Two separate court decisions regarding starting school in light of COVID!

Posted: September 5, 2020

Author of the article:Michele Mandel

Publishing date: Sep 04, 2020 • Last Updated 21 hours ago • 3 minute read

With schools set to open in a few days, sending kids back to class has been a challenging debate for many parents.

But for those who share custody, it can add a whole new layer of conflict.

“Unfortunately,” complained Ontario Superior Court Justice Andrea Himel in a ruling last week, “for some separated and divorced parents this is another battleground; one more arena where their child may become the prisoners of the war.”

It’s one where judges would prefer not to intervene.

With school imminent, though, Himel has issued the first ruling of its kind in Ontario in Chase v. Chase — siding with a mother who said it was in her son’s best interests to return to class rather than resume online learning as his father wanted.“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,” wrote the Newmarket judge.“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.”

Cases will be monitored and the government has said it won’t hesitate to shut down schools again if necessary, Himel added

The only issue that might warrant online learning, she said, is if a return to class would pose an unacceptable risk to the child or his two households. She found that wasn’t the case here: no one had any underlying medical conditions that would make them more susceptible to complications from COVID-19.

“This is the first case in Ontario dealing with the issue that’s been on the mind of a lot of parents in high conflict situations,” noted family lawyer Alyssa Bach.

“Ultimately the courts are going to be be considering what’s in the best interests of the child based on their circumstances. It’s not a one size fits all.”

In another case this week, a Halton judge sided with the mother who has arranged online learning for her two young children in Durham while their father wanted them moved to Burlington so they could attend class in-person.

Under the custody arrangement, the children lived with their mom and she had final decision-making authority. Justice Clayton Conlan found it wouldn’t be in their best interest to intervene and suddenly move them to Burlington just because their father opposes remote learning.

“These children are strangers to me. I’m not about to play ‘big brother,’ professor, psychologist and scientist all rolled-up into one and start opining on things that I know nothing about,” the judge wrote.

“If the father seriously wanted this court to interfere in this regard, then he had to bring something good to the evidence pile. There’s nothing here, except his own musings. He loves his children, I am certain of that; he should focus his energies on getting more time with them. I’d gladly help him there.”

The message seems pretty clear — with courts overwhelmed with a backlog of cases put on hold due to COVID-19 — parents should work this out on their own and not turn to judges for urgent rulings on whether their children should go back to class.Or as Conlan noted in his judgment this week: “In my humble opinion, the courts are not generally in a good position to second-guess the decisions of parents on this issue of bricks and mortar versus remote school programming.” mmandel@postmedia.com