2006 – OFTP Request for Changes to Directive 2.2 (ODSP) and Directive 21.0 (Ontario Works)

Historical Archive: This is provided for your information only, as an historical record of what the situation was in 2006 and what the OFTP's efforts were. The Directives have since been modified. For the most current versions, please see the current pages on ODSP and Ontario Works.

In January 2006, OFTP sent a letter to the Minister of Community and Social Services asking for changes to the policy directives that relate to the eligibility of homeschooled dependent children to be included in the benefit unit in families on government assistance.

The OFTP asked for the removal of the requirement for school board approval, as well as a few other changes to the policy and its wording in the directive document. The reply from the Ministry, at the time, was a brief letter acknowledging receipt of the request and assuring us that they would have ministry staff look into it. The Ministry did not contact the OFTP when the Directives were changed.

Letter to the Minister of Community and Social Services

January 9th, 2006

Dear Ms. Pupatello:

I am writing to you on behalf of my family with a request for help in clearing up a matter that affects us personally as recipients of the Ontario Disability Support Program.

At the same time, I am writing on behalf of the Ontario Federation of Teaching Parents, of which I am an executive member. The OFTP's mandate is to represent the interests of all homeschoolers in Ontario and to work with the government in ensuring that their rights and freedoms are protected in the Acts, regulations and policies that affect them. The policies of concern in this case are Directive 2.2 (ODSP) and Directive 21.0 (Ontario Works) as they regard the eligibility of homeschooled dependent children to be included in the benefit unit.

I'd like to start by expressing appreciation for the existence of government assistance programs, in particular the Ontario Disability Support Program. It is heartening to know that we live in a humanitarian society in which the principles of compassion, rights and freedoms are put into practice in tangible forms like ODSP. We realize not everyone around the world is so fortunate, and while we believe that providing support to the disabled is the right thing for governments to do, we nevertheless do not take it for granted.

The wording of the introduction to the ODSP Income Support Policy Directives encourages us to believe that the government wishes to support the disabled in living their lives with dignity and as much independence and normalcy as their disability allows. One of the ways this sense of normalized autonomy manifests is through being able to conduct one's own affairs as one sees fit without undue restrictions and requirements.

We believe Directive 2.2 and Directive 21.0 contain such an undue restriction in their requirement that home schooling be approved by the school board in order for a dependent child to be included in the benefit unit. We would like to see this requirement removed for several reasons, which we have detailed in the attached paper and which include the concern that it is not aligned with the Education Act. One of the consequences is that assistance recipients are not allowed the same parental rights and freedoms as those enjoyed under the law by the general population. We have also detailed other requests for changes, including for more explicit references to the eligibility of homeschoolers in the wording of the directive documents.

We would be glad to discuss these concerns further with you if you wish. Please let us know if there is anything else we can do to help you explore the issues and arrive at a decision about the changes we've requested.

In the meantime, I would like to make a more immediate and personal request as well, if I may. I was wondering if you could issue a temporary written waiver to my family and any others in the same situation, so that our caseworkers can suspend the requirement for school board approval until the matter is decided and settled in the actual Directives. I have enclosed a separate letter that provides my family's Member Identification number and caseworker information.

Thank you so much for your consideration in these requests. I look forward to your reply.

Sincerely,

Marian Buchanan
Executive Member, Ontario Federation of Teaching Parents
www.ontariohomeschool.org

encl:
- OFTP request for changes to Directive 2.2 and Directive 21.0
- personal letter requesting waiver

Request for Changes to Directive 2.2 (ODSP) and Directive 21.0 (Ontario Works)

January 2006

This request is presented to the Minister of Community and Social Services by the Ontario Federation of Teaching Parents (OFTP). The mandate of the OFTP is to represent the interests of all homeschoolers in Ontario and to work with the government in ensuring that their rights and freedoms are protected in the Acts, regulations and policies that affect them.

