COURT FILE NO.: FS-18-4789
DATE: 20200917
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SALOUA EL HADDAD
Applicant
– and –
ABDUL YASEER SHAKUR
Respondent
Joelle Ruskin, lawyer for the applicant
Faryal Rashid, lawyer for the respondent
HEARD: September 15, 2020
ENDORSEMENT
DIAMOND J.:
[1] By Endorsement dated September 8, 2020 of Justice Hood, I was designated to conduct a videoconference hearing with the parties to address the applicant’s motion seeking relief relating to the four children of the marriage.
[2] In accordance with the Chief Justice’s Notice to the Profession dated March 15, 2020 and subsequently updated on April 2, 2020 and May 13, 2020 (“the Notice”), Justice Hood reviewed the applicant’s motion materials and found that two specific heads of relief sought by the applicant presumptively fit the “urgency requirement” as set out in the Notice. Those two heads of relief were (a) a request that the four children attend school on an in-person basis, and (b) a request that the method of transfer for schooling of the four children be varied.
[3] Justice Hood then set a timetable for the service of the applicant’s motion materials, and the exchange and filing of any responding and reply motion materials. The parties complied with the timetable deadlines, and the hearing proceeded by videoconference before me on September 15, 2020.
[4] At the conclusion of the hearing, I took my decision under reserve.
Summary of Relevant Facts
[5] The parties were married in 2008, and separated in 2018. They have four children: A (currently 9 years old), S (currently 7 years old) and twins F and M (currently 4 years old).
[6] The respondent is a medical doctor, and has been described on this motion as a “hospitalist”. While he denies being a “frontline care worker”, there is no dispute that he does work out of at least two separate hospitals, and his practice deals primarily with geriatric patients.
[7] The applicant is a stay at home mother, currently residing in the former matrimonial home with her brother.
[8] The respondent resides with his parents, his sister, his brother-in-law, and their child (currently 2 years old).
[9] As previously found by this Court, this proceeding is a high conflict case. The children of the marriage have suffered greatly since the parties’ separation, and have typically been subjected to various levels of crises. There is evidence in the record that the parenting transitions have become extremely problematic for all of the children, but in particular the parties’ oldest son A.
[10] The applicant seeks an order that the four children attend Elms Junior Middle School (“the school”) for in-person learning, together with an order that the parenting transitions for the children shall all take place at the school. While A and S have attended the school since 2018, this is the twins’ first year there in junior kindergarten.
[11] There is no dispute that the school has been designated by Toronto Public Health as being located in a COVID-19 high risk neighbourhood.
[12] The respondent opposes the relief sought by the applicant, and asks that the children participate in online learning “until such time we have more information and experience with COVID-19 transmission in schools (especially since we are heading into a new flu season)”. The respondent points to a recent, increasing number of new cases in Ontario (and, in turn, Toronto) in support of his position.
[13] With respect to the applicant’s request that parenting transitions take place at the school, in the event that I order the children to attend the school on an in-person basis, the respondent submits that future transitions at the school (ie. when the school day ends) would result in him losing approximately three hours of parenting time after every other Wednesday afternoon. Contrary to the applicant’s version of events, the respondent maintains that the access exchanges “have been going fairly well”, except for Tuesday morning exchanges when the children are aware that they will be away from the respondent for approximately a week.
The Emerging Jurisprudence
[14] Over the last month, the Ontario Superior Court of Justice has heard numerous motions dealing with disputes over whether children should attend school on an in-person basis, or participate in online learning. Those disputes have resulted in the release of several relevant and instructive decisions. A review of those decisions (most of which were cited and argued by the parties on this motion) discloses two common, overlapping themes:
a) It is the government, and not the Court, that is in the best position to review the underlying facts, expert evidence and evolving science in order to make decisions surrounding education and return to school plans that are safe, effective and appropriate for children in Ontario. As eloquently put by my colleague Justice Akbarali in Zinati v. Spence 2020 ONSC 5231, “the Court should proceed on the basis that the government’s plan is reasonable in the circumstances for most people, and that it will be modified as circumstances require, or as new information becomes known.”
b) In the context of a return to school in the midst of the pandemic, the Court will typically presume that it is in the child’s best interest to be physically present in school. As held by Justice Edwards in Nolet v. Nolet 2020 ONSC 5285, “…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.”
