By Kayleigh Pink, Associate Research Lawyer,
Lam Family Law*
Every year, especially leading up to the fall, the court hears countless choice of school motions. This article:
- i) provides an overview of the frequently-cited general principles on choice of school motions; and
- ii) highlights recent cases from 2023/2024 on the issue of public versus private school.
General Principles
Choice of school cases are fact-specific. The test remains what is in the best interests of the child, and not the rights or interests of the parents. The selection of a school must be determined based on which of the proposals is better for the child: A.P. v. P.P., 2021 ONSC 6540 (CanLII), at paras 30-31.
In Thomas v. Osika (2018), Justice Audet summarized thirteen general principles that have emerged from the choice of school case law: Thomas v. Osika, 2018 ONSC 2712 (CanLII), at para 37 [citations omitted]:
- Sub-section 28(1)(b) of the Children’s Law Reform Act specifically empowers the court to determine any matter incidental to custody rights. The issue of a child’s enrollment in a school program must be considered as being incidental to or ancillary to the rights of custody;
- It is implicit that a parent’s plan for the child’s education, and his or her capacity and commitment to carry out the plan are important elements affecting a child’s best interests. In developing a child’s educational plan, the unique needs, circumstances, aptitudes and attributes of the child, must be taken into account;
- When considering school placement, one factor to be considered is the ability of the parent to assist the child with homework and the degree to which the parent can participate in the child’s educational program;
- The emphasis must be placed on the interests of the child, and not on the interests or rights of the parents;
- The importance of a school placement or educational program will promote and maintain a child’s cultural and linguistic heritage;
- Factors which may be taken into account by the court in determining the best interests of the child include assessing any impact on the stability of the child. This may include examining whether there is any prospect of one of the parties moving in the near future; where the child was born and raised; whether a move will mean new child care providers or other unsettling features;
- The court will also look to any decisions that were made by the parents prior to the separation or at the time of separation with respect to schooling;
- Any problems with the proposed schools will be considered;
- A decision as to the choice of school should be made on its own merits and based, in part, on the resources that each school offered in relation to a child’s needs, rather than on their proximity to the residence of one parent or the other, or the convenience that his attendance at the nearest school would entail;
- Third party ranking systems, such as the Fraser Institute’s, should not factor into a Court’s decision. These systems of ranking do not take into consideration the best interest of the particular child in a family law context;
- If an aspect of a child’s life, such as school placement, is to be disrupted by an order of the court, there must be good reason for the court to do so. Thus, before a court will order a child to transfer schools, there must be convincing evidence that a change of schools is in the child’s best interests;
- Custodial parents should be entrusted with making the decision as to which school children should attend. When a sole custodial parent has always acted in the best interest of a child, there should be no reason to doubt that this parent will act in the best interest of the child when deciding on a school;
- Those cases are very fact-driven. The courts are not pronouncing on what is best for all children in a general sense but rather deciding what is in the best interests of this child before the court.
These principles continue to be relied upon in more recent cases: see, e.g., Grove v. Fahad, 2024 ONSC 2143 (CanLII), at para 11 & Offer v. Lamorea, 2024 ONSC 927 (CanLII), at para 15.
Since the test is the best interests of the child, it is essential that parties provide evidence to the court demonstrating why their preferred school is in the child’s best interests: Sain v Shahbazi, 2023 ONSC 5187 (CanLII), at para 27, citing Roberts v. Symons, 2023 ONSC 4757 (CanLII).
Public vs. Private School
A common conflict between parents is whether their child should attend public or private school.
Private school often also raises financial issues. As noted by Justice Akazaki in Hall v. Galbraith (2023), “The topic of private schooling usually melds the legal issues of decision-making and support.” From an analytical perspective, it is better to first determine the issue of decision-making, because if the proposed s. 7 expense of private school education turned out to not be in the child’s best interests, then “the financial support issue may become moot or at best questionable.”: Hall v Galbraith, 2023 ONSC 2161 (CanLII), at paras 31-32.
The following four choice of school cases from 2023/2024 provide guidance and highlight recurring considerations in these types of cases.
I. Roberts v. Symons, 2023 ONSC 4757 (CanLII)
The most important takeaway from this case is that, while each case is fact-specific, “absent a compelling reason for the child to attend a private school, a public school [is] the default location for the child to receive an education.”: Roberts v. Symons, 2023 ONSC 4757 (CanLII), at para 76; followed in Gill v. Gill, 2023 ONSC 5882 (CanLII), at para 162.
