COVID Education: Who Decides the Schooling?

Early September began the re-opening of Ontario schools – after months-long hiatus due to the COVID-19 pandemic. This has prompted a great deal of urgent and last-minute litigation between separated and divorced parents regarding COVID education choices. 

Although the specifics of these disputes will vary from case to case, there are generally two important legal issues that arise in these kind of scenarios. They can be of potential relevance to all separated parents.

On What Basis Does a Court Decide?

The first issue is the general basis on which the court makes its decisions about a child’s education, when the parents cannot agree. 

The legislation and case law in this area is abundantly clear. The predominant factor in the court’s decision-making is always the best interests of the child – not the best interests of the parents.  Moreover, the court must always take a “child-focused” approach.[1]

True. If the custodial parent has a track-record of already making decisions in the child’s best interests, the court may favour that parent’s input in particular. However, anytime the parents disagree on their child’s education, the court has custody-related authority. They also have discretion to decide as it sees fit, without necessarily following the wishes of either of them.

With that framework in mind, the courts are also courts are guided by established principles.^[2] When deciding between schools or learning formats, the governing factors include:

• The parents’ respective ability to participate in the child’s uniquely-designed education plan, and to assist with homework.
• The impact of the choice of schools on the child’s stability. 
• The child’s cultural or linguistic heritage.
• The stability of the child’s environment (including the prospect of future moves by the parent, needing new child care providers, etc.).
• The parents’ pre-separation decisions on schooling.
• Any problems with the proposed schools.
• The resources each school offers in relation to the child’s needs.

Again, the decision is very fact-driven, but in all cases the court must have a good reason to disrupt the child’s current school placement. Also, the sheer proximity of a school to either parents’ home, and the  convenience of getting there, is never a valid factor.

How Does COVID-19 Affect Things?

The second emerging issue has been the impact of the COVID-19 pandemic on the courts’ decision-making around education.  This is unsurprising. Consider the virus’ potential impact on children’s health, on their ability to attend school in-person, and on their physical and emotional wellbeing.

Courts must now take a raft of additional new factors into account, when deciding between the parents’ proposed schools or educational models. This includes the choice between in-person vs. remote learning for the child. These can include:

• The overall health risks to the child (including his or her existing health concerns).
• The physical distancing protocols used by the proposed school(s).
• The child’s ability and maturity as it impacts adherence to those protocols.
• The methods, safety and duration of transportation needed to accommodate the child’s attendance.
• The health concerns of extended family members.
• The availability and suitability of parents to provide home schooling or to support a remote learning model.
• The scope of the child’s COVID-19 “social bubble” and the impact on day-to-day transportation and after-school care.

Incidentally, it has been confirmed in recent rulings that the Family courts are to safely presume that the Ontario government – not the parents – are in the best position to make decisions about the safety of re-opening of schools.[3]

A Recent Example

The cases show that especially during the COVID-19 pandemic, there is no one-size-fits-all solution to any child’s educational situation. Neither will the courts make a collective ruling that dictates a single solution for all children in the province.

In a recent case called Joachim v. Joachim[4] the children’s separated parents – both teachers – asked the court to urgently resolve their dispute around where and how the children should receive their education starting in September 2020.  The mother wanted them to participate in distancing-learning from her home; the father wanted them to attend school in-person. The court reviewed the governing factors and all the unique facts. For instance, the government policy on in-person school attendance as well as the family-wide repercussions of possibly contracting COVID-19.  It concluded that the best interests of the children, who were only 6 and 8 years old, would be better served if they pursued their education remotely. This is for the Fall 2020 at least, from within the mother’s home.

Another Example

In contrast, in another recent case called J.N. v. A.S.[5] the court ruled that the best interests of a 4-year old girl, who was an only child, were best addressed by her attending school in-person. This would optimally address her social and psychological needs. 

The father had brought an urgent court motion. He asked that the child either be homeschooled (he would hire a qualified teacher/tutor for one hour a day), or else be part of the distance-learning program put on by the local public school. The mother wanted the child to attend in-person at a private school. As they had agreed before the COVID-19 pandemic hit.  At that small 4-room school – which the child had attended the year before – there were only six children in her class, and nine educators in total. The school also offered instruction partly in Russian, which was the mother’s first language.

After reviewing all he considerations, the court rejected the father’s homeschooling plan, partly because it was impossible for the tutor to stay in the father’s COVID-19 “social bubble” since she also taught other students elsewhere. The one-hour tutoring was also not the equivalent of the full-day school day, whether in-person or virtually. 

As the court put it, “That plan does not meet the child’s needs to meaningfully interact with other children in a small group and structured setting.” Nor was it realistic to expect a 4-year-old to sit in front of a computer for school lessons for six hours – or even three hours a day.  The court opted for the mother’s more socially-balanced schooling plan.

The Bottom Line

As these cases show, the question of how and where a child receives his or her education is already a complex and individualized one.  It has been made all the moreso by the introduction of the COVID-19 pandemic. 

If you are a parent who needs advice on addressing education-related issues in these uncertain times, feel free to give our offices a call.

[1]Chase v. Chase, 2020 ONSC 5083 (CanLII), http://canlii.ca/t/j9bk2

[2]Thomas v. Osika, 2018 ONSC 2712 (CanLII), http://canlii.ca/t/hsmtq

[3]Chase v. Chase, 2020 ONSC 5083 (CanLII), http://canlii.ca/t/j9bk2

[4]Joachim v. Joachim, 2020 ONSC 5355 (CanLII), <http://canlii.ca/t/j9kh6>

[5]J.N. v. A.S., 2020 ONSC 5292 (CanLII), http://canlii.ca/t/j9khs