[15] As at the date of this Endorsement, the Toronto District School Board (“TDSB”) is implementing a staggered return to in-person learning across the city of Toronto. While new, evolving facts could cause those return to school plans to be varied, the Court should not second guess the TDSB’s current return to school plans and the underlying decisions which form the basis of those plans.
[16] In Zinati, Justice Akbarali set out a list of relevant and helpful factors for the Court to consider when deciding whether a child should return to school on an in-person or online basis:
“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.”
[17] I shall now consider each factor in light of the record before the Court:
The risk of exposure to COVID-19 that the child will face if he/she is in school, or is not in school
[18] There is no doubt that the children will face some risk of exposure to COVID-19 if they return to school on an in-person basis. The school is situated within a high risk neighbourhood. While that is obviously a relevant factor to consider, the applicant submits that the children are still at risk of contracting COVID-19 if they attend a public park or have interactions with other children within the same neighbourhood.
[19] In Glynn v. Paulmert 2020 ONSC 5432, Justice MacLeod held as follows:
“The 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.
In 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.
For 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.
Any 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.
Is 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.”
[20] When the children are with the respondent, they reside in his parents’ house with four other adults and one toddler. Neither party has raised concerns about the other’s adherence to COVID-19 protocols, even though the respondent does work in several hospitals.
[21] There is evidence that the respondent has taken the children to visit and/or play with friends outside of his parents’ house. The respondent has also travelled with the children and stayed in hotels during the pandemic.
[22] In my view, this factor is a neutral one.
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
[23] In his responding affidavit, the respondent gave evidence that three of the four children were born prematurely (A at 32 weeks and the twins at 29 weeks), and that all four children have previously “suffered respiratory issues requiring hospitalization.” A was apparently diagnosed with pneumonia last winter, and required antibiotics. As a result of the children’s alleged compromised health history, the respondent argues that it is safer to adopt a “wait and see attitude” rather than use them as “guinea pigs in this novel and unknown school environment.”
[24] To begin, while I understand that the respondent was subject to a quick turnaround deadline for the preparation and service of his responding motion materials, his evidence on this subject is essentially his own opinion evidence, and thus inadmissible. There is no expert medical evidence to support his position that the children’s alleged health concerns are ongoing and current.
[25] The respondent asks the Court to conclude that A, and perhaps the twins, are at increased risk of contracting COVID-19. While I accept that the respondent is a medical doctor, he is also a party to a high conflict case which has, regrettably, adversely impacted the children in a significant way. As held by Justice Paull in Lyons v. Lawlor 2020 ONCJ 184, when a party alleges that a child is at a particular risk as a result of, inter alia, asthma and/or other respiratory issues, direct and compelling evidence from a treating physician would be required to support such a conclusion.
[26] Presumably, the respondent would have access to medical documentation (clinical notes and records, diagnoses, prescriptions, etc.) to support his contention that A and the twins are at increased risk of harm in the event that they were exposed to COVID-19. No such documentation was provided. On the contrary, the respondent’s sworn Form 35.1 affidavit is silent on this issue and does not identify that any of the children suffer from any underlining medical issues.
[27] On the record before me, I cannot accept that the children are at increased risk of harm in the event they are exposed to COVID-19.
[28] Accordingly, this factor is neutral at best, and slightly favours the applicant’s position.
The risk the child faces to their mental health, social development, academic development or psychological well-being from learning online
[29] As stated, the children have suffered as a result of the separation. The applicant gave evidence that A has been in consistent crisis mode for the past three months, crying hysterically and displaying anger with vast mood swings. While the respondent has downplayed the applicant’s account of the difficulties encountered during access transitions, on September 10, 2020 the respondent did unilaterally take A to the Hospital for Sick Children due to A being allegedly despondent the previous evening.