The policies of concern in this case are Directive 2.2 of the Ontario Disability Support Program (ODSP) and Directive 21.0 of the Ontario Works program (OW) as they regard the eligibility of homeschooled dependent children to be included in the benefit unit. We would like to request changes in the following areas:

  1. approval by the school board
  2. satisfactory progress
  3. homeschooled dependent children over the age of 16
  4. references to homeschooling in the directive documents

1. Approval by the School Board

Directive 2.2 and Directive 21.0 address home-based education in the following way under the heading "Home Schooling":

"Home schooling occurs when a parent educates his or her child in the home. The Board must approve home schooling for children under 16 years of age and cannot consider a child excused legally from school unless it is satisfied that the child is receiving satisfactory instruction. If a dependent child is receiving Board approved home schooling, the child is included in the benefit unit."

(Directive 21.0 adds, "Note that home schooling does not affect parent(s) participation requirements.")

The corollary would be that ODSP and OW recipients who educate their children at home will not receive financial support for those children unless the homeschooling is approved by the school board.

The Ontario Federation of Teaching Parents (OFTP) is concerned about this requirement and would like to see it removed as a condition for eligibility for several reasons:

  • a) It goes beyond what is required by the Education Act, which makes no mention of school board approval and in fact places restrictions on school board involvement.
  • b) It contravenes fundamental principles of our justice system and parental rights.
  • c) It creates a double standard in parental rights and freedoms, with welfare recipients and the disabled on ODSP at a disadvantage.
  • d) It contributes to an increased sense of restriction in the lives of those whose welfare status or disability-related limitations are already an experience of stress and lack of freedom and control.
  • e) It ties the financial support of children to the family's educational choices rather than just their levels of income and assets. We believe dependent children need to be protected from poverty regardless of what form of education they receive.

a) The Education Act

Ontario's Education Act does not mention school board approval. The section that relates to excuse from compulsory attendance is Section 21(2), which states:

"A child is excused from attendance at school if,

(a) the child is receiving satisfactory instruction at home or elsewhere;"

There is no mention of any other condition to be met before a home-educated child can be considered legally excused from attendance. Given the absence of a qualifying phrase such as, "as approved by the school board," we take the law to be aligned with one of the fundamental principles of our social order and justice system, namely that parents are to be presumed to be fulfilling their parental obligations unless there is compelling reason to suspect otherwise. This is an especially important principle in a society based on individual rights and freedoms. For as long as society recognizes the role of the parents as the primary decision-makers for their children, we believe this principle needs to be upheld in matters of education as much as in any other child-rearing matter.

That is not to say that the state must have no say in matters that are primarily parental. The safety and rights of children need to be protected by the state in cases where parental decisions or actions are detrimental to the child. The determination of what is detrimental, however, must be made very carefully and cannot be based purely on a different ideology or preconceived notions. Canadian society in particular is a society of diversity. We cannot require that all citizens conform to one way of thinking and one way of doing things without destroying the foundations of our democracy and the potential for innovation and progress.

In matters of education, a pluralistic society cannot require that all children be taught in ways that conform to how they are taught in school classrooms without undermining the rights and freedoms of parents to do what they feel is best for their individual children. Conformity to a single model would also inhibit the discovery of new approaches that may be better, both in terms of effectively transmitting knowledge and skills and in terms of the social and psychological experience and development of the child.

Since the school board has a vested interest in the school system and the educational model it represents, we believe that if the board were given the responsibility of overseeing the educational decisions of parents who have chosen not to avail themselves of the school system's services, it would constitute a conflict of interest and an overstepping of boundaries by the state, as represented by the school board, into the parental affairs of the individual.

The Education Act, however, does not give the school board that responsibility and authority. In fact, the Act clearly limits school board involvement and provides, instead, another means by which the state can protect the child's right to education. Instead of the Act requiring parents to have prior approval for their decisions in educational matters made under section 21(2), such as homeschooling, the Act provides a means by which the applicability of section 21(2) can be questioned and intervention by the state can be carried out if necessary.

