An Ontario Superior Court judge has ruled that a nine-year-old boy will attend school in-person this fall after his separated parents could not agree about whether he should attend classes during the pandemic.
The case is part of an increase in custody-related disputes linked to COVID-19, which has complicated decisions around parenting time, schooling and other issues that can be fraught even without the added complications of a global pandemic.
The boy’s mother wanted her son to attend school in-person. She said the boy had trouble focusing on assignments and suffered from isolation since schools closed during the early days of the pandemic last spring. He is enrolled in a French immersion program despite neither parent being bilingual. The mother argued in-person schooling would allow him to be more successful.
The boy’s father, instead, wanted his child to attend virtual school. He said that while he recognized the social and academic benefits of their son being in a physical classroom, he argued that the health risks posed by the pandemic remained high. He was also concerned that wearing a mask in school would make it harder for his son to communicate.
Justice Andrea Himel ruled in favour of the mother, ordering the child to attend his Newmarket, Ont., school in-person this fall.
“School attendance in the midst of a pandemic is a challenging issue for many parents,” Justice Himel wrote in her decision, issued late last month. “Unfortunately, for some separated and divorced parents this is another battleground, one more arena where their child may become the prisoners of the war.”
Melanie O’Neil, the lawyer who represented the mother, said many clients have reached out to her in recent months with concerns that are rooted in personal anxieties. She said parents with different thoughts on mask-wearing, government plans or restricted visits to older relatives are unable to come to a consensus about their children.
“Justice Himel basically set the record straight and said, ‘Let’s look at it from the lens of the particular child. What’s in the child’s best interest?’ And in this case, the child’s best interest was to be with his friends, to attend school in person,” she said.
Two other Canadian rulings have dealt with parents who disagreed over their child’s return to school. In the first, the Quebec Superior Court ruled that the child would have to learn from home because a family member suffered from an autoimmune disease.
But in the second, the same court ordered children back to school because assessing the risk of contamination in schools was the responsibility of government authorities, the judge said.
In the Ontario case, Justice Himel pointed out that neither parent had an underlying medical condition that would place them at high risk if they contracted COVID-19.
“The Ontario government is in a better position than the courts to assess and address school attendance risks,” she wrote. “The decision to reopen the schools was made with the benefit of medical expert advisers and in consultation with Ontario school boards.”
The judge, who noted there have been many similar motions filed by Ontario parents, said families in similar circumstances should consider professional mediation or look to a third-party such as a trusted family member or friend.
William Doodnauth, a family lawyer practising in Toronto who was not part of the Ontario case, said COVID-19 has become an issue among his clients. Many couples who split up also have different parenting styles, he said, and the differences have only been exacerbated by the pandemic.
“One parent might have a little bit more of a liberal attitude and will look at the government for guidance, while another parent might want to have their kid safe, period, and would take what some might consider strict measures,” he said.
He added that a legal challenge should not be the first response.
“Don’t run to court, it should always be a last resort,” Mr. Doodnauth said. “Always try to do your research, discuss, maybe get the opinion of a doctor in specific cases where the child may have some health-related vulnerabilities. [But] if you’re unable to come to a joint decision or compromise, then this is what the courts are for.”
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