TORONTO — Ontario's courts are wading into the debate over sending students back to school during the ongoing COVID-19 pandemic, with one judge ruling a nine-year-old boy should return to in-person classes despite his father's objections.
In a decision released late last month, Ontario Superior Court Justice Andrea Himel said the case is one of many such disputes currently before the courts and seeking urgent resolution as schools prepare to reopen.
She says the parents, who are divorced and share custody of their son, disagreed on whether the boy should attend classes in person or continue with the remote learning system put in place when schools were forced to close in March.
The mother argued it was in the boy's best interest to return to his French immersion school in person, partly because neither parent speaks the language well enough to help with school work, and because the child has struggled with isolation.
The father, meanwhile, countered that COVID-19 continues to pose significant risks that can be better managed through at-home, online learning.
Himel sided with the mother, saying the Ontario government is better placed than the justice system to assess and address the health risks of going to school.
While there is a consensus between officials and medical experts that it is not 100 per cent safe to return to in-person classes, those risks are being balanced against children's psychological, social and academic needs, along with parents' need for child care, the judge wrote.
"There is no end in sight to the pandemic and, as such, no evidence as to when it will be 100 per cent safe for children to return to school," she wrote.
"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."
What's more, neither the boy, who is entering Grade 4, nor anyone in the two households will face an unacceptable risk of harm if he goes back to class, she said, noting none have any underlying medical conditions that would make them particularly vulnerable to the virus or its effects.
One Toronto lawyer said the ruling could set a precedent as separated parents across the province grapple with similar issues.
"The health, safety and well-being of children and families remains the court's foremost consideration during COVID-19. Parents may be surprised to find that even their strong and well-meaning preferences can be overridden," Diana Isaac, a partner at Shulman & Partners LLP, said in a statement.
"It is highly recommended that parents, even those that don't see eye-to-eye, reach an accord on their child's school attendance. Otherwise, they might find themselves in court with an undesired solution imposed on them," she said.
Himel, too, urged parents to reach an agreement rather than turning to the courts, noting the justice system is already stretched thin as a result of the pandemic.
The judge highlighted several "significant problems" with the father's proposed schooling plan in laying out her reasons for ruling against him.
The father's plan included online learning provided by the school, exercise such as playing hockey in the driveway and unsupervised outdoor play, and using Goodle Translate and a dictionary to assist the boy with assignments, according to court documents.
But Himel noted that while the father has a flexible work schedule and a partner who can help, the mother has neither.
"The father's plan fails to address how the mother will be able to implement his plan, nor does it address the mother's concerns respecting the constraints on her ability to work if (the child) is enrolled in the online education program," the judge wrote.
"This plan may necessitate a dramatic change to the current parenting schedule or may result in two diverse approaches to online learning and the rules respecting technology in the respective homes. Either outcome may well be a recipe for further conflict between the parties."
This report by The Canadian Press was first published on Sept. 8, 2020.
Paola Loriggio, The Canadian Press