Long before graduating from his Catholic high school in Ottawa, Victor Borba was set on studying life sciences at Hamilton’s McMaster University. A straight-A student, he had a fair chance at getting int o the highly competitive program, but he thought he might have a better show if he could take a spare period to spend more time studying biology. When he heard about a section of the Ontario Education Act that could exempt him from religion, a course he’d been told was mandatory in every grade, he thought he’d found space for that extra study. “He wasn’t looking for some time off,” his father, Ricardo, says. “He had a plan.”

In September 2013, a semester before Victor was scheduled to take religion in his senior year, Ricardo sent a letter to the Ottawa Catholic School Board requesting an exemption. The school’s principal responded matter-of-factly, “We don’t do that,” while the board explained that, because of the wording of the Education Act, the exemption was only available to open-access students (that is, non-Catholics).

Because the Borbas were Catholic school supporters on their Municipal Property Assessment Corporation (MPAC) property-tax statement, Victor was considered Catholic and, therefore, wasn’t eligible. In fact, Victor is an atheist and Ricardo, though baptized and raised in the church, no longer considers himself a Catholic. Ricardo Borba called MPAC, became a public-school supporter and returned to the board. The answer was still no, as the board claimed the change of support wouldn’t take effect until the following year.

Frustrated, Ricardo contacted the Ontario Ministry of Education who, he recalls, told him, “There’s nothing we can do; it’s open to their interpretation,” and advised him to get legal counsel. But with only two weeks left before the start of the second semester, doing so would be an empty threat. By the time a court could make a decision, Victor would have already graduated. So he took religion that year and wasn’t accepted into the McMaster program he wanted.

“You can’t really say if having more time to study biology would have made a difference or not. Who knows?” Ricardo says. “But the board put their interests before the academic interests of my son. I was really disappointed.”

More than 100 families have sought religious exemptions in Ontario’s Catholic high schools over the past few years. I spoke to a dozen of them. Like the Borbas, some cited academic reasons for abstaining from one or more of the four religion courses students are expected to take (two introductory Catholic classes in Grades 9 and 10, world religions in Grade 11 and a philosophy-based curriculum in Grade 12). Others wanted exemptions because they’re not Catholic but chose a Catholic school for other reasons: it’s closer to home, higher ranked, offers better facilities or sports teams, or has specialized music or French-immersion programs.

Exemptions have ostensibly been available to open-access students since 1986, when the provincial government extended funding to Ontario’s Catholic high schools. But few were aware of the option until April 2014, when Brampton, Ont., father Oliver Erazo won his sons the right to opt out of religious courses, masses and activities in a highly publicized, precedent-setting court case. Catholic boards have since tackled the issue with varying degrees of grace: some families have obtained exemptions with ease, while others have been stalled and pressured, lied to and bullied.

The Ministry of Education, as evidenced by the Borbas’ case and others like it, has failed to provide oversight, leaving Catholic boards’ behaviour unchecked. For students, the right to freedom of religion in education is at risk. The stakes for boards are equally high. “They are in a quagmire,” says Ricardo Borba. “If religion is optional, how will they be differentiated from a regular public school?”

Catholic-Protestant animosity was palpable in pre-Confederation Canada. In 1841, new legislation allowed both Catholic and Protestant minorities to establish and administer their own elementary schools (secondary schools didn’t yet exist). Both systems soon obtained the right to public funding, which was later enshrined in the 1867 British North America Act.

Over the next century, Ontario’s Protestant schools morphed into today’s public schools. Ontario Catholics, however, retained their original system and began battling the province to have public funding extended to high schools, which were not covered under the BNA Act. In 1986, the provincial government finally agreed, under two conditions: Catholic secondary schools would admit non-Catholics, and they would allow them to opt out of religious classes and programming. The Catholic boards lived up to the first condition; the second was effectively forgotten.

One day more than 20 years later, a Brantford, Ont., parent and education activist named Peter Jones was reading the Education Act and stumbled upon section 42(13), the long-winded passage that addresses exemptions. At first, he says, he dismissed it, thinking, “There must be some legalities we’re not aware of. Government-funded entities wouldn’t lie to the public and pull a fast one.” Upon revisiting the section, though, he became convinced his interpretation was right. To test his theory, he phoned a few Catholic high school guidance departments and asked if religion courses were mandatory. The consistent response: “Well, of course.”

Jones was eventually put in touch with Kyle Naylor, a Midland, Ont., parent who, at the time, was in the thick of a five-month battle to convince his local Catholic board that his daughter, who is not Catholic, was entitled to an exemption. He says the board repeatedly lied to him and denied his request. After his story went public, he set up a website, myexemption.com, to help other parents through the process.

Among them was Carolyn Borgstadt. When she wrote the Durham District Catholic School Board to get an exemption for her son, she was initially ignored, then denied. “They kept coming up with different excuses,” she says. Eventually, after she changed which system she supported on her MPAC designation and shared her story with the media, her son received the exemption. “It was just a big runaround.”

