There have been many family law developments on the issue of how separated parents should make the child custody decision of school enrollment during the second wave of COVID-19. Many concerned and separated parents continue to have disputes around the custody or decision making issue of continuing to allow their children to attend school in the midst of a second wave of COVID-19 in Ontario. Many parents continue to remain concerned in regards to how the courts are dealing with the current custody decisions related to school enrollment situation and the seemingly ever increasing numbers of COVID-19 cases that are being reported on a daily basis. Our firm is here to guide concerned parents through these troubling times in order to provide informed guidance, legal support and a wealth of experience that is necessary to traverse the current complex legal landscape of COVID-19.
Many areas in Ontario, including Toronto, Peel Region and Vaughan, have returned to lockdown in an attempt to help stem the curve and more schools are closing. This blog entry represents the third entry in a three part family law blog series written to cover and summarize the growing line of family law case law that has emerged in the wake of the reopening of schools in Ontario and a return to in person education since September 2020.
The Concept of Unacceptable Risk
The concept of “unacceptable risk” has become something of a central component of recent family law cases related to schooling and disputes involving physical versus virtual attendance of classes. Most recently the case of J.N. v A.S. 2020 ONSC 5292 has set out in clear terms what exactly the courts will deem to be factors related to a risk that is overall unacceptable when deciding if a child will physically attend school. This case is significant in that it builds upon the previous case of Chase v. Chase, 2020 ONSC 5083, which was and continues to be the cornerstone case related to all future cases dealing with the issue of school enrollment and physical attendance in Ontario (Kindly note this case was reviewed in detail during part 1 of this series, which is accessible on our firm website). Within J.N. v A.S. 2020 ONSC 5292 Justice Himmel indicates that an “unacceptable risk” analysis must first start by asking whether there is an actually medically verified diagnosis of an individual as being vulnerable. This must involve medical support, documentation and proof that there is a real medical risk to a person, rather than mere conjecture or speculation. Having a vulnerable family member in the home does not simply end this analysis though, as further questions related to overall prognosis of the individual must come into play. For example, even if this person is vulnerable to COVID-19, what are the chances that they will become incredibly sick and or/die as a result? If this risk is minute then the fact that there is a vulnerable individual in the household will have less argumentative value as to why a child should not attend classes in person. Finally one final overriding factor at play in the determination of “Unacceptable Risk” is whether the child is able to attend school in a way that does not place a vulnerable individual at risk. The mere fact that a child attends school does not in any way result in a massive risk to vulnerable parties on its own in the home if the school is taking all necessary precautions and care to ensure minimal risk of transmission. Overall these new developments act to careful mold and shape the prior framework of Chase by providing an overall stronger and clearer framework in which to determine exactly when and why children should or should not physically attend school in person.
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
J.N. v. A.S., 2020 ONSC 5292
Written by Adam Jaffer, Associate Lawyer at Separy Law P.C