sept. 21. 2020

In-Person vs. Remote Schooling During COVID-19: Is it a “Medical” Decision? Or an “Educational” One?

Joachim v. Joachim, 2020 ONSC 5355 (CanLII)

In a recent case called Joachim v. Joachim the court faced an interesting conundrum: How should it categorize a decision on their children’s schooling to be made by two separated parents during the COVID-19 pandemic? Was it an “educational” one? Or – in light of the potential health risks – was it really a “medical” one?

The distinction was an important one, because under a previous court-imposed parenting order, each parent had a different decision-making mandate over aspects of their children’s day-to-day care. Any “medical” decisions were left solely up to the mother, but “education” was an area in which both parents were to make the decision jointly.

With Ontario schools to recommence classes in September 2020, the parents disagreed on how their children should participate, and asked the court for a ruling. The father favoured in-personal learning for the children, while the mother advocated for remote learning from her home. Thus the proper characterization of the schooling question as “medical” or “educational” was the determining factor over whether both parents or only the mother had a say in the decision. As the court explained:

Although not pursued in oral submissions, the mother’s written materials also advanced the position that returning to in-class learning during a pandemic is more accurately seen as a medical decision rather than an educational one. She says in these circumstances, the risk involved is akin to a health assessment and thus, under [the previous court] order, the final decision is solely hers to make.

The father viewed the matter otherwise, arguing that he trusted the risk-analysis undertaken by the Ontario as to the health concerns around schools re-opening, and that decision was strictly educational in nature. As the court put it, “He submits that if it is safe for other children to go to school, it is safe for their children and in their best interests to attend.”

The court made an initial ruling on how to properly categorize the remote schooling/in-person issue, before deciding which of those two learning formats would serve the children’s best interests. It concluded the decision was not merely an educational one, but also involved both medical and psychological aspects. The court elaborated:

I am not persuaded by the mother’s contention that school attendance, during a pandemic, is a health decision that she can make alone as opposed to an educational one that she must make together with the father. [The prior court] order distinguishes between the children’s medical, dental, and psychological healthcare. The mother has final authority over non-routine medical issues and the father makes final decisions related to non-routine dental care. However, where psychological care is the issue, paragraph 19 of the order states that counselling or therapy requires the written consent of both parents. So, whether the return to school is seen as a health decision or educational decision, I find it is one the parties must make together under the terms of the order. The tension between the children returning to in-class learning and online learning involves consideration not only of their educational needs, but also of their physical and psychological health needs.

And so, it falls to the court to determine that which the parents are unable to decide together.

We will look at the court’s assessment of the particular facts, and the outcome of its substantive ruling, in a separate upcoming Blog.

For the full text of the decision, see:

Joachim v. Joachim, 2020 ONSC 5355

[This post by Russell Alexander first appeared on FamilyLLB.com on September 14, 2020]