Family Law Blog

Can Parents Get Private School Tuition Back Due to COVID-19?

red-building-with-clock-tower-207692


Ontario students have been out of school for almost two months. Parents of children in the public school system have been struggling with helping their children through lessons at home with what many of them feel is inadequate support, especially for children with special learning needs.  Parent with children in private school have been facing that, and additional concerns regarding paying tuition.  Even though they are closed to students due to the pandemic, and many parents are struggling financially, some Ontario Private Schools are asking parents to pay for the 2020/2021 school year now.   Others are continuing to charge for school this year or are refusing any form of refund even though students are not going to school.   For parents who paid for boarding, that can be a lot of money and it seems particularly unfair since their children are not currently living at the school.   Unlike publ ic school parents, private school parents feel stung even more if the distance learning for their children is not meeting their expectations in light of what they paid.

 

There may be some legal relief for parents.  However, it may depend on whether their child is actually attending a “private school” and what the contract says if the child is in a  private school.  The video below goes over the importance of contracts when sending a child to private school.   

 


In the pandemic, parents must determine whether their child is attending a “private school” or a “daycare".  Under Ontario’s Education Act, is a private school is an institution that provides instruction to students between the ages of 6 and 18 years old.  Organizations that provide instructions to children under the age of six do not fall under the definition of "private school", but probably fall under the definition of “daycare". On April 9, 2020, the Ontario Government passed a regulation prohibiting closed daycares from charging fees for the period while they are closed.   So, parents of students who are three, four or five years old do not have to pay tuition fees because daycares cannot legally charge them.

 

For students aged 6-18, things may be more complicated.  As noted above, a lot depends on the contract that the parents signed with the school.  There is always a contract.  At some point parents signed something agreeing to pay the tuition fees.  Sometimes that is all the contract says, but often it requires that students and parents conform to a code of conduct, it may set out rules or expectations for what type of education the school will provide, and it may contain terms about when the school can stop providing lessons to a student and whether tuition will be refunded if the school does stop teaching a child. 

 

There is no “standard private school contract” in Ontario.  Every school comes up with its own contract with parents.  Many schools change the contract every year and base the changes on challenges the school has faced in the year before.  So, parents have to find that contract and see what it says about what happens if the school says a student cannot attend class anymore.  The wording of that term may or may not address what happens in situations where the school is forced to shut down or provide online lessons.  (It is almost certain that privates school contracts will have explicit terms to address the situation starting in 2020/2021).

 

Ontario Family Law Podcast

49 - Can Parents Get Private School Tuition Back Due to COVID-19?

In many cases, what is happening in the pandemic is far from what the private school contract contemplated.  In situations where the parties to a contract cannot perform their obligations under the contract due to circumstances beyond their control, the contract is said to be “frustrated.”  Ontario’s Frustrated Contracts Act applies to contracts between private schools and parents.

 

38 - Ontario Private Schools, Standards, and Education Law

39 - What Ontario Public Schools Must Do About Bullying

Due to the pandemic, private schools may not be providing the education that parents were promised under the contract.  On March 17, the Ontario Government ordered that all private schools be closed indefinitely.  That was not the private schools’ fault.  Nor is it the parent’s fault.  So, the parent’s contract with the private school was frustrated by the ordered school closing, unless the school is providing comparable educational services to what it provided before March Break.

 

In these circumstances, section 3 of the Frustrated Contract Act says that payments are no longer owing for frustrated contracts.  The parents do not have to pay anything that they continue to owe the school under their current contract (presumably the contract is only for the 2019/2020 school year) and they don’t have to pay anything further under the contract.  The same rules apply to the school about paying anything back.  So, where parents have not finished paying for 2019/2020, they may be safe to tell the school they are not going to pay for anything after March 17, 2020.

 


Where parents have already paid for the school year, but their child is not receiving the education promised under the contract, there may be a breach of contract and the parents may be able to demand repayment.  Section 18(2) of the Consumers Protection Act allows consumers to recover any payment that exceeds the value of goods or services provided to the consumer.  So, there will be a question about whether the parents got what they paid for.  To some extent this will relate to what the school promised in the contract.  Many schools actually do not promise much in the contract.  However, it may be possible that the school made promises on their website or elsewhere on which the parents relied.  In that case, those promises may also form part of the contract.

 

However, as this is a matter of straight contract law, the best option is for parents to speak to an Education Lawyer about their rights under the contract to see if they can get any money back.

 

When dealing with private schools, the parents have to consider another aspect of their relationship with the private school and possibly their contract with the private school.  That consideration is whether they want to their child to continue to attend the school.  


Many private schools operate on razor thin margins.  The educators operate them do so for the love of teaching and do not operate to earn large profits.   For 2020/2021, the Ontario Government pays school boards up to $6,274.76 per elementary school student, but that does not include additional amounts to pay for school supplies, principals, vice-principals, school-secretaries, students with special needs, building operation and maintenance and may other costs, which equate to several thousand dollars more per student.  Parents should keep that in mind when considering whether the private school has any additional funds available to pay parents back – especially at a time when private schools may be trying to continue to pay teachers their full salaries to stop those teachers from leaving for another school.  So, a private school may not take kindly to a parent demanding money back.

 

Many private school contracts provide that they can “kick out” a student at any time for any reason.  Others state that they do not have to “invite” students back for the next academic year.  So, parents who create difficulties for a private school may find that their children are no longer able to attend that school.   The school’s contract with parents may allow that. 


Another trick that some private schools are trying is to say that if parents do not pay, they will not assist students or mark their assignments and tests, which will result in lower marks on the final report card.  Again, this something that the Ontario Government is not allowing.   The Ministry of Education Guidelines for Continuity of Learning During COVID19 say that teachers must use the evaluations of students completed before March 13, 2020, unless it is in the student’s interest to include later material.  That sounds like marks can only go up after March 12, 2020.  While that may or may not be the case, it is clear that schools cannot lower a students marks because parents are not paying tuition during the pandemic.    


So, again, when parents or students are facing these types of difficulties, it is critical for them to speak to an education lawyer.


In these difficult situations, it may be necessary for parents to have a conversation with the private school about what payments is fair under the circumstances.  Of course, it is important for parents to understand where they stand legally before having that conversation.  However, with the Ontario Courts essentially closed to these types of matters, many people have worked out disputes through negotiations and discussions.  That approach may address financial concerns and keep a child in the school that they love.


If you are experiencing difficulties with a private school, it is important to figure out what rights you may have, and how the law might help you. Contact Education Lawyer, John Schuman, by emailing him, calling 416-446-5080, or using the contact form below.  We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate).


For more information about Private Schools and Ontario Education Law, and other education law issues, such as assistance for children with special needs and school discipline such suspensions and expulsions, check out the Education Law section of this website.


Many thousands of people get family law assistance from this website everyday.  If you have found this page useful, please share it on your social network using the Facebook, Twitter, LinkedIn and Pinterest buttons at the bottom of the page.  Please comment on this page using the comments section at the bottom to share your thoughts on the challenges children face in school and the education system.


CONTACT AND COMMENTS:


© John P. Schuman and John P. Schuman, Professional Corporation - 2012-2021