Court File and Parties

COURT FILE NO.: FC-19-1016 DATE: 2020/10/09

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kimberly Amber O’Connor, Applicant AND Ken Duguay, Respondent

BEFORE: Justice R. Ryan Bell

COUNSEL: Allison Lendor, for the Applicant Laura Pilon, for the Respondent

HEARD: October 2, 2020

Endorsement

[1] The primary issue in this case is whether the parties’ son, J., should attend in-person kindergarten or daycare.

[2] The respondent father moves for an order that J. be enrolled at J.E.S. for the 2020-21 school year. The father also requests an order that J.’s primary residence be with the father for the purpose of school enrollment and an order that the applicant mother shall not be permitted to change J.’s school or cancel his enrollment at J.E.S.

[3] The mother opposes J.’s enrollment at J.E.S. She says that because of his health issues, J. will be at a higher risk for contracting COVID-19 if he attends school. The mother also raises her own health concerns. By way of cross-motion, the mother seeks an order permitting her to enroll J. in counselling at Crossroads Children’s Mental Health Centre without the father’s consent.

[4] On September 16, 2020, Justice Audet determined that both motions were urgent.

[5] At the commencement of the hearing on October 2, 2020, the evidentiary record consisted of the father’s affidavits dated September 1 and 29, 2020 and the mother’s affidavit dated September 10, 2020. The mother also relied on a second affidavit, sworn October 2, and served after 10:00 a.m. on the day of the hearing. The hearing commenced at 10:30 a.m. At the outset of the hearing, counsel for the mother ought to have requested leave to permit the late filing of the affidavit and confirmed that a copy was available for the court to review. Counsel did not do so. I first learned of the mother’s October 2 affidavit when father’s counsel referred to it during her submissions. Because I did not have a copy of the affidavit at the time of the hearing, I reserved my decision on whether to permit the late filing. I have now reviewed the mother’s October 2 affidavit. Because it clarifies certain matters relating to the counselling issue, the affidavit is admitted into evidence. As I will explain, however, the October 2 affidavit is of no assistance on the school enrollment issue.

Background Facts

[6] The mother and father were in a brief relationship. They began living together in July or August 2015 and they separated in December 2018 or January 2019. Their only child, J., was born in August 2016. At present, the mother and father live only a few houses away from each other. Since March 2019, they have followed an equal parenting schedule. The mother is planning to move to a different part of the city; however, because she is on a wait list for subsidized housing, the timing of her move is unknown.

[7] J. has been attending daycare since before the parties separated. Because of the father’s employment, J. will either have to attend daycare or school during the weeks J. is with his father. The mother states that she is a stay at home parent.

The School Enrollment Issue

[8] The father maintains that he told the mother in July that J. would need to be enrolled in school this fall and states that she did not object. According to the father, they had previously discussed and agreed that J. would attend J.E.S., the local public elementary school. The father states that they agreed on J.E.S. for a number of reasons: (i) the school provides a bilingual education; (ii) many of J.’s friends from the community and the daycare will be attending the school this fall; and (iii) the mother is a former student of the school. Because enrollment in kindergarten is not mandatory, the mother is not required to send J. to school during her parenting time.

[9] The father was unable to complete J.’s registration because the mother objects to J.’s enrollment at the school.

[10] In her affidavit, the mother states that the father never informed her of his plans to enroll J. at J.E.S. this fall. She acknowledges that while they were still in a relationship, they agreed that J.E.S. would be a suitable school for J., but states that “[t]he world has changed since we had that discussion.” In her submissions, counsel for the mother conceded that in June, the mother was planning on J. attending school this fall.

[11] The mother objects to J. attending school because he is asthmatic and has, in her words, “a compromised immune system.” She says that because of J.’s health issues and the “lack of administration of medication from the Respondent”, J. is at a higher risk for contracting COVID-19. The mother is also pregnant and describes her own immune system as “compromised at this time.” She, too, has asthma. The mother states that she is willing to take care of J. while the father is at work. She does not object to J. continuing to attend daycare.

[12] The medical evidence in the record is scant. The mother provided a recent letter from J.’s family physician in which the doctor states that J. suffers from “moderate asthma for which he is taking medication.” The mother also relies on other diagnoses referred to in the physician’s “encounter notes” for J. These other diagnoses were not referred to, let alone explained, in the doctor’s letter. There is no reference in the doctor’s letter or notes to J. being immunocompromised. I am left with the diagnosis of moderate asthma for which J. has been prescribed medications.

[13] I have no medical evidence regarding the severity of the mother’s asthma or how her own immune system is presently compromised.

