By: Brian Galbraith

A hot issue debated by parents is whether to send their children to school or have them do home-schooling. Once the school year has begun, you may be wondering if you made the right decision. If you are separated or divorced, it may be an even more difficult issue to resolve. You both wish the best for your children but disagree about whether that means attend school or stay at home. We can help.

It may be best for your both to attend mediation to discuss the issues. You and the other parent would meet with a mediator who would help you discuss the issues in a civil, respectful and productive way. In many cases, this will result in an agreement. The benefit of mediation is that the mediator will help you have a full discussion of the issue, considering every option and every possible creative resolution.

Another option is called “Collaborative Practice”. In this process each of you hires a lawyer and together you hire a Family Professional. This is a social worker or psychologist and has special training regarding the needs of children whose parents are separating or who have already separated. The Family Professional will meet with both of you and engage you in conversations about why you are taking your position regarding the children attending school. A meeting with the two lawyers, the Family Professional and the two clients will result in a robust discussion about the issue and most often result in an agreement. In about 95% of cases an agreement is reached. It works and is efficient.

Another option is Family Court. A judge will hear the merits of both sides and decide. The courts will soon be full of cases regarding this issue. Each case has to be decided based on its own merits.

When considering the issue of whether to send your children to school the question a judge must ask is “What is in the best interests of your children?”  During this pandemic, you must consider the risks of your children becoming sick or transmitting the virus to others in your family or community. What is the rate of infection in your community? Are there any special health considerations for your children or people in your home that makes them especially vulnerable? What alternatives are available, such as home schooling? What will be better for your children’s emotional and psychological wellbeing – going to school or homeschooling?

At the time of writing this blog, I am aware of just one published court case regarding this issue. The case is called Chase v. Chase, 2020 ONSC 5083 (CanLII). The parents share joint custody and the child is living in each parent’s home about 50%. One parent wanted the child to be homeschooled using the government’s online learning platform. The other parent wanted the child to attend school. In this case, the judge said that it was not the role of the court to determine whether the plan to open the schools was safe. The judge stated, “There are experts on all sides of the Covid-19 debate, however, the decision to re-open schools and the steps being taken to protect children and staff fall within the purview of the

Ontario government.” In other words, the judge did not want to second-guess the government’s decision but that did not end the issue. The judge then asked “If [the child] returns to school will he, or anyone in either parent’s home, be at an unacceptable risk of harm?” The judge concluded that the risk was not unacceptable and so ordered that the child attend school and not be homeschooled.

This is just one judge’s opinion and does not mean every judge will reach the same conclusion in other cases. It is up to the individual judge to determine what is in the best interests of the child based on the circumstances of each family.

I can imagine many circumstances where the judge will determine that the risks to the child or to others in the parent’s home are unacceptable and the child will be ordered to be educated in the home. It will just depend on the facts of the case.

Raising children is hard work. Deciding what is best for them during normal times is tough enough but it is even harder during the pandemic. As parents, we personally struggled with this decision too. I recently heard the Prime Minister of Canada say that he and his wife were considering what was best for their children and they were undecided. Everyone struggles with this important decision and we will continue to second-guess our decision as time progresses.

If you need help resolving this difficult issue, or any parenting issue, you are not alone. Please contact us at Galbraith Family Law. We have Toronto, York Region and Simcoe County family law lawyers ready to help you now. That’s what we do every day. Help families resolve conflict.