Quebec Court Weighs in on Returning Children to School When Parents At Odds

Mark Feigenbaum

Quebec is currently the hardest-hit province in Canada in relation to COVID-19 cases and deaths. Despite this, the Quebec Government announced that primary schools in certain regions of Quebec would reopen on May 11, 2020. Parents were given the option to send their children back to school or not. In a recent Quebec case, two parents went to court because they could not agree on whether to send their children back to school.

Parents Disagree on Returning Children to School

The parents have joint custody of their two children, aged 8 and 7.

After the Quebec Government’s announcement on April 27, 2020, to reopen primary schools in certain regions on an optional basis, the parents were unable to agree on the advisability of sending their children back to school in the context of the COVID-19 pandemic.

Academic vs. Safety Concerns

The father wanted the children to return to school, firstly, because he was returning to work again due to the partial resumption of economic activities in Quebec and would not be able to care for the children and secondly, because the children had been failing academically before schools were closed.

The mother did not work and wanted to keep the children at home to avoid any potential contamination from the virus, especially given her own precarious health condition. She wanted to undertake home-schooling of the children. 

Decision

The court sided with the father for four reasons.

First, the court stated that it was not the role of courts to assess the potential risks of contamination of the population in a pandemic situation. Rather, the court stated that this role fell upon competent government authorities, explaining:

“When the government decides to partially lift the containment measures related to COVID-19 in order to allow, among other things, the resumption of academic activities at the primary level, there is no reason for the court to question this decision, unless one or the other of the parties demonstrates, by a preponderance of evidence, that it would be contrary to the particular interests of their children to start going to school again, because, for example, of their state of health.” [translated]

The court determined that neither parent had offered such evidence.

Second, the court stated that decisions concerning a child must be made in his or her interests and in respect for his or her rights, which includes a child’s right to receive educational services under the Quebec Education Act. Under the same Act, parents have an obligation to take the necessary means to ensure that their child fulfills their obligation to attend school. The court stated that only in exceptional circumstances will parents or children be exempt from this legislation.

While the court acknowledged that the COVID-19 pandemic constituted an extraordinary situation, it did not find that the pandemic had any effect on these rights or obligations. The court stated:

“It is true that the government has decreed that returning to class starting May 11, 2020 is not “compulsory”. However, this does not take away from children’s right to receive educational services. […]

If one of the parents cannot, in a context of shared custody, offer his child home education for acceptable and reasonable grounds, there is no reason to deprive the child of his right to attend his school when possible.”

Third, the court found that in this context where the parents have recognized that the two children have learning difficulties, it would be contrary to their respective interests not to attend school until next September.

Finally, the court stated that it is unlikely that the current situation would be very different in September:

“Therefore, although the way of teaching with social distancing measures may very likely be very different from what was done before, there is no reason not to trust the teaching staff and educational institutions.”

As a result, the court ordered the two children to return to school effective May 11, 2020, unless the Quebec Government issued new directives to the contrary.

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 (416) 777-8433 or toll-free at (877) 275-4792 to book a consultation.