Assessing COVID-19 Risk in the Return to Schools: Toronto Sick Kids Report is Not “Gospel”, Court Says
In the past month, one of the most pressing legal challenges for Ontario Family Courts has been to determine – on a case-by-case basis – whether a particular child should resume attending school in-person, or else should embark on distance learning.
In this context, courts have had to receive and evaluate a good deal of evidence on the risks inherent in schools re-opening and students attending in-person. These come from various sources, including the Ontario government, medical professionals, media, and other independent bodies. Collectively, it can be a staggering array of materials and evidence for courts to consider when making their decisions.
One of these potential sources, known as the “Sick Kids Report”, has been frequently tendered to the Family Courts lately by litigants, and has gained considerable media attention.
But the relevance, weight, and proper use of this Report is still under contention. In a case called Zinati v. Spence the judge was likewise presented by the litigants with the Report to consider, and described it this way:
The “Sick Kids’ report” refers to a report prepared by the Hospital for Sick Children in Toronto, entitled “COVID-19: Guidance for School Reopening”, dated July 29, 2020. The report indicates it was prepared in partnership with other respected children’s health hospitals and organizations, including CHEO and McMaster Children’s Hospital, among others. The very first sentence of the report sets out its objective as “to advocate for the safe return of children and youth to school by emphasizing the importance of school reopening for broader child health, balanced against the potential and important risks of coronavirus disease (COVID-19)”.
The judge explained the Report is increasingly appearing amidst the tendered evidence in court disputes between parents over whether and where to send their children to school. The judge continued:
The Sick Kids report is gaining a lot of traction among family litigants. More and more often, parents are attaching the Sick Kids report to their affidavits or case conference briefs to argue in support of, for example, in-person learning for children, or to argue that risk to children from COVID-19 is small.
In response, the other parent will then cite and attach newspaper articles in which medical or public health experts raise criticisms about the Sick Kids report, to support that parent’s argument for online learning, or the observation of stricter COVID-19 protocols.
The judge noted this was the very same use put to the Report in a recent case called Chase v. Chase, where the court ultimately rejected the Report as being neither authoritative nor conclusive. The judge elaborated on the reason for this conclusion:
The problem is that the parties making these arguments are unlikely to be experts, and there is no expert evidence offered to explain or contextualize any of the allegations being made. Even leaving aside the hearsay concerns, without expert evidence, the court is not in a position to evaluate whether the Sick Kids report is correct on any given point, or whether an expert quoted in a newspaper article in opposition to the conclusions reached by Sick Kids is correct, or if neither are. … In Chase, as I have already noted, [the judge] declined to consider the Sick Kids Report, writing that “there are experts on all sides of the Covid-19 debate, however, the decision to re-open schools and the steps being taken to protect children and staff fall within the purview of the Ontario government”.
In rejecting the Report as being the sole authority on the issue, the judge concluded:
Courts do not function in a vacuum. Judges are aware … that there are experts with competing views. Litigants should not expect the Sick Kids report to be taken as gospel when it comes to children and COVID-19. In this case, like [prior judges] I decline to consider the Sick Kids report.
For the full text of the decision, see:
Zinati v. Spence, 2020 ONSC 5231
Chase v. Chase, 2020 ONSC 5083