Unsurprisingly, co-parenting in a pandemic has led to many novel issues. Unlike past “back to school” seasons where parents typically hum the “Most Wonderful Time of the Year” song while purchasing new backpacks and pencils, back-to-school in a pandemic has been fraught with anxiety and tough choices. Add to the formula a fragile co-parenting relationship, and the result has been a court system overrun with “back-to-school” motions dealing with parents disagreeing about whether their children should attend school in-class versus online.
The Court’s decision in Chase v. Chase, 2020 ONSC 5083 (CanLII) has provided much-needed guidance on this timely issue. As noted by the Honourable Justice Himel in Chase: “School attendance in the midst of a pandemic is a challenging issue for many parents. Unfortunately, for some separated and divorced parents this is another battleground; one more arena where their child may become the prisoners (sic) of the war.”
After reviewing two decisions from the Quebec Superior Court, the Court adopted the reasoning set out in Droit de la famille – 20641, 2020 QCCS 1462 (CanLII), being that the government is in a better position than the courts to assess and address school attendance risks. Justice Himel opined that although there is no evidence as to when it will be one hundred percent safe for children to return to school, “the government has determined that September 2020 is an appropriate time to move on to a ‘new normal’ which includes a return to school.”
Adopting this reasoning, the Court in Chase found that unless there is an unacceptable risk of harm to the child or to anyone in the parent’s home, such as an underlying medical condition, it is in a child’s best interest to return to school in-person. As there was no evidence of unacceptable risk to the child or to the relevant households, the Court ordered that the child be registered for in-person school attendance.
Strikingly, although the mother was successful in her motion, the Court declined to Order costs. A significant portion of Justice Himel’s decision was devoted to commentary drawing attention to the significant burden on the family justice system caused not only by Covid-19, but also, by parents who have created unnecessary urgency by failing to resolve the school issue between March and August, 2020 outside of court. Given the current state of the court system, Justice Himel was of the view that a better approach in resolving these disputes is mediation wherein creative solutions could be explored.
As endorsed by the Court in Chase, by engaging in mediation, parents avoid delegating decisions respecting their children to a judge who has never met the parents and who will likely never meet their children. If you wish to learn more about separation, parenting and the out-of-court processes available to you, please reach out to the lawyers at Goodman Halioua LLP.
