SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Bailey Elyse Glynn – Applicant
AND: Bradley Simon Paulmert – Respondent/Moving Party
BEFORE: Justice R. F. MacLeod – via videoconference
COUNSEL: Rachel Eddy, for the Applicant
Michael W. Fowler, for the Moving Party
E N D O R S E M E N T
1The parties share joint custody and share parenting of their only child, Elyse, on a week about schedule. Elyse is ten years of age.
2The parties disagree about whether Elyse should attend school in person or whether she should be schooled online in the fall of 2020. Father wants her to return to school. Mother wants her to attend online.
3The sole reason for mother's objection is her fear that Elyse will be exposed to or will contract COVID-19 if she attends in-person schooling.
4Elyse is a healthy child with no increased risk due to health conditions or other risk factors.
5There is no concern that anyone in Elyse's family or "bubble" is at increased risk from COVID-19.
6Mother agrees Elyse should return to in-person schooling eventually. Her goal in opposing her return now is to "impose a buffer period so as to allow us to observe and monitor the progression of the pandemic without putting Ellie's health in jeopardy."
7Mother does not raise any concern about the quality of education the child would receive under the COVID-19 protocols.
8The most recent case law in Ontario regarding this issue is Zinati v. Spence, 2020, ONSC 5231. The relevant factors in these cases are outlined in paragraph 27 c):
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.
9The only relevant factor to consider in this case is (i) above. I would pose the question slightly differently. What is Elyse's risk from being exposed to COVID-19? The difficulty in finding reliable evidence on this point is well outlined in Zinati. For children, however, a review of the raw data from the Public Health Ontario website is instructive.
10In Ontario, as of September 8, 2020, the total number of children aged 10-19 who have been hospitalized due to COVID-19 is 31. There are 1,617,937 children in this cohort. Therefore, the risk of children aged 10-19 of being hospitalized due to COVID-19 is 19 in one million. The total number of deaths in this cohort is nil.1
11For comparison, in 2019, the incidence of meningitis in the general population of Ontario was 12.8 per one million. For pertussis, it was 31 per one million.2
12Any COVID-19 "case" that does not result in hospitalization is not a concern in this analysis since the child would either be asymptomatic or would recover in the same manner that children recover from other minor illnesses. These "cases" do not represent an increased risk to the child compared to normal risks assumed by children attending school pre-COVID.
13Is it in the best interests of a child to be removed from school solely based on a 19 in one million chance of being hospitalized? No. As stated in Zinati, it is not realistic to expect or require a guarantee of safety for children in school. The level of risk to children from COVID-19 is well within the normal parameters of day to day risks associated with living in modern society.
14The father's motion is granted.
15Father has been entirely successful, but given that the Zinati decision was released after the father's motion was served, and given the efficient manner in which each counsel managed this motion, there shall be no order as to costs.
Order
16Elyse Mae Paulmert, born July 3, 2010, shall attend Walsh Public School for in-class learning effective September 11, 2020
R. F. MacLeod, J.
DATE: September 9, 2020
COURT FILE NO.: FC-17-FS-8-02
DATE: 2020-09-09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Bailey Elyse Glynn
Applicant
- and -
Bradley Simon Paulmert
Respondent/Moving Party
ENDORSEMENT
RFM
Released: September 9, 2020