FAQ about Policy/Program Memorandum No.131

It can be viewed on the Ministry of Education web site:
http://www.edu.gov.on.ca/extra/eng/ppm/131.html

The purpose of a Policy/Program Memorandum (PPM) is to provide clarification to legislation. In this case, PPM131 is intended to clarify and provide direction to School Boards and parents regarding sections of the Education Act. A PPM is not law and one cannot be prosecuted for not following the policy.

In support of the assertion that a policy is not legally enforceable, we refer you to the following documents:

1) On the Government of Canada Regulation website, there was a (now removed) pamphlet of the Department of Justice called "What Tools: The Panoply of Rules," presented at the Justice Instrument Choice Conference, March 26-27, 2002, by John Mark Keyes. Here is the relevant quote:

How are rules enforced?
- statutes: general application, legal sanctions / courts
- delegated legislation: general application, legal sanctions / courts
- contracts / agreements: application to parties, legal sanctions / courts
- voluntary codes: application within voluntary associations, internal sanctions
- standards: various
- policy directives: internal application, disciplinary sanctions [emphasis added]

Notice that he does not mention legal sanctions and courts as means for enforcement for policies.

2) On the website of the Council on Licensure, Enforcement and Regulation (CLEAR), there was a paper on Administrative Rulemaking by Richard Steinecke, presented at CLEAR's 23rd Annual Conference, Toronto, Ontario, September, 2003. You can view CLEAR's PowerPoint document. Here are the relevant quotes:

Policies, Guidelines and Informal Standards
- Have no legal authority [emphasis added] [...]

and

Policies, Guidelines and Informal Standards
. Disadvantages:
-- Not legally enforceable [emphasis added] [...]

as compared to Regulations:

. Advantages:
-- Clear authorization in enabling statute
-- Legally enforceable [...]

Requirements suggested in the Johnson Memorandum

A. RELATING TO PROCESS

1. Availability of a written plan for instructing the pupil "at home or elsewhere" showing how the program is to be organized, scheduled and evaluated.

2. Availability in the "home or elsewhere" of texts and other learning materials appropriate to the developmental growth of the child.

3. Availability of samples of the pupil's work, of a quantity and quality to indicate a regular suitable program of instruction.

B. RELATING TO ACHIEVEMENT

1. Supervisory Officer's assessment of educational growth of the pupil based on discussion with the child and examination of the written work of the pupil

2. Scores on Standardized Achievement tests in language and mathematics compared with the norms of pupils of similar age and background.

C. RELATING TO SUPERVISION OF THE PROGRAM

The supervisory officer should assess the program "at home or elsewhere" at least three times a year to ensure that the pupil is continuing to receive "satisfactory instruction". This expectation is congruent with the evaluation a pupil would receive in a classroom situation.

There are two essential differences between the Johnson Memo and the PPM #131.

PPM131 contains the following:
- 1. the assumption of satisfactory instruction occurring if a parent sends in written notification to their school board, unless evidence arises to the contrary.
- 2. the reminder to school boards conducting an investigation that the "methodology, schedules, and assessment techniques used by parents who provide homeschooling may differ from those used by educators in the school system", in other words, do not expect to find "school-at-home."

E-Laws is maintained by the Government of Ontario to provide access to the consolidated laws of Ontario.Their goal is to be up to date within 14 days of a change in the law. You can read the Ontario Education Act online or purchase copies through Publications Ontario.

It is also available for reference use in public libraries.

The Board is directed by PPM131 to assume that satisfactory instruction is taking place, send you a letter of acknowledgement, and otherwise make no further contact with you unless there is compelling evidence to suggest that satisfactory instruction is not taking place.

If you are not known to the board, nothing will happen.

If they become aware of you, they may make contact and request that you send the letter of intent.

Because this is a policy rather than a law, you are not breaking the law if you do not send a letter of intent or fill out their form (see Legal Status of PPM131). However, once you have been contacted and have let them know your child is not truant but is being homeschooled, it makes sense to confirm that in writing. A written response is not only what they request when they themselves follow the policy, it also serves to document your response for your own records (- keep a copy).

It is up to you whether to provide your written confirmation in the form of a letter or by filling out a basic form, but if the school has its own Letter of Intent form they wish you to fill out instead of just supplying a letter, it would demonstrate that you are reasonable and cooperative if you agree to fill it out even if you've already sent your own letter, whereas refusing to do so could be construed as unnecessarily uncooperative and adversarial and possible grounds for an investigation.

If they request you fill out more forms than the basic Letter of Intent form, however, this amounts to conducting a school board investigation. PPM131 directs school boards to accept a letter of intent as sufficient evidence of satisfactory instruction, and not to investigate further under normal circumstances (there must be "reasonable grounds" to suspect that satisfactory instruction is not being provided).

Even when there are grounds to suspect that there is a problem about "satisfactory instruction," the Education Act (which is the law and not policy) does not prescribe for a school board to be the one to investigate. On the contrary, it specifically states that inquiry officers must be "persons who are not employees of the board operating the school that the child has the right to attend." [Section 24(2)]

The school board representative will document every effort they make to have you comply with their request to supply further information. They must keep a record of their efforts of communication (phone calls, registered letters, etc.) as proof that they have done this. We suggest that families do the same. Document, for your records, all contacts you have with your board. (Keep a copy of all letters sent and received. Make a list of phone calls, logging whom you spoke with and the main topic of conversation.) The PPM outlines the procedures for the boards to follow if they decide (a) to further investigate by asking you to fill out the forms and you do not comply with their requests, or (b) if after an investigation the school board representatives believe they have been unable to determine if satisfactory instruction is taking place in the home. Any actions they take must be in accordance with subsection 24(2) and/or section 30 of the Education Act.

