Court case: Neave v Lai, 2020 BCSC 1688

On September 21, 2020, the Honourable Mr. Justice Davies issued a judgement in a case regarding whether children should attend in-person or online schooling amidst the Covid-19 pandemic when the parents disagree. The mother was seeking that the children be homeschooled, while the father was in support of the children attending in-person school immediately.

As there is very little caselaw in British Columbia on this issue, the court looked to the decision and reasons in Zinati v Spence, a 2020 Ontario Supreme Court decision.

In Zinati v Spence, the court established factors as a helpful guide for courts when determining whether children should attend in-person or online learning. Mr. Justice Davies adopted and applied the factors in this case, which are as follows:

1. It is not the role of a court to determine whether the government’s return to school plans are safe or effective. The court should proceed on the basis that the government’s plan is reasonable, and that it will be modified as required.
2. When determining what educational plan is in a child’s best interest, it is not realistic to expect or require a guarantee of safety for children who return to school during a pandemic. There is no guarantee of safety for children who learn from home during a pandemic.
3. When deciding what educational plan is appropriate for a child, the court must ask, what is in the best interest of this child? Relevant factors to consider when determining the education plan in the best interests of the child include, but are not limited to:

1. The risk of exposure to COVID-19 that the child will face if she or he is in school, or is not in school;
2. 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;
3. The risk the child faces to their mental health, social development, academic development or psychological well-being from learning online;
4. Any proposed or planned measures to alleviate any of the risks noted above;
5. The child’s wishes, if they can be reasonably ascertained; and
6. 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.

The court agreed that making determinations about the education plans for children is for the Ministry of Education and the Public Health Officer. The court further agreed that the risk of exposure is still present even if children remain home for school.

After emphasizing that it is critical for children to maintain social connections for their developmental well-being, the court looked at the children in this case and noted that one of the children had social difficulties. The court determined that if the child did not return to school, that would negatively impact his mental health, social and academic development, and psychological well-being.

While the court acknowledged that there was a potential added risk to the children’s grandmother because of her health if the children were to attend in-person school, the court found that the risk was not more important than the social development of the children. The court offered a reminder that this decision is about the best interests of the children, not the best interests of others.

The court was further deterred by the fact that if the children were to stay home, this would result in a substantial change of the parenting schedule as the father worked outside the home and was unable to support at home learning.

Ultimately, Mr. Justice Davies concluded that it was the best interests of the children to return to in-person learning and ordered that the children attend school in person at the earliest opportunity.

Read the full decision here.

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