COURT FILE NO.: FS-20-120-00

DATE: 2020 10 26

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

DAVID MANZON

M. Santhirasegaram, for the Applicant

Applicant

• and -

KATHERINE CARRUTHERS

A. Kenet, for the Respondent

Respondent

HEARD: October 23, 2020

REASONS FOR JUDGMENT

Petersen J.

INTRODUCTION

1The parties are divorced and have joint custody of their eight-year-old son, M. They separated when he was twenty-two months old. They have an equal shared parenting regime according to which M spends half his time residing with each of them.

2The parties live in different cities, approximately 80 km apart. The Applicant father, Mr. Manzon lives in Caledon, in the Region of Peel. The Respondent mother, Ms. Carruthers lives in Markdale, in the Region of Grey Bruce. She has re-married and has two children under the age of two with her new partner.

3The motion before me relates to M’s schooling for the current 2020/2021 academic year.

BACKGROUND INFORMATION

4M. has always attended school in the Peel District School Board, in the Caledon area. He was enrolled at Creditview Public School for Junior Kindergarten, then transferred to Belfountain Public School for Senior Kindergarten (“SK”). He completed SK and grades 1 and 2 at Belfountain.

5In March 2020, during his grade 2 year, his school was abruptly closed by the provincial government due to the COVID-19 pandemic (as were all schools across the province at that time). M therefore did not attend school in-person last year after mid-March 2020.

6The province of Ontario decided to reopen schools, notwithstanding the ongoing pandemic, in the fall of 2020. Parents were offered the choice of enrolling their children for in-person classroom instruction or for on-line instruction. Schools, including Belfountain, have taken precautions, in accordance with mandated public health guidelines, to make in-class learning as safe as possible and to reduce the risk of infection for students, teachers and other staff who work in the schools.

7The parties discussed M’s education and agreed, on a without prejudice basis, to enroll him in on-line learning in September 2020. They were advised by the school administration that there would be opportunities, at set points throughout the year, for parents to change their election. It was understood by the parties that the decision to register M for on-line learning was temporary and would be reviewed during the school year.

8The first “switch over” date at Belfountain was in mid-October 2020. Mr. Manzon wanted to change M’s instruction to in-person learning but Ms. Carruthers did not agree. She is concerned for her own safety and for the safety of her family if M returns to the classroom during the COVID-19 pandemic. The parties reached an impasse on this issue, which is what prompted the motion before me.

POSITIONS OF THE PARTIES

9Mr. Manzon is seeking an Order that M be registered for in-person instruction at Belfountain as soon as possible. The school administration has advised that this could be accommodated immediately, despite the expiry of the “switch” deadline, provided that it is ordered by a court.

10Ms. Carruthers is seeking an Order that M continue to attend Belfountain by way of on-line remote learning for the duration of the 2020/2021 school year. She also seeks ancillary orders to ensure technical and other support for M to participate effectively in on-line learning. In addition, she seeks orders to facilitate communication between the parties and orders to ensure compliance with COVID-19 public health protocols.

11If I conclude that M should attend school in-person, then Ms. Carruthers requests (in the alternative to her primary position) an Order that he transfer to Beavercrest Community School, a public school in Markdale, where she lives. Her strong preference, however, is for M to continue with on-line learning for the duration of this school year. She proposes the Beavercrest alternative if in-class instruction is ordered because she believes that the risk of viral infection would be less in Grey Bruce than it would be with in Peel Region.

ANALYSIS OF EVIDENCE RELATING TO INFECTION RATES

12The record contains information from reliable public health sources confirming that, as of October 16, 2020, there had been a total of 11,676 COVID-19 cases in Peel Region, compared to only 164 cases in Grey Bruce as of October 20, 2020. The data also shows that there were 113 confirmed and probable cases with school-related transmission exposure within 85 schools in Peel Region between September 1 and October 7, 2020. In contrast, there have been no reported COVID-19 cases in schools in Grey Bruce.

