We have previously written about an Ontario court decision that established a list of factors to guide courts in determining whether children should return to school or continue at-home schooling during the COVID-19 pandemic when parents cannot agree on the issue.

In a recent British Columbia case, the court adopted and applied the Ontario court’s criteria in resolving a similar dispute after the court noted that there was little authority, if any, in British Columbia on the issue.

Parents Go to Court over Schooling 

The mother and father have two children: an eight-year old son who was to go into grade three and a four-year old daughter who was to commence kindergarten.

When the schools in British Columbia closed between March and June 2020 at the beginning of the pandemic, the mother homeschooled the children when she had primary parenting responsibilities. 

On September 21, 2020, the court heard an application by the father to have the two children attend in‑person schooling. At the time of the hearing, the father was working and was unable to maintain a homeschool regimen if the children were not able to attend school in-person. 

The mother opposed the father’s application because she wanted to homeschool the children. The children had not yet returned to school; the son had therefore been out of the regular school system since March and the daughter had never been in the public school system.

Court Adopts and Applies Ontario Criteria

The court noted that, while there were some difference in the school-opening procedures and policies in Ontario as compared to those in British Columbia, the Ontario decision was of assistance. Additionally, the court noted that under s. 49 and s. 37 of British Columbia’s Family Law Act, the primary focus is the best interests of children, which is similar to legislation in Ontario.  

Applying the principles derived from the Ontario decision, the court determined that it was not its task to make determinations about education plans for children, stating: 

“In British Columbia that is the task of the Ministry of Education with the assistance of the Public Health Officer. […]

The British Columbia government chose to shut the school system down for a period in early March 2020 and reopen it in June 2020 without making attendance mandatory. Subject to extraordinary circumstances it is now, however, mandatory for children to attend school in person. […]

Unless there are exceptional circumstances to the contrary, we must leave it to government and to the medical and science community to determine the best interests of children generally. Eighty percent or more of the children in this province are now going to school.

This pandemic is an ongoing problem. It is not a four‑month problem as the mother in this case seeks to assert by having the children enter into the proposed transition program. 

The risks of spread of the virus will continue during as well as after that four‑month transition period.”

The court then turned to consideration of the best interests of the two children. It noted that there was an obviousrisk of exposure to COVID‑19 if the children were to go to school; however, there would also be a risk of exposure if they stayed home and were homeschooled. 

The court found that the transition option sought by the mother would only be an option for a short period of time. The court expressed concern for the risk posed to the children’s educational development by keeping them out of school for a further four‑month period, as well as a risk to their developmental well-being, and the additional importance for children to maintain social connections. 

The court further found that it would not be in the son’s best interests to be homeschooled because he had previously experienced some social difficulties which would be exacerbated by a longer period away from the regular school system. The court found that homeschooling would therefore negatively impact his mental health, social and academic development, and his psychological well‑being. 

While the court noted that the children’s grandmother’s health would be put at risk if the children were in regular school, the court found that such risks did not trump the importance of social development for the children, stating: 

“This is, after all, about the best interests of the children, not the best interests of others.” 

Finally, the court found that it was significant that the father worked and would be unable to support at-home learning. The court found that, as a result, homeschooling would have to be conducted primarily by the mother, which would result in a substantial change of the parenting schedule. 

As a result, the court found that it was in the best interests of both children that they commence attending school in person.

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.