Back to School

By Munera Lawyers

Despite the on-going COVID-19 pandemic, the government of Ontario has reopened schools. As a result, separated parents who cannot reach an agreement as to whether their children should go back to in-person classes or remain learning online have brought a number of cases to the Ontario family courts.

It is well-established that the only test in custody and access matters is the best interests of the child.[1] In the current circumstances in Ontario, the courts have found that the presumption is that it is in the best interests of a child to attend in-person schooling, absent compelling evidence to the contrary. [2]

However, the decision of in-person vs online schooling involves a number of factors, and therefore it is not surprising to see that the courts have reached different conclusions in different cases based on their unique circumstances. in Joachim v Joachim, the court ruled that the children should attend school online, while in Chase v Chase, the judge ordered that the child shall attend school in-person.[3] 

In Chase v Chase, the child was enrolled in a French immersion program and neither parent was bilingual. While the father had more flexible working hours, the mother worked full-time and the demands for parents to monitor and assist online learning was not manageable to her. In the decision to side with the mother’s choice of in-person school attendance, Justice Himel also took into account that the father’s online learning plan failed to address “the potential impact on [the child]’s mental health, once the majority of his peers return to school and [the child] continues to be in self-isolation.”[4]

It should also be noted that in Chase v Chase, no one in the household had any underlying medical condition that made them more susceptible to the adverse effects of COVID-19. On the contrary, in Joachim v Joachim, the children’s stepfather suffered from underlying medical conditions and there was also a 5-month old baby in the household whose immune system was still developing. Taking this and other factors into consideration, the court decided that it was in the children’s best interests to attend school online.

To summarize, the decision of in-person vs online learning must be considered on a case-by-case basis and the following is a list of factors to be considered:

The risk of exposure to COVID-19 that the child will face if she or he is in school, or is not in school;

1. 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;
2. The risk the child faces to their mental health, social development, academic development or psychological well-being from learning online;
3. Any proposed or planned measures to alleviate any of the risks noted above;
4. The child’s wishes, if they can be reasonably ascertained; and
5. 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.[5]

[1] Joachim v Joachim, 2020 ONSC 5355 at para 14.

[2] Nolet v Nolet, 2020 ONSC 5285 at para 25.

[3] Chase v Chase, 2020 ONSC 5083.

[4] Ibid at para 41.

[5] Zinati v Spence, 2020 ONSC 5231 at para 27.

NOTE: This article has been written for general information purposes only and does NOT constitute legal advice. For further questions and/or legal advice please consult a qualified lawyer.