ONTARIO COURT OF JUSTICE

DATE: 2022·03·28 COURT FILE No.: Woodstock D44/21

BETWEEN:

Kristen Davies Applicant

— AND —

Michael Todd Respondent

Before: Justice S. E. J. Paull

Motions Heard on: March 8, 2022 Reasons for Judgment released on: March 28, 2022

Counsel: Applicant........................................................................................................... on her own behalf Stephen Eaton.................................................................................. counsel for the respondent

PAULL J.:

Overview

1Each parent has brought a motion seeking, among other things, sole decision-making and primary residence. The fundamental issue in this case relates to whether the parties’ two children should be vaccinated against Covid-19 and whether their eldest child should attend in-person school. Mr. Todd supports vaccination and in-person schooling, and Ms. Davies does not.

2Before embarking on a review of the evidence it is important to outline what is not evidence before this court. There was reference to two Requests to Admit but they were not filed in the Continuing Record and as a result do not form part of the evidentiary record for these motions. However, many areas that appeared to be the subject of the Requests to Admit are not in dispute.

3Ms. Davies attaches various letters of support to her affidavit, including one from an anonymous source. These unsworn letters are not evidence properly before the court and were not considered.

4When this matter was scheduled the court imposed page limits on the parties’ affidavits of 10 pages plus 30 pages of attachments, with up to 6 pages in reply. In the circumstances of this case these limits provided the parties with ample opportunity to put the necessary evidence before the court.

5In addition to the submissions of the parties the court considered the affidavits filed at tabs 3, and 14-17 of the Continuing Record and the factums filed by each party.

Background and Evidence

Background and Evidence

6The parties are the parents of two children, K.T. (female) born […], 2010 and M.T. (male) born […], 2016. They appear to have had an on-and-off relationship from 2012/13 until their final separation sometime in 2020.

7Ms. Davies alleges that Mr. Todd was controlling and abusive during the relationship including punching holes in the wall during “rages”, which has continued in the form of harassment and controlling behaviour post separation. Mr. Todd disputes this and points to a police occurrence report of April 2021 which states that Ms. Davies acknowledged to police that there had been no physical violence or threats involved.

8Ms. Davies states that since separation in 2020 the status quo has been that the children have been in her care during the week and with Mr. Todd every weekend. She was forced to bring this matter to court when Mr. Todd refused to return the children after the weekend of April 9, 2021 unless she agreed to a week about shared arrangement. She alleges that he is abusive during exchanges and that she has had to change her phone number as a result of his harassing communications.

9On the first return of Ms. Davies’ motion an interim without-prejudice order was made on April 27, 2021 that the children be in the care of Ms. Davies from Monday to Friday and with Mr. Todd from Friday to Sunday.

10Ms. Davies does not believe in the efficacy of vaccinations and the children have never been vaccinated. Mr. Todd acknowledges acquiescing to this and not being involved in the children’s medical care during the relationship. However, he feels that Covid-19 is sufficiently serious that the children should be vaccinated. He supports their vaccination against Covid-19 on the basis of Health Canada and Public Health recommendations as well as the recommendation of the family doctor, Dr. Vu.

11The only direct evidence from the family doctor comes by way of a consultation note dated February 22, 2022 resulting from a phone call from Mr. Todd. The note appears to state that Dr. Vu would not give an opinion on vaccination as the parents are engaged in “a court battle for custody”.

12Around the time of separation in 2020 Ms. Davies moved with the children to Norwich from Brantford. Prior to the schools closing in 2020 K.T. attended in-person school in Brantford where the parties lived. She continues to attend online schooling in that jurisdiction. Mr. Todd feels that K.T. would benefit socially and academically from in-person learning.

13Mr. Todd’s plan is to have the children vaccinated against Covid-19 and for K.T. to resume in-person schooling in Brantford. He works Monday to Friday from 6:30 AM to 3 PM and has his mother and grandmother close by to assist. He and his family are vaccinated.

