COURT FILE NO.: FC232/20 DATE: 2023/08/18

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: William Franklin Darryl Roberts, Applicant AND: Elizabeth Cheryl Elsie Symons, Respondent

BEFORE: T. PRICE J.

COUNSEL: Rebecca Coyne - Counsel for the Applicant James G Battin - Counsel for the Respondent

HEARD: July 4, 2023

ENDORSEMENT

Introduction

[1] When the parties proceeded to trial before me in 2022, their child, E., had just turned three by the time the trial was completed. One of the issues between them was where E. would attend school once he was of age to begin Junior Kindergarten.

[2] Mr. Roberts wanted him to attend the public school serving the area where he resides with E.’s paternal grandparents, on a farm, whereas Ms. Symons wanted E. to attend a private faith-based school in St. Thomas which is attended by his older half brother.

[3] I noted at paragraph 188 of my judgment [ Roberts v. Symons, 2022 ONSC 4261 ] that the issue underlying the parties’ dispute on where E. should attend school was “the quality of education at a public school versus that at a private school,” while also observing that Ms. Symons had seemingly not finally decided where she might want E. to attend school once he became of age to do so. Furthermore, the parties had called no evidence on the issue of the quality of education offered at either of the schools where E. might attend.

[4] Accordingly, I accepted the recommendation of Mr. Roberts’ former counsel, who has since retired, that the issue be deferred until such time as the parties each had an opportunity to educate themselves about the relative merits of each school, discuss them, and attempt to reach a joint decision about where E. would attend school as of September 2023. My order also provided that, if they were unable to do so, the matter could be returned for adjudication.

[5] Sadly, but not surprisingly, the parties were unable to resolve the issue. As a result, with the consent of both counsel, the issue proceeded before me as a focused hearing on July 4, 2023. I received evidence from the parties and one supporting witness for each.

Position of Mr. Roberts

[6] In furtherance of his obligation to educate himself about the two schools over which the parties could not agree that E. would begin attending in September 2023, Mr. Roberts met with Kim Phillips, who is the principal at King’s Academy, the private school preferred by Ms. Symons, and one of Ms. Phillips’ colleagues, Heather Hooker, on December 3, 2022. He also reviewed public documents and other information posted by King’s Academy on the Internet. Additionally, he spoke by telephone and exchanged emails with the former principal of Kettle Creek Public School (hereinafter, Kettle Creek), which is the school he prefers, and reviewed the websites of both the school and the Thames Valley District School Board (hereinafter, TVDSB), which operates it.

[7] Having done so, Mr. Roberts continued to advocate that E. attend Kettle Creek for the following reasons:

a. being a public school, it is subject to government oversight and receives public funding to operate, which will ensure that E. receives adequate and necessary resources, equipment and supports;

b. E.’s attendance there will keep him in close contact with neighbourhood friends who are also students there, and with whom he will share a bus ride to and from the school at the beginning and end of the day;

c. E. will have greater opportunities to participate in sports and extracurricular activities than would be the case at King’s Academy;

d. E. will be exposed to a greater diversity of students than is likely to be the case were he to attend King’s Academy;

e. there is likely to be more consistency to E.’s daily and weekly routines if he attends Kettle Creek, particularly in continuing to receive the free childcare that his paternal grandmother, Marie Roberts, has been providing since prior to, but now in conformity with, my judgment;

f. there is alternate childcare available for E. in the event that Marie Roberts is unable to care for him, including neighbours and a before and after school program at Kettle Creek;

g. there is no tuition payable for attendance at a public school whereas tuition will be payable by the parties if E. attends King’s Academy, and the parties do not earn sufficient incomes to pay both the tuition and the attendant childcare costs which will result from the loss of Marie Roberts’ free childcare if E. does not attend Kettle Creek;

h. the physical amenities of and physical space located at Kettle Creek far exceed those of King’s Academy, which is housed in a church with limited outdoor space for children’s activities;

i. the teaching staff at Kettle Creek are accredited by the province and are members of the Ontario College of Teachers, subject to oversight, whereas the teaching staff at King’s Academy are not required to hold accreditation as teachers; and

j. the curriculum followed by staff at Kettle Creek is set by the province of Ontario, whereas there is no such obligation on staff at King’s Academy to follow a provincial curriculum.

