On April 27th, the government announced that elementary school students may go back to school on a voluntary basis. This measure raises a lot of questions from parents.
School attendance and parental authority
Returning the children to school or not is a matter of parental authority (decision-making) which is exercised jointly by both parents, regardless of whether it is a sole or a shared custody. Only exceptional circumstances may deprive one parent of their parental authority and it must be ordered by the court.
In practice, in Outaouais, school boards require that both parents agree to return the children to school, otherwise a judgment from the court will be necessary.
Because of the pandemic, only compulsory school attendance provided by the Education Act is suspended: the right to education remains. In consequence, should the parents decide not to return their child, they must take responsibility to ensure that the child receives the educational services that are available at a distance. The capacity of the parents to do so may have an impact in the decision to return the children or not.
Factors to consider
Other factors may be considered such as learning difficulties of the child and the health condition of the child, their parents, or their siblings. The court, just like for any decision, must look for the child’s interests, the moral, intellectual, emotional and physical needs of the child, the child’s age, health, personality and family environment, and the other aspects of their situation.
The Superior Court of Quebec already rendered a few judgments on that topic. In one case, the court refused to return the child to school because he had no learning difficulties and the spouse of the father had a health condition, putting her at risk if she caught the virus. In another file, it was admitted that the children had learning difficulties and it was ruled that it was in their interest to attend school. Both decisions concluded that no change of custody was indicated.
Parents cannot each do it their own way
It is important to mention that school attendance must be continuous: school boards will refuse that a child goes to school one week and that he stays at home the other week. If you are facing a dispute concerning the return to school of your child, we invite you to contact us without delay.