14Mr. Todd feels it is unsafe for the children to remain in the care of Ms. Davies given her views on Covid-19 vaccination and the fact that she and others in her family remain unvaccinated. He feels the best interest of the children support primary residence with him, with Ms. Davies’s parenting time suspended until she is vaccinated or alternatively that her parenting time be outdoors and daytime only, and that she be required to remain masked.

15Mr. Todd states that Ms. Davies subscribes to conspiracy theories about Covid-19 and advances “freemen on the land” and “sovereign citizen” type language and arguments in her online posts. Ms. Davies did dispute this and started each of her affidavits with the following:

1. I, Kristin Davies, a private woman with a living soul, and over the age of consent, and am of sound mind. I have personal knowledge of the matters stated herein and hereby asservate, understanding both the spiritual and legal liabilities of, “Thou shalt not bear false witness against thy neighbour”.

2. I, Kristin Davies, woman, claim my body, biological information, genetic material, and offspring are my property. I am the mother of K.T. and M.T.. I do not consent to myself, my offspring, namely K.T. and M.T., being injected with anything.

16Ms. Davies states that she has always been the primary caregiver of the children and that Mr. Todd was minimally involved in any major decisions. She opposes the children being vaccinated on the basis that she is not convinced the children are at risk of severe outcomes which would necessitate vaccination. She points out the significant side effects of the vaccination that have been reported by Pfizer. She is of the view that any benefits do not outweigh the risks. She also states that M.T. did test positive for Covid-19, did not have a serious illness, and now has a degree of natural immunity as a result.

17Recently she was working weekends at a restaurant when the children were not with her, but states that she is unemployed currently and looking for work. She is available to care for the children and has the support of her mother when needed. She also disputes that she has “delegated” a significant amount of her parenting time to others because she was unavailable.

18K.T.’s recent report cards were provided, and Ms. Davies agrees that there has been some negative impact on K.T.’s academic performance since she has attended online, but points out that the pandemic has been a significant challenge for K.T. as it has been for many children. With respect to the decline in K.T.’s grade in French, Ms. Davies provided an email from the school confirming that last year the French teacher had left and that they had been without a French teacher for a period of time. It was also confirmed that this may have not been communicated properly to all parents. The email concluded by stating that at the end of the 2021 academic year K.T. was working diligently to get all her assignments and French homework done.

19K.T.’s grade 5 report cards were provided and confirm that her grades have slipped somewhat from November 2020 from the B+ to the B- range. Her attendance was relatively good although she had 22 lates over the whole year. K.T. started grade 6 in September 2021 and the interim report from November 2021 indicated 6.5 days absent and that she was progressing with difficulty in some areas.

20Ms. Davies states that she will consider K.T. returning to in-person schooling in September 2022 or at a later date depending on the circumstances.

21Any order this court makes in the circumstances will be an imperfect solution to a complex problem, based on an incomplete evidentiary record. These are interim motions and the affidavits filed have not been tested by cross examination. However, there are findings of fact that can appropriately be made on the evidence before the court, and there were many areas of the evidence that are not in dispute.

22I accept that Ms. Davies was the primary caregiver for the children prior to the separation in 2020. Ms. Davies was primarily if not solely responsible for the children’s medical care and Mr. Todd acknowledged that he had little to no involvement in this and acquiesced to decisions made by Ms. Davies during the relationship.

23Despite whatever political beliefs Ms. Davies may hold, there is no evidence that the children’s health and educational needs have not always been met, and I accept that Ms. Davies is a capable and loving parent. However, I accept that Mr. Todd is also a loving and capable parent and was involved in caring for the children during the relationship, including at times when Ms. Davies worked, and he was not. Neither party has a criminal record, and the family has not been involved with the CAS. Mr. Todd denied being abusive and there was no independent evidence supporting these allegations. The only police occurrence report included an acknowledgement by Ms. Davies that there had been no physical violence. However, the parties do have a conflictual relationship particularly related to responding to Covid-19.

24Mr. Todd did not dispute that since October 2020 the parenting arrangements were that the children were with him on weekends and Ms. Davies during the week. He also did not dispute to unilaterally withholding the children from her in April 2021, which required her to bring an urgent motion to court. In this regard he has not acted in a reasonable or child focused manner.

