COURT FILE NO.: FC-2—270-00
ONTARIO
Court File Number
Superior Court of Justice, Family Court
FC-20-270-00
(Name of Court)
at
Midland
Endorsement
(Court office address)
DATE: 2020-09-16
Date
Applicant(s):
Charlene Rose McKee
x
Present
September 15, 2020
Counsel:
David Zeldin
x
Present
Duty Counsel
Respondent(s):
Matthew Steven Belanger
X
Present
Counsel:
Jeremy Herron
X
Present
Duty Counsel
Order to go in accordance with minutes of settlement or consent filed.
[1] This was an urgent motion by the applicant seeking an order that the parties’ two sons Jheric (11) and Declan (9) be enrolled in Burkevale Protestant Separate school for “in class” rather than remote learning. For the reasons set out below that motion is granted.
Urgency
[2] The first issue in matters of this type is urgency. That test is met here. It is imperative that the boys commence either on line or in class learning at the beginning of the school year. Classes have already begun.
Background
[3] The parties were married in 2008 and separated in 2018. Since July of that year the parties have shared the residence of the children on a week about basis and the children have attended Burkevale School.
[4] The applicant sought an order in March 2020 to undo the shared residence arrangement based on concerns about the respondent’s behaviour. However, at the first return of that motion she consented to a resumption of the week about regime. It has continued uninterrupted since then.
[5] Burkevale School shut down late in March 2020 as required by the provincial regulations issued to limit the spread of COVID- 19. The boys were schooled remotely making use of online tools provided by the board.
[6] The applicant experienced great difficulty with this arrangement as she works full time and depends upon her mother to care for the boys during school hours in her weeks. She also found the online learning materials provided by the small independent schoolboard somewhat lacking. The respondent who is self employed as a barber deposes that he has been able to work around the requirements of the online learning when the boys are with him and made no comment as to the adequacy or inadequacy of the materials.
[7] As with many separated couples, the applicant and the respondent have differing degrees of comfort with the risk of infection posed by COVID-19 and the province’s response to it. They also differ as to the degree of harm continued isolation from their peers and lack of school routine, will pose to the boys.
The Parties’ Positions
[8] The applicant has filed a letter from the Simcoe County Medical Officer of Health, Charles Gardner, and accepts its conclusions. It addresses the fact that return to in class learning will inevitably pose some level of risk of infection. However, it balances this with the certainty of psychological harm to the children if they continue to be isolated from their peers. The generally low rate of serious infection among children, and the steps taken by the schools to lessen the risk of transmission.
[9] The respondent feels that the applicant’s attitude is too casual and that there is not yet enough information to allow him to make an informed decision on the risk to the boys of going back to school. He feels that the issue of isolation can be addressed by a small bubble he has put in place that allows the boys to see their cousins on a frequent basis.
Discussion
[10] I do not wish to minimize in any way the difficulty this decision poses for the parties in this matter. The COVID-19 pandemic is without precedent in living memory. Its future course cannot be predicted with accuracy nor can the threat of infection in any given population be absolutely eliminated. I am satisfied that both parties in this case have considered the matter carefully and sincerely believe that the path they advocate is the one that is best for their boys. It is the clash of two conflicting outlooks that have resulted in this motion.
[11] As was to be expected this is far from the first motion no this issue that has been brought in the last few weeks. The court therefore, has the benefit of several decisions to provide guidance in its deliberations. Some consensus is developing as demonstrated in the two decisions of this court Chase v Chase 2020 ONSC 5083 and Zinati v Spence 2020 ONSC 5231 provided by the applicant. Both follow the reasoning in the Quebec Superior Court decision Droit de la famille-20641, 2020 QCCS 1462 which was summarised by Akbarali J. in Zinati at paragraph 12 as follows:
….It was not for the courts but rather for the competent government authorities to assess the potential risks of contamination of the population during the pandemic, and take the necessary measures to limit the spread of the virus…….when the government decides to permit primary education to resume, the court need not question that decision unless one of the parties demonstrates that it would be contrary to the particular interests of their children to resume attending school in person.
[12] Following this reasoning Akbarali J. sets out a useful list of factors to be considered in determining whether or not that test has been met:
a. It is not the role of a court tasked with making determinations of education plans for individual families or children to determine whether, writ large, the government return to school plans are safe or effective. The government has access to public health and educational expertise that is not available to the court. The court is not in a position, especially without expert evidence, to second-guess the government’s decision-making. The situation and the science around the pandemic are constantly evolving. Government and public health authorities are responding as new information is discovered. 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. When determining what educational plan is in a child’s best interest, it is not realistic to expect or require a guarantee of safety for children who return to school during a pandemic. There is no guarantee of safety for children who learn from home during a pandemic either. No one alive today is immune from at least some risk as a result of the pandemic. The pandemic is only over for those who did not survive it.
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;
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’s or parents’ work or caregiving responsibilities or other demands.
[13] I adopt this reasoning and make the following findings with respect to the factors set out in clause (c) above:
(i) There is no doubt that there will be some increased risk if the boys go back to school. The respondent has noted that Burkevale was overcrowded prior to the pandemic shutdown. I have not been provided with any evidence as to its present situation. However, if one follows the general reasoning in Droit de la famille it is not appropriate for the Court in the absence of clear evidence to second guess the government officials who have been charged with ensuring that the risk level is acceptable in each school. Burkevale must be assumed to be following the guidelines set by the County Health Unit as are all other schools.
(ii) Each party has indicated that there is no immediate family member whose health is so compromised that having the boys attend school would be an unacceptable risk.
(iii) I find that there is significant risk to the boys’ mental health and social development if they are kept home from school. They have told both their parents they miss their friends. Declan in particular is at risk. He was identified as a student who required extra assistance just before the COVID-19 shut down. Being left to his own devices in an online learning situation is therefore particularly problematic for him.
(iv) In considering this question I take judicial notice of the provincial and school board guidelines in place to ensure mask wearing and social distancing on school premises. Once again it should be noted that in the absence of evidence of some special risk the courts should not be second guessing the educational and health authorities. I also note that the material filed by each party makes it clear that both are aware of the importance of following appropriate sanitary measures and restricting outside contacts within reason.
(v) The respondent deposes that Jheric wants to do remote learning while Declan wants to go to school. It is unclear from this limited material whether Jheric’s wish stems from heightened anxiety about the threat, easier work online, or for some other reason. Both parent’s material make it clear however, that the boys’ friends are important to them.
(vi) As alluded to above, the applicant cannot be with the boys during school hours during her week. This factor is particularly important given Declan’s learning difficulties. Remote learning would place him at particular risk in these circumstances. This is an important factor in my finding that online learning would be a poor substitute for in class learning for the boys.
[14] Based on these findings I rule that it would not be in the boys’ best interest to remain at home doing online learning. That interest would best be served by attending school. The motion is therefore granted.
[15] Given the findings set out at paragraph 10 above, each side should bear their own costs.
Justice T.M. Wood
Date: September 16, 2020