13I find this data to be of limited assistance to Ms. Carruthers for several reasons. First, Peel Region includes densely populated cities like Brampton and Mississauga, but Mr. Manzon resides in Caledon, a much smaller centre. The rate of infection in Caledon is not in evidence. Second, M is currently enrolled at Belfountain school. Mr. Manzon submitted reliable information showing that, as of October 8, 2020, there were no confirmed active cases of COVID-19 at Belfountain. The fact that there have been 113 cases with school-related transmission exposure in 85 other schools in Peel Region is of little significance as it does not impact M. Third, the size of the (in-person) student population and the number of employees (teachers, administrators and support staff) at the two schools is not in evidence. I would require that information in order to assess the relative risks of exposure through in-class attendance. Fourth, although the available data shows that there have been 113 cases with a school-related transmission exposure in Peel, it also shows that only 3 of those cases have been confirmed as persons who acquired the viral infection at school, with 16 cases involving an unknown epidemiological source (in other words, they may or may not have been infected at school). Although Peel Region has been and continues to be a “hot spot” for COVID-19, the evidence does not suggest that schools (let alone M’s school) have been a major contributor to viral transmission.

14The evidence does not support a finding that the risk of infection for M would be lower if he attended Beavercrest rather than Belfountain for in-class instruction. The evidence does, however, satisfy me that it would not be in M’s best interest to change schools mid-grade at this stage of his life. I reach this conclusion based on consideration of the factors set out in Askalam v. Taleb, 2012 ONSC 4746, at para.32, and JES v. SS, 2020 ONSC 6064, at para.36, as set out below.

15M has always attended school in Caledon. He has been enrolled at Belfountain since SK. He has classmates and teachers at Belfountain with whom he has interacted daily for the past three years. He is by all accounts thriving at his current school. The disruption to his education and to his established social networks would be significant if he were to abruptly change schools now. In the context of the pandemic, which necessitates social distancing between students and teachers, it would be a challenge for him to develop new relationships and make new friends at a new school. The move could adversely impact his academic progress and would probably negatively impact his emotional well-being. It would be an unnecessary destabilizing move in the midst of already unsettling times. For these reasons, the Beavercrest school proposal is a non-starter. It is in M’s best interest to continue his education at his current school. The Beavercrest option was not, in any event, either of the parent’s preferred choice.

ANALYSIS OF EVIDENCE REGARDING ON-LINE VERSUS IN-PERSON INSTRUCTION

16The more difficult issue for me to determine is whether M’s interests are best served by continuing remote learning or by returning to in-class instruction. This issue has recently been litigated in a several cases. Counsel provided me with multiple relevant court decisions. The outcome of each case was determined based on the specific facts and circumstances before the motions judge, but a list of relevant factors for the court’s consideration has emerged from the jurisprudence. Those factors were helpfully summarized by Justice Akbarali in Zinati v. Spence, 2020 ONSC 5231, at para. 27, as follows:

(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.

17Taking into consideration the evidence in the motion record before me and applying the above factors to the circumstances of this case, I have concluded that it is in M’s best interest to continue with remote on-line learning. My reasons for arriving at this conclusion are as follows.

Risk of Exposure

18I take judicial notice of the fact that COVID-19 is caused by SARS-CoV-2, a communicable and highly contagious virus. I also take judicial notice of the fact that people who are infected with the virus can be asymptomatic yet still contagious.

19The number of M’s direct contacts – the size of his “social bubble”, in COVID-19 parlance -- is enlarged by the fact that he goes back and forth between his two parents’ homes. His mother and her husband are not working outside the home during the pandemic and their two children, M’s siblings, are being cared for at home. The living and employment circumstances of M’s father are unclear from the record. Mr. Manzon’s affidavit states, “There is no one at my residence with an underlying health condition that indicates a risk of harm that rises to a level that would negate in-person attendance” at school. He does not state how many people reside with him and does not provide information about any other residents’ employment circumstances. The only evidence I have regarding his own employment is Ms. Carruthers’ sworn statement that he is a contractor and that he took M to the school during the pandemic to install a gate on the property. I infer from this that Mr. Manzon is working outside the home during the pandemic.