Summary of Findings of Fact

25The findings of fact may be summarized as follows:

1. Prior to the parties’ separation in 2020 Ms. Davies was primarily responsible for caring for the children, although Mr. Todd was also involved.
2. Both parents are loving and capable, and both are dedicated to their children’s well-being.
3. Neither party has a criminal record, and the family has not been involved with the CAS. The only evidence of any police involvement was when Ms. Davies spoke to the police in April 2021 when Mr. Todd withheld the children.
4. Mr. Todd is vaccinated against Covid-19 and Ms. Davies is not.
5. Since at least October 2020 the status quo was that the children were with Mr. Todd on the weekends and with Ms. Davies during the week. In spite of this arrangement Mr. Todd withheld the children following his weekend on April 11, 2021 until Ms. Davies agreed to a shared parenting arrangement. He did this without bringing the matter to court and Ms. Davies was required to commence court proceedings and bring an urgent motion.
6. During the parties’ relationship the children never received vaccinations on the basis of Ms. Davies’s strongly held beliefs and Mr. Todd’s acquiescence. During the relationship Ms. Davies was solely responsible for ensuring that the children’s medical needs were met.
7. The family doctor, Dr. Vu was not prepared to express an opinion regarding vaccination of the children because of the ongoing court case. The children are healthy and there is no evidence they have any health issues that either support or contraindicate vaccination.
8. There was no evidence that there are any other members of either party’s household who may be immunocompromised or more vulnerable to a serious outcome as a result of Covid-19.
9. The court has no independent evidence regarding the views and preferences of the children. The court made an order requesting the involvement of the OCL and both parents provided their intake forms. Unfortunately, the OCL declined to provide services.
10. K.T. continues to attend school virtually in Brantford although she has been living with her mother in Norwich since late 2020. She is generally a good student although her grades have continued to slip somewhat since online learning began.

Law and Analysis

Law and Analysis

26Any proceeding with respect to children is determined on the basis of the best interest of the particular child before the court in accordance with the considerations set out in subsections 24 (2) to (7) of the Children’s Law Reform Act (the “Act”).

27Subsection 24 (2) of the Act provides that the court must give primary consideration to the children’s physical, emotional and psychological safety, security and well-being in determining best interests.

28A starting point to assess a child’s best interests when making a parenting order is to ensure that the child will be physically and emotionally safe. It is also in a child's best interests when making a parenting order that his or her caregiver be physically and emotionally safe. I.A. v. M.Z., 2016 ONCJ 615; J.N. v. A.S., 2020 ONSC 5292; A.L.M. v. V.L.S., 2020 ONCJ 502; M.R.-J. v. K.J., 2020 ONCJ 305; Abbas v. Downey, 2020 ONCJ 283; N.D. v. R.K., 2020 ONCJ 266.

29Section 28 of the Act sets out the different types of parenting orders that a court can make. The court’s powers under the Act are broad and purposive. It can allocate parenting time and decision-making authority between the parents, impose a schedule, provide for the means of communication to be used by the parents, and make any other orders that it considers appropriate to secure the children’s best interests. S.S. v. R.S., 2021 ONSC 2137.

30Subsection 24 (6) of the Act does not override the best interests test contained in section 24. Rather, it means that a child should have as much time as possible with each parent consistent with the child’s best interests. The principle is subject to what is in the best interests of the children, given their ages, temperaments and stages of development. Ammar v. Smith, 2021 ONSC 3204.

31The party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. M.A. v. J.D., [2003] O.J. No. 2946 (OCJ).

32With respect to the issue of vaccination, in A.C. v. L.L., 2021 ONSC 6530, the court ordered that the three children (all over 14 years old) are entitled to be vaccinated for COVID-19 over the mother’s objections. The court found:

a) Absent compelling evidence to the contrary, it is in the best interest of an eligible child to be vaccinated. b) The responsible government authorities have all concluded that the COVID-19 vaccination is safe and effective for children ages 12-17 to prevent severe illness from COVID-19 and have encouraged eligible children to get vaccinated. These government and public health authorities are in a better position than the courts to consider the health benefits and risks to children of receiving the COVID-19 vaccination. c) The parent opposing vaccination has the onus of presenting expert evidence that vaccination is not in the best interest of the particular child.