[8] When questioned by his counsel, Ms. Coyne, Mr. Roberts indicated that he has no objection to faith-based education, citing the fact that he understood from his discussion with the principal at Kettle Creek that students in the public school system are taught about different faiths. He further indicated that he was supportive of Ms. Symons’ decision to raise E. as a Christian child and that he had no objection to E. attending Sunday school every Sunday.

[9] When questioned by Mr. Battin, counsel for Ms. Symons, Mr. Roberts was unable to provide specific details about the class sizes at Kettle Creek. Instead, he spoke of his understanding about student-teacher ratios at each school, derived from his conversations with their Principals.

Evidence of Jennifer Johnson

[10] Ms. Johnson had just completed her fourth year as the Vice Principal at Kettle Creek when she testified. She provided evidence about the hiring practices of the TVDSB and her role in the hiring of teachers for the school. She also indicated that, to teach for the TDVSB, a person has to have a post-secondary degree, a teaching degree, such as a Bachelor of Education, and be registered with the Ontario College of Teachers.

[11] She further spoke of the assessment process put in place by the province to ensure that teachers meet the educational standards set for them by the Ministry of Education.

[12] When asked about bullying, she said that the board has a policy in place to address it, with events addressing it also occurring throughout the school year.

[13] When asked about additional supports offered by the TVDSB, she spoke of a Special Education Department capable of supplying social workers and literary supports, as well as Learning Support Teachers who manage the cases of students needing specialized supports.

[14] She indicated that there will be 480 students attending Junior Kindergarten through Grade 8 at Kettle Creek in September 2023, which represents a reduction of 60 students who will be returning to a different home school.

[15] She said that while she did not know the size of the incoming Junior Kindergarten class, total class size in JK is capped at 29. In a class of that size, there would be one teacher and one early childhood educator. She further indicated that in the primary division, consisting of Grades 1 through 3, total class size is capped at 20 and in Grades 4 through 8, total class size is capped at 24 plus or minus 4 students. In each of the latter two instances, there is only one teacher in the class.

Position of Ms. Symons

[16] Ms. Symons also detailed the steps that she took to learn about Kettle Creek. They included speaking with the Principal. In doing so she, like Mr. Roberts, learned that, without a child registered at the school, they could not attend in person to view the school or its facilities. The conversation with the Principal left Ms. Symons with the impression that the school was “very well kept and updated.” She also received information about primary class sizes, and assurances about how quickly an Individual Education Plan (IEP) could be implemented should E. be diagnosed with any disability, as occurred with respect to G., his older half-brother, at King’s Academy. She reported being left with the impression that Kettle Creek was likely “a very nice public school.”

[17] Notwithstanding, her position is that it would be in E.’s best interests to attend King’s Academy for the following reasons:

a. E.’s spiritual development is essential. At King’s Academy, he would receive the same education as in the public system, “if not better,” while experiencing “the spiritual growth and education that is so important” to her;

b. G. began attending King’s Academy in September 2019 when he was in Grade 4. He continues to attend and is in Grade 7. Therefore, for the first year of E.’s attendance at King’s Academy, he would have the benefit of his older brother attending the same school;

c. the teachers at King’s Academy are “kind, fair and patient,” setting positive examples for their students, taking seriously and doing their best to resolve any concerns expressed to them;

d. the teachers at King’s Academy have at least a bachelor’s degree;

e. King’s Academy follows provincial guidelines for curriculum and is recognized as a private school;

f. while the subjects taught to students at King’s Academy are the same as those taught in the public school, they also integrate a “Biblical worldview;”

g. it is important that E. “grow up seeing that God is not just for Sundays at church or when [he is] with [his] mother, but in the everyday, being lived out by [his] teachers and staff who carry great influence with their charges;”

h. the small classes at King’s Academy mean that E. will receive more attention from his teachers;

i. based upon the experiences of G., it is unlikely that E. will be bullied at King’s Academy;

j. given time, the student body at King’s Academy will grow, and E. will have the opportunity to participate in such extracurricular activities as sports, which he can do until then in community-based programs;

k. despite the lack of a playground for the students at King’s Academy, they attend a nearby public park for outdoor recreation;

l. staff at King’s Academy are aware of her limited financial resources and will limit monthly tuition for both boys to $300.00, which will increase as she reduces her debts;

m. being in St. Thomas, King’s Academy is located nearly equidistant from the residence in Aylmer to which she moved after the trial and the Roberts farm located in Sparta, meaning that both parties will be able to share in the transportation of E.;

n. having E. attend Kettle Creek would mean the continuation of the current routine of her driving G. to school in St. Thomas and E. to the farm, both for childcare by Marie Roberts prior to school and retrieval by her at the end of the day from a school bus; and

o. E., being a shy four-year-old, would be placed on the bus with children he does not know, driven to a school he does not know, and taught by teachers he does not know, if he attends Kettle Creek, whereas he is already familiar with King’s Academy, both through G.’s attendance there and through having met the kindergarten teacher and visited her classroom on a couple of occasions.

