TORONTO -- A divorced father who didn't want his son to return to school due to concerns about COVID-19 has lost a legal fight with the child鈥檚 mother after an Ontario judge determined that returning to class was best for the child.
The precedent-setting decision, published in late August following an urgent legal motion, is the first of its kind in Ontario during the pandemic, and legal experts say it offers guidance for parents in similar disputes.
The parents, who鈥檝e been divorced since 2017, disagreed over whether or not their child should return to school this fall, according to court filings. The mother argued that social isolation had been weighing heavily on the boy and that it was in his best interest to return to in-person classes. As well, the child attends a French immersion program, and neither parent can speak French, making homework a challenge.
The father acknowledged that isolation had been tough for his son but argued that the boy understood staying home had helped keep him and others safe.
Initially the parents tried to settle the dispute themselves, but when they failed to find a resolution by mid-August, the mother decided to file an urgent legal motion.
The mother鈥檚 lawyer, Melanie O鈥橬eill, told CTVNews.ca that the mother had no other choice if she wanted her child to return to school with his classmates.
鈥淭here was no middle ground here,鈥� O鈥橬eill told CTVNews.ca in an interview Thursday. 鈥淭ime was of the essence, and there was no compromising between the two of them.鈥�
Justice Andrea Himel, who oversaw the case virtually, weighed both parents' perspectives. She noted that the father, who has since remarried, has a flexible work schedule and another adult in the house, while the mother has neither.
The judge determined that the father鈥檚 plan to homeschool his son did not address how the mother would be able to follow through on a similar plan. She also noted that, while the father understood that his son struggled with social isolation during COVID-19, his plan didn鈥檛 offer a viable solution.
鈥淭he Father鈥檚 plan fails to address (the child鈥檚) social needs after six months in isolation, nor does it address the impact of seeing his peers together at school in their cohort while he continues to study alone,鈥� she wrote.
The mother鈥檚 lawyer said her client shared the father鈥檚 concerns about safety.
鈥淎bsolutely, she鈥檚 afraid of COVID as well, but she believes the benefits that school offers her nine-year-old outweigh the potential risks,鈥� O鈥橬eill said.
In her decision, Himel considered guidance from Ontario government and medical officials, who鈥檝e acknowledged it鈥檚 not 100-per-cent safe for children to return to school, but that the decision to reopen was weighed against other considerations, including benefits for children鈥檚 health, academic and social interests.
She also considered the fact that no one in either the mother鈥檚 or father鈥檚 household had any underlying conditions that put them at greater risk of complications from COVID-19.
Everything considered, the judge determined it was in the child鈥檚 best interest to return to in-school classes starting in September.
While this case is the first of its kind on Ontario, the judge acknowledged that the court has seen several similar urgent motions since mid-August and wrote that 鈥渨ithout a doubt, there will (be) more forthcoming.鈥�
Divorce attorney Russell Alexander said the case is significant because it gives divorced parents an idea of what to expect in future disputes.
鈥淚t gives family lawyers and parents some guidance in terms of how do we approach this issue of returning to school when both parents don鈥檛 agree,鈥� he told CTVNews.ca in a phone interview Thursday.
While this case is Ontario鈥檚 first, there have been at least two similar cases in Quebec. In one dispute, a judge determined that it was too risky for the child of divorced parents to return to school because of pre-existing conditions in the family.
Moving forward, medical issues will likely be 鈥渢he crux鈥� of how judges settle these sorts of disagreements, Alexander said.
鈥淚f the child comes back with COVID and a parent or family member has asthma or an underlying condition, that鈥檚 going to decide whether or not the child is going to go back to school,鈥� he said.
Alexander added that back-to-school is typically one of the busiest times of year for family lawyers thanks to a surge in disagreements over schooling plans. This year, COVID-19 has made those problems worse.
鈥淎 lot of parents are getting required to return to work, daycare is not going to be available 鈥� it鈥檚 a tough situation,鈥� he said.
The judge acknowledged in her decision that choosing whether or not a child should return to school can be difficult. She encouraged parents in similar situations to seek out mediation and expressed concerns that children鈥檚 education could become a wedge issue between divorced couples.
"Unfortunately, for some separated and divorced parents this is another battleground; one more arena where their child may become the prisoners of the war,鈥� she wrote.
