Family Court Says: “The Pandemic is Only Over for Those Who Did Not Survive It”
Family Law rulings are always a customized undertaking: Courts must apply the established law to the specific facts of each family’s situation. And especially when dealing with the rights of children, or with custody/access arrangements that impact them, the courts must always keep the best interests of those children at the forefront of its decision-making process.
Never has this been more evident than in recent weeks, where in response to COVID-19 concerns the Family Law courts across the country have been asked to make difficult decisions about how and where a child should receive his or her education. This has raised unique challenges along the way, including the need to balance the benefits and risks of in-person versus online learning.
As some of those cases have shown, there is no universal answer appropriate for all children in Ontario, nor even for all children in a particular region or municipality. Each court ruling must be arrived at on a case-by-case basis, and it is difficult to arrive at generalizations.
But in a recent ruling called Zinati v. Spence, the Ontario court nonetheless proffered these thoughts on the key considerations that should go into any determinations around schooling during these exceptional times:
In my view, and having regard to available jurisprudence on this new and evolving issue [of the COVID-19 pandemic], determinations about whether children should attend in-person learning or online learning should be guided by the following factors:
- It is not the role of a court tasked with making determinations of education plans for individual families or children to determine whether, writ large, the government return to school plans are safe or effective. The government has access to public health and educational expertise that is not available to the court. The court is not in a position, especially without expert evidence, to second-guess the government’s decision-making. The situation and the science around the pandemic are constantly evolving. Government and public health authorities are responding as new information is discovered. The court should proceed on the basis that the government’s plan is reasonable in the circumstances for most people, and that it will be modified as circumstances require, or as new information becomes known.
- When determining what educational plan is in a child’s best interest, it is not realistic to expect or require a guarantee of safety for children who return to school during a pandemic. There is no guarantee of safety for children who learn from home during a pandemic either. No one alive today is immune from at least some risk as a result of the pandemic. The pandemic is only over for those who did not survive it.
- When deciding what educational plan is appropriate for a child, the court must ask the familiar question – what is in the best interest of this child? Relevant factors to consider in determining the education plan in the best interests of the child include, but are not limited to:
- The risk of exposure to COVID-19 that the child will face if she or he is in school, or is not in school;
- Whether the child, or a member of the child’s family, is at increased risk from COVID-19 as a result of health conditions or other risk factors;
iii. The risk the child faces to their mental health, social development, academic development or psychological well-being from learning online;
- Any proposed or planned measures to alleviate any of the risks noted above;
- The child’s wishes, if they can be reasonably ascertained; and
- The ability of the parent or parents with whom the child will be residing during school days to support online learning, including competing demands of the parent or parents’ work, or caregiving responsibilities, or other demands.
The decision had several other interesting substantive aspects from a legal perspective, and we will cover those in an upcoming Blog.
For the full text of the decision, see:
Zinati v. Spence, 2020 ONSC 5231