[18] When questioned by Ms. Coyne, counsel for Mr. Roberts, Ms. Symons confirmed that she has taught faith to E. and will continue to model it for him if the court were to send him to the public school.

[19] She also acknowledged that, since she moved from the Roberts farm, she was paying more for rent and other expenses. She also expected that E.’s tuition costs might worsen her debt load.

[20] She confirmed that G. had been attending faith-based schools since Junior Kindergarten, and that, due to increasing tuition, he had to leave the first school he attended.

[21] She cited the improvement in G.’s grades as being indicative of the education he was receiving at King’s Academy.

[22] She spoke of her experience with the public school system being “not good” and indicated that, as a bottom line, Kettle Creek does not fulfil her wishes that E. have a faith-based education.

Evidence of Kim Phillips

[23] Ms. Phillips has been principal at King’s Academy for four years. She holds a bachelor’s degree in religious education and is working to complete a Master of Education degree. She has taught for 30 years and has experience as a Learning Support Teacher. She is not a member of the Ontario College of Teachers.

[24] She indicated that there are five full-time teachers at King’s Academy, who each teach split grades. There is also a Learning Support Teacher available to assist those children who need extra help.

[25] She confirmed that, while none of the teachers at King’s Academy are members of the Ontario College of Teachers, all teachers at King’s Academy must have a minimum of a bachelor’s degree. To illustrate, she indicated that the person teaching Grades 7 and 8 is qualified to teach high school in Newfoundland and Labrador and has 30 years’ teaching experience. The person teaching Grades 3 and 4 has a joint degree in Sciences and Mathematics. The person who will be teaching Junior and Senior Kindergarten as of September 2023 will be new to the school. She is qualified to teach both grades, having worked for five years at the TVDSB.

[26] She further testified that King’s Academy follows Ontario education guidelines.

[27] When asked about the curriculum for Junior and Senior kindergarten, she said that she sets the program, which is based on a program called “Heggerty,” which she described as a phonics-based teaching system.

[28] She confirmed that, as a private school, King’s Academy is not overseen by the Ministry of Education. However, there is a Board which oversees the school. It includes a member who is a member of the Ontario College of Teachers. She said that the teachers work collaboratively.

[29] She testified that King’s Academy is a member of the Association of Christian Schools (International) of Eastern Canada, but that it is not rated by that organization.

[30] She spoke of the students at King’s Academy working with a ministry program in St. Thomas called “Harvest Hands,” where they attend weekly to help package food. This, she said, is consistent with the school’s program of helping students develop into good citizens. She also indicated that the school offers a life skills program where children have an opportunity to work in a commercial kitchen.

[31] When asked about athletic opportunities for students at King’s Academy, she advised that the school tries to bring in people who are “experts” in a sport to work with the children. She cited, as an example, that during the period between 2020 and 2023, students participated in pickleball and curling.

[32] She said enrolment is approximately 85 children. Those in Junior Kindergarten attend school three days per week, on Mondays, Wednesdays, and Fridays, while those in Senior Kindergarten attend all five days. She expected that, in September 2023, there will be seven students in Senior Kindergarten. They will be taught by the teacher, earlier described, who will be assisted by two Educational Assistants.

[33] When asked about her knowledge of G., she described him as an excellent student. During her evidence, I learned for the first time that he has been diagnosed with autism, something not disclosed during the original trial. This information may explain many of the criticisms Mr. Roberts seemed to level at G. during that trial, repeated during this hearing, about him being somewhat of a loner, not participating in activities but spending time by himself playing video games. In fairness to Mr. Roberts, however, I was also provided with no information during this hearing about whether or not he was aware of G.’s diagnosis.

[34] Ms. Phillips also spoke of the school staff trying to deal immediately with any incidents of bullying.

[35] When questioned by Ms. Coyne, in a cross-examination that seemed somewhat aggressive for the nature of the evidence provided by her, Ms. Phillips confirmed that the Board overseeing the school is a “charity oversight board” because King’s Academy is registered as a charity.

