Court Cases & Orders

As COVID-19 “Second Wave” is Upon Us, the Issue of In-Person School Attendance Resurfaces

Written by Russell Alexander / (905) 655-6335

As COVID-19 “Second Wave” is Upon Us, the Issue of In-Person School Attendance Resurfaces

The news headlines this week reported the sad story that a 67-year old education worker at a Toronto Catholic District School Board has died less than a week after testing positive for COVID-19.  According to the reports, this was the first coronavirus-related death of an education worker in the province.

This jarring development has prompted fresh consideration by government officials on whether schools should return to a full and widespread lockdown.

Although the topic has never been far from parents’ minds, this also brings a renewed focus on the question of whether – for the foreseeable future – children should even be attempting to attend for in-person schooling at all, rather than stick to distance/online learning from the safety of their home – or “homes” (plural) where the parents have separated or divorced and have a shared parenting schedule.

The whole situation raises a conundrum, but even as we near the end of the first school semester of the pandemic, there is still no universal answer.  On a case-by-case basis, Ontario Family law judges continue to grapple with addressing the unique needs of every child whose parents appear before them, requesting resolution of their dispute over which model of learning is best.

As we reported in a prior Blog, the legal issue continues to be governed by what the court in Zinati v. Spence has called the “familiar question” of what is in the child’s best interests. In that decision, the court noted there is “very little available case law on the question of when it is in a child’s best interest to be educated online or in person during the current pandemic.”

The court then piggy-backed on the observations found in the leading decision in Chase v. Chase, which also focused on whether a specific child should return to in-person learning or continue to learn online.   In what is now a widely-quoted comment, court in Chase had said:

The Ontario government is in a better position than the courts to assess and address school attendance risks. The decision to re-open the schools was made with the benefit of medical expert advisers and in consultation with Ontario school boards. The teachers’ unions and others have provided their input as well as their concerns.

The Chase court had noted the consensus between the Ontario government and medical experts that it is not 100% safe at this juncture for children to return to school, but that: 1) the risks of catching COVID-19 must be balanced against the mental health, psychological, academic and social interests of the children, and the parents’ need for childcare; and 2) the government had formally determined that September 2020 was an appropriate time to move on to a “new normal” which included a return to school.

The court in Zinati then outlined the precautions put into place in schools across the province, under to government-imposed mandates, and advised the parents:

I assume that these plans, put in place in accordance with guidance and input from the provincial government, the [Toronto District School Board], and the school, are reasonable in the circumstances for most people. There is no reason to conclude that [their child] is anything other than most people.

In the few months since the start of the school year when the Chase and Zinati decisions were handed down, Ontario courts continue to use this approach and perspective when evaluating the unique facts of each case. For example in the more recent decision in O’Connor v. Duguay the court considered the circumstances of the particular child as always, but then referred to Chase and Zinati and stated:

The government is in a better position than the courts to assess and address school attendance risks. I proceed on the basis that the government’s plan will be modified as circumstances require or as new information becomes known.

The court then added, “It is not realistic to expect or require a guarantee of safety for children who attend in-person classes during the pandemic.”

These words might be cold comfort to anguished parents who are concerned over their child’s well-being, and who must still reflect daily on the risks of in-person school attendance.  While the government may be better-positioned than courts, it remains to be seen whether courts are better-positioned than parents.

And with a potential second lockdown around the corner, time will tell who really knows best.

For the full text of the decisions, see:

Zinati v. Spence, 2020 ONSC 5231

Chase v. Chase, 2020 ONSC 5083

O’Connor v. Duguay, 2020 ONSC 6138


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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.