20Even with on-line learning, M is not entirely insulated from risk of infection during the pandemic. However, the chances of him being exposed to the virus are obviously greater if he attends school in-person because he will be in regular direct contact with a larger number of people, despite social distancing and other precautionary measures taken by the school. There are currently no known cases of COVID-19 at Belfountain, but the pandemic is fluid and unpredictable. Any one of the individuals attending the school could become infected at any time. An infected person may not be symptomatic and may go undetected by any screening measures used at the school. An outbreak of the virus at the school could occur. Although on-line learning does not eliminate the risk of exposure that M faces, it reduces the number of direct contacts that he has with people outside his immediate family members and therefore presents a lower risk of infection than in-class learning.

21Because M’s risk of exposure is greater if he attends school in person, that necessarily means that the risk of transmission to his family members, in both his mother’s and his father’s residences, will also be greater. Ms. Carruthers submits that she has grave concerns for her own health and for her family’s health if M returns to in-class instruction at this time.

22Ms. Carruthers submits that, if infected by the virus, both she and M, as well as M’s two younger siblings, are at increased risk of developing COVID-19 symptoms and of suffering serious adverse health consequences, because of pre-existing health conditions and other risk factors. She adduced medical evidence in the form of letters from health professionals to support her submission. The father did not object to the admissibility of the letters. I have discretion to admit hearsay evidence in a motion for a temporary order: Rule 14(19) of the Family Law Rules. I find that it is appropriate to do so in this case.

M’s Risk Factors

23I am not persuaded by the medical evidence that M is at increased risk. The record contains a letter from M’s primary-care provider, a nurse practitioner named Natalie Mather, and a letter from Ms. Carruthers’s physician, Dr. William Santo. Ms. Mather only recently took M into her practice as a patient in December 2019 and has not yet met with him in person. The information contained in her letter is derived from her review of M’s clinical file. There is no evidence that Dr. Santo has ever treated M or that he reviewed M’s clinical file. To the extent that he comments on M’s health, I infer that he is relying on information provided to him by Ms. Carruthers.

24Dr. Santo’s letter primarily addresses Ms. Carruthers’s health condition, but also states that “M has asthma and another disease associated with increase (sic) morbidity including death from COVID-19”. He does not specify what the “other disease” is. There is no evidence from either party that M has any other underlying health condition that might put him at increased risk. There are several typographical errors in the doctor’s letter and I believe that this sentence likely contains such an error. In the context of the entire letter (in which he discusses the mother’s health condition), I believe that he intended to state that asthma is “an other” disease associated with increased morbidity.

25I have doubts about the accuracy of Dr. Santo’s information regarding M. His statement that M “has asthma” is contradicted by Ms. Mather, the NP, who notes that M has a history of reactive airway disease but has no formal diagnosis of asthma because an official diagnosis cannot be made before the age of 6 years. Although M is now 8 years old, he has not had any respiratory episodes in recent years. Since Ms. Mather based her letter on a review of M’s clinical file, and the source of Dr. Santo’s information is unknown, I accept her evidence as more likely accurate in terms of M’s health history. I find that M has not been diagnosed with asthma, though he has had episodes of reactive airway disease in his past.

26Both Dr. Santo and Ms. Mather state that children tend to be less affected by COVID-19 compared to adults. Ms. Mather notes, however, that some children develop severe illness called Multisystem Inflammatory Syndrome in Children. She states that it is unclear which children are at risk of developing this severe complication, but that children with “chronic lung issues (ex. reactive airway disease) might be at increased risk” (emphasis added). She acknowledges, however, that there is “no concrete evidence” of this increased risk.

