A family court judge will decide whether three eastern Ontario kids can continue attending school, or must begin learning remotely to protect their father and his new wife, who both have asthma, from COVID-19.
The father, who has joint custody of the children, ages 13, 11 and eight, has petitioned the court to begin home-schooling them in Brockville, Ont. He and his wife argue their medical condition puts them at higher risk of severe illness if they're exposed to the virus.
On Tuesday, the man and the children's mother will present their cases in a teleconference hearing before Justice Ken Pedlar. An advocate from the Ontario court's Office of the Children's Lawyer (OCL) will also be present.
There's a publication ban on the names of the parents and the children. CBC requested a comment from both parents: the father declined and the lawyer for the mother did not respond.
Asked by the judge during a hearing last week about how the kids are doing through the process, OCL lawyer Judy Millard said the experience has been "tough."
Growing number of cases
The case is part of a growing number of disputes between joint-custody parents that began moving through the Ontario courts in late August as schools demanded decisions about whether parents preferred remote or in-person learning for their children.
Ottawa family lawyer Beverley Johnston said her office has been dealing with a number of similar disputes and welcomes a local case to help guide families, especially when it comes to parents with underlying health conditions.
It's also the first case dealing with kids already in school. If the judge finds on behalf of the father, they would be removed from the classroom and begin learning remotely.
A difficult decision
"If in-class learning meant that a parent couldn't continue in a shared parenting regime, I think that would be a very difficult decision for a court to make," said Johnston. "It's unfortunate because it does create conflict for children, and the court wants to minimize that conflict."
So far courts have leaned in favour of sending kids to in-person classes.
The first judgment of this kind in Ontario came Aug. 25, when Superior Court Justice Andrea Himel ruled the government, not the court, is the best arbiter in deciding whether it's safe to send children back to school. The case has now been cited in subsequent decisions.
Lawyer Melanie O'Neill, who represented the mother in the August case, said that earlier judgment has done a lot to clarify the court's position on future cases.
But while Himel said the best interest of the child in that case was to return to school, she left the door open to remote learning in circumstances where "the child or someone in either parent's home would face unacceptable risk of harm."
Kids caught in the middle
On Sept. 8, such a circumstance came up in a case before Ontario Justice Darlene Summers.
In that case the mother petitioned the court to keep her children home in order to protect a 15-month-old baby, as well as her new husband who has an underlying health condition.
Summers decided in favour of remote learning in that case, however an element that helped tip the scale was the fact that both parents are elementary school teachers who are specially equipped to support their child's learning at home.
Pedlar told the parents during last week's phone conference that leaving the issue to the courts risks taking a heavy toll on the children, who generally "just want the conflict between the parents to stop — that's the greatest gift that you could give our kids."
Himel made a similar comment in her judgment in August.
"I would encourage the parents to return to mediation as this is a process that empowers them to make these important decisions," Himel said.