Covid -19 Child Parenting Education Disputes — What do Courts Consider When Making Decisions About a child’s education during the COVID-19 Pandemic? Kaye Booth of our Calgary office provides this blog to help separated parents deal with Covid-19 Child Parenting Education Disputes that may occur. Our lawyers act across Canada from our offices in Vancouver, Calgary, Toronto, Surrey, Kelowna, Fort St John, Victoria, and Richmond.
Separation is never easy, especially when children are involved. Add in a global pandemic for good measure, and it feels nearly impossible. With schools reopened, and the increase in children’s exposure to others, as well as record highs for new cases of COVID-19 in Ontario, parents are understandably concerned about their children’s safety. As a result, separating parties may disagree on what is best for their children in terms of education. Fortunately, the Ontario Superior Court of Justice in JES v SS, 2020 ONSC 6064, recently offered some guidance on what factors should be considered by courts attempting to make decisions for children when the parents cannot agree during Covid -19 Child Parenting Education Disputes.
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The parties had joint custody for their two children, aged 6 and 4. The parents had agreed to which schools the Children would attend before the pandemic, however, the Children’s schools were in the highest-risk neighbourhoods in Toronto for COVID-19. As such, the Mother became very concerned and immediately transferred the children to another school in her neighbourhood, without consulting the Father. The Father was very distressed, as he had not given his consent for the transfer, and feared that the school in the Mother’s neighbourhood was more dangerous than the children’s original school, as it was significantly larger.
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The Court took judicial notice of several important facts, including that COVID-19 is life-threatening and highly contagious, and that Toronto has one of the highest rates of positive tests in the Province (at para 20). The Court then outlined several criteria to consider when answering the question of whether a child should change schools as a result of the pandemic, stay in the same school, or learn from home (at para 38):
When deciding what educational plan is appropriate for a child, the court must ask the familiar question – what is in the best interest of this child? Relevant factors to consider in determining the education plan in the best interests of the child include, but are not limited to:
i. The risk of exposure to COVID-19 that the child will face if she or he is in school, or is not in school;
ii. 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;
iii. The risk the child faces to their mental health, social development, academic development or psychological well-being from learning online;
iv. Any proposed or planned measures to alleviate any of the risks noted above;
v. The child’s wishes, if they can be reasonably ascertained; and
vi. 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 Court held that the agreement was valid and should be followed, save for “compelling and cogent evidence” that it was in the children’s best interests to move schools. As such, the Mother had the onus of proving that unilaterally transferring the children, contrary to the agreement, was in the children’s best interests. The Mother had failed to show that the risk of COVID-19 was higher at one school or the other, or that it was in the best interests of the Children to unsettle them from their routine (at para 67).
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We are living in unprecedented times, and your divorce is potentially unprecedented for you. The Covid -19 child parenting education disputes lawyers at MacLean Law can guide you through the difficult decisions you make for your children going forward, and help represent you if those decisions must be adjudicated in a courtroom. Contact MacLean Law today for an initial consult.