Superior Court ruling strikes a balance between online and in-person learning

Ontario’s Superior Court has found that it is in the child’s best interest to continue online learning amid the pandemic due to his medical history but condoned the mother’s decision to enrol him at the school without the father’s consent.

In Moussaoui v. Harkouken, 2021 ONSC 1986, the separated parents were seeking a temporary order placing their only child in different schools. The child was scheduled to start kindergarten this year and the parents discussed which school they would have him registered.

In May 2020, the parents agreed that Manor Park Elementary School would be a good option because of its proximity to the daycare the child attended and many of his friends would also be attending there. However, the father also suggested that Robert Hopkins Public School would be a good choice and the mother said she would look at the school.

The father decided to register the child at Robert Hopkins to ensure a spot would be available should the school be selected. However, the school advised the father that the child could no longer be registered because he was already enrolled at Manor Park.

In June 2020, the mother was forced to relocate because the apartment she was renting was being listed for sale. She then cancelled the child’s registration at Manor Park and enrolled him at Knoxdale Public School near her new home without the father’s consent. The school is conducting online-only classes this year.

In September 2020, the father called Manor Park to inquire about its kindergarten program but was advised that the school could not provide him with any information because he was not listed as a contact person. He then sent the mother a message asking why he was not listed as the child’s father but did not get a reply. The father indicated that he only found out from his son that he was enrolled at Knoxdale, after which the father contacted the school but was also told he was not listed as the father. This prompted him to file the motion.

Regarding the choice of school, the mother told the court that was concerned about the child’s health given that he has a history of respiratory issues, putting him at high-risk of COVID-19 infection. She also told the court the child has difficulty using the bathroom and learning at home can help avoid embarrassing situations at school that could be “traumatizing” for the child.

The father, meanwhile, argued that in-person learning would be more beneficial for the child because he would have the opportunity to interact with other children. He also raised concerns about the amount of screen time online learning required, which he said could hamper the child’s development.

In its decision, the court found a balance by ruling that the child’s health risks outweighed the benefit of in-person learning during the pandemic, but determined that he should be ready for face-to-face schooling next year. The court also found that changing schools in the middle of the school year would be disruptive to the child’s learning.

“I do not find that at this time the child should attend school in person,” wrote Justice Mark P. Shelston. “I believe that the mother has met her burden of proof that there is an unacceptable risk of harm to the child, at this time, if he were to return to school in person,”

However, the court said that neither party had the right to make a unilateral decision regarding the best interests of their child.

“The court cannot condone a parent to act unilaterally and attempt to eliminate one parent from the child’s life,” Shelton wrote. “In this case, the mother failed to list the father as a contact person, either at Manor Park or at Knoxdale.”

As a result, the court decided that it would be in the child’s best interest to continue his education at Knoxdale for the rest of the school year and to attend Robert Hopkins starting September 2021.