• by Samantha Rich
Originally published in the OFLM 2024-11 edition
Overview
Private school versus public school can be a point of contention in family law matters. When addressing this issue, lawyers turn to section 7 of the Child Support Guidelines. Section 7 sets out the circumstances under which the court may order the payment of the education expenses, as well as provide the principles to decide whether the child attends public or private schooling.
In deciding whether private school would fall under the category of an extraordinary expense, the court will look at the necessity and reasonableness of the expense in relation to the child’s best interests and the parties’ financial circumstances. The current jurisprudence sets out a number of general principles which the court will assess when making a decision of this nature.
As expected, evidence plays an important role in determining the entitlement and quantum of s. 7 expenses. And ultimately, absent a compelling reason why the child should attend a private school and sufficient evidence supporting the reasoning, it appears that a court’s default position will be for the child to attend public school.
Section 7 of the Guidelines
Subsection 7(1) of the Federal Child Support Guidelines (“Guidelines”) states that:
In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:
…
(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs; (emphasis added)
The term "extraordinary expenses," is defined in subsection 7(1.1) of the Guidelines as follows:
(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or
(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account
(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,
(ii) the nature and number of the educational programs and extracurricular activities,
(iii) any special needs and talents of the child or children,
(iv) the overall cost of the programs and activities, and
(v) any other similar factor that the court considers relevant. (emphasis added)
With respect to the sharing of s. 7 expenses between parties, subsection 7(2) states that, “The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.”
General Principles
Justice O'Brien in Kostrinsky v. Nasri (2022 ONSC 2926 at para. 146) noted that evidence plays an important role in determining the entitlement and quantum of s. 7 expenses, “The party claiming a s. 7 expense must provide evidence to support the reasonableness and necessity of the expense…”
When deciding whether to award a claimed s. 7 expense, the court will take into account whether the support payor was consulted, however, “…consultation is just one of many factors to be considered in the determination of the entitlement and is not a pre-requisite for obtaining an order…” (Kostrinsky v. Nasri, 2022 ONSC 2926 at para. 147) (emphasis added)
Private School vs. Public School
Deciding which school a child should attend is often a point of contention for parents. Moreover, the decision can become litigious where one parent favours attendance at a private school instead of a public school, and is seeking to claim the private school fees as a s. 7 expense from the support payor.
Justice Price in Roberts v. Symons (2023 ONSC 4757 at para. 49) held that, “…if parents cannot agree on which school their child should attend, and the court is called upon to make the decision, the best interests of the child govern.”
Justice Price cited the case of Thomas v. Osika (2018 ONSC 2712), which set out a number of general principles taken from the caselaw "to assist the decision-maker" when making a decision relating to the public versus private school issue in the child's best interests. They include:
a. a consideration of the child's unique needs, circumstances, aptitudes, and attributes;
b. focusing on the interests of the child rather than those of the parents, or their rights;
c. whether a school placement or educational program will promote and maintain a child's cultural and linguistic heritage;
d. assessing any impact on the stability of the child, which 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 childcare providers or other unsettling features;
e. a consideration of any problems with the proposed schools; and
f. a consideration of the resources that each school offers in relation to a child's needs, rather than on proximity of either school to the residence of one parent or the other, or the convenience that the child's attendance at the nearest school would entail. (Roberts v. Symons, 2023 ONSC 4757 at para. 50) (emphasis added)
Justice Clark in Williamson v. Rezonja (2014 ONCJ 72), discussed subsection 7(1)(d) of the Guidelines, reiterating the discretion the court has when deciding whether a support payor must pay all or part of the s. 7 expense claimed, with a focus on the child's particular needs:
“… this must satisfy the dual test of reasonableness and necessity.
The following non-exhaustive list of factors are relevant to a determination of whether this expense is appropriate:
1. whether one or both parents attended private school.
2. whether the child had been enrolled in a private school prior to the separation.
3. whether there had been an expectation the child would have a private education by express agreement or otherwise.
4. whether the parents can afford same.
5. whether there are special needs public school cannot provide, thereby making private education in the best interests of the child.
…
The case of Correia v. Correia, 2002 MBQB 172 (Man. Q.B.) (CanLII) identifies other factors to assist in determining the reasonableness of this expense:
1.the combined income of the parties.
2.the fact that two households must be maintained.
3.the extent of the expense in relation to the parties' combined level of income.
4.the debt position of the parties.
5.any prospects for a decline or increase in the parties' means in the near future.
6.whether the non-custodial parent was consulted regarding the expenditure prior to the expense being incurred.” (Williamson v. Rezonja, 2014 ONCJ 72 at paras. 50–53)
Compelling Evidence
As noted earlier, evidence plays an important role in determining the entitlement and quantum of s. 7 expenses. There are numerous cases where the court did not award private school as a s. 7 expense for the simple fact that there was insufficient evidence placed before the court to allow the decision-maker to make such a finding. Justice Price in Roberts v. Symons, noted the following:
In Karim v. Mohamed, a case focusing on whether the costs of a private school were excessive or proper s. 7 costs, Justice S. Shore rejected the Respondent mother's request that the father pay for their five-year-old child's tuition at a private school, costs of which far exceeded the amount in this case, writing, at paragraph 12:
In Pomozova v. Mann, the Mother sought contribution from the Father towards expensive private school tuition for the three-year-old child. The Court noted that there was no evidence, aside from the Mother's own wishes, to suggest that private school was necessary, or that the child had any particular needs that required her attendance at private school at this young age. The Court also noted that there was no evidence about why the child's needs could not be met at a public school. Private school was not deemed a necessary s. 7 expense... (Roberts v. Symons, 2023 ONSC 4757 at para. 74) (own emphasis added)
Another example can be found in Justice Akazaki’s decision of Hall v. Galbraith. In this matter, Akazaki J. requested the mother’s counsel to provide the court with educational and developmental reasons to support the child attending private school, such as the child attending the same school as their sibling or the impact on the child’s self-esteem. There turned out to be no evidence in the record, and the Applicant’s motion was ultimately dismissed. (Hall v. Galbraith, 2023 ONSC 2161 at para. 33)
Justice Jones in Meade v. Latouche also noted that the mother justified her decision to place the child at a private school on the basis that he was a gifted child, “…although no educational assessment in this regard was put before the court and there was no evidence that his education needs could not be met in a public school.” Again, the Court found that the father would not be required to contribute towards the private school fees claimed as s. 7 expenses by the mother. (Meade, 2016 ONCJ 272 at para. 71)
Conclusion
From the above decisions and as pointed out by Justice Price in Roberts v. Symons, an inference can be drawn that the courts are of the view that absent a compelling reason and sufficient evidence, attendance at a public school appears to be the default position. (Roberts, 2023 ONSC 4757 at para. 76)
While parents may aspire to provide their children with the perceived advantages of attending a private school, the court will make the decision based on the necessity and reasonableness of the expense in relation to the child’s best interests and the parties’ financial circumstances.
If a party wishes to be successful with a claim for s. 7 expenses for private school fees, it is of the utmost importance that sound reasoning and sufficient evidence supporting the reasoning is placed before the court to advocate for the child’s attendance at a private school versus a public school.
Absent compelling reasons, such as the child having special needs that cannot be addressed in a public school setting, the default position continues to be that a child most likely will attend a public school.