The principle is similar to that of any matter of child protection. Parents are presumed to be providing satisfactory nutrition and physical care for their children, and it is only if someone in the community notices that a child seems deprived or abused that an investigation takes place. In the same way, parents are to be presumed to be providing satisfactory instruction when they make the conscious choice to educate their children at home under section 21(2)(a), and it is only if there is unsolicited evidence of misinstruction or educational withholding that an investigation is to be conducted.

Section 24(2) of the Education Act provides for such an investigation. It allows for the intervention into matters that, under normal circumstances, are left to the discretion of the parent under section 21(2). The wording of Section 24(2) is as follows:

"Where the parent or guardian of a child considers that the child is excused from attendance at school under subsection 21(2), and the appropriate school attendance counsellor or the Provincial School Attendance Counsellor is of the opinion that the child should not be excused from attendance, the Provincial School Attendance Counsellor shall direct that an inquiry be made as to the validity of the reason or excuse for non-attendance and the other relevant circumstances, and for such purpose shall appoint one or more persons who are not employees of the board that operates the school that the child has the right to attend to conduct a hearing and to report to the Provincial School Attendance Counsellor the result of the inquiry and may, by order in writing signed by him or her, direct that the child,

(a) be excused from attendance at school; or

(b) attend school,

and a copy of the order shall be delivered to the board and to the parent or guardian of the child."

We would like to examine this section in two parts. First, let us consider the circumstances under which an inquiry might be called (emphasis added):

"Where the parent or guardian of a child considers that the child is excused from attendance at school under subsection 21(2), and the appropriate school attendance counsellor or the Provincial School Attendance Counsellor is of the opinion that the child should not be excused from attendance, [...]"

In other words, this section deals with situations in which there is a difference of opinion between the parents and the attendance counsellor about the applicability of Section 21(2).

Before elaborating on the above point, we would like to make note that Subsection 21(2) relates to several legal excuses for non-attendance, and home education is just one of them, listed as item (a). Section 24(2) refers back to the entire subsection 21(2) rather than just item (a) of that section. It therefore applies to all the legal excuses and is not designed to address homeschooling in any exceptional way. Section 24(2) is therefore not particularly about satisfactory instruction. Having said that, our focus here is on homeschooling and we will therefore address Section 24(2) as it relates in particular to clause (a) of Section 21(2), including cases in which the satisfactory nature of the instruction is the aspect upon which the parents and attendance counsellor disagree.

The law is expressed in terms of opinions rather than specific steps parents need to take before they can consider their children legally excused from attendance. If there were such steps, such as school board approval, Section 21(2) would spell out what those steps were and it would be a clear-cut matter to determine whether or not the child was legally excused on the basis of whether or not those steps had been taken. In the absence of a mention of such steps, we are left to interpret the above quote as confirming that, under normal circumstances, i.e. when there is no compelling reason for anyone to question the validity of the excuse for non-attendance, a child is considered legally excused from attendance when the parent considers that Section 21(2) applies because the parent considers that the child is receiving satisfactory instruction at home. It is only when the school attendance counsellor disagrees with the applicability of Section 21(2) that an approval process is set in motion.

Section 24(2) continues with the description of what that approval process is, i.e. what the Provincial School Attendance Counsellor (PSAC) should do when he or she or the local school attendance counsellor has reason to believe that the excuse for non-attendance is not valid and section 21(2) should not be considered to apply (emphasis added):

"[...] the Provincial School Attendance Counsellor shall direct that an inquiry be made as to the validity of the reason or excuse for non-attendance and the other relevant circumstances, and for such purpose shall appoint one or more persons who are not employees of the board that operates the school that the child has the right to attend to conduct a hearing and to report to the Provincial School Attendance Counsellor the result of the inquiry and may, by order in writing signed by him or her, direct that the child,

(a) be excused from attendance at school; or

(b) attend school,

and a copy of the order shall be delivered to the board and to the parent or guardian of the child."

