In-person school v. online learning
There are two recent cases focused on this issue. In both cases, the Judges ruled that the parents had an obligation to send their child to school despite the excuse of the pandemic rather than teach them online. Both Courts acknowledged that there was very little jurisprudence to guide the Court on this matter.
In the first case, Zinati v. Spence, 2020 ONSC 5231, Justice Akbarali of the SCJ quoted another recent case, Chase v. Chase, 2020 ONSC 5083, released the last week of August 2020. Zinati and Chase quoted recent cases from the Quebec Supreme Court that favored children being sent back to school to be taught in person rather than the parents teaching them online.
The main principles that emerge from Zinati and Chase are as follows:
The Ontario government is in a better position than the courts to assess and address school attendance risks. The decision to re-open the schools was made with the benefit of medical expert advisers and in consultation with Ontario school boards. The teachers’ unions and others have provided their input as well as their concerns.
The parties spent considerable time addressing a recently released report by the Toronto Hospital for Sick Children, but she declined to consider it, finding that it was within the purview of the Ontario government to make the decision to re-open schools and determine the steps being taken to protect children and staff.
In Chase, Justice Himel concluded that it was in the child’s best interest to return to in-person learning because his learning, social, and physical activity needs were better met at school, and the evidence that the demands of supporting the child’s learning online were not manageable for the mother in view of her other obligations.
The Sick Kids report is gaining a lot of traction among family litigants. More and more often, parents are attaching the Sick Kids report to their affidavits or case conference briefs to argue in support of, for example, in-person learning for children, or to argue that risk to children from COVID-19 is small.
Zinati -  In response, the other parent will then cite and attach newspaper articles in which medical or public health experts raise criticisms about the Sick Kids report, to support that parent’s argument for online learning, or the observation of stricter COVID-19 protocols.
Zinati -  The problem is that the parties making these arguments are unlikely to be experts, and there is no expert evidence offered to explain or contextualize any of the allegations being made. Even leaving aside the hearsay concerns, without expert evidence, the court is not in a position to evaluate whether the Sick Kids report is correct on any given point, or whether an expert quoted in a newspaper article in opposition to the conclusions reached by Sick Kids is correct, or if neither are.
Given the nebulous nature of the Sick Kids report, both Judges in Zinati and Chase refused to consider the Sick Kids report.
TESTS FOR BEST INTERESTS OF THE CHILD IN BOTH CASES FOR IN PERSON TEACHING V. ONLINE LEARNING:
The risk of exposure to COVID-19 that the child will face if she or he is in school, or is not in school;
whether the child, or a member of the child’s family, is at increased risk from COVID-19 as a result of health conditions or other risk factors;
The risk the child faces to their mental health, social development, academic development or psychological well-being from learning online;
Any proposed or planned measures to alleviate any of the risks noted above;
The child’s wishes, if they can be reasonably ascertained; and
The ability of the parent or parents with whom the child will be residing during school days to support online learning, including competing demands of the parent or parents’ work, or caregiving responsibilities, or other demands.
The Judges considered various other factors including risk levels for the children going to school vs. playdates vs. proximity of elderly grandparents who were frontline medical workers. Considering all these factors, the Courts still felt that in Zinati, “I conclude that the benefits of N attending school in-person outweigh the risks. I find she will be reasonably safe at school, given the lack of any health conditions that place her at particular risk, and that it is particularly important for her to have the social interaction and consequent development that only in-person learning can offer. Mr. Zinati’s plan to ameliorate the risk to N’s social development is not specific enough or likely to be effective. For these reasons, it is in N’s best interests to begin school in person on Sept. 15, 2020.”
Similarly, in Chase, “There is a consensus between the Ontario government and medical experts that, at this juncture, it is not 100% safe for children to return to school. However, the risks of catching Covid-19 (and the typical effects of the illness) for children are being balanced against their mental health, psychological, academic and social interests, as well as many parents’ need for childcare. There is no end in sight to the pandemic and, as such, no evidence as to when it will be 100% safe for children to return to school. 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.  I note that the Ontario government did not hesitate to shut down all schools in March 2020 and has declined to re-open them until now. The Ontario government has articulated in the media that they will not hesitate to shut down schools again if the number of Covid-19 cases increases materially.  All of the above factors weigh in favour of W.C.’s return to in-person learning in September 2020.”
Justice Himel’s observations in Himel at para 28 are instructive and I conclude the analysis with this: “I note that in this case (and in all others currently before the Court) the Mother and Father have delegated the authority to make the decision respecting their child’s in-person versus online attendance at school to me, a judge who has never met the parents and who will likely never meet the child. I would encourage the parents to return to mediation as this is a process that empowers them to make these important decisions.”
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