Court File and Parties

COURT FILE NO.: 987/18 DATE: 2020-09-29 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jennifer Nuell, Applicant AND: Chad Guay, Respondent

BEFORE: The Honourable Madam Justice L. Bale

COUNSEL: A. Palazzo, Counsel, for the Applicant J. Herman, Counsel, for the Respondent

HEARD: September 23, 2020

ENDORSEMENT

OVERVIEW

[1] This is a motion brought by the Respondent father. He seeks the following relief:

a. An Order that the children of the marriage attend in-person classes for school commencing September 2020;

b. In the alternative, an order that the parties “share the responsibilities of assisting the children in their online at-home learning, such that the parties rotate educating the children two or three days per week”.

[2] The Applicant mother is opposed to both requests.

MATERIALS BEFORE THE COURT

[3] The following materials were filed electronically in relation to this motion:

1. Notice of Motion of the Respondent father dated August 25, 2020;

2. Affidavit of the Respondent father dated August 25, 2020;

3. Responding Affidavit of the Applicant mother dated September 10, 2020;

4. Responding Affidavit of law clerk M. Young-Brodgesell dated September 10, 2020 (attaching medical notes and records);

5. Affidavit of the Respondent father dated September 17, 2020.

POSITION OF THE PARTIES

[4] In brief, the positions of the parties are as follows:

1. The father asserts that the benefits of in-person learning for the children presently outweigh the risk of harm as a result of the government safety protocols in place in Ontario public schools. He argues that there is no compelling medical evidence which would support the conclusion that the child Brody is at higher risk of complications arising from COVID-19. The father further argues that the mother is not equipped to manage the children’s online-learning needs on her own, and if the court does not order the in-person physical attendance of the children at school, he should be granted equal opportunity to assist in their learning by way of an adjustment to the access schedule.

2. The mother asserts that, at present, the risk of exposure of the children to the COVID-19 virus is not necessary: remote learning is now a viable option and her home environment is well-suited to learning. The mother is particularly concerned with the potential risks associated with the child Brody being exposed to COVID-19 due to his history of asthma. The mother advises that her position regarding remote learning is temporary only during the current health pandemic. She is opposed to any change in the timeshare schedule.

RELEVANT BACKGROUND FACTS

[5] The parties were married on November 24, 2007 and separated on June 1, 2014.

[6] They have three children together, namely Chad Brody Guay (“Brody”), Layla Emily Guay (“Layla”), and Mason Daniel Guay (“Mason”):

a. Brody is 12 years of age and in grade 7;

b. Layla is 10 years of age and in grade 6;

c. Mason is 8 years of age and in grade 4.

[7] On August 23, 2015 the parties entered into a comprehensive separation agreement which settled issues of parenting, support, and division of property between them. The parties did not use legal counsel in preparing their agreement – instead they relied upon a generic separation agreement template that they found on the internet. There has been no subsequent court order or agreement which modifies the issues of custody and decision-making authority.

[8] The children have resided primarily with the Applicant mother since separation. The children spend time with the Respondent father on alternating weekends from Thursday after school until Sunday evening.

[9] Litigation was commenced in 2018 wherein claims pertaining to a divorce, child support, and parenting were advanced by the parties. Some minor issues have been resolved on a final basis.

[10] The Applicant mother has re-partnered. She resides in a household with her partner, her children, and her partner’s three children. The three non-subject children of this motion do not physically attend school at this time and are learning from home.

[11] In early March 2020 the Applicant mother became increasingly concerned about the COVID-19 health pandemic. On March 3, 2020, she raised her concerns with the Respondent father in writing and requested his support in removing the children from school. In particular, she cited Brody’s respiratory issues as a significant area of concern. She suggested that the Applicant and Respondent withdraw the children from school one week prior to March Break, and keep them home one week following March Break, sharing the additional time between them relatively equally while they “keep an eye on things”. The Respondent promptly replied that he didn’t “subscribe to your way of thinking when it comes to this coronavirus situation and the children will continue going to school on my time”. The parties were unable to agree in subsequent e-mails. In one such e-mail the father threatened to call the police if the mother picked the children up from school on his day. Ultimately this disagreement was resolved with the province-wide suspension of in-person schooling for the balance of the school year.

[12] In August 2020 the Respondent father put the mother on notice through counsel that he would not agree to remote learning for the children.

[13] The mother enrolled the children in remote (online) learning through the Hamilton Wentworth District School Board (“HWDSB”) for September 2020 and the father commenced this motion.

