Just as teachers and school boards are grappling with the new realities of COVID-19 in classrooms, parents have taken the issue of online versus in-person learning to courts. A series of recent court decisions has outlined a list of factors utilized in determining whether a child is to be enrolled in an in-person or online platform for the current academic year.
In the recent decision of Zinati v Spence, 2020 ONSC 5231, the parents disagreed as to whether their six-year-old child, N, should resume in-person schooling or if studies should proceed online. Just as all students, N commenced online learning in March of 2020 as the province went into lockdown. The father sought for the child to continue her studies online with the commencement of the 2020/2021 school year. The mother however took the position that the child should return to in-person learning. Since the parties had joint custody/decision-making authority and could not reach an agreement, the matter proceeded to court for determination.
The Honourable Justice JT Akbarali of the Superior Court of Justice concluded that the decision is to be guided by the best interests of the child, taking into account the child’s needs, circumstances, as well as the child’s views and preferences if same can be reasonably ascertained. Specifically, in deciding which education plan is in the best interests of a child, the court will consider factors such as:
- The risk of exposure to COVID-19 that the child will face if she or he is in school, or is not in school;
- 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;
- The risk the child faces to their mental health, social development, academic development or psychological well-being from learning online;
- Any proposed or planned measures to alleviate any of the risks noted above;
- The child’s wishes, if they can be reasonably ascertained; and
- 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.
As with many separated parents, the parties in this case differed in opinion in regard to the risk of exposure to COVID-19 that the child will face in an in-person learning environment. A report from the Hospital for Sick Children was filed before Justice JT Akbarali as evidence. Justice JT Akbarali noted that the report is frequently used by parties seeking a ruling in favour of in-person learning. JT Akbarali rejected the report in line with prior decision such as the decision of Droit de la famille 20641, 2020 QCCS 1462, the Superior Court of Quebec, stating:
“… it was not for the courts, but rather for the competent government authorities, to assess the potential risks of contamination of the population during the pandemic, and to take the necessary measures to limit the spread of the virus. The court held that, when the government decides to permit primary education to resume, the court need not question that decision, unless one of the parties demonstrates that it would be contrary to the particular interests of their children to resume attending school in person.”
In this case, Justice JT Akbarali concluded that it was in the child’s best interests to resume in-person learning. The child did not have any health issues that would place her at an increased risk. This child in particular would benefit from the social interactions made available by an in-person learning environment. Accordingly, the benefits of attending school outweighed the risks.
Justice JT Akbarali also commented on the child’s views and preferences finding that the child’s views were not consistent. The parents advanced contrasting evidence regarding the child’s preference for in-person versus online learning. Ultimately the court concluded that since the child was only six years old, her wishes could not be accurately ascertained. As such, the decision for the child to return to an in-person learning environment rested on the remaining factors.
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