Parents across Saskatchewan have been facing tough decisions with regard to COVID-19. For parents who have separated or divorced and share custody and access of their children, this decision-making is even more difficult. For example, what happens if one parent wants their child to attend school in person, but the other parent feels the child should be home-schooled during the pandemic? When it comes to making decisions about the welfare of children, it’s important for parents to know that if they take this matter to court, the court will make a decision based on the best interests of the children. Knowing this can assist parents in making decisions cooperatively, without going to court.
A recent Saskatchewan case discussed this issue. While the COVID-19 rules in Saskatchewan are being updated constantly, and every family’s situation will be different, the court discussed some key principles to think about in the case of Fortier v Fortier, 2020 SKQB 243, 324 ACWS (3d) 226, which was decided in the fall of 2020.
In this case, a mother felt that if the children returned to school in September when the school reopened, they would be exposed to the risk of infection. The father felt that the children would benefit from the guidance of their teachers and social interaction with their friends.
The court discussed how the “best interests of the child” is the most important factor in decisionmaking, as expressed in the Divorce Act as well as in the Children’s Law Act, 1997 (which applies equally to married parents as well as parents who were never married). The court was also guided by the Supreme Court of Canada’s decision in Young v Young,  4 SCR 3, where Justice L’Heureux-Dubé stated that “a determination of the best interests of the child encompasses a myriad of considerations” (paragraph 78). A child’s “best interests” can only be determined looking at their unique personality and particular set of circumstances – including an unprecedented global health crisis.
In Fortier v Fortier, the court determined that the children of this family had attended the school in question for several years and had developed meaningful friendships, routines and instruction from their attendance there. In addition, these children and their parents did not suffer from any health condition which could increase their risk of infection, and the school was following government-mandated precautions. Until the health authorities advised otherwise and/or the situation of these particular children changed, the court ordered that the children continue to attend in person at that school.
The court in Fortier v Fortier looked at how other places in Canada have responded to this problem, and cited the Ontario case of Zinati v Spence, 2020 ONSC 5231 at paragraph 27 for its explanation of the factors to be considered:
When deciding what educational plan is appropriate for a child, the court must ask the familiar question — what is in the best interest of this child? Relevant factors to consider in determining the education plan in the best interests of the child include, but are not limited to:
- 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.
As the government continues to monitor and regulate the COVID-19 situation, modifications to how children attend school will be made, and the individual circumstances of each child will be the determining factor, in order that their best interests be protected.