[14] The Applicant mother provided correspondence to the court from Brody’s physician which advises:

a. Brody has a history of asthma (since age 2);

b. Brody had hospitalizations/ER visits due to asthma exacerbation in February 2010, March 2011, September 2014, and September 2015;

c. Hospital records were attached which suggest that his symptoms were, at times, rather severe (for example, hypoxemic respiratory failure requiring admission into the Paediatric Critical Care Unit).

[15] The correspondence from Brody’s physician does not opine as to whether or not Brody is “high risk” as argued by the mother and as opposed by the father.

[16] Report cards for the children have also been attached to the parties’ Affidavit materials. Although helpful in understanding the individual learning needs of these children, the content of the most current report cards appear to be based primarily upon the children’s school performance prior to the COVID-19 school closure in March 2020. That is, they do not reflect academic performance during the time period that they have engaged in remote (online) learning.

[17] The mother has provided documentary evidence to the court which confirms that:

a. She is a member in good standing of the Ontario Federation of Teaching Parents (a provincial organization for homeschooling families). This designation pre-dates the COVID-19 health crisis and continues to date;

b. She has obtained active online family subscriptions to supplementary educational materials, including English, math and music programming for the children. These subscriptions pre-date the COVID-19 health crisis;

c. Brody, Layla, and Mason have each completed such educational materials in her care. For example, in June 2020:

i. Brody earned a certificate for achieving excellence in 20 grade 6 skills through the program;

ii. Layla earned a certificate for answering 100 English problems; and

iii. Mason earned a certificate for spending 5 hours practising math.

This work was in addition to any online schooling completed by the children through the school.

[18] The mother advises the court that she managed the children’s online learning from March 2020 through June 2020 and that they did well in her care. The father disagrees. Neither party is able to provide corroborating information in support of their position.

[19] At the time of execution of the parties’ Affidavit materials little was known about the specific structure of remote learning. The situation has evolved such that more information is now available. With the consent of counsel, this court reviewed the HWDSB website which confirms the following:

a. The HWDSB Remote Learning Day school has enrollment of approximately 8,000 elementary students;

b. The remote learning ‘bell times’ (for the age cohort applicable to Brody, Layla and Mason) are 9:00 a.m. and 3:20 p.m., including 300 minutes of learning activities (in three separate learning blocks) and two 40-minute nutrition breaks;

c. Regular attendance is expected and is taken daily;

d. The children have designated teachers for each of their classes;

e. Students will cover the regular required curriculum;

f. Students and staff use standardized digital learning platforms;

g. Commencement of some of the classes has been delayed;

h. Children may opt back into in-person classes at their designated schools on October 13, 2020, January 4, 2021, and March 22, 2021.

[20] The parties advise that the COVID-19 health crisis has impacted the employment situation of each of them such that:

a. The Applicant mother is not working at this time: she was previously employed by her new partner’s business;

b. The Respondent father’s hours of work are now more “flexible” than in past.

THE LAW:

[21] The parenting issues before the court are corollary to a Divorce Claim under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as amended. The relevant sections which pertain to this motion are as follows:

Interim order for custody or access

16(2) Where an application is made under subsection (1), the court may, on application by either or both spouses or by any other person, make an interim order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage pending determination of the application under subsection (1).

Terms and conditions

(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.

Factors

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

Maximum contact

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[22] The “best interests” factors are further enumerated under s. 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended.

[23] As have many issues in family courts, the issue of remote or online learning versus in-person or physical attendance of children at school has evolved rapidly since the onset of the COVID-19 pandemic. There are now many reported decisions considering the placement of children in online versus in-person schooling: some which compel children to be enrolled in ‘in-person’ learning, and others which compel children to be enrolled in online or ‘remote’ learning. For example:

a. In A.B. v. L.J. Conlan J. dismissed a father’s request to compel the children to attend in-person learning. He opined that, absent compelling evidence that the custodial parent’s decision was contrary to the best interests of the children, the court should not intervene. Compelling evidence requires more than a party’s own musings as to the benefits of in-person v. remote learning: 2020 ONSC 5248 at paras. 18-20.

b. In Joachim v. Joachim the court considered the health and safety interests of vulnerable family members in ordering remote learning for the subject-children. The court considered the health of the entire family in assessing the best interests of the children: 2020 ONSC 5355 at paras. 23-24.

c. In Chase v. Chase the court ordered the in-person attendance of the subject children at school. In reaching this conclusion the court opined that the Ontario government is in a better position than the courts to assess and address school attendance risks and that “the risks of catching COVID-19 must be balanced against the mental health, psychological, academic and social interests of the children, and the parents’ need for childcare”: 2020 ONSC 5083 at paras. 42-45. This case has now been cited by Ontario courts many times in similar decisions.

