On August 25, 2020, newly minted Justice the Honourable Andrea Himel faced a question on the minds of many parents – should a nine-year-old boy attend school or continue online learning at home?

The parents of the child, W. C., were both working at home, and there were no other children in their households. The partner of the father is working in an essential service position in the community. There are no underlying medical conditions for anyone in either household, and W.C. is a generally healthy child.

Himel J. had some wisdom to impart to the parents calling the urgency of the motion a “self-fulfilling prophecy”, because the parties had not availed themselves of settlement options short of court. She says “A better approach is to engage in mediation with a professional or third-party trusted family member or friend…. 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.

Her Honour ordered the child to attend school in person, after reviewing the evidence presented by the parents and the caselaw (primarily from Quebec) about school attendance.  She states that health officials are better placed to assess the risk of school attendance than a judge. But she also lays the groundwork for a different result on different facts.  She reviews the indicia of risk presented by the father and discusses why they do not change her result.

(a)  None of the adults nor W.C. have any underlying medical conditions that make any of them particularly susceptible to adverse effects of COVID-19; 

(b)  While the [step-mother] is scheduled to have ankle surgery at some unknown date in the future, her medical vulnerability will be relatively short-lived, and can be addressed by a temporary change or suspension of the Father’s in-person parenting time (and/or a change to socially distanced time in the community), with the addition of virtual access. W.C. can undergo COVID-19 testing to ensure that he is healthy prior to the return to the usual schedule; 

(c)  The likelihood that the [step-mother] may need to travel to Ohio to visit her elderly mother, who is in chronic poor health, and possibly return with her to Ontario, is not quantifiable. Such a plan may not be feasible given the current status of the border, the two-week quarantine, and other obstacles. It is unreasonable to withhold W.C. from school, “just in case”, and the paternal step-grandmother’s potential needs should not trump the child’s; 

(d) The [Step-mother] continues to work outside of the home providing an essential service. While the Father works from home, when he is out in the community and in an indoor space, he always encounters at least one person who is non-compliant with the mandatory mask and social distancing rules. Therefore, any and all members of the Father’s household could be exposed to COVID-19 in their daily lives. 

(e)  The Father is worried about the impact of wearing a mask at school as it may affect his son’s education. A mask makes it harder to communicate clearly and read facial cues, which may impede the development of W.C.s oral skills in French. However, this is not a risk that warrants online learning. 

(f)  The guilt W.C. may feel if he believes he has infected a family member with COVID-19 (which is another of the Father’s concerns), can be addressed by the Mother, the Father, and [step-mother], assuring him that people catch viruses from many places, and that he is not responsible; and 

(g)  The fear expressed by W.C. about returning to school until it is safe can be minimized through messages that support the Court’s decision, coupled with reassurances that the Ontario government will continue to monitor risk and take appropriate steps to protect children. 

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