Nearly one year into the COVID-19 pandemic, one issue still being litigated in family law courts is whether children should attend school in-person or via remote learning on Zoom. After about a semester and a half of law school via Zoom, you probably have strong opinions about virtual learning and whether it’s a reasonable alternative to in-person education or a dumpster fire.
Parents who cannot come to a decision on their own about this matter have turned to judges to decide for them. Unfortunately, as often is the case in family law litigation, one parent wins and the other loses.
But what if the loser takes matters into their own hands? That is exactly what happened in Kaszap v. Volk, 2020 ONSC 6129. In 2017, the parties had consented to a final order from Justice Labrosse that ordered inter alia that the parents had joint custody of their child, Chloe, and that decisions about her education had to be discussed and agreed to by both parents.
By the time the pandemic hit in early 2020 and in-person education was suspended, Chloe had completed grade 4 and would start grade 5 in September 2020. Her parents attempted to reach an agreement over the summer as to whether Chloe would attend school in September in person or online. However, they were unable to come to an agreement. Chloe’s father, Mr. Kaszap, wanted her enrolled in in-person learning with an option to pull her out for remote learning if the COVID-19 situation worsened.
Chloe’s mother, Ms. Volk, was concerned that masks would not be worn consistently by children at school and that Chloe’s ADHD would put her at greater risk of contracting the virus. She also argued that because one-on-one time between students and teachers would be limited, it would be more beneficial for Chloe to learn remotely.
Eventually, Mr. Kaszap informed Ms. Volk that he would be enrolling Chloe in in-person education. In response, Ms. Volk took their issues back to court. On September 14th, 2020, she filed a Notice of Motion seeking the following relief:
- “An order directing that the child Chloe attend school from home by way of remote/virtual learning, which is an option that is available and appropriate in the circumstances of this case;
- An order finding the father in contempt of the final order of Justice M. Labrosse from August 2, 2017, for unilaterally enrolling Chloe into in-person/classroom learning sessions, without the consent or approval of the mother; and
- Costs of this motion on a full indemnity basis.”
While Ms. Volk was unsuccessful on the school attendance issue, she was successful on the contempt issue. In the endorsement dated October 8, 2020, Shelston J. cited Justice Himmel’s decision in Chase v. Chase, 2020 ONSC 5083 where she found that “the provincial government along with the health authorities are best able to assess and address school attendance and associated risks.” Shelston J. also relied on the decision in Zinati v. Spence, 2020 ONSC 5231 in which Akbarali J. set out a number of factors for the court to consider in determining whether a child should attend school in person or remotely during the COVID-19 pandemic:
- “The risk of exposure to COVID-19 that the child will face if she or he is in school, or is not in school;
- Whether the child, or a member of the child’s family, is at increased risk from COVID-19 as a result of health conditions or other risk factors;
- The risk the child faces to their mental health, social development, academic development, or psychological well-being from learning online;
- Any proposed or planned measures to alleviate any of the risks noted above;
- The child’s wishes, if they can be reasonably ascertained; and
- The ability of the parent or parents with whom the child will be residing during school days to support online learning, including competing demands of the parent or parents’ work, or caregiving responsibilities, or other demands.”
In analyzing both parents’ educational plans for Chloe in light of the above factors, Shelston J. held that it was in Chloe’s best interest to attend school in-person. The Justice reasoned that Chloe’s ADHD was not a condition that put her at a greater risk of exposure to COVID-19 in school.
Ms. Volk made several additional submissions in support of her position which were dismissed by the judge. She submitted that she and her partner, Chloe’s stepfather, were at increased risk of negative outcomes if they contracted COVID-19 due to her unresolved kidney issues and his asthma and high blood pressure. Shelston J. found that the medical evidence submitted was insufficient to allow a finding of increased risk to Ms. Volk or her partner. Ms. Volk had also submitted that Chloe’s mental health would suffer if she were allowed to attend school in-person and then be required to switch to remote learning due to the instability. Shelston J. agreed but pointed out that when all Ontario schools switched from in-person to remote learning in March 2020, Chloe’s mental health had not been negatively impacted.
Despite this, Ms. Volk was partially successful on the issue of contempt. Shelston J. agreed that by making a unilateral decision to enroll Chloe in in-person school, Mr. Kaszap breached the 2007 final order of Justice Labrosse. This being said, because a finding of contempt is an option of last resort, Shelston J. exercised discretion under Rule 1(8) of the Family Law Rules and ordered that Mr. Kaszap pay Ms. Volk’s costs associated with the motion rather than find him in contempt of the 2007 order.
The decision offers no insight as to whether or to what extent both parties tried to resolve their issues outside of the courtroom. If the parties had turned to mediation or a collaborative law process instead of litigation, their problems likely could have been resolved faster and at less of a financial and emotional cost to both parties, and, most importantly, to Chloe.