October 8, 2021 – Online vs In-Person Attendance At School

“The issue of in person versus online education has been the subject of recent jurisprudence in this Court. In Chase v. Chase, 2020 ONSC 5083, Himmel, J. found that the provincial government along with the health authorities are best able to assess and address school attendance and associated risks. At para 45, the Court stated:

[45]          There is a consensus between the Ontario government and medical experts that, at this juncture, it is not 100 per cent 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 parent’s need for childcare. There is no end in sight to the pandemic and, as such no evidence as to when it will be 100 percent safe for children to return to school. The Ontario Government has determined that September of 2020 is an appropriate time to move on to a “new Normal” which includes a return to school.

In Zinati v. Spence, 2020 ONSC 5231, Akbarali, J dealt in dealing with an issue of whether a six-year-old child should attend school either in person or online, set out a number of factors for the Court to consider. At paragraph 27 of the decision, the Court states the following:

27.   In my view, and having regard to available jurisprudence on this new and evolving issue, determinations about whether children should attend in-person learning or online learning should be guided by the following factors:

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.

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.

c.   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:

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

ii.   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;

iii.   The risk the child faces to their mental health, social development, academic development or psychological well-being from learning online;

iv.   Any proposed or planned measures to alleviate any of the risks noted above;

v.   The child’s wishes, if they can be reasonably ascertained; and

vi.   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.

In Chase, the Court indicated that if an unreasonable risk of harm existed, circumstances may warrant online education versus in class. The issue of unacceptable risk of harm was a determining factor in Joachim v. Joachim, 2020 ONSC 5355 where Summers, J. was provided with detailed medical evidence that the mother was at high risk of complications if she became infected and ill with COVID-19. The risk to the mother’s household outweighed the children attending school in person.

I agree with the jurisprudence which directs that the Courts are not to determine whether or not a school remains open. That issue is best reserved for the provincial government in consultation with the relevant school boards and medical authorities based on the best information available. In my view, if schools are open, children should attend unless there is an unacceptable risk to either the child or a member of their household that is created by the fact the child attends the school and may contract the virus.

Kaszap v. Volk, 2020 ONSC 6129 (CanLII) at 24-27