d. In Glynn v. Paulmert the court considered the extremely low risk of hospitalization of children without special risk factors: 2020 ONSC 5432.

e. In Nolet v. Nolet the ordered in-person learning, noting that the shift work of the parents would complicate the child’s online schooling and that there was no increased risk of harm to the child or others in his household with proper safety measures in place: 2020 ONSC 5285.

f. In J.N. v. A.S. the court explained that parties seeking to establish unacceptable medical risks to in-person attendance required medical reports which include (a) a diagnosis for the vulnerable person, (b) a prognosis for the vulnerable person if he/she catches COVID-19 (if the medical practitioner can provide same), (c) any available treatment that is relevant to the prevention and/or treatment if the vulnerable person falls ill with COVID-19, and (d) whether there are any precautions that can be put in place to enable the child to attend in-person school without placing the vulnerable person at an unacceptable risk of harm. That court was also required to consider changes to the parenting schedule which necessarily arose out of in-person attendance at school: 2020 ONSC 5292.

g. In Shepstone v. Masales the court weighed the risk of harm to the child and her family (a genetic predisposition to an autoimmune disorder) against the benefits of in-person learning resulting from the child’s individual learning challenges. In this case, the joint custodial parents could not agree, and the court decided that the benefits of in-person learning outweighed the potential risks to the child and her family. The health risks to the father were considered subordinate to the educational and social development of the child: 2020 ONSC 5364.

h. In Zinati v. Spence the court also ordered in-person school attendance for the subject child, and opined that determinations about whether children should attend in-person learning or online learning should be guided by the following factors:

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; 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: 2020 ONSC 5231 at para. 27.

[24] I note that despite the differing outcomes, none of these cases are inconsistent with any other: each case has been decided on the individual and unique needs and circumstances of the subject-children and their families. I am guided by the thoughtful analysis within each of the above decisions.

ANALYSIS

A. Decision-Making Authority

[25] At the outset, it is important to confirm that I share the view expressed by Justice Conlan in A.B. v. L.J.: unless there is compelling evidence to support a finding that a custodial parent’s decisions as to education (including the appropriate forum or platform for learning) are not in a child’s best interests, the court should not interfere. This is an important feature, as in many of the cases discussed above, there was either no existing order for custody, or an order of joint custody with the parents unable to agree on this educational decision.

[26] While I acknowledge that the parties’ rather generic Separation Agreement dated August 23, 2015 is not perfectly drafted, and that it does not specifically address decision-making authority, I find that the intended meaning of the document, when construed as a whole, is that the Applicant is the custodial parent of the children of the marriage. I draw this conclusion for the following reasons:

a. Paragraph 3(3) of the Agreement confirms that the agreement is intended to be a final settlement of custody, access, guardianship and support;

b. Under the heading of “Custody and Access”:

i. paragraph 8 indicates that the children reside with the mother more than 70% of the time;

ii. Paragraph 10 refers to the father as the “non-custodial parent” and outlines his “access and visitation rights”;

iii. Paragraph 11 indicates that the non-custodial parent (the father) has the right to make enquiries and to be given information as to the health, education and welfare of the child(ren). There is no further reference to consent, consultation or delineation of decision-making responsibilities;

c. Paragraph 30 states: “Extra Notes: we agree that Chad Guay will take possession of the home and all items listed in this agreement concerning Party 1 and that Jennifer Guay will take custody of the children as outlined in the agreement along with all items required for their care listed in the agreement along with any effects/items listed regarding Party 2 and will be released from any debts or financial obligations involving the home or its maintenance”.

[27] There are no subsequent amending agreements or court orders which change or elaborate upon these terms.

[28] The Affidavit material before the court would suggest that, in addition to the legal designation of custody afforded to the Applicant mother by way of their written Agreement, that the mother has had de facto custody of the children who have been in her primary care since separation.

[29] The Applicant mother is the legal and de facto custodial parent at this time. As such, in my view, this court must be satisfied that the Applicant mother’s decision to enroll the children in remote learning is clearly contrary to their best interests before interfering with her authority over this matter. The onus is on the Respondent father to satisfy the court that the mother’s decision to enroll the children in remote learning is contrary to their best interests before this court will take action to reverse her decision. It is not the role of the court to replace a custodial parent’s opinion with its own, absent a finding that the custodial parent is exercising her decision-making authority in a manner that is contrary to the best interests of the children.

