Written on behalf of Feigenbaum Consulting
We have written extensively about family law matters over the course of the pandemic, many of which have been about parents unable to agree on children’s schooling in the face of COVID-19. We have also covered numerous cases involving parents applying to court because they could not agree on whether to have their children vaccinated against COVID-19.
In Ontario, parents continue to go to court to resolve such issues. This week, we review a recent case in which the parents disagreed on both whether to send their children to in-person school and whether they should be vaccinated.
Triplets Attend Different Schools In-Person and Online
The parents were divorced and had three children. They were triplets, currently aged 14. We will call them A, B, and C.
A and B lived primarily with the father, while C lived primarily with the mother.
In the fall of 2021, all three children were in grade 9, their first year of high school. A and B attended a high school in Scarborough through virtual courses, while C attended a different school closer to his mother’s house in person.
Parents Go to Court Over In-Person Schooling and Vaccination
The mother alleged that the father had refused to facilitate A and B attending school in person even though they were registered for in-person school. She, therefore, brought a motion to the court seeking an order mandating that A and B attend school in person.
In response, the father submitted that A and B wanted to attend in-person school but preferred to wait until they had received the COVID-19 vaccination before attending in-person classes. However, while the father wanted the children to be vaccinated, their mother would not consent to their vaccination and refused to give them or their father A and B’s health cards or other identification so that they could be vaccinated. As such, the father submitted that A and B would attend in-person schooling only once they were vaccinated.
The father, therefore, brought a cross-motion for an order that the mother provides a copy of A and B’s health cards to the father and that all three children be entitled to receive the COVID-19 vaccination if they choose to do so.
Court Sets Out Case Framework
The court first addressed the mother’s objection that the father should be precluded from raising the vaccination issue. The court ruled that the issues of schooling and vaccination should be heard together.
However, the court then observed that, ultimately, both parents wanted A and B to attend in-person school. Additionally, A and B themselves wanted to attend in-person school. As such, the court stated that the only real issue before it was whether the mother could prevent A and B from being vaccinated before they attend in-person school.
Finally, the court stated that it would make its determination based on the best interests of the child.
Court Reviews Benefits of In-Person Education
The court began its analysis by stating that there was no dispute that, where available, in-person classes are presumed to be in the best interest of the child. It then cited a 2021 Ontario decision on the matter, Shaw v. Gauthier, in which the court stated:
“There is increasing evidence that there are long-term educational and social costs associated with virtual schooling for elementary and secondary school students. This has led courts to conclude that, absent compelling evidence otherwise, it is in the best interest of a child to attend in-person schooling where such schooling has been authorized by the government and relevant educational decision-makers. While potential exposure to Covid 19 is obviously a factor to be taken into account in any such assessment, the court is not in a position, especially without expert evidence, to second-guess the government’s decision-making. The court should proceed on the basis that the government’s plan for reopening of schools in the context of Covid 19 is reasonable in the circumstances for most people and that it will be modified as circumstances require.”
The court further observed that there have been numerous cases on the issue, all of which have been based on the same underlying premise that the government and public health authorities are in a better position than the courts to consider the health risks to children in attending in-person school.
As such, the court concluded that, as a general proposition, if in-person schooling is available, the presumption is that it is in the best interests of the child and the parent requesting virtual schooling has the onus of presenting expert evidence that virtual learning is in the best interest of the particular child.
Court Considers Mother’s Arguments on Vaccination
While the mother had argued that the fact that the Ontario government was still uncertain or ambivalent about the safety or efficacy of the COVID-19 vaccine, the court stated that her argument was based on a fundamental misunderstanding of both the government’s position on vaccinations and the legal test to be applied in the case.
Instead, the court noted that the COVID-19 vaccination had been approved for children aged 12-17, and all levels of government had been actively promoting vaccination and expanding significant resources to make it available to the public. It held that the fact that it was not mandatory for children aged 12-17 could not be interpreted as ambivalence or uncertainty.
Additionally, the court noted that the safety and efficacy of the COVID-19 vaccine had been endorsed by all governments and public health agencies and that the Toronto Public Health had provided information to parents and guardians of school-aged children encouraging them to have their children vaccinated.
Court Orders Children to Be Vaccinated Against COVID-19
Following the above analysis, the court concluded:
“Accordingly, I would apply the same analysis to COVID-19 vaccinations that the respondent mother asks me to apply to in-person school attendance. The responsible government authorities have all concluded that the COVID-19 vaccination is safe and effective for children ages 12-17 to prevent severe illness from COVID-19 and have encouraged eligible children to get vaccinated. These government and public health authorities are in a better position than the courts to consider the health benefits and risks to children of receiving the COVID-19 vaccination. Absent compelling evidence to the contrary, it is in the best interest of an eligible child to be vaccinated.”
As such, the court held that it was in the best interest of eligible children to get vaccinated before they attend school in person. As a result, it ruled that it was in the best interest of the three children to be vaccinated. It further ordered the mother to provide a copy of A and B’s health cards to the father within five days.
Finally, the court ordered that A and B attend school in-person following their first vaccine in accordance with the advice and direction of their family doctor.
Contact Feigenbaum Law for Experienced Advice on Family Law Matters
At Feigenbaum Law, our goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible and ensuring your children are provided for. Mark Feigenbaum is able to counsel his clients on all potential risks that may result from a family law dispute, not just those related strictly to the breakdown of a marriage. Contact Mark online or call him at (905) 695-1269 or toll-free at (877) 275-4792 to book a consultation.