[30] The applicant argues that the children’s return to in-person learning would bring oversight, adult involvement and visibility in the school which could all lead to positive implications for the children’s emotional well-being including socializing with their peers. This will assist with the children’s continued development and social climatization.
[31] While the children did achieve some success with online learning at the tail end of the 2019-2020 school year, in my view a physical return to school would likely provide them with the necessary structure and peer interaction which they appear to be requiring.
[32] This factor favours the applicant’s position.
Any proposed or planned measures to alleviate any of the risk
[33] While the children’s school is located in a high risk neighbourhood, the TDSB has already confirmed that, as part of its return to school plan, schools in high risk neighbourhoods would have capped classroom sizes (15 students for junior kindergarten, and 20 students for all other classes).
[34] The school is close to the matrimonial home, and the children will typically walk or ride their bicycles to and from school.
[35] The respondent argues that despite the capped classroom sizes, the children would still be exposed to increased numbers of students for other reasons such as recess or arriving at/departing from the building. While this could technically increase the children’s risk of exposure, I do not agree with the respondent that the children would be necessarily exposed to all other students in the school on a daily basis.
[36] I find this factor to be slightly in favour of the applicant’s position.
The child’s wishes, if they can be reasonably ascertained
[37] There is no evidence from which the Court can assess the wishes of the children at this time. In any event, the wishes of the children cannot be reasonably ascertained given their age and the high conflict nature of this case.
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
[38] The applicant is a stay at home mother. The respondent is a doctor working out of (at least) two hospitals. The respondent gave evidence that he has a flexible work schedule, but no further particulars have been provided. The applicant submits that the respondent will no doubt be relying upon his parents and extended family to provide support and assistance if the children are participating in online learning while he is working at a hospital.
[39] There is no evidence as to how the four children could participate contemporaneously in online learning, especially given the need for multiple computers and/or laptops on the same days and/or at the same time.
[40] The respondent submits that his parents are elderly and therefore vulnerable, and as such there is an increased risk to his parents if the children attend school on an in-person basis. While his position is objectively understandable, the respondent himself works in several hospitals on a daily basis, which in and of itself could be seen as an increased risk factor to his parents.
[41] I agree with the applicant that the risk to the respondent’s parents is not “an unacceptable risk of harm” in comparison to the best interests of the four children.
[42] This factor is in favour of the applicant’s position.
[43] Accordingly, an analysis of the Zinati factors leads to the conclusion that it is in the best interests of the children to return to school on an in-person basis, and I thus make that order.
Should parenting transitions take place at the school?
[44] The parenting exchanges have become quite hostile and problematic. No doubt these transitions are having a detrimental effect on the children, as A’s problematic behaviour has been on full display during many of these access exchanges.
[45] The applicant submits that parenting exchanges should take place at the school to minimize the possibility of the children’s exposure to conflict and potential loyalty bonds to each party.
[46] The respondent’s principal opposition to the applicant’s request is that having parenting transitions take place at the school would result in a three hour reduction of his time with the children every other Wednesday. During argument, I asked counsel for both parties whether this lost time could be made up in some other way, either by varying the existing parenting schedule, or perhaps “banking” the respondent’s lost three hours every two weeks to be used during holidays or otherwise.
[47] In my view, the parties should be permitted to exchange and file further submissions on this issue, and specifically (i) whether any “make up time” should be afforded the respondent as a result of my disposition of the primary relief on this motion, and (ii) if so, what arrangements are appropriate in the circumstances.
[48] The parties shall serve and file additional written submissions, limited to no more than three pages each and in accordance with the following schedule:
a) the respondent’s submissions shall be served and filed within 7 business days of the release of this Endorsement; and,
b) the applicant shall thereafter have an additional 7 business days from the receipt of the respondent’s submissions to serve and file her responding submissions.
Costs
[49] Costs of the motion are reserved to me after my disposition of the balance of the applicant’s motion.
Diamond J.
Released: September 17, 2020
COURT FILE NO.: FS-18-4789
DATE: 20200917
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
SALOUA EL HADDAD
Applicant
– and –
ABDUL YASEER SHAKUR
Respondent
ENDORSEMENT
Diamond J.
Released: September 17, 2020