In Roberts v. Symons (2023), the parties disagreed on where their child should attend junior kindergarten. The father wanted him to attend public school in his neighbourhood (“Kettle Creek”); the mother wanted him to attend a private faith-based school where his older half-brother attended (“King’s Academy”). At a previous court appearance, Justice Price found that the issue underlying the dispute was “the quality of education at a public school versus that at a private school”: at paras 2-3.
Both parties listed several reasons why their preferred school would be in the child’s best interests: paras 7 [father’s reasons] & 17 [mother’s reasons]. I will only address three factors, which, in my view, are particularly relevant to the broader discussion of public school versus private school:
- (i) funding;
- (ii) teacher qualification; and
- (iii) tuition/cost.
The father argued that Kettle Creek received public funding to operate, which would ensure that the child received adequate and necessary resources, equipment, and supports. On the other hand, King’s Academy was often driven to fundraising for basic necessities for their students: paras 7(a) & 59.
On this issue, Justice Price found that Kettle Creek was “a potentially more stable and, for students with learning difficulties, better resourced school”. While the child in this case did not have a diagnosed learning disability, the court stated that, with respect to resources for students who struggle with learning, “[t]he simple fact is, dollar for dollar, the public school system carries greater heft in this area than a private school can aspire to do.”: paras 62 & 69.
The father also had great concern that King’s Academy did not require their teachers to be members of the Ontario College of Teachers. Justice Price did not find this argument convincing. First, the court noted that the Education Act allows for persons who are not members of the Ontario College of Teachers to teach for a period of up to one year under a letter of permission. Accordingly, Justice Price found, “being a member of the Ontario College of Teachers seems not to confer any superior status on a person’s ability to teach.” Rather, “[i]t merely grants them permission to teach in the public system and makes them subject to the requirements of the College with respect to such matters as competence and discipline.”: paras 7(i) & 64-67.
Additionally, Justice Price noted that the evidence of the principal at King’s Academy was that students who graduate from King’s Academy can successfully move onto secondary education in the public and Catholic school systems. This suggested that “the students at King’s Academy emerge as prepared to receive a secondary education as those who graduate from the public elementary system.”: para 68.
The cost of attending King’s Academy was “somewhat vague.” While there appeared to be a set amount of tuition, the principal had the authority to waive or reduce that tuition for families who could not afford to pay. It was unclear, however, whether the next principal would act in the same manner, should the current principal move on or retire. The mother would not be able to afford her proportionate share of the full tuition. Further, if the child attended Kettle Creek, the paternal grandmother could continue to provide free before and after school chid care; this was not an option if the child attended King’s Academy: paras 70-73.
After weighing the benefits of the child attending the two schools, the court found that there was not a “sufficiently compelling reason” to order the child to attend King’s Academy. Nothing established that King’s Academy would meet any of the child’s needs that also could not be met in a public school, apart from the mother’s desire for him to receive a faith-based education. Thus, the court ordered the parties to register the child in Kettle Creek: paras 69, 79-80 & 82.
II. Den Boer v. Van Ittersum, 2024 ONSC 3761 (CanLII)
Similarly, in Den Boer v. Van Ittersum (2024), the mother sought to register the child for junior kindergarten at a private religious school (“Oxford Reformed Christian School”) and the father sought to register the child in public school. Oxford Reformed Christian School was affiliated with the church where the mother continued to be, and the father formerly was, a member: Den Boer v. Van Ittersum, 2024 ONSC 3761 (CanLII), paras 9 & 25.
Unlike in Roberts v. Symons, most of the evidence provided by the parties regarding the advantages of their preferred schools failed to meet the test for admissibility (e.g., information from third parties was relied upon, but not identified): paras 42-44 & 50-51.
Given the lack of admissible evidence on the individual schools, Justice Price’s analysis largely focused on the primary consideration of the child’s physical, emotional and psychological safety, security and well-being (s. 24(2) of the Children’s Law Reform Act) and the child’s religious and spiritual upbringing and heritage (s. 24(3)(f) of the Children’s Law Reform Act): paras 59 & 61.
First, the court held that registering the child at Oxford Reformed Christian School would likely place the child in the middle of ongoing disputes between his parents about what he was being taught in school, especially given the father’s negative views about his former religion. Justice Price found that this would not be conducive to the child’s emotional and psychological security and well-being. Additionally, attending Oxford Reformed Christian School could foreseeably negatively impact the child’s relationship with his father, which could be equally damaging to him: para 60.
