Our world is rapidly adapting to the new restrictions that have come into place since the onset Covid-19 pandemic. These restrictions have left many families with new parenting issues. One commonly arising new issue is the determination of whether children will continue with in-person learning or engage in the many online schooling options that have become readily available.
There are now many reported decisions considering the placement of children in school during the pandemic, but it is important to note that the courts in Alberta and across Canada will consider the circumstances of each family to determine the educational venue that will be in the best interest of the subject-children, and there is no “one size fits all” approach.
In Joachim v Joachim, the Ontario Superior Court determined that the health of the entire family, not just the children, was a factor that needed to be considered. In this case, it was decided that a return to online learning brought an increased risk of exposure to Covid-19, and, in turn, increased risk of transmitting the virus to vulnerable family members. As such, the Court determine that this risk was unnecessary in the circumstances, as there was evidence that the children were strong students and would have adequate help at home with online learning, if needed.
In Glynn v. Paulmert, the Ontario Superior Court in assessing whether online or in-person learning was more appropriate, considered the extremely low risk that children will be hospitalized with Covid-19when there are no special health risk factors for that particular child.
In J.N. v. A.S, where a party has alleged that returning to in-person learning would present an unacceptable medical risk to a vulnerable person in that household, the Court in this case put forth that medical evidence will be required to support this position and could include:
a) a diagnosis for the vulnerable person;
b) a prognosis for that vulnerable person if they were to contract Covid-19;
c) any available treatment that is relevant to the prevention and/or treatment of the vulnerable person should they contract Covid-19; and
d) whether there are any potential precautions that could be implemented to enable a child to attend in-person school without putting the vulnerable person at an unacceptable risk of harm.
In Chase v Chase, the Ontario Superior Court balanced the risks of catching Covid-19 against the mental, psychological, academic and social interests of the children involved in this case, and the parents’ need for childcare as a result of children if they attended school from home. In this case, the Court ordered in-person attendance, and obiter was provided that the provincial government was better suited to assess and address the risks associated with in-person attendance.
Notwithstanding the Obiter in Chase, in Zinati v. Spence, the Ontario Superior Court also noted that when making decisions the court should proceed on the basis that the provincial government’s plan is reasonable in the circumstances for most people, and that it will be modified as circumstances require, or as new information becomes known.
In Shepstone v. Masales, the Ontario Superior Court considered the children’s individual learning challenges to determine whether the children’s educational needs could be adequately met in an online learning environment.[6] This analysis can also then be reflected back at the role and abilities of the parents, as it was factored in the case, Nolet v. Nolet, by the Ontario Superior Court. In this case, the court critically assessed the ability of the parents to schedule, facilitate, and help with a child’s online learning.
Finally, a child’s preference, to the extent that it can be reliably ascertained from the child, and the level of maturity of that child being able to express their preference for online or in-person learning may also be considered in determining where and how the child will go to school as what in the case, Zinati v. Spence.
It is clear that in determining the appropriate venue for a child’s school, a court engaging in this type of decision making will likely embark on weighing the above factors set out in these cases here in Alberta. When parents are faced with the decision to litigate this legal issue, a parent should be prepared and have a well-articulated submission of facts that will address the unique needs of the children, so that the court can ultimately determine a decision that is consistent with the best interests of a child.
At Family Central Law Office LLP, you can rely upon the legal advice of an experienced family lawyer who has gone before decision makers in Alberta: judges, justices and arbitrators to advocate for clients in the critically important area of education for a child. Please contact us today for a free consultation with our family lawyers on your matter by calling our office at 587-392-7970 or emailing info@familycentrallaw.com, or by clicking on our consultation page.
