Subsequent to the case of Chase v Chase 2020 ONSC 5083 there have been approximately 30 or more case decisions on the issue of whether children should study in-school or on-line. A recent case of Moussaoui v Harkouken 2021 ONSC 1986 released on March 17, 2021. There was a dispute of which school the child born November 20, 2015 should attend the mother’s choice of Knoxdale Public School online learning for the kindergarten child or Robert Hopkins Public School in Beacon Hill North in person. The mother had also presented an alternate proposed school. The parents had separated shortly before the child turned 3 years of age and they exercised week-about equal shared residence of the child.
A brief summary of the principles under the case law as follows:
a. If schools are open children should attend unless there is evidence that if the child contracted the virus there is unacceptable risk of harm to the child or anyone in the parent’s homes.
b. The court will consider certain factors such as:
i. Risk of exposure to COVID-19 that the child may face if in-person school or not in school
ii. 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;
iii. The risk the child faces to their mental health, social development, academic development or psychological well-being from learning online;
iv. Any proposed or planned measures to alleviate any of the risks noted above;
v. The child’s wishes, if they can be reasonably ascertained; and
vi. 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.
c. To meet the burden of unacceptable risk of harm to the child or a member of the child’s immediate family, the courts have required current and detailed medical evidence.
d. If the medical evidence falls short of sufficient evidence that an unacceptable risk of harm exists, the child will be sent to school.
In the Moussaoui v Harkouken case the mother raised two concerns: the child does not go to the bathroom by himself and at times wears diapers and there are concerns the child will contract the virus and become very ill. The mother said the child has respiratory issues. She relied on a physician’s note to evidence both concerns. The father countered by referencing the child’s medical file and that there is only one instance of the child having a respiratory issue.
The court accepted the findings of the physician that the child has had issues with respect of respiratory problems and the child is at risk to fall ill if he contracts the virus. Further both parents were working remotely and exchanging the child at agreed upon third party locations. In this case the mother met her burden of proof that there is an unacceptable risk of harm to the child if he were to return to school in person.
This is an interesting case which the facts applied to the above-noted principles will illustrate the nature and circumstances of evidence of where the court may rule in favor of a child attending school in an on-line setting.