On December 15, 2021, the OBA’s Child & Youth Law and Family Law sections held a program about the family court’s approach to issues around the ongoing pandemic, co-chaired by Emma Katz and Hilary Warder. The three expert panelists – Justice Robert Charney, Geoffrey Carpenter, and Fareen Jamal – provided insight into how the courts are responding to COVID-related family law issues like responses to public health measures, school attendance, and vaccines. The program offered a wealth of information and case law that will be of interest to lawyers whose work intersects with the lives of families at home and at school.
An early pandemic case to note is Ribeiro v Wright, 2020 ONSC 1829, which rejected any panic response to the pandemic and stated that clear evidence of inconsistent practices around COVID would be required before the court would intervene in existing parenting orders. Similarly, in Children’s Aid Society of the Region of Halton v. R.O., 2020 ONCJ 209, the court admonished the children’s aid society for taking a blanket approach to limiting parenting time, again noting the need for specific proof of heightened risk before varying court orders.
On the initial return to school in Fall 2020, the Quebec courts were the first to opine. In Droit de la famille — 20641, 2020 QCCS 1462, the court affirmed that it is up to government authorities to assess public health risks, including related to education. This position was taken up by the Ontario courts, which determined that, on balance, in-person attendance in school is preferred (Chase v. Chase, 2020 ONSC 5083) unless there is evidence of risk factors weighing against in-person attendance (Zinati v. Spence, 2020 ONSC 5231). For example, in O’Connor v. Duguay, 2020 ONSC 6138, the court set out the medical information courts would expect to see before making decisions about remote learning in situations where children or family members have health vulnerabilities.