27Ms. Carruthers’s counsel argues that, given the novel nature of the SARS-CoV-2 virus and the limited amount of time that the medical community has had to research risk factors and learn about COVID-19 disease, it is not realistic to expect greater certainty in the evidence. She submits that more definitive evidence should not be required by the court to establish an increased risk to M. I agree that the court must take into consideration the novelty of the virus and the nascent state of scientific knowledge about COVID-19, but Ms. Mather’s letter provides no evidence whatsoever (either “concrete” or anecdotal) upon which I could reasonably conclude that M is at increased risk of developing COVID-19 or of experiencing severe complications from COVID-19 based on his medical history. Dr. Santo’s letter is unhelpful because it is based on a faulty premise that M has been diagnosed with asthma.

28Mr. Manzon deposed that M has not suffered any respiratory episodes since he was five years old. Dr. Santo similarly reports in his letter that M’s condition is “well controlled at present”, information that he presumably obtained from Ms. Carruthers. Mr. Manzon states that M has not required the use of a “puffer” (inhaler to manage the symptoms of reactive airway disease) for approximately five years. Ms. Carruthers did not dispute or contradict this sworn statement. So although M has a history of reactive airway disease when he was much younger, there is no evidence that he has “chronic lung issues” that might put him at greater risk.

M’s Siblings’ Risk Factors

29The circumstances of M’s two younger siblings are different. They are healthy and have no underlying conditions, but one is two years old and the other is 6 months old. Their ages constitute risk factors. I am persuaded that they face an increased risk of serious COVID-19 illness and potential long-term health consequences from exposure to the SARS-CoV-2 virus.

30In Joachim v. Joachim, 2020 ONSC 5355, at para.23, Justice Summers took judicial notice of “the information widely repeated in the public domain that very young children are likely to be at higher risk due to their immature immune systems.” There is medical evidence in the record before me consistent with this publicly available information. Ms. Mather explains in her letter that M’s two young siblings are more susceptible to COVID-19 because their immune systems are not fully developed.

M’s Mother’s Risk Factors

31Furthermore, there is credible evidence in the record that Ms. Carruthers is at increased risk of contracting the virus, of developing COVID-19 morbidity, and of contracting other serious illnesses if she develops COVID-19, because she has a chronic auto-immune disease. Her treating physician, Dr. Santo, states that, due to this underlying health condition, she is at risk of suffering devastating and potentially life-threatening consequences if she contracts COVID-19. This evidence is not contradicted by any other evidence in the record. I find it to be both reliable and credible.

32Ms. Mather is also familiar with Ms. Carruthers’s health condition. She has been Ms. Carruthers’s primary care provider since December 2017. She acknowledges that there have been limited studies regarding the impact of COVID-19 on people with the mother’s condition and that most of the existing studies focus on the elderly, but she states that, based on the available evidence, Ms. Carruthers is considered “high risk” because of her underlying chronic health condition. This evidence is not contradicted by any other evidence in the record. I find it to be both credible and reliable.

M's Best Interest is Connected to his Family’s Health

33The vulnerability of M’s mother and two young siblings militates in favour of M continuing with on-line learning at this time. As Justice Summers noted in Joachim, at para. 24, a child’s best interests cannot be severed from the health and safety of their immediate family members. It is in M’s best interest to keep all the members of both of his households safe and well and not expose any of his loved ones to unnecessary health risks.

Balancing Factors

34The risks to Ms. Carruthers and to M’s two young siblings must, however, be balanced against any risks that M faces to his mental health, social development or academic progress, if he continues with remote learning. I take judicial notice of the fact that in-class education has pedagogic and other advantages for children that cannot be replicated with on-line learning. Even if the curriculum can be taught remotely and comparable academic advancement can be achieved (by children who do not struggle with on-line learning), there are aspects of classroom learning that are beneficial to the social development of children and to their emotional and psychological well-being. For some children, these benefits are more pronounced because of their home-life circumstances, but for virtually all children, in-class learning has material advantages over on-line remote education.

