Schools in BC have re-opened at full capacity since September, 2020. Some families appreciate the return to normalcy while others are apprehensive about safety protocols as COVID-19 cases surge. But what happens if parents disagree on whether to send their kids back to school?
In Neave v. Lai, 2020 BCSC 1688, the British Columbia Supreme Court was tasked to decide whether two children should be required to return to in-person schooling. The father applied to have the children return to school while the mother wished to home school the children, in light of the COVID-19 pandemic.
For guidance, the Court looked to recent decisions released in Quebec and Ontario, where the courts have begun to see a number of similar disputes. In particular, the Court relied on the analysis set out in Zinati v. Spence, 2020 ONSC 5231.
Citing and applying Zinati, the Court agreed that it should not make determinations about education plans for children. In BC, that responsibility lies with the Ministry of Education and the Public Health Officer.
The Court also agreed that there is no guarantee of safety for children who learn at home as opposed to at school. There are too many interactions in the population generally to guarantee any safety from exposure to COVID-19. Unless there are exceptional circumstances to the contrary, it must be left to the government and to the medical and science community to determine the best interests of children generally.
Lastly, in deciding which education plan is in the best interests of the children, the Court considered the factors suggested in Zinati, which include:
- The risk of exposure to COVID-19 that the child will face if she or he is in school, or is not in school;
- Whether the child, or a member of the child’s family, is at increased risk from COVID-19 as a result of health conditions or other risk factors;
- The risk the child faces to their mental health, social development, academic development or psychological well-being from learning online;
- Any proposed or planned measures to alleviate any of the risks noted above;
- The child’s wishes, if they can be reasonably ascertained; and
- The ability of the parent or parents with whom the child will be residing during school days to support online learning, including competing demands of the parent or parents’ work, or caregiving responsibilities, or other demands.
In consideration of the above factors, it was held by the Court that the risks from COVID-19 upon the children or other family members do not trump the importance of social development for the children. Consequently, the Court decided in favour of the father who applied to have the children return to in-class learning at school.
This case was dubbed a “test case” by the Court, and it will be prudent to see how this analysis may evolve as families continue to review the educational needs of their children during the pandemic.
