Ontario judge sides with one parent over another in sending son to school during pandemic

In a precedent-setting ruling, an Ontario Superior Court judge has sided with a parent who wants her son to return to school over the objections of the child's father, who insisted the child take his classes online during the COVID-19 pandemic.

Justice Andrea Himel heard motions related to the case dubbed Chase v. Chase in the Newmarket Courthouse north of Toronto in mid-August and ruled in favour of the mother last week.

"Unfortunately, for some separated and divorced parents this is another battleground, one more arena where their child may become the prisoner of the war," Himel wrote in her judgment.

The ruling, the first of its kind in Ontario since the pandemic began, comes as family lawyers tell CBC News that many estranged couples are bringing up the question of who decides whether their kids go back to school or distance learn. They say that threatens to tax a family court system already under strain due to delays caused by COVID-19.

In her ruling, Himel reminded parents that there are other tools to resolve such disputes and that they should exhaust those before heading to court.

In this case, the nine-year-old boy's mom argued that a return to in-class learning will be more successful and productive for him as isolation at home has been difficult for him socially.

But while the father agreed that attending school in person is preferable academically, socially, physically and psychologically, he argued that during the pandemic the health risks are significant.

He also told the court he worries about the impact of wearing a mask at school, as his son is in French immersion and it would be harder for him to communicate clearly.

In her ruling, Himel noted that no one in either household has any underlying medical conditions that make any of them particularly susceptible to the adverse effects of COVID-19, and that the province's "decision to re-open the schools was made with the benefit of medical expert advisers and in consultation with Ontario school boards."

In a written statement to CBC Toronto, lawyer Melanie O'Neill said the child's mother, Jennifer Chase, is "thankful that the case was looked at from the standpoint of her child, and not what is best for the child's father and his new partner.

"The child is happy that he will be reunited with his two best friends who are also attending school in person," O'Neill wrote.

"He was not keen on the possibility of having to sit in front of a computer for the entire day if the decision was made for him to attend school remotely."

O'Neill also said clients are bringing up the school issue more and more often and she hopes this decision will provide clarity as to how Ontario courts are dealing with it, so that parents don't need to turn to the legal system.

Leanne Townsend, a family lawyer and partner at Brauti Thorning LLP, agreed that the issue is coming up in many of her clients' cases.

"COVID-19 has created many opportunities for high-conflict parents to find more things to argue about," said Townsend, who added that Himel emphasized parents are better off using the tools they have as well as alternatives to court in coming to their decision.

"The decision shows that the courts will look at each case specifically and use a child-focused approach taking into account what is best for each child in terms of their learning needs and any underlying health conditions."

There have been only two other decisions in Canada regarding a dispute between parents over whether to send their children back to schools during the pandemic. Both are from the Quebec Superior Court and were made when some schools reopened in that province.

The judge refused to order children to return to class in one decision, citing the risk to a family member who had an auto-immune disease and was at high risk of COVID-19 complications.

In the second decision, the judge stated it is "not for the courts, but rather for the competent government authorities, to assess the potential risks of contamination of the population in a pandemic situation and to take the necessary measures to limit the spread of the disease."

In her ruling, Himel also noted that in this case and others before the court, the parents "have delegated the authority to make the decision respecting their child's in-person versus online attendance at school to me, a judge who has never met the parents and who will likely never meet the child. 

"I would encourage the parents to return to mediation as this is a process that empowers them to make these important decisions."