[14] In assessing custody and access issues under the Children’s Law Reform Act, R.S.O. 1990, c. C-12, s. 21(1) provides that a parent of a child may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child. The merits of an application in respect of custody or access shall be determined on the basis of the best interests of the child: Children’s Law Reform Act, s. 24(1).

[15] Neither party referred me to any of the recently reported decisions addressing in-person school attendance as opposed to online learning during the pandemic. While the issue before me is different, and each case will, of course, be determined on its own facts, these decisions provide guidance as to the applicable principles.

[16] In Chase v. Chase, 2020 ONSC 5083, the mother requested an order to have the parties’ child attend school (grade 4 French immersion) in-person. The father wanted the child to remain at home until such time as the safety protocols were proven successful. The child resided with each parent equally. No one in either household had any underlying medical condition that rendered them more susceptible to COVID-19. At paras. 42 and 45 of her decision, Himel J. adopted the reasoning set out in Droit de la famille – 20641, 2020 QCCS 1462 and stated:

The Ontario government is in a better position than the courts to assess and address school attendance risks. The decision to re-open the schools was made with the benefit of medical expert advisers and in consultation with Ontario school boards. The teachers’ unions and others have provided their input as well as their concerns. While the parties spent considerable time addressing a recently released report by the Toronto Hospital for Sick Children [the “Sick Kids report”], I decline to consider same. There are experts on all sides of the Covid-19 debate, however, the decision to re-open schools and the steps being taken to protect children and staff fall within the purview of the Ontario government.

There is a consensus between the Ontario government and medical experts that, at this juncture, it is not 100% safe for children to return to school. However, the risks of catching Covid-19 (and the typical effects of the illness) for children are being balanced against their mental health, psychological, academic and social interests, as well as many parents’ need for childcare…The Ontario government has determined that September 2020 is an appropriate time to move on to a “new normal” which includes a return to school.

[17] In J.N. v. A.S., 2020 ONSC 5292, the mother sought an order that the parties’ four year old daughter attend junior kindergarten in-person at a private school. The father argued in favour of homeschooling because of the health risks of COVID-19. The father had hired a tutor for the child to attend at his home when the child was in his care. Himel J. did not accept that the tutor was in the father’s social bubble. There was no evidence that the tutor was prepared to teach the child in the mother’s home. Himel J. observed that one hour of tutoring a day does not have benefits equivalent to full day school attendance, either in-person or virtually: “[t]hat plan does not meet the child’s needs to meaningfully interact with other children in a small group and structured setting”: J.N., at para. 37.

[18] I note that in the case before me, neither party has proposed virtual learning for J. Virtual learning would not be an option for the father because of his full-time employment outside the home. I was not provided with any information regarding the kindergarten program at J.E.S. apart from the fact that it is not mandatory and therefore, J. would not be required to attend classes on the weeks that he is with his mother. Like Himel J. in J.N., I question whether kindergarten can be effectively taught to a child sitting in front of a computer. As Himel J. observed, it is impractical to assume that a four year old child can sit in front of the computer for educational lessons for several hours a day: J.N., at para. 38. In any event, the options proposed for J. are in-person daycare or in-person kindergarten.

[19] In J.N., Himel J. was not persuaded that the child or anyone in either parent’s household would be at an unacceptable risk of harm if the child attended school in-person. The father conceded that the medical evidence did not support his prior claim respecting the child’s risk of harm. Himel J. declined to consider the hearsay evidence of the American Centers for Disease Control and Prevention and declined to make any findings regarding the father’s asthma other than to conclude that he had been prescribed medications. Himel J. relied on C.L.B. v. A.J.N., 2020 ONCJ 213, where Sherr J., at para. 31, set out the evidentiary requirement of suspending access:

A medical report should be provided setting out the child’s medical condition, any increased vulnerability the child has with respect to the Covid-19 virus and specific recommendations about additional precautions that are required to protect the child from the virus.

[20] A party claiming that school attendance presents an unacceptable risk should provide a medical report that the child’s attendance in-person will place the child or a member of the household at an unacceptable risk of harm, including:

• a diagnosis for the vulnerable person;
• if possible, a prognosis for the vulnerable person if that person catches COVID-19;
• any available treatment that is relevant to the issue of prevention and/or treatment if the vulnerable person falls ill with COVID-19; and
• whether any precautions can be put in place to enable the child to attend school in-person without placing the vulnerable person at an unacceptable risk of harm: J.N., at para. 50.

