School's Out For Summer ' School's Out Forever?

• Published date: 04 September 2020
• Subject Matter: Consumer Protection, Coronavirus (COVID-19), Education, Government Measures, Reporting and Compliance, Operational Impacts and Strategy
• Law Firm: Clark Wilson LLP
• Author: Ms Diane Bell, Chantal M. Cattermole, James Cudmore, Jeannette Aucoin, Emily Raven and Sarah Tradewell

With the start of school around the corner and the plans from the government still in-flux, parents are struggling with whether to send their children back to school or not. There have been few cases decided in this matter so far, and none in British Columbia. The case law coming out of Ontario and Quebec is inconsistent and providing only further pause for debate. To date Courts in Canada have said the following:

Quebec

C.B. v. N.T. 2020 QCCS 1547, dated May 7, 2020 ("C.B.") - L'Honorable Claudia P Prémont, J.C.S., declined to order the children's return to school as a family member in the same home suffered from an auto-immune disease making them high-risk to contract the Corona virus.

M.D. v. MA. C. 2020 QCCS 1462, dated May 7, 2020 ("M.D.") - L'Honorable Claude Villeneuve, J.C.S., ordered the two children (ages 9 and 11) return to school finding that it is not for the Courts, but rather government authorities to determine the potential risks of contamination of the population in a pandemic and limit the exposure. There is no need for the Court to question this decision unless one or the other of the parties demonstrates, by a preponderance of evidence, that it would be contrary to the particular interests of their children to resume attending school for example because of their health condition.

M.D. also specifically addresses the right of the child to receive an education and attend school; pointing out that although the return to school is not "mandatory" it does not take away the rights of children to receive education services. The court also found this may be especially important for subjects where the child may be struggling or has a need to socialize more.

Ontario

Wilson v. Wilson (unreported - dated August 24 2020) - The mother asked for the children, who are in grade 1 and 3, to continue online learning rather than return to in person school in September. In favour of her position she argued that the children excelled in online learning, including receiving awards. She also argued that one of the children has asthma and therefore was at greater risk if exposed. The Court found that there was insufficient evidence to establish that in-person schooling would be safe enough for the children, especially in light of the one child's medical condition. Specifically citing the "Sick Kids" report put forward by the Ontario government, Justice Boucher questioned whether these recommendations followed that of expert evidence regarding COVID-19 and whether the appropriate safeguards would be in place. In making an order that the children be temporarily enrolled in online classes, the Court cited that online schooling provides better physical safety for the children. The Order did allow for the parents to agree to move the children to in person schooling should it be deemed to be in their best interests.

Chase v. Chase, 2020 ONSC 5083, dated August 25, 2020 ("Chase") - The mother brought an urgent...