Parenting Decisions in a Pandemic: Schools and Vaccines

The COVID-19 pandemic led to an increase in the number of family law cases. In addition to cases involving separation and divorce, the pandemic’s effects on children have resulted in family court motions related to in-person attendance at school, choice of schools, and vaccination decisions. While the circumstances of each case may vary, the predictable common thread is the best interests of the children.

The impact of the pandemic on a motion to change schools may differ, depending on the circumstances. For example, in J.E.S. v. S.S., 2020 ONSC 6064, the mother wanted the children to change schools, because the school they had been attending was in a neighbourhood that had been characterized as “high risk” for COVID-19. In analyzing the issue, the Court made two significant findings. First, the parent seeking the change must provide “compelling and cogent evidence” that the change is in the best interests of the children. Second, the Court is not in a position to second-guess, or otherwise comment on, the efficacy of public health measures in schools. In this case, in the absence of sufficient evidence that there was a greater risk of exposure to COVID-19 at the children’s original school, the motion was dismissed.

In contrast, in Thompson v. Sorrenti, 2022 ONSC 2481, the mother’s motion for the child to change schools was granted. While the motion arose due to the mother’s decision to move homes, the Court considered the best interests of the child through the lens of the pandemic, noting that COVID had made it difficult for the child to develop a strong network of friends at her original school. While this was only one factor in determining whether the decision to change schools was in the child’s best interest, taken together with the other facts of the case, the Court concluded that there was sufficient evidence to support the decision to change schools.

As COVID-19 vaccines have been approved for children, similar motions have been brought regarding whether children should receive the vaccine, and whether one parent should have sole decision-making authority for this type of health decision. The paramount determination is whether vaccination is in the best interests of the child. However, it may be important to consider the type of evidence to adduce on motions involving these issues, as there has been recent debate as to whether the Court can or should take judicial notice of facts and information regarding the virus and the vaccine. The decision in Rashid v. Avanesov, 2022 ONSC 3401 refers to various cases in which judicial notice was taken as to the safety and efficacy of the COVID-19 vaccine. However, Justice Corkery recently declined to take judicial notice of any government information with respect to the pandemic or vaccines, in part due to the responsibility to determine whether vaccination was in the best interests of the child to whom the motion pertained. Going forward, those involved in vaccination cases may wish to consider the need for expert medical evidence.