Do You Have to Send Your Child to School During COVID-19?

Thousands of Canadian students returned to class amid myriad pandemic precautions as school-linked cases of coronavirus continue to soar.

Many parents are fighting to keep their children home due to diminishing confidence in schools’ anti-COVID-19 measures. Much of parents’ concern centres on the rising cases of COVID-19 in the nation’s schools. In Ottawa, coronavirus cases were associated with five French-language Catholic schools, according to CTV News.

Meanwhile, the Quebec government reportedly said up to 120 schools may have already been affected by COVID-19 since classes began. Since Sept. 1, 70 schools in the province have recorded at least one case of COVID-19.

Many parents are wondering whether they can keep their children home amid COVID-19 school outbreaks. A few Canadian cases have already been decided regarding this very question since the onset of the global pandemic. Although the decisions remain few in number, a clear theme has emerged: If governments say it is safe to hold in-person classes, it is not for judges to decide otherwise.

Ontario Court Rules Child Must Attend In-Person Classes

In a decision dated Aug. 25, 2020, an Ontario Superior Court judge ruled that a child must return to his school despite the COVID-19 pandemic.

This case was filed by divorced parents who disagreed as to whether their son should attend school in person.

Ontario family law lawyer Russell Alexander says that while the decision in this case only relates to this particular child and family situation, it will be instructive in showing how the courts may decide on whether children should attend in-person classes, according to the Law Times.

School attendance during a pandemic is a “challenging issue” for many parents, Justice Himel said.

However, the Ontario government “is in a better position than the courts to assess and address school attendance risks.”

Justice Himel adds “the decision to re-open the schools was made with the benefit of medical expert advisers and in consultation with Ontario school boards.”

Justice Himel’s ruling relies heavily on the government’s determination that September 2020 is an appropriate time to move on to a “new normal” which includes in-class learning. “With no end in sight to the pandemic, the risks of catching Covid-19 for children must be balanced against their mental and psychological, academic, and social interests, as well as many parents’ needs for childcare.”

Oren Weinberg, a partner with Boulby Weinberg LLP, told the Law Times that future disputes regarding in-class or online learning for a particular family may hinge on what constitutes an “unacceptable risk.”

“The premise the judges in these cases seem to be working on is that if you have a healthy child, and there are no other health factors in the family, and schools are open for business, it is preferable for the kids to be in school, at least until the government says otherwise,” Oren told reporters.

Does In-Person Schooling During COVID-19 Present an Unacceptable Risk of Harm?

Justice Himel’s ruling acknowledges there is an issue that may warrant an order for online learning rather than in-class instruction, and that is the question of unacceptable harm: “If the boy returns to school, will he or anyone in the home of both parents be at an unacceptable risk of harm?”

Although this question may differ depending on the case, in this instance, the Court ruled that there is no unacceptable risk, because there are no underlying medical risks for any of those in the households.

Quebec Court Orders In-Person Classes During COVID-19

The Ontario case referred to two preceding decisions respecting attendance following the reopening of schools during the pandemic. Both decisions are from the Quebec Superior Court.

In one decision, the Court declined to order the children to attend in-person classes as a family member suffered from an auto-immune disease making them high-risk.

The second decision, while not binding, was instructive to the Ontario school case, as noted by Justice Himel. In that case, the Court ordered the two children to return to school, saying it is “not for the courts, but rather for the competent government authorities, to assess the potential risks of contamination of the population in a pandemic situation and to take the necessary measures to limit the spread of the disease.”

The Court additionally cited the adoption of numerous “recent ministerial orders” as evidence that the government is taking the necessary measures to protect students’ safety.

Finally, the Superior Court of Québec underscored another key consideration, namely, the best interest of the child. The Court noted that this determination is in respect of the child’s rights, such as the right to receive education, and not solely based on the interest of the child’s parents.

As such, the Court placed children’s rights to education at the forefront of the COVID-19 school debate.

Additionally, the Superior Court noted that where both parents decide that it is more appropriate for their child to continue online classes at home, they must take the necessary measures to achieve a proper home learning environment.

Quebec Parents Demand Online Education

Quebec parents appeared before a judge last week requesting the Court to order the provincial Ministry of Education to make the online course option available to all children, regardless of their health status, Radio Canada reported.

As of now, only children with certain defined medical conditions or at-risk parents can be exempted from going to school.

Many parents are demanding that all parents should have the choice to either send their children to in-person classes or to have their children participate in online classes during the COVID-19 pandemic. The group of parents mandated lawyer Julius Grey to ensure the option of online courses is offered to everyone from the start of the school year, at both primary and secondary levels, an option which is already available in Ontario.

Indeed, sending children to school in the midst of a global pandemic is unprecedented in the country’s history. The lawyer told the judge that such a decision is of an extremely private and personal nature. The autonomy of parents is at stake.

Saying “yes” to this request is not impossible for the government, Julius Grey added. Children who have been exempted because of a permitted medical condition already have access to online courses. Parents just want this option to be available for all children.

However, on Sept. 8 Justice Bachand refused Julius Grey’s and six parents’ emergency measure request, according to Radio Canada.

Nevertheless, this judgment does not put an end to their demands. Superior Court Justice Bachand simply decided Tuesday that the evidence on file did not justify ordering the Ministry of Education to offer online classes for all children. There will therefore be a trial at which parents will be able to put forward their arguments in greater detail.

COVID-19 School Class Action Lawsuits

Although many parents are demanding distance learning options for their children, other parents are demanding tuition refunds for COVID-19 school disruptions.

Disgruntled parents filed a request for authorization to institute a class action against all Montreal private schools, targeting some 100 schools attended by about 47,000 students.

Additionally, students from several Canadian universities have introduced online petitions asking university administrations to review the charges included in university fees in light of COVID-19 restrictions.

Other students have also taken action against alleged excessive university fees by commencing class action lawsuits against their post-secondary institutions. Students from 15 Quebec universities filed a class action lawsuit Canada in May, claiming their schools should refund part of their tuition for the semester disrupted by COVID-19.

In-Person or Online Class?

If you are contemplating having your child follow an online education during the pandemic, there are certain things you should know. Certain provinces, such as Alberta and Ontario, already offer distance learning options for all students. If you live in one of those provinces, this question is pretty much a non-issue.

However, if you live in a province that does not offer this option, such as Quebec, you may face a more difficult choice.

The number of cases where Canadian judges have made rulings regarding distance learning during COVID-19 remains quite small, yet a clear theme has emerged. Granted that these cases remain in the sphere of family law, where parents who are divorced or separated disagree on their child’s schooling method during COVID-19, there are some general lessons these decisions shed light on:

• In most cases judges seem to conclude that if governments say it is safe to hold in-person classes, it is not for the courts to find otherwise;
• Courts take the child’s best interest into consideration when determining whether a child should attend in-person classes;
• Courts require clear evidence as to the harm of in-person classes before deciding that a child can opt for distance learning; and
• Court’s will not order a child to attend in-person classes where there is an unacceptable risk of harm to the child or the child’s family.

Do want your child to stay home during the COVID-19 pandemic? Has your provincial government provided the option to follow a distance learning program for all children? Tell us what you think in the comments below.

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