The stress and confusion around COVID-19 and back to school are enough to drive any parent to distraction.
But what if the parents are separated or divorced and disagree on whether to send junior back to school or not? What happens then?
To find out more, The Chief caught up with , a senior family lawyer with Â鶹´«Ã½Ó³»firm Clark Wilson LLP.
What follows is an edited version of that conversation.
Q: If parents have an agreed-upon parenting regime — like a court order or an agreement — but looking at back to school during COVID-19, one parent wants to home school and the other wants the kids back in the classroom, what happens then?
A: If they can't negotiate something between them or with a mediator, then it is for the courts to decide. It is always about looking at the best interest of the child. The parents have to evaluate that. Does the child have specific health concerns that would make them compromised if they were going back? If there are, and one parent doesn't want to send him or her back, I think there would have to be third party evidence confirming that the child can't go back. Often, when it is health-related, you would need third party evidence to speak to why or why not the child could go back.
Q: How do you know what is in the best interest of the child? That is likely what both parents think they are doing.
A: Is your child immunocompromised to the point you would weigh that above the educational and social aspects of school or are the social and educational aspects greater or more important than the potential risk?
Maybe the child isn't immunocompromised and maybe it is just a parent who has some recognizable and fair concerns about the child returning to school with the current plan. You have to weigh those concerns with the other concerns, which would be, the child would not be educated [the same] or have access to the same programs. If the parents can't agree, they would have to consider going to the courts, mediation, or arbitration.
If the child is with the parent who doesn't want to send him to school when school starts, and the parent refuses to send him, the other parent may have to get an order compelling the child to attend school or compelling the child to return to their home and attend school with them.
Q: These are decisions that would have to be reached by the courts quickly, though, and the justice system seems to move slowly, so what is the timeline?
A: You would have to make an urgent application to the court. It is not appropriate for your child to miss out on an education, so the parent would have to make immediate arrangements to get some distance learning materials.
If you were the one applying for the child to not go to school, and you were making that application, you are going to need third party evidence with that application that supports your request.
If the courts say the child has to go, then the child has to go back.
If junior is refusing to go, and/or a parent is refusing to send them, then the police will be called, and junior will attend with the police. And it can go further and maybe the Ministry of Children and Family Development is called and the child is removed and taken to the other parent's home. It becomes a horrific mess.
Q: Back to the best interest of the child, at what age do kids have a say in whether they go back to school, or not?
A: I don't think the child really gets to have a say until they are of legal age to do so, which is .
Q: And of course, there are costs associated with this legal process?
A: Yes. If you don't have a lawyer, you would pay the filing fees associated with bringing an application, if you have an existing claim. If you don't have an existing claim and you are filing a claim right away, you would likely file in provincial court and there would be a filing fee associated with that.
For legal fees, there are pro bono (without charge) programs available. Some law firms have them, as we do. If the firm doesn't then the person could
Q: With COVID-19, are you seeing a lot of parents coming to lawyers to change agreements?
A: Not so much, because I think it is still up in the air. I think people are still bumbling along, trying to figure out what is going to happen with COVID. At the early onset, in March and April, we had a lot where parents were trying to not participate in the regular parenting schedule, and saying that the other house was compromised, that kind of thing.
At the early stages, there was a lot of withholding of parenting time between people. But the court held first in Ontario and then in B.C. saying that unless there are specific reasons, they should abide by the parenting schedule and the houses should follow COVID-19 safety plans.
I haven't seen long-term agreements being changed.
We are all still living in this unknown land.
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