33In O.M.S. v. E.J.S., 2021 SKQB 243, the court gave permission to a father to vaccinate his 12-year-old child for COVID-19, over the objection of the mother (the primary caregiver) and the child. The court rejected the expert evidence offered by the mother. The court determined there was nothing before it that satisfied it on a balance of probabilities that this child’s health would be compromised by the administration of the Covid-19 vaccine. In any event, with the manner in which the order was granted, any health concerns were to be the subject of consultation with the family physician and the endocrinologist to ensure the child’s medical issues are properly and thoroughly considered by those that are most familiar with her and her medical file. In light of the determinations concerning Covid-19, its effects, and the need to be vaccinated to avoid these effects, the court determined it was in the child’s best interests to have the Pfizer Covid-19 vaccine administered forthwith.

34In Sembaliuk v. Sembaliuk, 2022 ABQB 62, the court granted an order permitting the father to take the parties’ 13-year-old child to a Covid-19 vaccine appointment, despite the absence of the mother’s consent. The father did not seek an order specifically directing that the child be vaccinated. He sought an order dispensing with the mother’s right to object to the father taking the child to a Covid-19 vaccination appointment. The mother objected to her daughter being vaccinated on three grounds: (1) the child is already protected because she previously contracted Covid-19; (2) the vaccine would expose her to an unacceptable risk of harm; and (3) the development of the vaccines offends her religious beliefs. The court concluded that it was in the best interests of the child for the father to be permitted to take her to a vaccination appointment. The court found that the mother’s sincerely held religious beliefs and the child’s religious heritage were factors to be considered, but are outweighed by the health protections offered by the vaccine.

35Sole decision-making responsibility may be granted to one parent where the other parent will not consent to vaccination. In Burrell v. Burrell, 2021 ONSC 681, the court found it essential that the mother have sole decision-making responsibility for the child, particularly if the child became eligible for a COVID-19 vaccine as the father was dismissive of masking, vaccines and safety precautions for the child.

36In St. Phard v. St. Phard, 2021 ONSC 6910, the court gave the father decision-making responsibility over vaccinating the parties’ 14-year-old child. The mother opposed vaccination. The court found that the child’s views were not independent as he had been misinformed by the mother and the doctor the mother had taken him to.

37With respect to the issue of judicial notice, in B.C.J.B. v. E.-R.R.R., 2020 ONCJ 438, the court took judicial notice of the following: Ontario’s publicly funded vaccines are safe and effective at preventing vaccine preventable diseases. Their widespread use has led to severe reductions or eradication of incidents of these diseases in our society. Further, the harm to a child, flowing from contracting a vaccine preventable disease, may even include death.

38Regarding legislative facts, the court in B.C.J.B. took judicial notice of the policy reflected in the “Immunization 2020” document and the documents from the government of Canada. Canada and Ontario have a coordinated immunization strategy in the interest of public safety. These include sophisticated delivery systems, oversight and vaccine safety monitoring and compliance measures. The Immunization of School Pupils Act is part of Ontario’s public health strategy. These documents reveal that government policy, at all levels, supports the widespread use vaccination to promote individual health and public safety (pars. 191-192).

39The court in B.C.B.J. noted that none of these facts disposed of the issue as the court still needed to determine if vaccination was in the specific child’s best interests (par. 193). This decision was upheld on appeal (B.C.J.B. v. E.-R.R.R., 2021 ONSC 6294), and was followed in A.P. v. L.K., 2021 ONSC 150 and in I.S. v. J.W., 2021 ONSC 1194.

40It was also followed in O.M.S. v. E.J.S., 2021 SKQB 243, where the court took judicial notice of the following:

1. Canada, and Saskatchewan in particular, have been in a Covid-19 pandemic which has resulted in a number of health and other restrictions being imposed to control the spread of the virus.
2. The possibility of contracting the Covid-19 virus poses a serious and significant health risk to people generally, including children and adults.
3. The Pfizer Covid-19 vaccination is safe and effective for use in people, including both adults and children. I form this conclusion by taking judicial notice of the vaccine approval process in Canada and the approval by the health authorities of this particular vaccine. To argue it is experimental as is put forth by the mother and her supporting affidavits is not in accordance with the general knowledge available regarding this approval process and implementation.

