This fall, many parents will face a difficult decision about whether to return their children to school in-person, or have their children attend virtually from home. For separating or separated parents there is potential for this decision to become “another battleground” in their family law dispute. Recently, Justice A. Himel of the Ontario Superior Court considered this very issue in Chase v. Chase. His decision provides critically helpful guidance to parents navigating the complexities of back-to-school during COVID-19.

Chase v. Chase

In Chase, the parties disagreed about whether their child would attend classes in-person or virtually. The mother brought an urgent motion to permit her to make the decision to send the child to school, which the father opposed. Justice Himel lamented the ‘self-fulfilling prophecy’ of parents neglecting to make reasonable efforts to come to a decision on schooling without the assistance of the Court. He commended parents who can avoid unnecessary litigation by reaching “creative” schooling compromises such as:

1. Enrolling for in-person attendance with an agreement to review the decision at the earliest of either Thanksgiving, a COVID-19 outbreak, or the first opportunity provided by the school;
2. Delaying in-person attendance until specific criteria are met;
3. Creating a “small pod of children” to learn remotely together with the assistance of a parent or tutor; or,
4. Exploring split enrollment options (such as attendance in the morning, and virtual learning in the afternoon.

Ultimately, Justice Himel ordered the child to attend school in-person. Justice Himel adopted the reasoning and criteria used by the Quebec Superior Court in Droit de la famillle – 20641. At baseline, children have an obligation to attend school, and parents have an obligation to make sure their children attend school. It is in a child’s best interests to receive an education which conforms to the expectations and guidelines set-forth by the government. To that end, it is the Government, and not the Courts, which is in the best position to assess the safety of children returning to in-person classes. Governments balance a multitude of factors, opinions, and considerations when making education decisions which the Courts are ill-equipped to match.  

Justice Himel may have reached a different decision if either parent provided the Court with evidence that their households were immunocompromised or otherwise at higher risk of contracting COVID-19. In addition, virtual attendance was not possible in Chase because Justice Himel was not satisfied that either parent could effectively assist the child with his daily schoolwork. The child attended French immersion school, and neither parent had sufficient French-language proficiency to provide effective assistance / instruction to their child. For these reasons, in-person attendance was ordered.

We Can Help

If you are a separated or separating parent conflicted about the decision to send your child(ren) back-to-school, please contact our offices. We are here to help.