“The law on this subject has evolved rapidly, but now is relatively clear.
The law is, and always has been, that the best interests of the child govern the issue of where the child goes to school.
The Covid-19 pandemic does not change the focus of the analysis. Rather, it adds certain other factors to consider as set out in Himel J.’s decision in Chase v Chase, 2020 ONSC 5083, Akbarali J.’s decision in Zinati v. Spence, 2020 ONSC 5231, and my decision of Amin v. Kabir, 2020 ONSC 5245, (to all three of which I directed Counsel during or Zoom Videoconference of 4 September).
The Court should exercise caution in cases such as this where there has been no determination as to custody and access, and the issue of custody is hotly contested. However, the child’s interest requires that the Court take on this issue squarely.
Most of the “where does the child go to school” motions, such as this case, are really requests by the parties to break the deadlock between parents who share decision making for their children but cannot come to a decision.
In Zinati v. Spence, Akbarali J., said that:
- Courtsmust pay deference to government plans for a safe return to school. It has access to experts in the Ministry of Health and Departments of Public Health, to advise it on the changing pandemic landscape. The court is not in a position, without expert evidence, to second-guess the government’s decision-making. The court should proceed on the basis that the government’s plan is reasonable in the circumstances for most people, and that the government will modify its plans as circumstances require, or as new information becomes known.”
- 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 pandemiceither.
- 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 limitedto:
a. The education plan that the parent putsforward;
b. The risk of exposure to COVID-19that the child will face if she or he is in school, or is not in school;
c. 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 riskfactors;
d. The risk the child faces to their mental health, social development, academic development or psychological well-being from learningonline;
e. Any proposed or planned measures to alleviate any of the risks notedabove;
f. The child’s wishes, if they can be reasonably ascertained;and
g. 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 otherdemands.
In Amin v. Kabir, after incorporating the factors in Chase and Zinati, I said that:
- Courts should consider further factors including the child’s connections to school, socially or athletically, and whether it is in the child’s best interests to be removed from them? Are there alternatives outside ofschool?
- Everychild in Ontario has the right to receive educational services, but also has the obligation to attend a school for the year as defined by the Ministry of Education. Parents must take steps to ensure that their child fulfills his obligation to attend school. It is only in exceptional circumstances that a child will be exempt from this obligation.
- TheCovid-19 pandemic is an extraordinary situation calling for exceptional measures. But these are only temporary measures which do not modify the provisions of the Education Act. Even though the return to school might not be mandatory, this does not necessarily take away the right of children to receive educational services nor mandate them in one form or another.
- In order to justify removing children from school, parents must establish thatthey have and can take the means necessary to achieve the standards set out in the Education Act other than in-class attendance. If one of the parents in a shared custody situation cannot establish that he or she can offer his child the proposed alternative to attendance at school for acceptable and reasonable reasons, there is no reason to deprive the child of his right to attend his school when it is possible for him to do so.
- The Covid-19 pandemic landscape during the pandemic is made of sand, not stone, and is ever-shifting. The current situation may not be much different next September.
In Amin, I was referring to the mandatory attendance at school. The Education Act provides that school is mandatory for children only over 6. My comments in Amin, however, apply equally to children under 6 years of age, subject to the fact that school for them is not mandatory.”