A child’s return to school in September after the summer months can be stressful for the children and for their parents or guardians at the best of times, let alone during COVID-19. For students in the Vancouver area, the Vancouver School District has developed a Restart Plan that details what the school year will look like.
Some of the changes are:
· reducing in-person class sizes;
· reducing the amount of time students spend in the school;
· mandating the use of masks in crowded areas such as hallways;
· restricting attendance at the school by non-students and non-staff; and
· ensuring that the children and school staff maintain proper social distancing.
But what if you and your ex-spouse don’t agree on whether your child should attend school in person this fall?
As a starting point, educational and health matters are parental responsibilities of both parents or guardians, and unless your agreement or court order gives one parent control over these types of decisions, both parents have to agree.
While we have not seen any cases yet in British Columbia where this has been an issue, there have been two cases in Quebec and, very recently, a case from Ontario: Chase v. Chase, 2020 ONSC 5083.
In Chase, the parties shared parenting time of their 9-year-old son on a 50/50 basis. In September, the child was to enter grade 4 at the French Immersion school he had attended since kindergarten. The mother wanted the child to return to school in September whereas the father took the position that the child should remain at home and not attend school until “safety protocols are proven successful.” Mediation failed to resolve the matter and the parties turned to the courts.
Justice Himel considered the two cases out of the Quebec Superior Court of Justice in her decision, namely, Droit de la famille – 20682, 2020 QCCS 1547 and Droit de la famille – 20641, 2020 QCCS 1462. In the first Quebec decision, the child had a family member who had an autoimmune disease which increased the risk of exposure to COVID-19. The Ontario judge held that that case didn’t apply to the situation before her. However, Justice Himel adopted the reasoning in the second case, where the court ordered that the child return to school, as it was for the government to assess the risk of children returning to school, in consultation with medical and educational advisors. The court in that matter also said that once the risk was assessed and schools reopened, it would take unique circumstances for the court not to support a return to school by a child.
The court also found that although both parties presented sound reasons to support his/her respective positions, the father’s plan had defects plus the Government of Ontario had assessed the risk of reopening the schools in consultation with experts and had put together a plan that the government believed would minimize the risk to children. Therefore, the court ultimately sided with the mother.
Although these decisions are not binding in British Columbia, it is likely that future BC decisions will follow suit, and that BC courts will find that the child should attend school in accordance with the guidelines established by the school district in consultation with the Provincial Government, unless the child, or a member of the child’s household, is immunocompromised or has other related health issues that make attendance at school unsafe for the child’s health or the health of the members of the respective households. In other words, if the Government has done its due diligence with the advice of experts to minimize risk factors for children, then the courts will defer to the government.
What if you still aren’t comfortable with your child returning to school?
For younger students the Vancouver School District is offering alternatives such as home schooling or a proposed Learn From Home Transition Program. However, if the parents don’t agree, a parent or guardian taking the position that the child should not attend school should have a detailed proposal of how the child may continue to be educated outside of school in order to ensure that the child does not fall behind his or her classmates.
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