, where one of the children has asthma (a pre-existing condition). This case does not appear to be yet reported. See Adam Black’s article here.


The Court’s Reasoning Here


An Exception. Himel, J. reviews the specific circumstances of each household – the Mom and the Dad’s separate homes – and finds that there is no one, in either household, at a higher risk (i.e. pre-existing conditions, age, etc) were the child here to attend school, in-person.


Declining to Second Guess the Government’s Decision. Then Himel, J. adopts the approach of the Quebec Court, choosing not to develop the Court’s own opinion as to the safety of in-school attendance and replace the government’s decision-making process:


A Child-focussed Approach to the School Attendance Issue

[42] I adopt the reasoning set out in Droit de la famille — 20641, 2020 QCCS 1462 (CanLII). The Ontario government is in a better position than the courts to assess and address school attendance risks. The decision to re-open the schools was made with the benefit of medical expert advisers and in consultation with Ontario school boards. The teachers’ unions and others have provided their input as well as their concerns. While the parties spent considerable time addressing a recently released report by the Toronto Hospital for Sick Children, I decline to consider same. 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.

[43] Both parents agree that in non-pandemic times it is in W.C.s’ best interests to attend school on an in-person basis. Moreover, in “normal” times it is his parents’ obligation to ensure that he attends school regularly.

[44] However, these are unprecedented times.

[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.

[46] I note that the Ontario government did not hesitate to shut down all schools in March 2020 and has declined to re-open them until now. The Ontario government has articulated in the media that they will not hesitate to shut down schools again if the number of Covid-19 cases increases materially.

[47] All of the above factors weigh in favour of W.C.’s return to in-person learning in September 2020.