[36] Ms. Phillips also indicated that, while she wants the school to grow larger, there is an upper limit beyond which she does not wish to see it expand. She said that growth is limited both by resources and by the school’s educational philosophy.

[37] When questioned about some of the information posted on the Internet, she acknowledged that there were requests for assistance to purchase Chromebook computers for the students, but that need has been met. She also challenged an assertion made by Mr. Roberts that the parking lot on which the children play at recess lacked a guard rail, saying that the former guard rail had been replaced by the church in which the school operates. She said that the school was now in discussions about obtaining permission to erect a fence at the front of the school.

[38] When asked about tuition, she said that it was $600 per month for one child and $700 or more for two. When asked, specifically, what would be done for a child’s parent who could not afford tuition, she responded that she “believe[s] in prayer” and that if a family cannot afford tuition, their children can still attend the school. She implied that there are anonymous benefactors who can help financially when needed. She also testified that while the Board has a hand in funding, it is she who decides if tuition relief is given.

[39] When asked specifically about E., she said the school would accept whatever Ms. Symons could pay as tuition for him and G.

Submissions of Ms. Coyne

[40] Ms. Coyne submitted that the location of King’s Academy, a lack of fencing and the need for the children to attend a public park all pose risks to children attending the school.

[41] She further submitted that there was no evidence that the staff at King’s Academy could evaluate if a child has special needs.

[42] She also questioned the overall stability of King’s Academy, noting its reliance on donors to survive.

[43] She contrasted those deficiencies with the benefits that would accrue to E. by attending a public school, claiming that, at Kettle Creek, E. “would go without nothing.”

[44] She highlighted the fact that, if he attends Kettle Creek, E.’s daily routine will remain the same.

[45] She further focused substantially on the accountability and assessment of public schools by the province and submitted that public policy favours public education. She suggested that it would be prudent for me to rely on public policy when coming to my decision.

Submissions of Mr. Battin

[46] In his submissions, Mr. Battin focused on the individualized attention that E. would receive at King’s Academy. He said that E. is known to staff at the school and that Ms. Phillips is not only there every day but she, too, knows him. He further indicated that, based on the evidence of Ms. Phillips, tuition is a non-issue.

[47] He described Ms. Phillips as a competent educator who is concerned about the students at her school, and indicated that, while they may not hold teaching degrees, every person teaching at King’s Academy is qualified to teach. He said the case is not about facilities but about what children are taught at the school they attend.

[48] He submitted that there would be no detriment to E. being placed at King’s Academy.

Law and Analysis

[49] Counsel agreed 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. ( Askalan v. Taleb, [2012] O.J. No. 3947 at para. 32 (S.C.J.) )

[50] In Thomas v. Osika, 2018 ONSC 2712 , [2018] O.J. No. 3321 (S.C.J.), at paragraph 37 , Justice Audet set out a number of general principles taken from the caselaw “to assist the decision-maker” when making a decision of this nature 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.

[51] The evidence revealed little about E. The parties seemed to be unable to even agree on whether he is an active, outgoing, “rough and tumble” natural leader who enjoys participating in agricultural work when at his grandparents’ farm, as Mr. Roberts asserted, or a shy four-year-old, as Ms. Symons claimed.

[52] Both parties spent some time addressing the issue of whether there is available, at either school, programs or assistance that can be provided to a child who might be struggling or delayed academically. Why they did so was somewhat of a mystery to me because there was absolutely no evidence that would lead me to conclude, or even consider, that E. is such a child. I query whether their questions may have been driven by a fear that E. might be susceptible to the autism that is said to affect G.

[53] Both parents also focused attention on the benefits that they perceived that E. would receive from attending their preferred school. Neither asserted, however, some “right’ that should trump the other party’s chosen school.

[54] Each, however, framed the major benefit, as they saw it, to E. of attending their preferred school by connecting it to the lifestyle that they would want for him. Mr. Roberts focused on the prospect to E. making friends at Kettle Creek with other children coming from the agricultural community, while Ms. Symons focused on him making friends with other children who are more likely to have been exposed to a faith-based lifestyle. While I cannot say whether the former is true, it seems more likely than not that the latter would be.