41Judicial notice of the safety of the vaccine was also taken in St. Phard v. St. Phard, 2021 ONSC 6910 and in McDonald v. Oates, 2022 ONSC 394.

42However, in R.S. P. v. H.L.C., 2021 ONSC 8362, the court stated that these courts went too far in taking judicial notice of opinions, such as the opinion that COVID-19 vaccines are safe and effective, because courts cannot take judicial notice of expert opinion evidence. This reasoning was supported in the recent case of J.N. v. C.G. 2022 ONSC 1198, where the court cautioned against using judicial notice as a substitute for evidence or to permit judicial notice to be taken on matters that require qualified expert opinion to establish.

43I agree with and adopt the analysis of the court in Dyquiangco jr. v. Tipay 2022 ONSC 1411, where Justice Jarvis reviewed these cases and concluded the following:

[22] So what are the notorious or “accepted” facts which this Court is prepared to accept and which cannot be the subject of dispute among reasonable persons? And represent our collective lived experience. They are: (a) The Covid virus kills; (b) The virus is transmissible; (c) The virus can, and has, mutated; (d) Variants of the virus are more transmissible than others; (e) Asymptomatic carriers of the virus can infect other people; (f) Symptoms of the virus may vary according to age, health and co-morbidity factors; (g) The virus does not discriminate; (h) There is no known immunity to contracting the virus; (i) There is no verifiable evidence of natural immunity to contracting the virus, or any mutation, a second or more times; (j) Vaccines work; (k) Vaccines are generally safe and have a low risk of harmful effects, especially in children; (l) Vaccines do not prevent infection, reinfection or transmission, but they reduce the severity of symptoms and the risk of bad outcomes.

44I also agree with Charney J. in A.C. v. L.L., 2021 ONSC 6530 and Jarvis J. in Dyquiangco jr. v. Tipay, 2022 ONSC 1411, that as a general proposition it is in the best interest of children to be vaccinated on the basis of government and public health guidance, unless there is a compelling reason not to do so.

45The Ontario Court of Appeal in Kaplanis v. Kaplanis, [2005] O.J. No. 275 sets out the following principles in determining whether a joint decision-making order is appropriate:

1. There must be evidence of historical communication between the parents and appropriate communication between them.
2. It cannot be ordered in the hope that it will improve their communication.
3. Just because both parents are fit does not mean that joint custody should be ordered.
4. The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
5. No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise, they must be able to be addressed on an ongoing basis.
6. The younger the child, the more important communication is.

46Joint decision-making should not be ordered where there is poor communication and the parties fundamentally disagree on too many issues affecting the child’s best interests. Graham v. Butto, 2008 ONCA 260, Roy v. Roy, [2006] O.J. No. 1872 (Ont. C.A.).

47Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required and is obviously not achievable. Griffiths v. Griffiths, 2005 ONCJ 235, 2005 CarswellOnt 3209 (OCJ). The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. Warcop v. Warcop.

48In addition to the judicial notice that I have specifically referred to and adopted above, I take judicial notice of the following as being “so notorious as not to be the subject of dispute among reasonable people” (B.C.J.B. at para 188).:

1. The governments of Canada and Ontario have coordinated vaccination policies and programs that are in the public interest, with sophisticated approval, oversight, and ongoing safety monitoring systems.
2. All levels of government and the responsible public health authorities in Canada have concluded that Covid-19 vaccinations are generally safe and effective with a low risk of harmful side effects.
3. The Covid-19 vaccination is recommended by all levels of government and public health authorities to all eligible Canadians including children and is effective at reducing serious outcomes from Covid-19 infection, including death.

49Those areas of judicial notice that this Court is prepared to take do not end the inquiry into whether K.T. and M.T. should be vaccinated against Covid-19. The court must still assess whether Covid-19 vaccination is in their best interests.