Regardless of which school the child attended, the court accepted that the mother would continue to bring the child to church when he was in her care on weekends and expose him to the values of her religion whenever he was in her care. Justice Price found that this addressed the requirement of considering a child’s “religious and spiritual upbringing and heritage” when determining their best interests: para 61.
The court ordered the parties to register the child in public school for September 2024, but left the issue of where the child should attend longer-term for trial. It was possible this matter would proceed to trial by September 2025: paras 40-41 & 64.
Since public school is the default after Roberts v. Symons (although this earlier case of Justice Price was not referred to by Justice Price in Den Boer v. Van Ittersum) and the child will have attended public school for at least a year by the time of trial, it will be essential for the mother to provide strong, admissible evidence regarding the strengths and weaknesses of the proposed schools if she continues to seek an order for the child to attend Oxford Reformed Christian School.
III. LF v. MF, 2024 ONSC 1262 (CanLII)
While public school was referred to as the default in Roberts v. Symons, the best interests of the specific child may warrant the child being enrolled, or remaining enrolled, in private school. For example, in LF v. MF (2024), the mother brought a motion to keep the children enrolled in their private school for 2024/2025. She also sought an order that she pay 30% of the tuition and expenses and the father pay 70%: LF v. MF, 2024 ONSC 1262 (CanLII), at para 2.
Justice Doi first considered whether remaining in the private school for the 2024/2025 year was in the children’s best interests, before considering whether private school was an appropriate s. 7 expense given the parties’ financial circumstances.
Justice Doi found that remaining in the private school for the 2024/2025 school year was in both of the children’s best interests. The older child was in grade 4 at the private school and only had one year left at the “Lower School”, which ended in grade 5. They had special needs and, in the past, had experienced academic and social issues, including bullying, in the public-school environment. The younger child was in Senior Kindergarten in the private school. Justice Doi acknowledged that while it may be easier to transfer the younger child to a public school, it was in her best interest to not be separated from her older sibling: paras 4-7.
Justice Doi then considered whether private school tuition and expenses were an appropriate s. 7 expense. The tuition was $60,000 for both children. The father had a full-time average income of approximately $350,000 and the mother had a part-time income of approximately $20,000. The costs amounted to 26.5% of their combined incomes: paras 2 & 10.
The parties had recently obtained proceeds from the sale of their matrimonial home and rental property, which would “easily cover the one-year tuition and expense of the private school.” Use of “capital” or savings for education was consistent with the family’s spending pattern prior to the separation and there was no evidence that using the proceeds of sale for tuition and expenses would negatively impact the parties’ current living arrangements. Further, the private school offered a payment plan, avoiding the need for a lump sum payment. Thus, the court found that it was an appropriate s. 7 expense in this case: para 10.
IV. T.W. v J.A, 2023 ONSC 3123 (CanLII)
On the other hand, where parties are of more modest means, the cost of tuition may not be necessary or reasonable, especially where the child is young and does not have any particular needs that cannot be met in public school. For example, in T.W. v. J.A. (2023), the child attended a Forest Montessori school for junior kindergarten until it closed due to Covid-19. The child was then homeschooled by his paternal grandmother, his mother, and, to a lesser extent, his father. The parties agreed the child should no longer be homeschooled, but disagreed on the choice of school: T.W. v J.A, 2023 ONSC 3123 (CanLII), at paras 105 & 109.
The mother sought to enrol the child in a different Forest school for the upcoming school year if she was allowed to relocate with the child or, alternatively, a Montessori school if the relocation was not permitted. The father sought to enrol the child in a public school that offered French immersion and was close to his house: paras 106-107.
Justice Piccoli acknowledged that the child enjoyed his time at the Forest Montessori school and it had met his needs, aptitudes, and attributes. However, attending a Forest school was expensive. The tuition was between $8,600 and $10,000 per annum. Justice Piccoli found that this was not a reasonable or necessary expense given the father’s income of approximately $62,000 and the mother’s income of approximately $17,000. For the upcoming school year, the child was to be enrolled in the public school proposed by the father if the mother relocated or, if the mother remained within one hour of the father’s residence, then the child would attend a public school in the mother’s area: paras 108, 114-116, & 119.
*With thanks to Vanessa Lam for her suggestions and edits.
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