[55] Those positions also tie into the question of which school would best promote and maintain E.’s cultural heritage. I find that, if Mr. Roberts’ assertion about the agricultural roots of many of the students at Kettle Creek proves to be true, E. will be more likely there than at King’s Academy to develop a connection with other children who share with him a background, if not also an interest, in farm life, or an agricultural heritage. The school is in a rural community not far from the Roberts family farm. And its larger student population would logically render it more likely that E. will encounter children having similar backgrounds. Mr. Roberts identified a few such children from the neighbourhood which includes the Roberts farm in his affidavit.

[56] Mr. Roberts was clear that, since he owns one-third of the farm on which he and his parents reside, and where E. was born and spends his parenting time with him, there is no prospect that he will be moving. Ms. Symons did relocate after my trial decision was released, but that was to be expected, since before that, she, too, was living on the farm, cohabiting with Mr. Roberts and E.. There was no indication that another move is in her plans.

[57] It was also clear on the evidence that, if E. attends King’s Academy, the free childcare arrangements offered by Marie Roberts will probably end. If so, that is likely to result in increased costs for the parties since someone will have to care for E. both before and after school and that is likely to come with a cost. While Mr. Roberts estimated the cost of such care, he provided no evidence to support his estimate.

[58] As to considering any problems with the two schools under consideration, I begin with the view that the educational experience for a child as young as E., while comprised of many components, will most likely be driven by the friendships he forms at school and the teachers to whom he is exposed. Except for student body size differences, both schools will likely present him with positive experiences in respect of these two components.

[59] That noted, it is somewhat troubling to me that those responsible for operating King’s Academy are often driven to fund-raise for basic necessities for their students. I make this comment without criticism because it is likely a common experience in private schools, especially one which charges a tuition far below what one sees in some of the reported decisions (see, for example, R.P.S. v. K.J.S., [2014] O.J. No. 1208 (S.C.J.) ; T.W. v. J.A., [2023] O.J. No. 2309 (S.C.J.) ; Karim v. Mohamed, [2021] O.J. No. 4981 (S.C.J.) )

[60] Ms. Phillips was an impressive witness whose dedication to the students at King’s Academy and meeting the challenges that come with being the Principal of a small Christian private school was obvious. Her dedication aside, however, it is without doubt that the funding for King’s Academy is less stable than that for Kettle Creek. I point to the fact that King’s Academy has had to move more than once during its short existence. I also point to the fact that G. had to be withdrawn by Ms. Symons from the first Christian school he attended when his tuition was greatly increased, which I would think most likely occurred because of funding shortfalls.

[61] The issue of resources was core to Mr. Roberts’ claim that E. should attend Kettle Creek. As far back as the original trial, he indicated that he wanted there to be opportunities for E. to participate in extracurricular activities such as sports. The evidence shows that there will be plenty of opportunities for E. in that regard at Kettle Creek, more than at King’s Academy. However, Ms. Phillips provided evidence that the students at King’s Academy do have the opportunity to learn sports which are not mainstream, while also participating in other activities that are intended to teach them the benefits of service to community and others, a quite laudable endeavour. Frankly, I remain skeptical that the decision about where E. attends school should turn on what extracurricular sporting activities are available to him at either school, especially when children can participate in extracurricular activities all through the year which are not tied to their school.

[62] On the other hand, I must have regard to the many resources available through the TVDSB to students who struggle with learning. The simple fact is, dollar for dollar, the public school system carries greater heft in this area than a private school can aspire to do. That noted, I was puzzled why both parties included this factor in their cases, since there is no evidence that E. has, thus far, evidenced any learning problems that might require him to draw on such resources.

[63] The same observation can be made about both parties’ evidence about how bullying is addressed at each school. Since E. has yet to attend, bullying cannot be a fact at this point. There was no evidence that he has been bullied elsewhere. It cannot be that G. was bullied in a public school because he has been attending faith-based schools since Junior Kindergarten. I simply have no idea why this was an issue for the parties.

[64] I also must comment on the qualifications of the teachers at both schools. Ms. Coyne focused much of her submission on the better credentialled teachers in the public system. I agree that they must hold a bachelor’s degree in education, something not required of the teachers at King’s Academy. However, as Ms. Phillips said, having met a lot of teachers over the years, “some have the gift of teaching and some do not.”