50I am not persuaded on a balance of probabilities that the risks of vaccination outweigh the benefits for the children involved in this case. While neither child has received vaccinations before, I agree with Mr. Todd that the circumstances of Covid-19 are different.

51Both children are healthy and there is no evidence that would contraindicate Covid-19 vaccination for either child. There is also no independent evidence available to this court regarding any views and preferences the children may have on this issue.

52Mr. Todd shall be granted decision-making authority with respect to the discrete issue of Covid-19 vaccinations for the children and in doing so shall consider the input from the family doctor and any other healthcare providers involved with the children.

53With respect to the other areas of decision-making, pending trial where the court will have the benefit of a more complete evidentiary record and cross-examination, a temporary order for joint decision-making shall issue as a means to maintain some balance between the parties. I am mindful of the level of conflict between the parties and that this is a factor that can militate against joint decision-making. However, the conflict appears focused primarily on responding to Covid-19, and they appear to have been able to cooperate and follow the terms of the current interim without-prejudice order without issue for several months.

Primary Residence and Parenting Time

54With respect to primary residence and parenting time, I am not of the view at this time that the best interests of the children require that they reside in Mr. Todd’s primary care and that Ms. Davies’ parenting time be suspended or limited to outdoor and daytime only as a result of her vaccination status.

55I am mindful that there have been numerous cases where the courts have significantly curtailed a parents’ time with their child as a result of their choice not to be vaccinated. I agree that a parent’s choice not to be vaccinated for Covid-19 can and does impact the assessment of a child’s best interests, and that in certain cases could support the limiting of parenting time.

56In A.G. v. M.A., 2021 ONCJ 531, a mother sought to suspend the father’s in-person parenting time with their child because the father had only had a single vaccination. Following B.C.J.B. v. E.-R.R.R., 2020 ONCJ 438, Justice Robert Spence took judicial notice that the harm to a child, flowing from contracting a vaccine preventable disease may include death. He found that the father not being fully vaccinated increased his risk of infection for COVID-19 and potentially exposed his child to an increased risk of infection.

57Justice Spence found that there were competing interests at stake. On the one hand, the father’s parenting time with his child increased the child’s risk of infection for COVID-19. On the other hand, all other things being equal, the child should be entitled to have her parent in her life in a meaningful way – in-person contact being more meaningful than virtual contact. Justice Spence balanced these considerations by reducing the father’s parenting time and requiring that it take place outdoors. The child had underlying medical conditions that factored into this decision.

58It is important to recognize that all these cases have been decided in a rapidly changing environment. The circumstances have evolved significantly since the pandemic began. Unlike a few short months ago, Ontario is now in a place where a significant majority of eligible Canadians are fully vaccinated, and the provincial government is currently removing Covid-19 restrictions and mandates.

59Further, many of these cases involve the non-primary parent’s time with the children. In this case I have found that Ms. Davies has been the children’s primary caregiver during the parties’ relationship and following separation up until Mr. Todd’s unilateral actions in the spring of 2021 of withholding the children until she agreed to a shared parenting plan.

60The risk resulting from Ms. Davies’s choice not to be vaccinated must be balanced against the competing interests in this matter. The court must balance the increased risk of harm from Covid-19 exposure this presents with the risk of emotional harm to the children of being denied meaningful contact with a primary parent.

61In the particular circumstances of this case, I would balance these competing interests as follows. I am concerned about the impact that a suspension or significant curtailment of Ms. Davies’s parenting time would have on the children. A wholesale change in the arrangements presents a risk of emotional harm and more of a risk, in my view, than does the increased risk resulting from Ms. Davies’ refusal to be vaccinated. It is also relevant that the children will be vaccinated which will reduce their risk from Covid-19, and they are otherwise healthy children with no evidence of underlying medical conditions.

62I note that Mr. Todd seeks to have the children attend school in-person which will no doubt expose them to other children who have not been vaccinated. I take it from Mr. Todd’s position that he believes the benefits of in-school learning outweigh the risks to the children of being exposed to unvaccinated schoolmates. There is no perfect solution to balancing these complex issues, and there is no solution that eliminates all risk. This court may well have balanced these interests differently a few months ago.