Meanwhile, Sam Dias of London, Ont., got in touch with Naylor after his 13-year-old daughter asked if she’d need to take religion once she entered high school. Dias, a non-Catholic, encountered resistance because his daughter was baptized Catholic and attended a Catholic elementary school. After a six-month process that saw administrative staff deny, delegate and defer the matter, he, too, secured an exemption. (In a letter from the school board, Dias’s daughter was provided an “exception,” in “the context of [her] individual circumstances”; other parents also reported being given an “exception” rather than an exemption.)

A number of other families spoke to me on the condition of anonymity. Some had agreed with boards to stay quiet to get an exemption; others feared academic ramifications for their children. “The repercussions have already started for my daughter, and we don’t need any more,” one parent told me, adding that the school and board had threatened to bar her child from the liturgy-based graduation and prom, impeded scholarship applications, and would speak to the family only through a lawyer; she estimates their legal bill is roughly $2,000. “It’s like we’re being punished.”

Other stories involved unreasonable delays, condescending behaviour and exemption requests being illegally declined. “It kind of contradicts their philosophy,” another parent said. “How can you blatantly lie to me, bully me and intimidate me and then turn around and go to mass?”

The Ontario Catholic School Trustees’ Association (OCSTA) — the body representing English Catholic school boards and trustees — declined an interview request for this story, as did three Catholic school boards; another six boards did not respond to multiple requests. Pauline Stevenson, a spokesperson for the Simcoe Muskoka Catholic District School Board, agreed to speak with me, however.

“Faith teachings are fundamental to who we are as a Catholic board. It’s what makes us unique and distinct,” she says. “They are part of every student’s day, whether it be in mass or in English class.” The attention given to the issue, Stevenson says, is disproportionate, given that, in her board of 6,500 students, there have been a mere 10 requests, most of which were made for scheduling purposes and resolved without an exemption. “We’re all reasonable, rational people who want to make things work for the students.”

At least open-access students. Catholic boards interpret section 42(13) of the Education Act to mean that, while non-Catholic students are entitled to exemptions, Catholics are not. “The fundamental crux of the problem is who then gets to decide who is Catholic?” says Nathaniel Erskine-Smith, the Toronto lawyer who represented the Erazo family and continues to advise families seeking exemptions.

Catholic educators have grappled with this question on a case-by-case basis so far, relying on factors like whether a student was baptized or attended a Catholic elementary school. The inconsistency of such an approach, however, prompted the OCSTA to consider establishing a common guideline that boards could use to determine whose exemption requests should get the green light.

Toronto lawyer Nadya Tymochenko, who regularly works with the OCSTA and Catholic boards, is wary of creating a hard-and-fast rule. In an email to the trustees’ association, published in the minutes of the organization’s September board of directors meeting, she writes, “A guideline is accessible to the public and will bring additional scrutiny to the issue, which I am concerned will simply increase the number of requests and likelihood of a legal challenge. . . . A failure to consider the requests individually would leave school boards vulnerable to a Human Rights Application, also a process that it would be best to avoid.”

Erskine-Smith also supports a case-by-case approach, so long as boards act reasonably and respect students’ religious freedom. If they don’t, he says, the property-tax designation provides a “clear, bright line” to determine exemption eligibility — a legal interpretation shared by Tymochenko. “The religious background of the student is not relevant to the exemption,” she writes to the OCSTA. “Both Catholic students and non-Catholic students may be exempted if their parents are public school [supporters].” (MPAC support does not affect overall school board funding; the province doles out money per student.)

To date, boards that have denied exemptions have faced no consequences. A spokesperson for the Ontario Ministry of Education wrote in an email that “the Ministry expects all boards to operate their schools in conformity with the Education Act.” The ministry has touted its ability to intervene in board-level matters in the past, but it is neglecting to do so now. “They don’t want to touch [the exemption issue] with a 10-foot pole,” says Naylor, the creator of myexemption.com. Consequently, the onus is on parents to stand up to resistant boards.

Michael has spent 34 years in Ontario’s Catholic school system as both a student and teacher. He’d always assumed students needed four religion courses to graduate. That’s what school literature said and that’s what his superiors and colleagues thought. “Why would our students know if we don’t?” he asks. When he heard about the exemptions, “it just seemed to me that we were not being truthful about the whole thing and misleading students.” So Michael began telling them about exemptions. His school wasn’t pleased.

Michael, not his real name, requested anonymity because he fears the consequences of speaking out. It’s a concern justified by the example of Paul Blake, a Peterborough, Ont., teacher who was formally reprimanded by his school for telling students about exemptions last May; he now teaches in England in part because of the disciplinary note on his file.

Commenting on situations like these, Naylor speculates that boards are acting out of self-preservation. Exemptions blur the line between Ontario’s four school systems (separate and public in both English and French) and can easily be interpreted as another reason for reform. According to a September 2014 Fraser Institute report, restructuring Ontario’s system to mirror the one in British Columbia, one of seven provinces that does not fully fund or operate Catholic separate schools, could save the province anywhere from $850 million to $1.9 billion. “Catholic school boards are so afraid of this exemption because that’s where the conversation inevitably leads,” Naylor says. “You can’t talk about exemptions without the next question being, ‘Why are we funding four school systems?’

***

This story first appeared in The United Church Observer’s January 2015 issue with the title “Here’s one lesson they’re not teaching in Ontario’s Catholic secondary schools: The law says you don’t actually have to study religion.”