It seems clear from the above that any granting or denying of approval must come from the Provincial School Attendance Counsellor rather than the local attendance counsellor or school board, and only in circumstances where a dispute between the parents and the school attendance counsellor about the applicability of section 21(2) has led to a provincial inquiry. Even the inquiry officers appointed by the PSAC are not the ones to whom the law gives the authority to grant or deny permission to be excused from attendance, but are merely to report to the PSAC, who is the one who makes the final decision. This section also clearly spells out that the officers conducting the investigation must not be employees of the local school board.

b) Fundamental principles of justice and parental rights

We take sections 21(2) and 24(2) together to confirm the principles of justice and parental rights already mentioned, which are also among those outlined in the Universal Declaration of Human Rights:

  • that Canadian society recognizes the role of parents as the primary decision-makers for their children, including in matters of education. (Article 26[3] of the Universal Declaration of Human Rights: "Parents have a prior right to choose the kind of education that shall be given to their children.")
  • that parents should be presumed to be fulfilling their parental duties and obligations and complying with the law (including Section 21.2.a of the Education Act), and should not be monitored or investigated unless there is compelling reason to suspect otherwise.
  • that an individual under investigation should receive an impartial hearing by an independent tribunal. (Article 10 of the Universal Declaration of Human Rights: "Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.")

Because all school boards have a vested interest in the educational model represented by the school system they serve, the principle of impartiality would be better supported by the Education Act if it extended its disqualification as inquiry officers to employees of all school boards rather than only those of the school board operating the school which the child has the right to attend. Nevertheless, the Act in its current form does at least support a version of the principle of impartiality by removing the inquiry process from the local arena, where some of those vested interests (e.g. funding) as well as possible personal interactions between parents and local authorities (e.g. a parent's dissatisfaction with the quality of instruction delivered by the school) may prejudice an evaluation of the purely educational merit of a parent's decision to homeschool and manner of doing so.

A fundamental principle of our justice system is the presumption of innocence and the requirement that an investigation be conducted only when there is a suspicion of wrong-doing. When we interpret section 21(2)(a) of the Education Act to mean that a child is legally excused from attendance on the basis of the parent's conscious decision to educate the child at home, and require nothing more than their statement to that effect, the principle is upheld and takes the form of presuming parents to be fulfilling their parental duties and obligations and complying with the law. A simple written statement from the parents confirming their decision should suffice to recognize section 21(2)(a) to be in effect. (This is, in fact, the type of statement that school boards are currently directed by the Ministry of Education to accept as sufficient evidence of satisfactory instruction by homeschooling parents.) Any further proof or approval should not be required unless there is compelling reason to conduct an inquiry. A provincial inquiry can result in the legality of non-attendance being revoked by order of the PSAC, but should not be considered to negate the legality of non-attendance prior to the order, and neither an inquiry nor any other process of approval or permission is a prerequisite for considering a homeschooled child's non-attendance to be legal under normal circumstances. Inquiries are intended to resolve exceptional disputes and should therefore not be taken as the standard, normal way by which non-attendance is to be determined legally excused or not.

c) Double standards in parental rights

Because the law, in the form of Section 24(2) of the Education Act, specifically forbids the local school board's involvement in determining the applicability of section 21(2) (beyond the role of the school attendance counsellor to initiate the request for a provincial inquiry in exceptional cases), homeschooling parents are not currently breaking the law when they do not submit to school board supervision and approval processes. For this reason, the general population of homeschooling families are legally in a position to exercise their rights and freedoms to conduct their educational affairs as they see fit without undue intervention or approval.

When ODSP recipients and OW recipients are asked to provide verification of school board approval, and when their homeschooled dependent children are removed from the benefit unit if they do not comply, they are put in the position of having to choose between the financial support of their children and the parental rights and freedoms that the general population enjoys under the Education Act and the Universal Declaration of Human Rights. We believe this constitutes an unnecessary double standard in parental rights.

d) Undue requirements and restrictions

ODSP recipients experience varying degrees of limitation and restriction in their lives according to the specific disability that has led them to seek government assistance. There may be chronic pain as well as inordinate difficulties in leading a normal life. The stress of the physical limitations themselves may be compounded by the sense of a lack of freedom and control. This psychological burden is increased exponentially when ordinary rights and freedoms seem to be taken away by the conditions of eligibility and the related financial concerns.