B. Best Interests Analysis

[30] Has the father established that the mother’s decision to enroll the children in remote learning through the HWDSB is contrary to their best interests? I conclude that he has not.

1. Special Needs and Circumstance (If any)

A. Medical:

[31] It is not disputed that Brody has a history of Asthma. No medical issues were raised in relation to Layla or Mason.

[32] The mother argues that the child Brody is at ‘high-risk’ if exposed to the COVID-19 virus as a result of his respiratory issues. Put simply, she opines that Brody “is more likely to die” from COVID-19 than most other people if he is exposed. She wishes to reduce the risk of infection by keeping all children home from physical attendance at school at this time. The Respondent father disagrees. He argues that there is no medical opinion before the court which confirms that Brody is at high risk. Neither the Applicant nor the Respondent have any medical knowledge or experience which give them special insight and the materials suggest that Brody’s physician is reluctant to give a clear opinion as to whether or not there is an increased danger to Brody if he were to contract the virus. This is understandable: COVID-19 is new, and the risks of contracting the virus (both in the short-term and the long-term) for various populations are still largely unknown. I do not find it unreasonable for Brody’s custodial parent to be cautious in considering these unknowns.

[33] Brody’s hospitalization records would suggest that, in past, his respiratory issues were serious. But there is no evidence that he has experienced significant medical events in recent history (i.e. since 2015). Notwithstanding this period of time, the mother remains concerned. However, she advises the court that her decision to enroll the children in online learning is temporary. She will reassess the benefits, disadvantages and risk factors with a view to re-enrolling the children in in-person learning at the appropriate time and as the COVID-19 situation in Ontario evolves further. I have no reason to doubt the mother’s intentions in this regard.

[34] This court is not in a position to conclude that asthmatic children are or are not at greater risk if exposed to the COVID-19 virus than other children. It does not appear that the medical community wishes to draw a firm conclusion at this time either. However, this court can conclude that, in the specific circumstances of this case, the custodial parent’s concern and caution in considering these risks is not unreasonable.

B. Educational:

[35] There are no other special educational needs or circumstances raised in relation to Brody, Layla, or Mason, that would favour a decision of either remote or in-person learning. There are no specific concerns which pertain to the mental health or psychological well-being of these children resulting from learning online.

[36] I reject the father’s argument that the children’s report cards infer a negative school performance after the school closure in March 2020. This conclusion cannot be drawn from the evidence filed in support of this motion. The report cards are rather neutral and do not assist the court in concluding that either remote or in-person learning better suit the individual educational needs of these children. There is no other independent evidence which would support the mother’s position that the children did well with online learning during the last academic term, or the father’s position that they did not.

[37] I cannot conclude that the Applicant mother’s decision is contrary to the educational needs and circumstances of the children on the evidence before me.

2. Ability and Willingness to Provide Guidance and Education

[38] The Respondent father argues that “he does not believe the Applicant did a good job ensuring the children followed their at-home learning from March-June of this year”. He further asserts that he believes “the children’s participation was low and that the responsibilities proved too much for the Applicant to handle”. He further “imagines” that it will be difficult to oversee the online learning of six children in her home. The Respondent provides no evidentiary foundation for his beliefs.

[39] The mother’s materials clearly establish that:

i. Prior to the COVID-19 health crisis the mother had obtained homeschooling certification and had actively sought out and obtained additional learning materials for her children;

ii. During the COVID-19 health crises and the suspension of in-person classes, and prior to contemplation of this motion, Brody, Layla and Mason had completed supplementary educational programing under the care and supervision of the Applicant mother.

[40] The father’s speculation that the mother cannot “handle” the obligation of supervising the remote learning of all of the children in her care is not borne out by the evidence. I am satisfied that the Applicant mother has actively and ably supported the education of the children, and specifically she has done so during the COVID-19 heath crisis.

3. Ability to Parent

[41] In considering the best interests of Brody, Layla and Mason I have also considered the logistical ability of party to parent the children from home during their online studies.

[42] The mother is not presently working and is available to provide unlimited support and assistance to the children during her time. The father advises that his employment obligations and are more flexible than before, so he is also now available to assist the children. The father’s alternative position (i.e. that if the court orders remote learning for the children the children should be in his care one-half of the time that they would otherwise be in school) confirms that he is not reliant upon the children’s physical attendance at school to meet his employment obligations. He is available to supervise and support the children’s remote learning during his parenting days. Neither party’s time with the children is unduly complicated by the children remaining at home.

