The decision, the first of its kind in Ontario since the start of the pandemic, comes as family lawyers tell CBC News that many separated couples raise questions about who decides whether their children return to school or study remotely. They say it threatens to tax an already strained family court system due to delays caused by COVID-19.
In his ruling, Himel reminded parents that there are other tools to resolve such disputes and that they should exhaust them before going to court.
In this case, the mother of the nine-year-old boy argued that returning to learning in the classroom would be more effective and productive for him, as the isolation at home made him socially difficult.
But while the father agreed that attending school in person is academically, socially, physically and psychologically better, he argued that during the pandemic the health risks are significant.
He also told the court that he was concerned about the impact of wearing a mask at school because his son is in French immersion and it would be more difficult for him to communicate clearly.
In his decision, Himel noted that no one in either household has any underlying medical conditions that make them particularly vulnerable to the adverse effects of COVID-19, and that the province’s decision to reopen Schools was taken with the benefit of medical advice and in consultation with Ontario school boards. ”
In a written statement to CBC Toronto, attorney Melanie O’Neill said the mother of the child, Jennifer Chase, was “grateful that the case has been viewed from her child’s perspective, not from that. which is best for the father of the child and his new partner. .
“The kid is happy to be reunited with his two best friends who also go to school in person,” O’Neill wrote.
“He didn’t like the possibility of having to sit at a computer all day if the decision was made for him to go to school remotely. ”
Ms O’Neill also said clients are raising the school issue more and more often and she hopes this ruling will clarify how Ontario courts are handling the issue so that parents don’t no need to resort to the legal system.
Leanne Townsend, family lawyer and partner at Brauti Thorning LLP, agreed that the problem arose in many of her clients’ cases.
“COVID-19 has created a lot of opportunities for high conflict parents to find more things to talk about,” said Townsend, who added that Himel stressed that parents are better able to use the tools they have. as well as the alternatives to the court to make their decision. .
“The decision shows that the courts will examine each case specifically and use a child-centered approach taking into account what is best for each child in terms of their learning needs and any underlying health conditions. ”
There have only been two other decisions in Canada regarding a dispute between parents over whether to send their children back to school during the pandemic. Both are from the Superior Court of Quebec and were created when some schools reopened in that province.
The judge refused to order the children to return to class in a ruling, citing the risk to a family member who had an autoimmune disease and was at high risk for complications from COVID-19.
In the second decision, the judge declared that it was “not for the courts, but rather for the competent government authorities, to assess the potential risks of contamination of the population in a pandemic situation and to take the necessary measures to limit the spread of disease. disease. ”
In his decision, Himel also noted that in this and other cases in court, parents “have delegated to me the authority to make the decision about their child’s in-person dating versus online dating. school to me, a judge who has never met parents. and who will probably never meet the child.
“I would encourage parents to resume mediation because it is a process that allows them to make these important decisions.