This year’s back-to-school experience remains an ongoing challenge for children, parents, educators, school boards, and public officials.
In Ontario, parents have the option to keep their children out of class ad school boards are required to provide options for remote learning.
With the availability of options comes the opportunity for opposing views and disagreement. When parents are separated, an already difficult decision can become much more complicated.
The courts across Canada have been faced with motions from parents to determine whether their children should attend school in person or online.
Here are some of the factors that have arisen so far in the cases heard.
Is There an Unacceptable Risk of Harm?
In the case of Chase v Chase 2020 ONSC 5083, Justice Himel reviewed the only two decisions on this issue that were reported in Canada at the time. Both decisions came from the courts in Quebec. Justice Himel found the reasoning in one of these two decisions particularly persuasive. She wrote:
 The Ontario government is in a better position than the courts to assess and address school attendance risks. The decision to re-open the schools was made with the benefit of medical expert advisers and in consultation with Ontario school boards. The teachers’ unions and others have provided their input as well as their concerns.
 There is a consensus between the Ontario government and medical experts that, at this juncture, it is not 100% safe for children to return to school. However, the risks of catching Covid-19 (and the typical effects of the illness) for children are being balanced against their mental health, psychological, academic and social interests, as well as many parents’ need for childcare. There is no end in sight to the pandemic and, as such, no evidence as to when it will be 100% safe for children to return to school. The Ontario government has determined that September 2020 is an appropriate time to move on to a “new normal” which includes a return to school.
Justice Himel takes a child-focussed approach to the school attendance issue and asks: If the child returns to school, will the child, or anyone in either parent’s home, be at unacceptable risk of harm?
Based on this test, Justice Himel ordered the child’s return to school after considering that the mother works outside of the home and the father works from home but is exposed when he goes out into the community. The elderly grandparents do not reside with them, and in any event, Justice Himel notes that the needs of the grandparents should not trump those of the child.
Subsequent judges have applied and expanded upon this test, while granting the same deference to the Ontario government in their decisions.
The Presumption is to Return to School
In the case of Nolet v Nolet 2020 ONSC 5285, Justice Edwards adds that there is a presumption in favour of attending school in person:
 In my opinion in the current circumstances in Ontario, the presumption is that it is in the best interest of a child to attend in-person schooling, absent compelling evidence to the contrary.
In Nolet, Justice Edwards applied Justice’s Himsel’s “unacceptable risk of harm” test and determined it is in the best interests of the 8-year old child with ADHD to attend school in person. Both parents work shift work and Justice Edwards found the classroom would offer the child a more consistent learning experience.
In the case of Zinati v Spence 2020 ONSC 5231, Justice Akbarali agrees with Justice Himsel and adds the following:
 b. 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.
Justice Akbarali also considers the best interests of the child test and provides a helpful list of considerations when determining the education plan for a child:
- 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.
Justice Akbarali applied these factors in Zinati v Spence to conclude it was in the child’s best interest to return to school.
The impact of the pandemic continues to change as more or new information becomes available. While the decisions summarized in this article are current, they may not be relevant a few weeks or a month from now. Justice Akbarali reminds us that:
 a. 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.
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