35I can therefore appreciate Mr. Manzon’s desire to return M to a classroom environment as soon as possible. M has not had any in-person education since March 2020. He is only 8 years old, at a formative stage of both academic and social development. However, the evidence does not support findings that M’s mental health or academic performance are suffering with on-line learning. Moreover, there are steps that can be taken to mitigate any negative impact on his social development.

M’s Academic Progress and Parents’ Ability to Support M’s schooling

36M does not have any learning disabilities that require accommodation in order to maximize his academic potential. Unlike the child involved in Shepstone v. Masales, 2020 ONSC 5364, he does not require an Individual Education Plan to address learning difficulties.

37Mr. Manzon states in his affidavit that M was thriving academically when attending Belfountain school in person but “has been struggling with online learning modules, and has been having issues with focusing on his lessons.” The evidence confirms that maintaining focus was a challenge for M even in the classroom environment. However, there is no evidence establishing that this problem has been magnified by on-line learning.

38Ms. Carruthers adduced a copy of M’s grade 2 year-end report card and a copy of a recent email from M’s current grade 3 teacher. The report card is based on M’s performance in class prior to the school closure in March 2020, so it does not assist me in determining how M is coping with on-line learning. It does, however, corroborate Mr. Manzon’s statement that M was thriving academically before the pandemic.

39The email message from M’s current teacher contradicts Mr. Manzon’s assessment that M is struggling with on-line learning. The email was prompted by an inquiry from Ms. Carruthers for an “update on how M is doing with online learning”. The teacher reports that M is “doing very well” and that she has “no concerns with his academics.” She says he “participates enthusiastically and shares his ideas frequently” and that his assignments “are done to his full ability.” Based on this evidence, I find that M’s academic progress is not being stunted by on-line learning.

40In her email, M’s teacher observes that, on weeks when M is at his father’s house, “assignments sometimes do not get turned in” and this causes stress and anxiety for M. This is a relevant consideration, but I have little information as to the source of the problem. Mr. Manzon states that “there are distractions in a home environment that prevent M from focusing on his lessons”, but he gives no specifics about the nature of those distractions or any efforts that have been made to minimize them.

41It may be that Mr. Manzon has competing demands from his work that prevent him from supervising M closely and supporting the completion of M’s school assignments, but none were identified by Mr. Manzon. Notably, Ms. Carruthers has offered to make (temporary and without prejudice) changes to their parenting schedule to accommodate Mr. Manzon’s other commitments and facilitate M’s remote education. Ms. Carruthers is home full time and her husband is currently on a parental leave from work. With both of them home, they are able to care for M’s two younger siblings while also providing support and supervision for M’s on-line learning. Ms. Carruthers argues that, if Mr. Manzon requires assistance to juggle his responsibilities, he can make arrangements for M to be in her care more often during school hours on weekdays, in exchange for more parenting time on weekends. Ms. Carruthers’ flexibility in that regard alleviates any concern I might otherwise have about Mr. Manzon’s ability to support M’s on-line learning, and M’s ability to get his homework done.

Measures to Alleviate Risks to M’s Psychological Wellbeing and Social Development

42Mr. Manzon states in his affidavit that M suffers from social anxiety. Ms. Carruthers disputes this statement and asserts that M has never been diagnosed with social anxiety or any other mental health disorder. There is no medical evidence proffered by the father. Ms. Mather’s letter makes no reference to any history of mental health issues in M’s clinical file. The record does not support a finding that M has social anxiety.

43Everyone is struggling, to varying degrees, from diminished human contact and deprivation of routine interpersonal interaction during the pandemic. Children are not immune to this. A child does not need to have a diagnosed mental health condition to find a lack of social interaction challenging. M’s emotional and psychological wellbeing would no doubt benefit from regular daily in-person contact with his friends, from recreational recess activities with peers in the schoolyard, and from a more physically active routine than on-line screen-based learning. However, there is no evidence that M is having difficulty coping. There is no evidence that he is suffering emotional or psychological harm, or that his social skills are deteriorating.

