Growing COVID-19 Numbers and Family Law Decisions Regarding Schooling
With the growing number of COVID-19 numbers there are some family law custody decisions to be made about schooling. At the present time the number of cases of COVID-19 in Ontario continue to reach new record levels on a seemingly daily basis, causing many parents to begin to raise eyebrows is regards to the safety and wellbeing of children physically in attendance at school. Recently this has become a hot button issue between former spouses and separated parents, and has formed the basis of substantial legal debates in courthouses, which have recently seen an explosion of new cases surrounding the topic of school enrollment. Now that schools have remained open for over 2 months within Ontario, many parents are curious as to what the courts have ruled in terms of school attendances in situations where custody remains in dispute. As always our firm is here to help.
Balancing the positive aspects of physical attendance with potential negative elements
Within my prior blog entry discussing this topic, the seminal ruling of Chase v. Chase, 2020 ONSC 5083 was discussed, whereby Justice Himel effectively established that children generally speaking could safely attend classes and should do so as the Ontario Government was in a better position then the courts to determine overall safety conditions and benefits to children. This decision was made in August 2020 at the onset of the opening of schools, and a flurry of new cases have emerged in its wake, which seem to follow the same guidelines in terms of overall enrollment of children in physical attendance within classes being the default “better” choice, absent evidence to the contrary provided by a party.
Case law in turn has produced a series of factors related to enrollment, in particular establishing exactly when and why children may be better off taking online classes and staying at home. This approach is firmly espoused in the recent case of Nolet v Nolet 2020 CarswellOnt 12509 (S.C.J.), which sets an overall groundwork approach whereby the positive factors of physical enrollment in classes, such as social developmental benefits, the overall mental health of children, the benefits of seeing friends in person, and so on, are to be weighed in accordance with other factors, such as whether there is are any special health issues or vulnerability to COVID-19 related to a child or members of their household, and whether a child who attends online courses will have the sufficient supports at home, such as a parent who can assist in said learning, that is necessary to ensure that the child does not fall behind in classes without a teacher physically present as a support. Overall this approach can be best understood as placing the burden of proof on a parent who is attempting to prevent the physical enrollment of a child at school, where they must explicitly provide reasons and evidence as to why it is not the right choice for the specific child in question, which a judge will then consider in light of the benefits.
At the present time, our firm is working with both existing and potential new clients to ensure that parents are able to enforce their decisions to enroll their children in classes either in person or online, in accordance with their best interests and in accordance with the law in Ontario. Our firm is here to assist you in regards to all of your needs, and can assist you in any negotiations you may need to resolve within your custody and family law disputes. Please call one of our Child Custody Lawyers in Toronto for a consultation related to your matters.
Chase v. Chase, 2020 ONSC 5083 – FC-20-1025-00 – August 25, 2020
Nolet v Nolet 2020 CarswellOnt 12509 (S.C.J.)
Written by Adam Jaffer, Associate Lawyer at Separy Law P.C