Although there are a number of decisions from the Ontario and Quebec courts, the BC courts had yet to consider the issue until September 21, 2020, when our client sought a determination from the BC Supreme Court as to whether his two children, ages 4 and 8, should attend school in person.
The mother sought to homeschool the children until January 2021 under the “transition option” offered by the school district, while the father wanted the children to attend school in-person.
The parties shared parenting time with the children equally. The mother had a flexible work schedule that would allow her to homeschool the children. However, the father worked full-time and did not have the ability to homeschool the children during his parenting time.
The older child who would be starting grade 2 had had trouble in his transition to kindergarten and more recently with anxiety going to school while in his mother’s care. The younger child would be starting kindergarten and had asked a number of times when she would get to start school.
The mother argued that the children’s maternal grandmother was at increased risk due to COVID and she was the only grandparent the children saw regularly.
In arguing that the children should attend school in person, we referred the Court to the Ontario decisions and in particular, the decision in Zinati v. Spence, 2020 ONSC 5231. In that case, Justice Akbarali of the Ontario Superior Court of Justice set out factors that should be considered on the issue of whether children should attend in-person learning:
 In my view, and having regard to available jurisprudence on this new and evolving issue, 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;
- 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.
 In my view, applying these factors to this case, it is in N’s best interest to resume in-person learning.
The Court also noted that playdates create an additional potential risk of exposure and with respect to the grandmother’s exposure; there was no indication that appropriate distancing could not be maintained.
Finally, Justice Akbarali noted that the proposed delayed return to school to allow the school time to get used to safety protocols was not appropriate. The Court noted that the government had delayed return to school by a week to allow time to put the safety protocols in place. It was unclear how the parents could monitor or evaluate the adherence to the protocol or why more time would be needed by the school.
The factors set out in the Zinati decision were also referred to in Shepstone v. Masales, 2020 ONSC 5364 (CanLII), where the Court stated as follows:
 Finally, I adopt the following factors for determining whether a child should attend in-person or on-line education listed by Akbarali J. in Zinati v. Spence, 2020 ONSC 5231, at para. 27.
 In my view, in applying these factors, it is in the child’s best interest to attend in-person learning.
 The evidence provided by the child’s own family physician indicates that she does not have any current medical condition that would place her at an increased risk of COVID-19 complications should she contract the virus.
 I am also persuaded that in-person learning will provide the child with a superior educational experience, particularly considering her IEP and the difficulties that she had with on-line learning in the previous school term. Returning to school in person will provide the child with direct support and supervision from the educational professionals assigned to provide her with assistance.
 The applicant father’s plan for on-line learning, while commendable, will not provide the child with the same level of programming as in-person education. Nor does it address the issue of social isolation if the child does not return to in-person teaching. The applicant does not indicate how S. will see her peers or have an opportunity to engage in social development.
 Thus, from the child’s perspective, in-person teaching is in her best interest, notwithstanding the risks involved.
 I understand that I must also consider the applicant father’s health issues, although, in my view, they are subordinate to the educational and social development of the child.
 It may be that the applicant will have to observe strict social distancing measures when he has parenting time with his daughter, and this, understandably, is less than ideal from his perspective. That said, it is one of the inconveniences that must be endured in these circumstances.
 Having considered the evidence in this case, including the proposals put forward by both parties, I conclude that the benefits of S. attending in-person teaching outweigh the risks and that it is in the best interest of S. that she attend in-person teaching.
In our BC Supreme Court case, the Honourable Mr. Justice Davies heard the application and noted that the Ontario decisions were of great assistance and that he would adopt and apply the analysis from those cases in reaching his decision.
Mr. Justice Davies held as follows:
- It is not the role of the court to determine whether the government return to school plans are safe and effective, using the benefits of science and medicine;
- Children must be educated and generally speaking, that should happen in the school system;
- There is no guarantee of safety for children attending school – we do not live in cocoons, however, spread will continue until virus is eradicated or there is a vaccine;
- There is risk of exposure to COVID even if children remain at home as 80% of children or more are returning to school;
- The children’s development should not be put at risk by keeping them home for another four (4) months and particularly the older child whose problems would be exacerbated by staying away from school;
- The older child’s problems would be exacerbated by staying away from school;
- The Grandmother’s health should not override the best interests of the children; and
- The father could not homeschool the children and homeschooling by the mother would result in a dramatic change to the parenting schedule, which was not before the court.
Notwithstanding that the father was successful in his application to have the children return to in-person schooling immediately, Mr. Justice Davies ordered that the parties bear their own costs, as this was the “test case” in BC.
On October 5, 2020, BC’s Provincial Health Officer, Dr. Bonnie Henry said that the number of COVID-19 cases among school-aged children has gone up only marginally since the children returned to school in September. She further noted that cases of the virus in children aged 5 to 12 have gone up from 33 the week of September 6th to 12th to 35 cases the week of September 20th to 26th. Children still make up a low percentage, under 10 percent, of all cases of COVID-19 in BC.
Shared parenting and shared custody arrangements often have parents wondering what is best for their children, and there is often a difference of opinion. While parents are encouraged to work amicably with their ex-spouse to resolve matters, that may not always be possible and parents may require the assistance of legal counsel.
Reach out to our Family Law Group if you have questions about your parenting arrangements.
Cassandra Drake is a partner in the general litigation group at Lindsay Kenney LLP practicing primarily in the areas of family law and estate litigation. Cassandra joined the firm in 2014 and became a partner in 2019. Cassandra has appeared on behalf of clients and assisted counsel on matters before the Provincial and Supreme Courts of British Columbia.
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.