Back-to-school and COVID-19: When parents disagree

With many educational institutions across B.C. open to returning students this fall, parents of school-aged children have had to face the difficult decision of whether to send their child back to school or to continue their education at home for the near future.

While the B.C. government has created a detailed plan for the return to in-class learning, community transmission of COVID-19 continues to climb, and many parents remain concerned for the health and safety of their children and family members.

Further complicating this decision are the sometimes differing opinions between separated parents; one parent may want to keep the child at home, while the other believes it is more important for them to return to class. How should these types of disputes be resolved?

Alternative Dispute Resolution (ADR)

When attempts between parents to resolve such disputes on their own fall apart, many will look to external support for dispute resolution. If possible, parents should first seek to resolve the disagreement using alternative dispute resolution (ADR) methods, such as mediation or arbitration. ADR in the family law context has many benefits, including lower costs and a greater likelihood of preserving cooperative relationships between the parties. However, if parents cannot come to an agreement using ADR methods, the decision will be left up to the courts.

In B.C., the primary consideration in family law cases where children are concerned is the best interests of the child. A compelling reason why it would not be in a child’s best interests to go back to school is if the child has a specific health condition that makes them particularly vulnerable to COVID-19.

A parent may have personal reasons for not wanting to send the child back to school (e.g. the vulnerable health condition of another member of the household), but such factors should be considered in the context of how they affect the interests of the child. In making the back-to-school decision for parents, the courts’ analysis of the best interests of the child will likely involve a weighing of the costs (e.g. health concerns) and benefits (e.g. social and educational aspects of school) of the parents’ respective positions.

Children may also have an opinion on whether or not they wish to go back to school, and although the views of the child are not determinative, the Family Law Act specifically provides that unless inappropriate to do so the child’s views must be considered when determining what is in their best interests.

In the Canadian Courts

The Superior Court of Quebec was the first in Canada to be tasked with making the back-to-school decision for separated parents who cannot agree. In the Quebec cases, parents had various reasons for their positions on the return school, including the risk of potential exposure, ability to offer homeschooling, the social aspects of in-person school, a child’s performance at school prior to closure, or the vulnerable health condition of a new spouse. Although not binding, the following insights from the Quebec cases may be instructive:

• The decision of whether to go back to school must always be made based on the child’s best interests, which includes any legal obligation to go to school.
• Courts will be reluctant to step into the role of assessing the potential contamination risks or determining the necessary measures to limit the spread of COVID-19.
• The fact that the situation is unlikely to change anytime soon may be a factor militating towards sending a child back to school.

Chase v Chase, 2020 ONSC 5083

Indeed, the Ontario Superior Court of Justice made similar findings in one of their first back-to-school cases Chase v Chase, 2020 ONSC 5083. In reaching their conclusion that the nine-year-old child should go back to school, the Court adopted the reasoning from the Quebec cases that the provincial government is in a better position than the courts to assess and address the risks of school attendance.

The Court noted that while there is a consensus between the Ontario government and medical experts that it is not 100% safe to go back to school, risks must be balanced against children’s mental health, psychological, academic, and social interests, as well as parents’ need for childcare. Absent the existence of an “unacceptable risk of harm” to the child or anyone in either parent’s home, it will likely be appropriate to send the child back to school.

Note also that the Court in Chase v Chase emphasized mediation as the better approach to resolving these types of disputes, and gave the following examples of creative solutions:

1. Enroll the child at the commencement of the school year, and review the plan at Thanksgiving, following an outbreak at the school, or at the first opportunity provided by the school board to reconsider the choice.
2. Delay in-person attendance and review the decision when specific criteria are met.
3. Create a small pool of children who can learn remotely together with the assistance of a parent and/or tutor.
4. Explore whether the child may attend school in person during the morning (leaving before lunch) and participate remotely in the afternoon.

As the school year continues, we are likely to begin seeing these types of cases come up through the B.C. court system as well.

You can learn more about BC’s Back to School Plan here.

Learn more at our COVID-19 Resource Centre.

Laurence Klass is a Partner in our Family Law Group. Sherry Yu is an Articling Student.