Court Cases & Orders

“Urgency as a Self-Fulfilling Prophesy” in Motions Over School Attendance

Written by Russell Alexander ria@russellalexander.com / (905) 655-6335

“Urgency as a Self-Fulfilling Prophesy” in Motions Over School Attendance

The case of Chase v. Chase is one of many recent Ontario court rulings involving parents who are in dispute over where (or whether) to send their child to school, in light of the COVID-19 pandemic. Decided in the final weeks of August 2020, it featured a mother who wanted to be granted sole decision-making authority in connection with her 10-year-old child’s educational decisions, over the objections of the child’s father.

More to the point, the mother wanted the child to return to school upon its official re-opening in a few weeks’ time, while the father wanted him to remain at home until the governing school board’s safety protocols around COVID-19 are “proven successful”, and until leading health experts are able to offer more certainty, using data from other children who are attending school in-person.

In addressing the parents’ dispute, the court framed it as the first of many pending cases of its type, all due to be heard in the weeks leading up to the formal resumption date for Ontario schools in September. The court elaborated:

This is the first of several urgent motions to be filed with the Court since August 17, 2020 and, without a doubt, there will more forthcoming. There has been no case conference, no attendance at a Mandatory Information Program (as is required by [the Family Law Rules]), and it is unclear what attempts have been made by the parents to confer about the disputed issue.

There is a common theme to all of the cases currently before the Court; parents disagree about whether their child should attend school in-person, or online. The upcoming school year will begin in the next two to three weeks and school boards expect that choice to be made imminently.

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 of the war.

The court noted that these motions were all being brought on an “urgent” basis.  (Under the Family Law Rules, that designation is confined to situations where the court is of the opinion that a situation of urgency or hardship exists.  If that threshold is met then the parties can proceed, thereby circumventing the normal Family Law Rules that first require a case conference to be held).

This led the court to  make some important comments about what it called a “self-fulfilling prophesy” of urgency:  Cases where the parents have essentially dragged their feet, then suddenly – only weeks or days before the school doors are set to re-open – claim their matter requires immediate judicial attention.  The court explained:

Urgency as a Self-fulfilling Prophesy

… The need for a court to address this issue on an urgent basis is a self-fulfilling prophesy. Merely fail to resolve the issue from March to August 2020 and, voila, “the test for urgency is met”. In the normal course this approach would not be tolerated. However, notwithstanding that the parents create the problem, jump the queue and should not have their matter heard without following the usual processes, I accept that it is the Court’s duty to deal with these cases expeditiously. The child has a right to know the plan for the upcoming school year, and the parents need time to prepare for it.

The court added that a better approach would be to resort to mediation with a professional, or with a third-party trusted family member or friend.  There were also several “creative ways” for parents to resolve the school attendance dispute, including: 1) enrolling the child in September and then revisiting the choice at a later juncture; and 2) creating a small “pod of children” who could learn remotely together with the assistance of a parent or tutor.

With chagrin, the court in Chase v. Chase noted that the parents in this case had considered none of these multiple options, and moreover had waited until mid-August 2020 to bring the matter to court.  Nonetheless, in the interests of justice the court proceeded to hear the substantive aspects of parents’ dispute – but not before adding the following admonishment:

I note that in this case (and in all others currently before the Court) the Mother and Father have delegated the authority to make the decision respecting their child’s in-person versus online attendance at school to me, a judge who has never met the parents and who will likely never meet the child. I would encourage the parents to return to mediation as this is a process that empowers them to make these important decisions.

For the full text of the decision, see:

Chase v. Chase, 2020 ONSC 5083

 

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About the author

Russell Alexander

Russell Alexander is the founder of Russell Alexander Collaborative Family Lawyers and is the firm’s senior partner. At Russell Alexander, our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues, including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. We have locations in Toronto, Markham, Whitby (Brooklin), Lindsay, and Peterborough.

For more information, visit our website, or you can call us at: 905-655-6335.