“School attendance in the midst of the pandemic is a difficult issue for many parents,” Judge Andrea Himel wrote in an Aug. 25 decision.
“Unfortunately, for some separated and divorced parents, this is another battleground; one more arena where their child can become prisoners of war. ”
While the number of cases in which Canadian judges have rendered decisions remains quite low, a clear theme has emerged – and given the preponderance of existing case law in the Canadian justice system, it is likely that cases that have not yet been decided will proceed in the same way. fashion.
In most cases, judges conclude that if governments say it is safe to hold classes in person, it is not their job to find out otherwise. As a result, most judges side with parents who want their children to be physically present at school this fall.
Exceptions are only made when opposing parents can provide strong evidence that their child faces special circumstances that could lead to in-person school attendance posing a unique risk to themselves or to others with whom they come in contact.
This approach dates back to two decisions rendered by the Superior Court of Quebec in May, as the province prepared to reopen its classrooms after a two-month hiatus caused by the COVID-19 pandemic.
In one, Judge Claude Villeneuve of Bedford, Quebec. considered that “it is not for the courts, but rather for the competent governmental authorities, to assess the potential risks of contamination in a pandemic situation”, according to a translation of its decision, and ordered that the two children at the center of the protest to resume attendance at their school.
In the other, Judge Claudia Prémont from Chicoutimi, Quebec. refused to order a six-year-old boy to return to class because of a family member considered to be at high risk of serious complications if he were to contract the new coronavirus.
The legal dossier has remained silent after these decisions, as the matter was rendered moot by most of the other provinces deciding to keep the remainder of the school year virtual. It was only in recent weeks that questions about schooling amid the pandemic have returned to courtrooms, thanks to parents in Ontario arguing over the safety of the government’s plan in that province. .
An Ottawa judge ruled on Aug. 20 that a mother could move to New Brunswick with her eight-year-old son, taking him away from his father, in part because of the lower risk of COVID-19.
More often, however, the cases heard are between a parent who wants their child to return to a physical classroom versus another partner who declares that they do not accept that it is safe.
In the case heard by Himel in Newmarket, Ont., For example, a mother wanted her nine-year-old son to be able to attend school back to school, while the boy’s father wanted him to stick to virtual lessons. to schools. »Security protocols have been proven. ”
Himel sided with the mother. Recognizing that even the Government of Ontario has said that it cannot be considered completely safe to get children back into classrooms, “there is no end in sight to the pandemic and, as that such, no evidence as to when it will be 100% safe for children back to school. ”
Her reasoning was echoed on September 1 by Judge Jasmine Akbarali, who also ruled that it was in the best interests of a six-year-old girl from Toronto (identified in the decision as N) to return to school, despite his father’s desire to see. she stays in virtual classrooms and the increased risk of COVID-19 that her stepmother may face as a frontline health worker.
“The point is not that the mother-in-law’s job endangers N; rather, when life returns to some kind of new normal, the risk cannot be eliminated, ”Akbarali wrote.
The Toronto judge set out six factors that she believes judges should consider when faced with similar claims:
- Risk of exposure to COVID-19 for children whether or not they are in school
If the child or a family member is at increased risk of COVID-19
Risks to children’s mental health, well-being and social and academic development arising from e-learning
Proposed measures likely to mitigate any of these risks
The child’s wishes, if known
The ability of the parent (s) to support online learning
None of this means that wanting a child to go to school in person automatically means winning the argument when they appear before a judge. An Ontario judge recently ruled that two siblings should only attend classes virtually because one of them faces an increased risk of asthma.
Another father learned this lesson when he was denied a request to change his current custody argument so that his two children could live with him and attend school in Burlington, Ont., Rather than living with him. their mother and go to school virtually, as she wished.
“In my humble opinion, the courts are generally not in a good position to challenge parents’ decisions on this issue of traditional versus distant school programs,” Justice Clarence Conland wrote in his September 1 ruling.
“These children are strangers to me. I’m not about to play ‘big brother’, teacher, psychologist and scientist in one and start speaking out on things I don’t know anything about. “