Returning to School During a Global Pandemic

Chase v. Chase, 2020 ONSC 5083

In consultation with medical experts and Ontario school boards, the Ontario government has made the decision to re-open schools in September 2020.  As a result, many parents are faced with the decision to have their children return to school or to continue with online learning.  When separated parents are unable to agree on the most appropriate course of action for their child, they may be forced to litigate the issue.  

In Chase v. Chase, Justice Himel penned one of the first decisions on this unprecedented issue – whether a nine-year-old child should return to school or remain home and continue with online learning.  Ultimately, Justice Himel held that the child should return to school this September.  

In reaching a decision, Justice Himel noted that it is the role of the Ontario government, and not the Court, to assess the potential risks associated with COVID-19 and the risks of contamination. In citing case law from Quebec on the same issue, Justice Himel states,  

“When the government decides to partially lift the containment measures linked to COVID-19 in order to allow, among other things, the resumption of academic activities at the primary level, there is no need for the Court to question this decision, unless one of the parties demonstrates, by preponderant evidence, that it would be contrary to the particular needs of their children to resume attending school, for example because of their health condition.”  

What Factors will a Court Consider in Determining Whether a Child Should Return to School? 

In this particular case, the father raised several concerns about the child returning to school, including, but not limited to: (1) the impact of wearing a mask at school as it may affect his son’s education; (2) the guilt the child may feel if he believes he has infected a family member with COVID-19; and (3) the fear expressed by the child about returning to school.  

Notwithstanding the above, Justice Himel was satisfied that the risk to the child of returning to school was acceptable in this particular case. In reaching her decision, Justice Himel cited the following factors: 

1. Neither parent, nor the child, have any underlying medical conditions that make them particularly susceptible to the adverse effects of COVID 19; 

2. The father’s concerns about the impact of a mask on his son’s education is not a risk that warrants online learning; 

3. The guilt the child may feel if he believes he has infected a family member with COVID-19 may be addressed by the mother and father assuring him that people catch viruses from many places and that he is not responsible; and  

4. The fear expressed by the child about returning to school until it is safe can be minimized through messages that support the Court’s decision, coupled with reassurances that the Ontario government will continue to monitor the risk and take appropriate steps to protect children.  

While Justice Himel acknowledged that it is not 100 percent safe for children to return to school, the Ontario government has weighed the risks of contracting COVID-19 against a child’s mental health, psychological, academic and social interests, as well as many parents’ need for childcare.  As a result, the Government has determined that September 2020 is an appropriate time for children to return to school.  

With the beginning of the school year looming, the Court will be faced with various disputes regarding the return to school.  Based on Justice Himel’s decision in Chase, it appears that the Court’s primary consideration is whether the child in question, or any member of his or her household, will be exposed to an “unacceptable risk of harm” if the child were to return to school.  

For more information on the issue of a child’s return to school and other family law issues associated with the COVID-19 pandemic, please contact Morrison Williams at 905-337-0002 or complete our intake form in order to schedule a consultation.