[21] In Joachim v. Joachim, 2020 ONSC 5355, the mother argued that it was in the best interests of the children (ages six and eight) to attend school virtually, at least for the remainder of the 2020 calendar year. The mother was worried about the children contracting COVID-19 and the risk to her partner and their baby. The father argued that the social, psychological, and developmental benefits of young children attending class in-person outweigh the potential health risks. Summers J. found it to be in the children’s best interests that they attend school virtually for the 2020 fall semester and to do so from their mother’s home. Summers J. was “most persuaded” by the medical evidence regarding the risk faced by the stepfather if he were exposed to the virus and the stepfather’s decision to give up in-person time with his children to help minimize the risk to himself and the baby. The court took judicial notice of the information in the public domain that very young children are likely to be at higher risk due to their immature immune systems: Joachim, at para. 23.

[22] Zinati v. Spence, 2020 ONSC 5231 is another recent decision addressing the in-person vs. online learning debate in the family law context. The mother advocated that the child (six years of age) return to the classroom for in-person learning. The father wished the child to continue to learn at home. Akbarali J. determined that the child’s best interests favoured a return to in-person learning. In declining to consider the Sick Kids report, Akbarali J. stated at paras. 22-24:

The Sick Kids report is gaining a lot of traction among family litigants. More and more often, parents are attaching the Sick Kids report to their affidavits or case conference briefs to argue in support of, for example, in-person learning for children, or to argue that risk to children from COVID-19 is small.

In response, the other parent will then cite and attach newspaper articles in which medical or public health experts raise criticisms about the Sick Kids report, to support that parent’s argument for online learning, or the observation of stricter COVID-19 protocols.

The problem is that the parties making these arguments are unlikely to be experts, and there is no expert evidence offered to explain or contextualize any of the allegations being made…

[23] The Sick Kids report was not attached to any of the affidavits filed in this case. However, in her late-filed affidavit, the mother attached a newspaper report on the number of COVID-19 cases in Ottawa schools (as at September 29) relative to the number across the province, and a newspaper article regarding the possibility of Ottawa school closures due to staffing shortages. The mother states that she “continue[s] to have a lot of concern for [J.] if he were enrolled at school currently” and concludes “due to the high amount of Covid-19 cases occurring in Ottawa schools, it is likely that schools will close down in the near future as more students and teachers contract the virus.” As in Zinati, there are obvious hearsay concerns with these newspaper articles. There is no expert evidence offered. And, in any event, as Himel J. stated in Chase, the decision to re-open schools and the measures put in place to protect children and staff who attend in-person are matters within the government’s purview. So, too, are revised measures and steps taken to respond to changes in circumstances and knowledge. In this case, I decline to consider the newspaper reports attached to the mother’s October 2 affidavit.

[24] At para. 27 of Zinati, Akbarali J. set out a list of factors to guide determinations about whether children should attend in-person learning or online learning. While the determination to be made in this case – in-person kindergarten attendance or continued daycare attendance – is different, the factors listed by Akbarali J. are instructive:

• 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.
• When determining what educational plan is in a child’s best interests, it is not realistic to expect or require a guarantee of safety for children who return to school during a pandemic.
• When deciding what educational plan is appropriate for a child, the court must ask what is in the best interests of the child. Relevant factors include: (i) the risk of exposure to COVID-19 that the child will face if the child is in 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 identified risks; (v) the child’s wishes if they can be reasonably ascertained; and (vi) the ability of the parent(s) with whom the child will be residing during school days to support online learning.

[25] Finally, I refer to the decision of Pedlar J. in Phelps v. Childs, 2020 ONSC 5901. In Phelps, the father requested that the three children engage in remote learning because of the health risk for both him and his partner if the children attended school in-person. The evidence presented confirmed that the father and his partner had been diagnosed with asthma. The father’s condition was described as chronic and the father was identified as more likely to have severe complications from a respiratory infection such as COVID-19 or influenza. There was evidence that the father had been encouraged to have as little exposure to other people as possible and to take proper precautions to avoid infection. The medical evidence confirmed the father’s partner’s diagnosis of bronchial asthma with a risk for complications from COVID-19 and stated “[i]t is beneficial if she and the members of her household attend both work and school virtually in order to mitigate these risks.”

[26] Pedlar J. found that the father had failed to present sufficient evidence to establish an unacceptable level of risk to himself, his partner or his partner’s children as a result of the three children attending school in-person, with the medical evidence, including hospital reports, “fall[ing] short of that requirement”: Phelps, at para. 41.

[27] Applying the principles enunciated in these cases to the matter before me, I have no hesitation in finding that it is in J.’s best interests to be enrolled at J.E.S. for in-person schooling. I have reached this conclusion for the following reasons.

