Ontario Court Establishes Test in Response to School Re-Openings Amid COVID-19

Mark Feigenbaum

When schools first re-opened in Quebec in May, we wrote about a Quebec decision in which the court ordered two children to return to school in-person after their parents could not agree on whether to send their children to school or not due to the COVID-19 pandemic.

Following the summer break, Quebec schools re-opened at the end of August. As of September 15, 2020, Quebec is reporting 377 COVID-19 cases across 233 schools and Quebec Premier François Legault has already raised the prospect of closing schools if the number of new cases continues to rise.

In Ontario, schools re-opened this week and the province is reporting 41 COVID-19 cases among students and staff in publicly-funded schools.

In the weeks leading up to Ontario’s school opening, courts saw several cases of parents bringing urgent motions to resolve conflicts in which the parents could not agree on whether to return their children to school or continue at-home learning.

Ontario Court Establishes Test to Resolve Issue

In one recent case, an Ontario court established a list of factors to guide courts in determining the issue.

In that case, the parents went to court becausethe mother wanted their daughter to return to the classroom for in-person learning, while the father wanted her to continue to learn at home.

After reviewing case law and various reports on the issue, the court established a set of factors to guide determinations of whether children should attend in-person learning or online learning as follows: 

1. It is not the role of a court tasked with making determinations of education plans for individual families or children to determine whether, writ large, the government return to school plans are safe or effective. The government has access to public health and educational expertise that is not available to the court. The court is not in a position, especially without expert evidence, to second-guess the government’s decision-making. The situation and the science around the pandemic are constantly evolving. Government and public health authorities are responding as new information is discovered. The court should proceed on the basis that the 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.
2. When determining what educational plan is in a child’s best interest, it is not realistic to expect or require a guarantee of safety for children who return to school during a pandemic. There is no guarantee of safety for children who learn from home during a pandemic either. No one alive today is immune from at least some risk as a result of the pandemic. The pandemic is only over for those who did not survive it.
3. When deciding what educational plan is appropriate for a child, the court must ask the familiar question – what is in the best interest of this child? Relevant factors to consider in determining the education plan in the best interests of the child include, but are not limited to:
4. 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.

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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.