[65] There can be no doubt that the teachers in the public system hold higher qualifications than do most, if not all, of those at King’s Academy. However, for good teachers, teaching is a calling. I have little doubt that those who teach at both schools do so because they are dedicated, both to their students and to their craft. As I pointed out at paragraph 187 of the trial judgment, Section 0.1(2) of the Education Act , which does allow for the existence of private schools, provides that, “The purpose of education is to provide students with the opportunity to realize their potential and develop into highly skilled, knowledgeable, caring citizens who contribute to their society,” an aspirational purpose that “is not limited to public education.”

[66] In fact, 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 ( see, for example, s. 8(1).10 . Accordingly, being a member of the Ontario College of Teachers seems not to confer any superior status on a person’s ability to teach. It 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.

[67] I do not wish to be taken as denigrating those who are qualified to teach in the public school system, because that is not what I intend. What my analysis is attempting to demonstrate is that, if persons who are not members of the Ontario College of Teachers can teach in the public system for up to a year under a letter of permission, the force of Ms. Coyne’s submission about the superior quality of those who teach in the public school system loses some of its force.

[68] And, as Ms. Phillips noted, students who graduate from Grade 8 at King’s Academy can and do successfully move on to secondary education in the public and Catholic school systems. This suggests to me that the students at King’s Academy emerge as prepared to receive a secondary education as those who graduate from the public elementary system.

[69] As a result, what I conclude, based on my analysis of these factors, is that, when comparing the schools in this case, and after allowing for those factors on which there is a rough equivalency, Kettle Creek is a potentially more stable and, for students with learning difficulties, better resourced school, where E. is more likely to encounter a greater number of students who share his cultural heritage, thereby enhancing it, while his attendance there will mean that, for so long as she is able to do so, Marie Roberts will continue to provide cost-free before and after child care for him. That noted, Kin’s Academy seemed better positioned to focus on E. as an individual and to attend to matters beyond academics.

[70] I next turn to the issue of the cost of attending King’s Academy. The evidence on this point was somewhat vague. What I learned in the end is that, while there is a specific, set tuition for children attending the school, Ms. Phillips, as Principal, has the authority to waive or reduce that tuition for families who cannot afford to pay it.

[71] I was not told whether this is a power inherent in being the Principal of King’s Academy, or whether it is simply an authority that Ms. Phillips has arrogated to herself, leaving uncertain whether the next Principal will act in the same manner, should Ms. Phillips move on or retire.

[72] It was clear from the evidence that Ms. Symons will be unable to contribute her share of a s. 7 divided full tuition for E., at least until she pays down her larger debt load that resulted from her move to Aylmer. This means that, year to year and, perhaps, Principal to Principal, there will be uncertainty attached to whether E. will be able to return to King’s Academy, based on whether there will be a tuition cost for him in the following year and, if so, how much it will be.

[73] Add to this the likely cost of before and after school care, about which Ms. Philips likely has no control, and the result is that where E. will be attending school from year to year, if the default is King’s Academy, will be tied inexorably to the financial vicissitudes of not only his parents but also those of King’s Academy.

[74] 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: see Pomozova v. Mann, 2008 CarswellOnt 7891 (Ont. S.C.J.), at paras. 122 & 124 , affirmed in Pomozova v. Mann, 2010 ONCA 212 , at paras. 15-16 and Fiorino v. Fiorino, 2013 ONSC 2445 , at paras. 29-30 , 35-36.

[75] While both Karim and Pomozova were focused on the issue of costs, the preliminary consideration by the court in each case was about the question of whether the private school was necessary, or whether the child had any particular needs which could only be met at a private school.

[76] From these decisions, I infer that the courts were of the view that, absent a compelling reason for the child to attend a private school, a public school was the default location for the child to receive an education.

[77] In fact, Justice B.A. Conway , the trial judge in Pomozova v. Mann , inferentially made that point when she indicated that her ruling did not preclude the mother from later trying again to secure funding for the child’s attendance at the private school, based on proper evidence. That point was also noted by the Court of Appeal when it upheld Justice Conway’s decision. Such evidence, presumably, would have spoken to the deficiencies identified by the court in rejecting her claim that the child should attend a private school – including whether it was necessary that the child attend a private school, whether the child had any particular needs that required her attendance at private school and which could not be met in a public school.

[78] In this case, however, Ms. Symons’ primary reasons for wanting E. to attend King’s Academy have been identified, consisting of his spiritual development, the courses at King’s Academy integrating a “Biblical worldview,” and it being less likely that he will be bullied there.