63At the present time given the circumstances generally related to the pandemic and the government response, and the particular circumstances of the children in this case, I am not persuaded that their best interests require that they be removed from or deprived of the care of an unvaccinated primary parent.

In-Person Schooling

64The issue of returning to in-person school for K.T., and M.T. when he starts school, must also be addressed. Mr. Todd feels that K.T. will benefit socially and academically from a return to in-person schooling. Ms. Davies feels that K.T. returning to in-person schooling late in the school year would be more disruptive for her. Ms. Davies may support K.T. returning to in-person school in September 2022 depending on the circumstances at the time.

65In Nolet v. Nolet, 2020 ONSC 5285, the court ordered the child to attend school in-person and wrote at paragraph 25;

25In my opinion in the current circumstances in Ontario, the presumption is that it is in the best interest of a child to attend in-person schooling, absent compelling evidence to the contrary.

66In McGrath v. McGrath, 2020 ONSC 5676, the court endorsed the presumption in favour of in-person school set out in Nolet.

67In J.N. v. A.S., 2020 ONSC 5292, the court found that it was in a 4-year-old child’s best interests to attend school in-person, even though it is not mandated that the children go to school until age 6. The court found that the father, who opposed this order, did not provide sufficient medical evidence to support his argument that he or the child were at higher risk of harm due to breathing issues.

68In Shaw v. Gauthier, 2021 ONSC 5790, the court wrote at para. 31:

There is increasing evidence that there are long-term educational and social costs associated with virtual schooling for elementary and secondary school students. This has led courts to conclude that, absent compelling evidence otherwise, it is in the best interest of a child to attend in-person schooling where such schooling has been authorized by the government and relevant educational decision-makers. While potential exposure to Covid-19 is obviously a factor to be taken into account in any such assessment, the court is not in a position, especially without expert evidence, to second-guess the government’s decision-making. The court should proceed on the basis that the government’s plan for reopening of schools in the context of Covid-19 is reasonable in the circumstances for most people and that it will be modified as circumstances require.

69In Shepstone v. Masales, 2020 ONSC 5364, the court ordered in-person education. The court wrote at par. 25:

I am also persuaded that in-person learning will provide the child with a superior educational experience, particularly considering her IEP and the difficulties that she had with on-line learning in the previous school term. Returning to school in-person will provide the child with direct support and supervision from the educational professionals assigned to provide her with assistance.

70In A.C. v. L.L., 2021 ONSC 6530, the court set out its understanding of the case law as follows:

a) Where available, in-person classes are presumed to be in a child’s best interests. b) This is based on the underlying premise that the government and public health authorities are in a better position than the courts to consider the health risks to children in attending in-person school. c) The parent requesting virtual schooling has the onus of presenting expert evidence that it is in the best interest of the particular child.

71In Wilson v. Wilson, 2020 ONSC, unreported, Aug. 24/20, the court came to a different conclusion and ordered that the child go to school remotely for reasons including:

a) The children had done well with on-line schooling. b) One of the children had asthma and was at greater risk. c) There was insufficient information that in-person schooling would be safe. It was unclear whether the in-school plan conformed with the Sick Children’s expert report.

72In Joachim v. Joachim, 2020 ONSC 5355 the court ordered on-line education, mostly due to the father’s health vulnerabilities that were well-supported by medical evidence.

73While each case must be dealt with based on the best interests of the individual child involved and the particular circumstances of the family, I agree with the line of cases that endorsed the presumption in favour of in-person learning generally being in the best interest of children.

74This case is somewhat unusual in that Ms. Davies’ position is not related to Covid-19 safety concerns. She states that she is not supporting a return to school at this time out of a concern for the disruption that would result if in-person schooling was once again suspended.

75I am satisfied that the children’s best interests support in-person learning starting in September 2022. K.T.’s academic performance has declined in recent months and Ms. Davies has not otherwise provided a sufficient evidentiary basis to support a finding that virtual learning is in either child’s best interests.

