We recently reviewed an Ontario case which set out a test to be used by courts in determining whether a child should return to in-class learning or continue learning at home following the fall re-opening of schools during the COVID-19 pandemic.

In a more recent case, this test was applied when two parents could not agree on the issue.

Parents Cannot Agree on Education Plan

After the parents’ separation, a 2016 court order gave them joint custody of their daughter, who is currently ten years old and in the fifth grade. 

The order specifically addressed potential disputes over education and health care. It provided that major decisions affecting the child’s education would be made by the parents in consultation with the child’s teacher, guidance counsellor and school psychometrist. If the parents were unable to agree on major decisions regarding the child’s education, the decision of the school personnel would prevail. Additionally, the order stated that decisions regarding the child’s medical care were to be made in consultation with the child’s physician and, if the parents were unable to agree on any major decision regarding the child’s medical care, the decision of the physician would prevail.

In September 2020, the parents brought competing motions related to the school attendance of their daughter. While they agreed on the school where she should register, they could not agree on whether she should pursue her education online or in-person. 

The father wanted their daughter to register for online/virtual learning because he said she was at high risk if she contracted COVID-19. He stated that she has contracted pneumonia in the past, and was genetically disposed to an autoimmune disorder, ankylosing spondylitis, with which he himself had been diagnosed. The father presented a letter from his own physician to support his position.

In contrast, the mother claimed that the daughter had learning difficulties in both reading and writing skills and that in-person learning would provide her with the greatest educational opportunity. The mother presented a letter from the daughter’s physician to support her position regarding her general health; the physician stated that the daughter did not appear to have any medical condition that would place her at an increased risk of COVID-19 complications should she contract the virus.

Court Orders Daughter to Attend School In-Person

The court began by reviewing recent case law on the issue. It relied heavily on the test previously established, which sets out, in part:

  • 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.

The court noted that the evidence provided by the daughter’s own family physician indicated that she did not have any current medical condition that would place her at an increased risk of COVID-19 complications should she contract the virus. While the court acknowledged the father’s concern that she could develop the same autoimmune disorder that he has, it stated that it had to proceed on the basis of the diagnosis available at the time.

Additionally, the court found that in-person learning would provide the daughter with a superior educational experience, particularly considering her learning difficulties and the issues that she had experienced with on-line learning in the previous school term. The court stated that returning to school in person would provide the child with direct support and supervision from the educational professionals assigned to provide her with assistance. The court also found that the father’s plan for online learning, while commendable, would not provide the daughter with the same level of programming as in-person education. Finally, the court noted that the father’s at-home plan would not address the issue of social isolation if the daughter did not return to in-person learning. 

As a result, the court found that in-person teaching was in the daughter’s best interest, notwithstanding the risks involved. The court therefore ordered that the daughter be registered for and attend in-person learning for the 2020-2021 school year. 

Get Advice

At Feigenbaum Law, our goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible and ensuring your children are provided for. Mark Feigenbaum is able to counsel his clients on all potential risks that may result from a family law dispute, not just those related strictly to the breakdown of a marriage. Contact Mark online or call him at (905) 695-1269 or toll-free at (877) 275-4792 to book a consultation.