Judge denies father's bid to keep kids home from school over COVID-19 fears

A Brockville, Ont., family court judge denied a father's bid to stop in-person classes for his three children in joint custody.

Judge says dad failed to prove asthma an 'unacceptable risk'

Ontario family court judges have been ruling in favour of in-person school verses remote learning in shared custody parent disputes. (Oli Scarff/AFP/Getty Images)

A Brockville, Ont., family court judge denied a father's bid to stop in-person classes for his three children in joint custody.

The kids — ages 13, 11 and eight — have been attending classes since Sept. 8 in the Ottawa region.  

The father had argued the higher possibility of the kids bringing home COVID-19 from school posed a health risk to himself and his new wife, both of whom have asthma.

But Justice Ken Pedlar of the Ontario Superior Court of Justice ruled the dad failed to prove an "unacceptable risk," stating in his 28-page ruling that "the medical evidence falls short of that requirement."

Pedlar relied on a weeks old ruling in Ontario that sets out the first test for proving "unacceptable risk" in these situations. 

Evidence incomplete

Justice Andrea Himel's test in J.N. vs. A.S. suggests the evidence should include a diagnosis, as well as a prognosis if the person gets COVID-19.

The person at risk must also provide information on whether there are "precautions that can be put in place to enable the child to attend in-person school without placing the vulnerable person at an unacceptable risk of harm."

To date, most court judgments have favoured in-person schooling as the choice which represents the best interest of children, and that it should be up to governments, not the court, to assess whether going to class is a reasonable risk.

However, the Brockville case was one of the first to consider whether having a parent with an underlying health condition, like asthma, could present conditions that would require an exception since it could interfere with one parent's ability to continue their custody arrangement. 

'Extreme statements'

The father had argued the issue was a matter of life and death for their family, and that the decision would mean he would have to choose between his children or his new wife and her children.

But Pedlar wrote "neither of those extreme statements are accurate based on the current information provided to this court."

"I find this kind of winner take all, high conflict litigation over the best interests of the children is not in their best interest," said Pedlar.

He hopes the parents would now mediate the conditions for future visits because of the father's concerns, including the use of masks and physical distancing. 

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