There is no legal requirement to inform the school board of your intentions to home educate if your child has never been enrolled in the Ontario school system (see Legal Status of PPM131). Children between the ages of 6 (on the first day of school in September) and 18 (as per the 'Learning to 18' changes introduced by Bill 52, 2006) are required by law to attend school unless excused under Section 21 of the Education Act.

If your child has never had any dealings with the school board, you have a few options:

1) continue to homeschool knowing that, even though you have chosen not to send in a notification, you may become known by your local board.

If this happens, the school board will likely forward a form for you to complete, describing the names, ages and gender of your school aged children as well as a place on the form for you to sign, indicating you are responsible for the education of your children. The decision to comply with this request rests with the individual family, since this is not a legal requirement, but since you would be in the position of having to confirm your homeschooling status anyway, it makes sense to do so in writing if only for documenting your actions, and the most cooperative way to do that is by filling out the Notification of Intent form they send (- keep a copy for your records).

2) continue to homeschool and voluntarily send the letter off to your local school board without being asked, even if you don't need a letter of acknowledgement from them.

3) continue to homeschool and voluntarily send the letter of intent to your local school board because you need a letter of acknowledgement from them in order to access other government services such as CCAC. You may want to specifiy in your letter of intent that you need the letter of acknowledgement for government services, since not all school boards automatically reply with one.

In this case your local school board would have the following options:
- take no action
- inform you of the requirement to send written notification and ask you to send in a letter of intent or fill out their notification form
- start an investigation
- send your name off to the Provincial School Attendance Counsellor (PSAC) for a potential inquiry

The school board should not charge a homeschooling family with truancy unless there has been a provincial inquiry resulting in a PSAC order for a child to attend school and the parents disobey that order. However, it does still sometimes happen that a school board disregards the legal procedures they should follow (section 24(2) of the Education Act) before resorting to truancy charges. If you find yourself being threatened with truancy charges without having received an order from the PSAC, the OFTP may be able to intervene before it goes to court. If it is too late and the truancy charges proceed, the fact that you consider your child excused under section 21(2)(a) means that section 30(7) will apply, whereby the judge will refer the matter to the PSAC but will reserve the authority to make the final order about whether the child must attend school or is excused from attendance.

Nowhere in the Education Act is there any legal requirement to inform the school board of your intentions to home educate if your child has never been enrolled in the Ontario school system. The local school board has the option of conducting a census of children within its jurisdiction to ascertain what form of education is being provided to them. There are 3 different sections in the Act that refer to either a) census, b) reporting by the principal, c) or duties of boards:

Section 27. Census

A board may make or obtain a complete census of all persons in the area in which the board has jurisdiction who have not attained the age of twenty-one years. R.S.O. 1990,c.E.2,s.27.

Section 28. Reports and information

(1) The principal of every elementary and secondary school shall,

(a) report to the appropriate school attendance counsellor and supervisory officer the names, ages and residences of all pupils of compulsory school age who have not attended school as required;

(b) furnish the school attendance counsellor with such other information as the counsellor requires for the enforcement of compulsory school attendance; and

(c) report in writing to the school attendance counsellor every case of expulsion and readmission of a pupil.

Section 170. Duties of boards

Every board shall report children not enrolled

15. ascertain and report to the Ministry at least once in each year in the manner required by the Minister the names and ages of all children of compulsory school age within its jurisdiction who are not enrolled in any school or private school and the reasons therefor.

We hope that school boards will be cautious in following this section as we have seen instances where disgruntled family members or separated couples have made complaints to school boards out of spite or ignorance of the facts. Home education is a new concept to many people and some may be prone to prejudices that look at home education in an unfavourable light.

What needs to happen in this case is a dialogue between the parents and the school officials to sort out the history of the difficulties and the real reasons for the absenteeism. Sometimes doctor's reports or other documentation can illustrate why the parents have chosen to remove their child from the school system and home school them. If OFTP can be of assistance in helping resolve this matter, we will do so.

The form (Appendix D) is meant to provide a guideline to the Board, so a family which describes themselves as using an 'unschooling' philosophy may choose to provide the board with their own written description of the learning that takes place in their home rather than fill out the form provided. The PPM also reminds boards not to expect that the learning taking place in the home look like 'school at home'. As well, OFTP will continue to educate officials regarding 'unschooling.'

OFTP will make every effort possible to assist its members in any way that it can.

It needs to be remembered that all OFTP members who do volunteer work for the organization do so out of concern for home education and a desire to help others in need. No volunteer gets any financial remuneration for time or expenses incurred in this support work. In other words, if an informed OFTP member has the time and is willing to be present, OFTP will have a representative there.

The Independent Learning Centre (ILC) provides a wide range of distance education courses that allow individuals to earn secondary school diploma credits, upgrade basic skills or study for personal development. You can obtain services directly from ILC or from one of the access sites in your area.

Visit www.ilc.org for more information.

The ILC rules about age seem to change over time, so it's best to check with them directly. For example, in the summer of 2005, all elementary level grades were available. The minimum age limit was 6. While the elementary level correspondence courses are no longer available, the ILC does still have elementary level curriculum materials for sale. In 2005, students could sign up for secondary level courses one at a time even if they were under age 16. There is currently no information on their website to indicate whether or not that is still the case. We recommend you contact the ILC for the most current information.