Skip to content

You are using an outdated browser. Please upgrade your browser to improve your experience and security.

We are currently eight months into the Covid-19 pandemic and parents continue to face new challenges with respect to parenting decisions. Parents are required to consider and implement parenting choices that they may never have previously considered. While the issue is not unique to separated or divorced parent, and differing parenting styles often exist in intact parenting relationships, covid-19 related parenting issues can be especially problematic when separated or divorced parents disagree on what is in the best interests of their children. One issue that was recently at the forefront or many parents’ minds was whether or not to send they should send their children back to school when schools reopened this fall, or opt for the online/hub option or homeschooling.

We now have some guidance from the courts on how they will address parenting disputes about whether or not children should be sent back to in classroom learning. This issue has been addressed by the courts in Alberta and Ontario in several recent cases, four of which are discussed below. Interestingly, in all four cases the courts were in favour of the child returning to school in person, after taking into consideration current provincial government recommendations which are made in consultation with medical experts.

In the Alberta case Lima v Holloway 2020 ABPC 157, the court was asked to determine whether a child should return to school in person or attend virtually. The court directed that the child attend school in person on an interim basis. In reaching its decision, the court noted that the Government of Alberta, in consultation with its medical experts, had recommended that children return to school, provided protocols were followed. In reaching its decision, the court noted that there was no evidence to suggest that the protocols were not being followed and that the child expressed a desire to return to in person schooling. The Mother expressed concern that the child’s attendance at school may increase the risk to members of her family to who suffered from asthma. However, this concern was not supported by any evidence. Additionally, it was noted that the child had been going back and forth between the parents’ residences without any issue.

In the Ontario case of Nolet v. Nolet 2020 ONSC 5285, the Mother brought an application on an urgent basis seeking an order that the child attend in-person school. The Father wanted the child to attend online school due to the risk of the child spreading Covid-19 to the father’s mother and his girlfriend’s mother who has asthma. In this case, the child had been diagnosed with ADHD. The mother gave evidence that the child thrives on routine and that the transition to online learning when in-class school was suspended had been difficult. The Mother’s position was that due to his ADHD, it is in the best interests of the child to attend school in person for the personal interaction and learning that he would obtain. The Father disagreed and advised that the online experience had been a positive one. The court ultimately ordered that the child attend school in-person.

Ultimately the court’s decision must be made based upon what is in the best interest of each particular child. One factor that the court in Nolet v. Nolet took into consideration was “if the child returns to school, will he/she, or anyone in either parent’s home, be at an unacceptable risk of harm?” The court considered the current protocols in Ontario around schooling and determined that the presumption is that it is in the best interest of a child to attend in-person schooling, absent compelling evidence to the contrary. Upon weighing the Mother and Father’s evidence the court was satisfied that the child would benefit from in-class schooling and his ADHD could be better dealt with in person. It was noted that, as both parents work shift work, this required other people to be involved in his online schooling which made consistency in his education impossible to achieve. Furthermore, it was noted that there was no evidence that the child himself would be subject to an unacceptable risk of harm, as there was no evidence that he has any underlying physical health issues.

The Court was satisfied that, with proper safety measures, the risk to the father’s family members was not an unacceptable risk of harm when compared to the child’s best interest. The court took into consideration the fact that both parents are first responders (the mother a nurse and the father a police officer) and as such, they also have a risk of contracting the virus even though safety precautions are maintained.

In Chase v. Chase 2020 ONSC 5083, the Mother brought an urgent application for sole decision-making authority of educational decisions respecting the child. The Mother also requested an order that the child attend school in-person. This was opposed by the Father who sought an order requiring the child to remain at home until that the Catholic District School Board’s safety protocols were proven successful and that leading health experts are able to offer more certainty around the safety of the protocols. Prior to the pandemic the child was enrolled in a French immersion program. The Mother argued that it was in the child’s best interests to return to in-person school as both parents speak very little French, making it difficult to assist the child with his homework. Further, it was noted that the child struggles with learning independently, self-regulation, executive functioning, distractibility and other learning skills. As such, the Mother was of the opinion that in class learning would be more successful and productive. Additionally, the child had experienced difficulty with isolation, as he had limited contact with friends.

The parents agreed that no one in either of their households has any underlying medical condition making them more susceptible to adverse effects of Covid-19. The Father agreed that, in non-pandemic times, attending school in-person is preferable for the child’s academic, social, emotional, physical and psychological needs and that the child’s return to school would meet many of those needs. However, the Father argued that the health risks to the child and to others is significant and that the child may experience emotional and psychological harm that may have adverse effects on the child’s academics. The Father was of the opinion that these challenges could be avoided through online learning. The Father acknowledged that home isolation had been hard on the child and that he missed his friends. However, the father’s plan failed to address the child’s social needs after being in isolation, nor did it address the impact of not seeing his peers.

The Court indicated that the risks of contracting Covid-19 for children must be balanced against their mental health, psychological, academic and social interests. The Court determined that all of the above factors weigh in favour of the child’s return to in-person learning and held that there was no basis for a temporary order varying the joint decision-making regime as agreed to. The court ordered that the child be registered for in-person attendance by the Mother.

In the case Zinati v. Spence 2020 ONSC 5231, the issue with respect to whether a six year old should return to in person learning at school or whether she should be registered for online learning was also considered. Again, the Court determined that the child should commence school in person when school reopened. The Court concluded that the benefits of the child attending school in-person outweighed the risks. Specifically, it was noted that the child was reasonably safe at school, there was a lack of health conditions that placed her at particular risk, and that it was important for her to have the social interaction and consequent developmental benefits that only in-person learning could offer.

Unfortunately, there is no end in sight to the pandemic and no on can guarantee complete safety in school environments. However, the provincial governments determined that the “new normal,” included a return to school, with numerous safety protocols in place. The Courts in all four cases discussed above considered this and weighed the unique factors of each specific family and child and, in each case, determined that it was in the children’s best interests to return to school in-person.

If you are experiencing a dispute about covid-19 related parenting issues, the experienced family law lawyers at SVR Family Lawyers can assist and advise you in navigating this area.

Great experience working with Abram. Professional and thoughtful with good insights.
Relaxed and to the point team. Helped me when I panicked to stay calm and then walked me through things. Really friendly and always available
Very satisfied with the services provided by the lawyers at SVR Lawyers! It was a long and convoluted divorce process, but Abram Averbach, Cindy Lee and their assistants have helped me to navigate through it and finalize it. I highly recommend them!
J.B., Client

Find the right lawyer for you