44M’s teacher confirms his enthusiastic participation in on-line learning. He is not disengaged or socially withdrawn. He has been able to maintain friendships during the pandemic. Ms. Carruthers has arranged socially distant play dates for him, as well as virtual on-line play dates to mitigate his social isolation. Mr. Manzon could do the same. I am confident that both parents are attuned to M’s need for social interaction and have the ability to find creative and safe ways to meet that need during the pandemic.

45As Justice Pazaratz stated in Ribeiro v. Wright, 2020 ONSC 1829, at para.23, the courts expect parents to engage in respectful communication and to come up with creative and realistic proposals for children’s care and education that demonstrate both parental insight and COVID-19 awareness. At least one of Mr. Manzon’s recent text communications with Ms. Carruthers includes profanity and a tone that does not meet the standard of respectful dialogue.

46Mr. Manzon reports that M has expressed to him on numerous occasions that “he prefers attending school in-person as it allows him to get outside for recess and physical education, and also offers him the ability to interact with his friends.” Both parents can alleviate the negative impact of sedentary on-line learning by ensuring that, when M is not engaged in instruction, he has opportunities to get outdoors and be more active. Any such opportunities must, of course, comply with public health COVID-19 guidelines and protocols.

M's Views and Preference

47On the limited evidence before me, I am unable to determine whether the preference expressed by M to his father for in-class education is an independently-formed and settled view. It would not be appropriate to try to ascertain this, because that would place M awkwardly at the centre of his parents’ dispute. M should not be saddled with the burden of having to express a preference when one of the options could have a serious negative impact on his mother’s and younger siblings’ wellbeing. Moreover, at his age, he does not possess sufficient maturity to be able to appreciate what is in his own best interests. His views and preferences are therefore not a relevant consideration in my decision.

CONCLUSION

48Based on all the above, I conclude that it is in M’s best interest to continue with on-line learning. A return to in-class learning at this time would entail an unnecessary and unacceptable risk of harm to his mother and two younger siblings. The significant risk of harm to his immediate family presently outweighs the benefits he would gain from in-person learning.

49I will make some of the ancillary orders requested by Ms. Carruthers to maximize M’s ongoing success with on-learn learning, but I find that there is no basis to grant all the relief she has requested.

50I make the following orders:

1. M shall continue to attend Belfountain Public School by way of on-line learning for the 2020/2021 school year. In recognition of the facts that public health guidelines may change over time, that a vaccine or effective treatment for COVID-19 may be developed, and that M’s ability to thrive academically with on-line learning may wane, I note that the parties may reach agreement to return M to in-class learning later in this academic year, if circumstances change.

2. Both parents shall maintain internet access at their own expense, in their respective homes, to ensure that M can participate in remote learning when in their care.

3. Both parents shall obtain and facilitate on-line learning tools required or recommended by the school to enhance M’s learning experience.

4. Both parents shall communicate with each other, as necessary, in a timely way about M’s school assignments and about any known or probable exposures that either of them or M has had to the SARS-CoV-2 virus or to persons with COVID-19. Both parents will take appropriate measures to minimize M’s risk of exposure, in accordance with public health guidelines and protocols.

5. All communications between the parents will take place using Our Family Wizard.

COSTS

51If the parties are unable to resolve the issue of costs between them, Ms. Carruthers may serve and file written submissions by November 6, 2020 and Mr. Manzon may do the same by November 13, 2020. Neither party’s submission shall exceed two pages, exclusive of Offers to Settle and Bills of Costs. There will be no reply submissions unless requested by me. If either party refers in their submissions to the Family Law Rules or to jurisprudence, they shall do so by including a hyperlink to the applicable rule or case.

Petersen J.