Caselaw Round Up: In-person vs. virtual learning—what are judges saying?

September 26, 2020                    By: Jessica Pugliese, J.D.              Issue: 001

I think it is safe to say that COVID-19 has not been easy on anyone. If you are a parent, navigating these uncharted waters and making back to school decisions has been particularly difficult. The pandemic has brought additional challenges for separated parents who do not see eye to eye about their children returning to school. Differing opinions about the safety of the government’s back to school initiatives, individual social and learning needs of children, and access to childcare and transportation have left many parents at an impasse with education decisions.  

This has caused several Ontario parents to bring emergency motions seeking assistance from a judge. Today we will review several recent Ontario decisions where judges determined whether or not a child should return to school in person or commence virtual learning:

Chase v. Chase, 2020 ONSC 5083

This was one of the first decisions available to family lawyers and litigants involving the Ontario government’s back to school plan and separated parents. In this case, the parents shared custody of their nine-year-old child. The mother wanted their child to return to school in-person. The father, however, wanted the child to attend school virtually until the back to school plan was proven safe, or until more data was available following the reopening of schools. The child did not have any underlying health concerns and both parents were able to work from home, however the father’s schedule was much more flexible in terms of being available to assist with online learning.  

The judge ultimately determined that it was in the child’s best interests to return to school, particularly noting the Ontario government was in the best position to determine what is safe for students. The return to school did not create any unacceptable risk of harm to the child or either parents’ household. It was ultimately in the child’s best interests to return to in-person learning.

Davey v. Davey, 2020 ONSC 5675

In this case, the eleven-year-old child primarily lived with their mother who was a front-line healthcare worker. At the beginning of the pandemic, the parents agreed that the child would temporarily reside with the father for their safety. After a few months, once more information about the virus became readily available and the child’s safety could be ensured, the mother sought the return of the child to the normal living circumstances. The father refused, withheld access, and asserted the child would not leave his home until the pandemic was over. He also unilaterally enrolled the child in a new school for virtual learning.  

The mother’s position was that in-person learning at the child’s intended school was the best option. Due to the child’s learning disabilities and social needs, she submitted that virtual learning was not ideal and expressed concerns about the child’s access to personalized help in a familiar environment in order to succeed. The father expressed concerns about potential exposure to himself and his new partner, as they were both diabetics. The judge ruled that it was improper for the father to have disrupted the child’s normal living situation and education unilaterally, particularly due to the existing custody arrangement. He ordered that the child should be returned to the mother and attend school in-person. 

Zinati v. Spence, 2020 ONSC 5231 

The parents in this case shared decision-making responsibility for their six-year-old. Neither the parents nor the child had any underlying health concerns and both parents were available to assist with online learning. The mother wanted the child to return to school due to the school’s prior consultation about the child’s special social needs and development. The father wanted to keep the child home for virtual learning and would organize playdates for social interaction. 

The judge again noted that the government is in the best position to determine what is safe for children, not the courts. The judge also noted that it is not realistic to expect that a back to school plan would absolutely ensure that a child would not be exposed to the virus. She also noted that the father’s plan to organize playdates for social interaction would still result in potential exposure.  

She also found that when determining if an educational plan is appropriate for a child, the court should consider, among other factors: the risk of exposure to the virus for child, if the child or member of their family is at an increased risk from COVID-19 exposure due to underlying health concerns, the risk the child faces to their mental health, social development, academic development or psychological well-being from learning online, proposed or planned measures to alleviate any risks, the child’s wishes, and the ability of the parents to support online learning, including any competing demands on the parents. After considering these factors, the judge ruled that the child should attend school in-person.

It appears that in most available cases, Ontario judges are deferring to the provincial government’s access to health experts and resources when making decisions about the safety of children in education. However, as more information becomes available, as the number of cases rises and falls, and as the caselaw develops, it remains to be seen what might happen. In any event, winter is coming, and we will continue to monitor how cases in this area develop. Contact our office today with your family law questions.