Undue restrictions contribute, for both ODSP recipients and OW recipients, to the existing sense of limitation and stress that poverty and dependency bring, and to the consequent erosion of the sense of dignity. We believe this is not the intended effect of the programs and that it could be lifted by measures that include the removal of undue requirements such as school board approval of homeschooling.

e) Children and poverty

The requirement that homeschooling be approved by the school board in order for a dependent child to be eligible to be included in the benefit unit, ties the financial support of children to the family's educational choices rather than just their levels of income and assets. We believe dependent children need to be protected from poverty regardless of what form of education they receive.

2. Satisfactory progress

We also believe dependent children need to be protected from poverty regardless of their academic progress. We believe this to be true whether they attend school or not.

Under the heading "School Requirements for Inclusion in Benefit Unit" in Directive 2.2 and "School Attendance" in Directive 21.0, the directive documents read as follows:

"All dependent children who are of school age are included in the benefit unit if they are attending school or an approved program, or have completed high school. Attendance at school means that the child is continuing to attend school and is making satisfactory progress. Up to the age of 16, the school is required by law to ensure that children are attending and making progress to the school's satisfaction. At the age of 16 and over, attending school and making satisfactory progress is a requirement of [the ODSP program or Ontario Works, according to the directive] for inclusion of the dependent child in the benefit unit."

The report cards of schoolchildren under the age of 16 demonstrate that satisfactory progress cannot be guaranteed by the school even at the elementary level. There are always some children at the tail end of the performance bell curve. This is true for homeschoolers as well. In fact, while many families homeschool to allow their children to advance beyond their peers and achieve academic excellence, many other families start homeschooling for the very reason that their children are struggling in school and need a more individualized approach to make progress. While for some this may mean the child can catch up to their peers (and even surpass them) through the one-on-one attention they receive at home, for others it simply means that their lag, though remaining, is not constantly compounded by the pile-up of lessons they cannot follow over foundations they have not acquired. Homeschooling allows the child to progress at his or her own pace. The progressive building of knowledge and skills upon those already assimilated is what makes the child's progress satisfactory in relative terms, and while it may compare favourably with what they were able to do in the school setting, for some children it may still not compare favourably with the level and pace of their peers in school. This is not a shortcoming of homeschooling but a reflection of the reality that children vary greatly in their abilities and readiness to assimilate the knowledge and skills they are taught. Although some children, whether in school or at home, appear to be making very little progress compared with their peers, they are nonetheless likely to be trying their best. There may be neurologically based learning disabilities such as dyslexia, or simply learning difficulties with a particular subject in which they have a lower than average aptitude.

Whatever the case, it would seem such children need more support rather than less. Even children with average aptitudes can often display an idiosyncratic pattern of progress that does not conform to the curve expected in a standardized setting. We are concerned that the requirement for satisfactory progress makes the family's financial solvency depend on a child's intellectual abilities or pattern of learning. We believe financial support should be based instead on the child's need to be cared for while he or she is still a child.

3. Homeschooled dependent children over the age of 16

The paragraph quoted above under the heading "School Requirements for Inclusion in Benefit Unit" or "School Attendance" does not clearly cover the situation of homeschooled dependent children, especially those over the age of 16. It would seem to exclude the latter from eligibility but does not state this explicitly. If they are, in fact, deemed ineligible by the directives, we would like to see this changed so that dependents who are still children (i.e. under the age of 18) can continue their studies at home without jeopardizing the financial solvency of the family.

Some children are homeschooled from the beginning and wish to continue doing so through the high school years. Others start homeschooling during high school precisely because they are not making satisfactory progress in the school system and need the individual attention and pacing of home education in order to advance in their studies and successfully prepare for adulthood. In either case, to make them ineligible to be included in the benefit unit would force the family to have to choose between financial support and education that is satisfactory to them in one sense or another according to the reasons for homeschooling. If the financial burden was too great and going to school did not seem like a viable option in terms of the reasons for homeschooling, the child might be forced to abandon his or her studies altogether in order to find a job to supplement the family income left deficient by his or her ineligibility. We believe this is the opposite of what the eligibility requirements are intended to promote.