[79] I find that, when adding my comparison of the benefits to E. of attending the two schools, as set out, above, in Paragraph [69] to Ms. Symons’ reasons for wanting him to attend King’s Academy, the total does not result in a sufficiently compelling reason for me to order that E. attend elementary school at King’s Academy rather than at Kettle Creek.

[80] In the result, I agree with Ms. Coyne that, on the totality of the evidence, nothing establishes that King’s Academy will meet any of E.’s needs that also cannot be met in a public school, apart from Ms. Symons’ desire for him to receive a faith-based education.

[81] If E. does not attend King’s Academy, Ms. Symons, by her own admission, will still provide him with moral and spiritual guidance, and he will be attending what she quite fairly described as “a very nice public school.”

[82] Based on the foregoing, I have concluded that it is in E.’s best interests that he be registered to attend Kettle Creek Public School as of September 2023.

Costs

[83] As the successful party, Mr. Roberts is presumptively entitled to his costs of this focused hearing.

[84] I asked for oral submissions at the end of the parties’ cases. Ms. Coyne requested costs in the amount of $8,500.00. Mr. Battin suggested that a more appropriate amount for costs would be $2,500.00, even if Ms. Symons were to be successful party.

[85] This was an issue about which the parties, at the time of trial, had not developed evidence because of E.s age. They then engaged in the process that I set out for them in my Reasons and, despite doing so, were still unable to resolve the issue by themselves.

[86] I was provided with no information about any Offers to Settle, which was unsurprising, given the either/or choices available for the court’s consideration. ( Beaver v. Hill, 2018 ONCA 840 , [2018] O.J. No. 5412)

[87] Ms. Coyne’s materials were extensive. Mr. Roberts was entitled to the best representation he could obtain. However, I was somewhat surprised at the quantum of costs sought by Ms. Coyne on his behalf, especially with him knowing that Ms. Symons is not as financially well-off as him, residing on the farm with his parents, while she is living independently with G. and, half-time, with E. To request costs in that amount seems a bit like the meting-out of a penalty for having disagreed with Mr. Roberts’ position. Regardless, Mr. Roberts is entitled to pay whatever he wants for legal representation. The issue is how much of that cost must be contributed to by Ms. Symons.

[88] Justice Nordheimer wrote the following on behalf of the Court of Appeal in Beaver v. Hill , on the issue of setting costs:

4 I begin with the basic premise that costs awards are discretionary and entitled to deference. However, in my view, the motion judge erred in her costs decision as a result of her failure to apply two important principles. One is proportionality and the other is the "reasonableness" evaluation of the ultimate award. That error led to a costs award that was excessive. (Bolding added)

12 As the wording of the rule [24(12)] makes clear, proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs.

[89] The factors to be considered in fixing costs are set out in Rule 24, with the specific factors to which the principles of reasonableness and proportionality apply being listed in Rule 24(12). I have taken those factors into account, where information was available to me following the hearing (not including Ms. Coyne’s hourly rate or the time expended in connection with the matter).

[90] I have also taken into account Ms. Symons’ reasonable expectations about the costs that she might be required to pay as the unsuccessful party. ( Scipione v. Del Sordo, 2015 ONSC 5982 , [2015] O.J. No. 5130 , at para. 124 ).

[91] I must also, and do, take into account Ms. Symons’ ability to pay costs ( Laidman v. Pasalic, [2020] O.J. No. 5020 ). In fact, I discussed this very issue when I awarded costs of $9,000.00 to Mr. Roberts following the original trial. Those costs are being paid at the rate of $250.00 per month by Ms. Symons until December 1, 2025 for the very reason that she is not a person of means.

[92] I have found potential benefits to E. were he to attend either school. Ms. Symons’ position was reasonable, and her desire to have E. attend King’s Academy was advanced in good faith. She will have to pay Mr. Battin. To add substantially to her financial burden at this time will only serve to impoverish her more and deprive E. of even more funds which could be used by Ms. Symons for his benefit.

Conclusion

[93] For the reasons herein, I make the following order:

1. E. shall be registered to attend Kettle Creek Public School commencing in September 2023.
2. Both parties shall be listed with the school equally as a person to contact in the event that such contact becomes necessary.
3. Ms. Symons shall pay costs to Mr. Roberts in the amount of $2,000.00, all-inclusive.
4. The costs shall be paid at the rate of $250.00 per month for a period of 8 months, commencing on January 1, 2026 and on the first day of each succeeding month until and including August 1, 2026.

Justice T. Price

Date: August 18, 2023