The Covid-19 pandemic has raised a unique issue for separated or divorced parents. Now that public schools are open, should children go back to in person learning, or should they continue remote education?
In a recent motion heard at the Superior Court of Justice, a mother sought an order
that she be granted sole authority to make decisions regarding the education of her 9 year old son [W.C.]. More specifically, she wished that W.C. attend school in person starting in September 2020. W.C.’s father, on the other hand, sought an order that the child remain at home and do remote learning until measures to prevent the spread of COVID-19 in schools are proven effective. Nevertheless, Justice Andrea Himel granted the mother’s motion and ordered that W.C. would be registered and attend school in person starting September 2020 despite his father’s objections.
Here, Justice Himel made her decision in accordance with Section 24 of the Children’s
Law Reform Act. Decisions such as these are to be made in the best interests of the
child. More specifically, one determining factor is the plan proposed by each parent for the
child’s care and upbringing.
Here, the mother argued that it was in W.C.’s best interest to attend school in-person.
Indeed, she worked full-time from home and conceded that she could support remote
learning, but it would not be easy. W.C. was enrolled in a French language
program at school and neither she nor her ex-husband speak French. Further, W.C.
had struggled with independent learning and self-regulation when schools closed earlier this year in March. Remote learning also required more screen time than she felt W.C.
should be exposed to. Also, isolation had been difficult for W.C., and his best
friends would be returning to school in person, not to mention how his physical activity would also improve.
On the other hand, the father argued that the health risks to W.C. and others by his return to school in-person were too great. Although he shared the mother’s concern about the possible adverse effects on W.C.’s emotional and psychological well-being, and his academic
Performance, he submitted that those challenges could be avoided through remote learning.
The father’s plan to facilitate W.C.’s remote learning was as follows:
1. He would take additional time off work to teach W.C;
2. He would provide a level of exercise comparable to what W.C. would have at school including “biking, rollerblading, or hockey in the driveway and unsupervised outdoor play in the neighbourhood”;
3. He would use Google Translate and a dictionary to help W.C. learn French;
4. He would limit W.C.’s screen time to two hours per day outside his remote school work.
Justice Himel found significant problems with the father’s plan, despite his best interests. Although the father had a flexible work schedule, his plan failed to address how W.C.’s mother would be able to implement the same plan around her own work schedule. Secondly, the father acknowledged how difficult isolation had been for W.C. and that W.C. missed his friends. However, his plan also failed to address W.C.’s “social needs after six months in isolation.” The father justified W.C.’s continued isolation on the basis that W.C. understood the COVID-19 pandemic, the risks, and the need for isolation. However, he did not address how W.C. may react when his peers return to school while he remained in isolation or, even the “potential impact [of his peer’s return to school] on his mental health.” In granting the order that W.C. attend school in person, Justice Himel adopted the
reasoning from a recent decision out of Quebec on the same issue. The Ontario government made the decision to reopen schools with the advice of medical experts. While “it is not 100% safe for children to return to school,” the risks must be balanced with children’s mental health, social interests, and academic needs, along with the parents’ need for childcare.
Justice Himel found that neither W.C. nor any person in either parent’s home would be at an unacceptable risk of harm by W.C. attending school in person.. She also commented on the father’s concern about the impact that wearing a mask at school may have on W.C.’s education. Here, she argued that masks actually make it harder to communicate and read facial cues. However, she found that this risk did not warrant remote learning.
School attendance during a pandemic presents a novel family law issue in Ontario.
The parties here did not have the benefit of case law to guide them, but this decision provides a precedent to separated or divorced parents in Ontario struggling with similar issues. Parents fearing for their children’s health by in-person school attendance during the pandemic should come to an agreement in either mediation or negotiation. Otherwise, they may find their preferences overridden in court.