Mother Ordered to Permit Children to Attend School Based on Covid GuidelinesNeave v Lai, 2020 BCSC 1688 (CanLII)
Schools are open in British Columbia, but what if separated parents disagree on their children's in-person attendance? That's when the court steps in to make a decision and the parents waste money on legal fees, better spent on their children.
In Neave v. Lai 2020 BCSC 1688 the British Columbia Supreme Court was asked to decide whether the parties' children, ages 8 and 4, should attend their North Vancouver school, now that the government had opened schools after the shut-down between March and June 2020.
The children's mother, who had home-schooled the children during the Covid-19 lockdown wished to continue to home school and had refused to return them to school. The children's father, who worked full-time, desired the children's return to school in accordance with Provincial Government guidelines and brought an application seeking such an order.
The Court noted the lack of similar cases in British Columbia and thus, referred to multiple cases in Ontario and Quebec where this issue had been adjudicated.
Focusing on Zinati v. Spence, 2020 ONSC 5231 the court quoted from that decision:
" 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:
i. The risk of exposure to COVID-19 that the child will face if she or he is in school, or is 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."
Applying the principles from Zinati v. Spence, the Court stated that it was not up to the Court to make determinations about education plans for children, but was the task of the Ministry of Education with the assistance of the Public Health officer.
In considering the facts before him, the Court noted that the children's mother had been homeschooling the children since school opened in September, a situation that did not respect the father's parenting time, as the children remained with their mother, because the father's work schedule did not permit him to remain home and share home schooling duties. This situation substantially affected the parenting schedule.
The Court also recognized the impact of remaining at home for the older child who struggled with social and psychological issues.
The Court decided that the children should be returned to school immediately. The father did not receive a costs award, despite his success in challenging his former wife's position because the court determined it was a "test" case in BC.