Child’s best interests are tied to health of family members with increased risk from COVID-19: court

It is in the child’s best interests to learn online, considering the increased risk of the child’s immediate family members contracting COVID-19, the Superior Court of Justice of Ontario said.

In Manzon v. Carruthers, 2020 ONSC 6511, the divorced parents disagreed about whether their eight-year-old son, M, should be schooled in person or online for the current academic year. The parents initially agreed to enroll M in an online learning program at Belfountain Public School in the Caledon area, which had been closed for in-person learning in mid-March due to the COVID-19 outbreak and which has since reopened alongside other Ontario schools in September.

The applicant father, who lives in Caledon in Peel Region, sought to switch M to in-person learning, which was an option offered by M’s school. The mother, who lives in Markdale in Grey Bruce with her new spouse and their two children, who are two years old and six months old, wanted M to continue with his remote learning program, or in the alternative, to attend school in person at Beavercrest Community School in Markdale.

The evidence presented showed that there were 11,676 COVID-19 cases in Peel Region, while there were 164 cases in Grey Bruce. In terms of cases of confirmed or probable school-related transmission exposure, the evidence indicated 113 cases in Peel Region and zero cases in Grey Bruce.

The Ontario Superior Court of Justice pointed out certain deficiencies in the evidence and said that such evidence did not support a conclusion that the risk of infection at Belfountain was higher than at Beavercrest. First, while Peel Region includes densely populated cities, Caledon is a significantly smaller centre. Second, there were no confirmed COVID-19 cases at Belfountain. Third, there was no evidence presented as to the student and employee population at the two schools. Fourth, the evidence did not suggest that schools were a major contributor to viral transmission.

The court concluded that it would not be in M’s best interest to transfer to Beavercrest, given that he has always been educated in Caledon. “It would be an unnecessary destabilizing move in the midst of already unsettling times,” wrote Justice Cynthia Petersen for the Superior Court.

The court, considering the factors listed in Zinati v. Spence, 2020 ONSC 5231, then decided that it would be in the child’s best interests to continue with the online learning program at Belfountain. As regards the risk of exposure, M’s social bubble is enlarged because he spends half his time residing with each of his parents in accordance with an equal shared parenting regime, and his chances of exposure will be increased if he goes to school in person.

While M himself is not at increased risk, his mother, who has chronic auto-immune disease, and his two younger siblings, whose ages constitute risk factors, face increased vulnerability if they contract COVID-19. Justice Petersen noted that “a child’s best interests cannot be severed from the health and safety of their immediate family members.”

The court balanced these risks to M’s family members against the risks of M’s mental health, social development and academic progress being negatively impacted if he continues being schooled online.The court said that the evidence shows that M does not experience any learning disabilities, difficulties coping or deteriorating social skills. An email from M’s teacher indicated that M eagerly participates in the online learning program.

For these reasons, the court concluded that the significant risk of harm to M’s mother and younger siblings outweighed the benefits of enrolling him in an in-person learning program.