4. References to homeschooling in the directive documents

Although the directives include a paragraph under the heading "Home Schooling," they do not list 'children excused by Section 21(2)(a) of the Education Act' under the headings "Definition of a Dependent Child" (in both directives), "Dependent Children Not Required to Attend School" (in Directive 2.2) and "Exceptions to the School Attendance Requirement" (Directive 21.0). We would like to see homeschooling added as an explicit list item under those headings in the Directive documents.

If homeschooling qualifies as "an approved program," we would like to see that made more explicit. If the phrase does not cover homeschooling, we would like homeschooling to be mentioned in its own right in any paragraphs that might otherwise seem to contradict or omit the inclusion of homeschooled children as eligible. For instance, as mentioned earlier, we would like to see a more explicit reference to the inclusion of homeschooled children over the age of 16 (under "School Requirement for Inclusion in Benefit Unit" in Directive 2.2 and "School Attendance" in Directive 21.0).

Summary of requested changes to Directive 2.2 and Directive 21.0

1. Removal of the requirement for school board approval

We would like the requirement for school board approval of homeschooling to be removed as a condition for eligibility of dependent children to be included in the benefit unit.

As an alternative to verification from the school board, we would like to suggest that family support workers and social assistance workers ask only that homeschooling parents provide the ODSP or OW office with a written statement to the effect that they are taking direct responsibility for providing satisfactory instruction for their child under Section 21(2)(a) of the Education Act. This is, in fact, the type of statement that school boards are currently directed by the Ministry of Education to accept as sufficient evidence of satisfactory instruction by homeschooling parents. We would like caseworkers to accept the same statement directly rather than involve the school board when the Education Act does not.

The written statement could either be in the form of a letter composed by the parent, or else a form could be created that the parent could be asked to read, fill out and sign. Such a form could quote sections 21(2)(a) and 24(2) of the Education Act, provide spaces in which to list the names and dates of birth of the children receiving homeschooling, and include a sentence indicating that the undersigned certifies that he or she is taking direct responsibility for the child(ren)'s education and has read and understood his or her rights and obligations under the law.

In the Directive documents, the existing paragraph under the heading "Home Schooling" would need to be changed accordingly.

2. Removal of the requirement for satisfactory progress

We would like the requirement for satisfactory progress to be removed as a condition for eligibility of dependent children to be included in the benefit unit. The relevant paragraphs would need to be changed accordingly in the Directive documents.

3. Inclusion of homeschooled children over the age of 16

We would like homeschooled children over the age of 16 to be explicitly included in the benefit unit by reason of their continuing their secondary studies. The paragraph under "School Requirements for Inclusion in Benefit Unit" and "School Attendance" would need to be clarified or changed accordingly in the Directive 2.2 and Directive 21.0 documents respectively.

4. Explicit references to homeschooling in the directive documents where currently unclear

We would like to see homeschooling added as an explicit list item under the headings "Definition of a Dependent Child" (both directives), "Dependent Children Not Required to Attend School" (Directive 2.2) and "Exceptions to the School Attendance Requirement" (Directive 21.0).

Wherever the wording of a paragraph seems to contradict or omit the inclusion of homeschooled children as eligible, we would like an explicit reference that confirms inclusion. We would like to see this in particular under the headings "School Requirement for Inclusion in Benefit Unit" (Directive 2.2) and "School Attendance" (Directive 21.0).


We hope the Minister will consider this request for changes to policies that affect homeschooling families on government assistance in Ontario. We would be glad to meet or correspond with the Ministry to discuss any of these issues and come to a mutual understanding and resolution of all concerns. Please feel free to contact us at [contact info].

Marian Buchanan, executive member
The Ontario Federation of Teaching Parents