76Neither child has any health related issues that would support on-line schooling, and there is no evidence that there are any other vulnerable individuals in either party’s home that need to be considered.

77I am of the view that Ms. Davies’s present position on in-person schooling likely has more to do with the fact that K.T. remains enrolled in Brantford where Mr. Todd lives rather than any concern related to school closures.

78It is in the best interest of the children to be enrolled for in-person learning starting in September 2022. The issue is whether K.T. should continue to attend school in Brantford or switch to a school in Ms. Davies’ jurisdiction.

79I am of the view that maintaining the children’s residential arrangements with their primary parent will likely outweigh any disruption that will result from K.T. changing school districts. However, as previously noted, the court does not have the benefit of independent views and preferences from K.T. as a result of the OCL declining to become involved. While the views and preferences of K.T. would not be determinative of this issue, they would nonetheless be a factor to consider.

80Prior to making the determination of the appropriate jurisdiction for school attendance I will make a further request for OCL to become involved on behalf of K.T. to provide a Voice of the Child Report on the issues of the parenting time schedule and any preference she may have on whether she attend school in her mother or father’s jurisdiction. On behalf of M.T., a VOC Report outlining any views and preferences regarding the parenting schedule. The parties shall provide completed Voice of the Child intake forms and return them to the clerk of the court within 24 hours of this order.

81With respect parenting time pending trial, I am of the view that the best interests of the children support maintaining the schedule currently in place with the children being in Mr. Todd’s care from Friday at 3:30 PM to Sunday at 6 PM, and in the care of Ms. Davies at other times, subject to additional parenting time for holidays and special occasions. During the months of July and August the regular parenting schedule will be suspended, and the parties shall have a week about schedule with weekly exchanges taking place on Fridays at 3:30 PM, unless agreed otherwise in writing between the parties. Pending trial or resolution, this will permit the children to continue to have significant periods of time with both parents and reflect the status quo that was in place from in or around October 2020.

82Given the level of conflict and mistrust between the parties an order that neither party expose the children to adult conflict or disparaging comments about the other parent or their family is also appropriate.

83Both parties are strongly encouraged to consider interacting in a more cooperative and less litigious manner, which could include attending mediation when the Voice of the Child Reports are complete. The Family Mediation services available at the Woodstock Courthouse may be contacted at 1-888-796-0483 extension 703 or at Woodstock@mediationsouth.com.

Order

84On the basis of these considerations an interim order shall issue as follows:

1. The parents shall have joint decision-making with respect to the children, except that Mr. Todd shall have sole decision-making authority on the discrete issue of vaccination of the children against Covid-19, and he shall consider the input from the children’s family doctor and any other healthcare providers involved with the children.
2. The children shall remain in the primary care of Ms. Davies with parenting time for Mr. Todd to include the following: a. Fridays from 3:30 PM to Sundays at 6 PM; b. an equitable sharing of holidays and special occasions as agreed between the parties; c. during the months of July and August there shall be a week about parenting arrangement with exchanges occurring on Fridays at 3:30 PM unless agreed otherwise in writing by the parties; d. any other times as may be agreed between the parties.
3. Starting in September 2022 the children shall attend school in-person.
4. Neither party shall expose the children to adult conflict or to disparaging comments about the other party or their family.
5. The Office of the Children’s Lawyer is requested to become involved and provide a Voice of the Child Report for the children. With respect to K.T., to provide any views and preferences on the issue of the parenting time schedule and in which jurisdiction she will attend school in person in September 2022. With respect to M.T., any views and preferences regarding the parenting schedule.
6. The clerk of the court shall forward the OCL VOC intake forms to the parties with these Reasons. The parties shall return the completed intake forms to the clerk of the court within 24 hours.
7. The clerk of the court shall provide these Reasons for Judgement to the OCL along with the order and intake forms.
8. Approval of the order is waived.

Costs

In the circumstances of the divided success, I will likely not be inclined to make an order for costs on the motions. However, if the parties are unable to agree the issue may be spoken to on the return date.

Released: March 28, 2022 Signed: “Justice S. E. J. Paull”