[28] As Himel J. observed in Chase, the decision by the Ontario government to re-open schools this fall was made with the benefit of medical expert advisers and in consultation with Ontario school boards. The government is in a better position than the courts to assess and address school attendance risks. I proceed on the basis that the government’s plan will be modified as circumstances require or as new information becomes known.

[29] It is not realistic to expect or require a guarantee of safety for children who attend in-person classes during the pandemic. The mother appears to acknowledge this because she is prepared to allow J. to continue to attend daycare. However, she states that J. is “much less likely” to contract the virus from daycare than from in-person kindergarten because there have been no outbreaks at J.’s daycare and there are “a lot less” children attending daycare than attending his school. The mother is not an expert. The court is not in a position to assess the comparative risks of J. attending kindergarten and attending daycare.

[30] The medical evidence provided in relation to J. falls far short of the evidentiary requirements set out in C.L.B. J. has been diagnosed with moderate asthma for which he takes medication. The medical report does not identify any increased vulnerability J. has with respect to the COVID-19 virus, nor does the report give specific recommendations about additional precautions that are required to protect J. from the virus. J. currently attends daycare. The only “additional precaution” at the daycare identified by the mother is the restriction on the number of children enrolled. I infer that there are no steps or precautions specific to J. being taken at this time because none has been recommended by his doctor.

[31] The mother alleges that the father does not take J.’s health issues seriously and does not give J. his medications while J. is in his care. These are bald allegations, unsubstantiated by the record. They are denied by the father. I have not considered the mother’s assertions in determining what is in J.’s best interests. The mother has failed to present sufficient evidence to establish an unacceptable level of risk to J. as a result of J. attending kindergarten rather than daycare. It is also significant that in June, the mother was prepared to agree to J. attending kindergarten in-person this fall.

[32] There has been no medical evidence presented in relation to the mother’s level of risk.

[33] In determining what is in J.’s best interests – kindergarten or daycare – I have also considered the father’s evidence that J. has responded positively to the structure and stability provided by the daycare and that many of J.’s friends at the daycare started school this fall. If J. does not attend kindergarten, J. will have to continue to attend daycare with children younger than himself. I accept the father’s evidence that school is the “natural next step” for J. and attending kindergarten, even on a part-time basis, will help J. begin adjusting to school.

[34] I therefore find that it is in J.’s best interests to be enrolled at J.E.S. for in-person schooling. For the purpose of school enrollment only, J.’s primary residence will be with the father.

The Counselling Issue

[35] The counselling issue revolves around whether J. should be enrolled in therapy at Crossroads – the mother’s position – or whether the parties should proceed with a 12-week in-home treatment therapy for J., also offered by Crossroads – the father’s position. J. is currently wait listed for the in-home treatment program.

[36] I do not propose to reiterate here the mother’s concerns regarding J.’s behaviour. The father states that he has not noticed any behavioural problems and the daycare has not raised any concerns. The father has agreed for J. to participate in the home-based program. In her October 2 affidavit, the mother states that she would “prefer” J. be enrolled in therapy at Crossroads where he could be monitored by “proper care workers” who better understand J.’s needs and how to best treat him. The mother’s preference is her own: there is no evidence from the professionals at Crossroads that the therapy program at Crossroads would be “better” for J. than the home-based program for which J. is currently wait listed. The evidentiary record does not support the mother’s request regarding counselling.

Disposition

[37] The father’s motion is granted. I make the following orders:

(i) J. shall be enrolled at J.E.S. for the 2020-21 school year;

(ii) for the purpose of school enrollment only, J.’s primary residence shall be with the father; and

(iii) the mother shall not take any steps to change J.’s school or cancel his enrollment at J.E.S.

[38] The mother’s motion is dismissed.

[39] The father is the successful party on both motions and is presumptively entitled to his costs. If the parties are unable to agree on costs of the motions, they may make written submissions limited to a maximum of three pages. Both parties shall deliver their costs submissions within 10 days. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

Justice R. Ryan Bell

Date: October 9, 2020

COURT FILE NO.: FC-19-1016 DATE: 2020/10/09

ONTARIO SUPERIOR COURT OF JUSTICE

RE: Kimberly Amber O’Connor, Applicant AND Ken Duguay, Respondent

BEFORE: Justice R. Ryan Bell

COUNSEL: Allison Lendor, for the Applicant Laura Pilon, for the Respondent

ENDORSEMENT

Ryan Bell J.

Released: October 9, 2020