4. Views and Preferences

[43] The views and preferences of the children as to the specific issue of remote versus in-person learning are not before the court.

Conclusion

[44] I cannot conclude that the mother’s decision to enroll the children in remote learning is, at this time, contrary to the best interests of the children. The mother has made an informed and conscientious decision in her role as the custodial parent. She is alert to the need to reassess her position as circumstances change. The court will not interfere with the custodial parent’s decision to enroll the children in remote learning.

[45] To be clear, caution in assessing risk of community exposure in a school setting by a custodial parent should not be conflated with justification for withholding access to a non-custodial parent. There is no analogy to be drawn: these are two very separate and distinct issues.

C. Father’s Alternative Position

[46] In the alternative, the father seeks an Order for equal sharing of the time the children would otherwise be in school. He bases this position upon his increased employment flexibility and resulting availability to assist the children with their online education. He advises that he is French-speaking and would be a valuable asset to the children in their French studies.

[47] I do not accept that a change in the children’s platform for learning is a sufficient basis upon which to change this long-standing parenting regime. In addition to the factors considered above, I note the following:

a. The children have been in the stable primary ‘week-day’ care of the Applicant mother for the past six years;

b. The father has provided no evidence to the court of his past involvement in assisting the children in their education;

c. The father has outlined no plan to the court as to how he would support the children’s online learning from home if granted increased time;

d. The father has provided no specifics to the court as to his modified work obligations except to say that it is now “more flexible”;

e. The father’s written communications to the mother do not inspire confidence that he would be receptive to her advice or input – it is questionable as to whether the Applicant and Respondent would be able to coordinate the children’s learning needs in their respective homes. For example, it is concerning that the father threatened to call the police if the children were removed from school when the mother raised her initial concerns about the COVID-19 virus in March, that he shared these communications with Brody, and that litigation was threatened in August even before the HWDSB unveiled the remote learning plan for consideration. The parties’ ability to co-parent is not obvious;

f. This court has concern as to inconsistency in parenting techniques between the two households. While this is not atypical nor generally harmful to children, these inconsistencies could be detrimental in the context of the children’s daily learning routines; and

g. The father’s time with the children has not been reduced as a result of the COVID-19 health crisis. The mother has not sought to capitalize on the heath pandemic to reduce the children’s time with their father or to marginalize him from their lives. To the contrary, both parents’ time with the children has been increased such that the children are now in their care during school hours which fall on their respective parenting time.

[48] I am not satisfied that it is in the best interests of the children to modify the father’s access time with the children.

[49] The stability and security of Brody, Layla, and Mason is of heightened importance during these uncertain times. It is incumbent upon both parents to ensure their physical and mental well-being and to promote their educational success to the best of their respective abilities. To that end, they must put their differences of opinion aside and:

a. Both parents need to exchange important information as to the children’s online learning;

b. The mother must ensure that the father has the contact information for each of the children’s respective teachers and that he is authorized to access the HWDSB online parent portal;

c. The father must ensure that the children’s teachers are aware of his contact information so that he too may be included on important messages sent home;

d. Where requested, the children should be permitted to contact the other parent, by telephone or video for assistance in their studies. If a child is demonstrating particular difficulty in French, the parties might consider carving out specific individual time for the father to ‘tutor’ the child in that area;

e. Both parties must ensure that the children are present at online school during scheduled classes while in their respective care, and both parties must encourage the timely and thoughtful completion of assigned homework.

[50] The HWDSB provides ‘checkpoints’ for re-entry into in-person learning (i.e. October 13, 2020, January 4, 2021 and March 22, 2021). The parties should approach each checkpoint with an open-minded discussion about how each of the children are faring in the online system. If circumstances change such that it is becomes contrary to the interests of any or all of the children to continue in remote learning, the Applicant mother is expected to adjust the children’s enrollment accordingly.

ORDER

[51] On the basis of the above there shall be an Order to go as follows:

1. The Respondent father’s motion is dismissed.

2. If the parties cannot resolve the issue of costs:

a. The party seeking costs shall serve and file written submissions not exceeding two pages in length plus bill of costs on or before October 19, 2020;

b. The party responding to the request for costs shall serve and file responding submissions not exceeding two pages in length plus bill of costs on or before November 2, 2020;

c. Reply submissions, if any, shall be limited to one page in length and shall be served and filed on or before November 9, 2020; and

d. If no cost submissions are filed on or before October 19, 2020, the issue of costs shall be deemed to have been settled.

Bale J.

Date: September 29, 2020