Home Education and the Law (1996)

All homeschoolers in Ontario should know what the Education Act says about homeschooling.

In section 21[2], the Act says that a child is excused from compulsory attendance at (public) school if he or she is receiving "satisfactory instruction at home or elsewhere."

Section 24[2] states:

"Where the parent or guardian of a child considers that the child is excused from attendance at school under subsection 2 of section 21, 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 him the result of the inquiry and may, by order in writing signed by him, direct that the child,

(a) be excused from attendance at school; or (b)attend school..."

This, unfortunately, is not a lot of help in negotiating the legal, political minefield that homeschooling in Ontario seems to have become. This article will address the reasons for Ontario's complicated home-based education legal landscape, and suggest some short-term and long-term solutions.

If the Law Protects Our Right to Homeschool--What's the Big Deal?

As you can see from the sections quoted from the Education Act, home-educated students are not required to attend school, assuming they are receiving satisfactory instruction. The Act does not attempt to define satisfactory instruction, but obviously, no more can be expected of homeschooling families than that which is deemed satisfactory in the public school system. Should a board form the opinion that a child is not receiving satisfactory instruction, then the Act provides that the Ministry (not the school board) may conduct an inquiry to determine whether the instruction is satisfactory.

Unfortunately, the Ministry of Education and school board officials are under the impression that the state, in the form of the school boards, must excuse the child from school attendance. In fact, under the law, children are excused from school attendance by virtue of the fact that they are receiving satisfactory instruction at home, just as they are excused when they attend a private school.

2013 Web Editor's Note: the current policy (PPM131) has somewhat changed the stance of the Ministry and school boards as described in the above paragraph. The government now directs school boards to accept the parents' letter of intent to homeschool as sufficient evidence that they are providing satisfactory instruction, unless there are "reasonable grounds" to suspect otherwise.

The school board's only responsibility, according to the Act, is to report to the Ministry the number of school-age children in its jurisdiction not attending public school, and the reasons therefore. Hence it is legitimate for a school board to contact a family and ask them why their school-age children are not attending school, but to go any further is beyond the requirements of the Act (and in fact, they can fulfill this obligation by using the census). If contacted, a family need answer only that they are providing instruction at home. (This same procedure holds true for families whose children attend private schools, although, for some mysterious reason, they are rarely, if ever, contacted.)

School officials also sometimes maintain that "someone," (read, a school official) must determine whether or not the instruction the child is receiving is satisfactory. Nowhere does the law require this. In Canada, the courts presume one to be innocent until proven guilty. Case law has made it clear that with regard to Ontario law and homeschooling, parents must be presumed to be providing satisfactory instruction. Parents cannot be presumed to be providing unsatisfactory instruction. This is tantamount to a presumption of guilt. Therefore there are no legal grounds, except in cases in which there is reason to believe otherwise, for the state to question whether satisfactory instruction is being provided. Where there is such reason, the law provides for the procedure of an inquiry.

Because of these false presumptions on the part of Ministry and school board officials, a number of families have been forced to go through the inquiry process outlined in the Act. The problem is not the inquiry process in itself. It is, rather, that school boards have presumed that the instruction families were providing was not satisfactory, and with no evidence to support this presumption, have demanded an inquiry. We will examine the inquiry process, but first, to go further in determining the limits of Ministry and school board officials' power, we must turn to the case law.

Case Law and Homeschooling

In Lambton County Board of Education vs. Mireille Beauchamp (1979) Judge Kent put the onus clearly on the school officials to prove that satisfactory instruction was not taking place. In other words, the school board had to produce clear evidence that the home-educating family was not providing satisfactory instruction. This decision was consistent with the basic principle of North American and British legal systems that one is innocent until proven guilty, and in addition, clearly respected that the parent has primary and ultimate responsibility for the education of the child. As Wendy Priesnitz, founder of the Canadian Alliance of Home Schoolers, has noted, it is ironic that "this case was the justification the Ministry gave when circulating the 'Johnson memorandum' (see below) in the early 1980s encouraging school boards to "monitor" home-based education...i.e. if they were going to charge families with not providing satisfactory instruction, they needed to have evidence!"

In Jones v. Her Majesty the Queen (1986), the Supreme Court upheld the conviction under an Alberta law of Pastor Jones, a minister who ran a private school in his church's basement, on three counts of truancy, and ruled that:

"a requirement [as per the Alberta School Act] that a person who gives instruction at home or elsewhere have that instruction certified as being sufficient is demonstrably justified in a free and democratic society. Such a requirement constitutes a reasonable limit on a parent's religious convictions concerning the upbringing of his children. So is a subsidiary requirement that those wishing to give such instruction apply to the appropriate authorities for certification that the instruction given complies with provincial standards of efficiency."

The ruling continues,

"the ...impugned provisions of the School Act do not deprive them [the parents] of that right [to educate their children as they see fit] in a manner that is not in accordance with the principles of fundamental justice guaranteed by that section. The Act created a system which ensures compliance with the requirements that the province considers necessary to advance its interest in the quality of Education. It did so by providing for certain standards in the Act and the regulations, and by delegating to the school authorities the power to particularize the requirements with the general confines of the Act. Although the school authorities have a vested interest in the system, it seems normal enough to refer a question of efficient instruction within the Act to a school inspector or a superintendent of schools who is knowledgeable of the requirements and workings of the educational system under the Act."

Lest this scare us to death, we read a little further on that:

"The court would no doubt intervene if, in exercising their functions, the school authorities sought to impose arbitrary standards or if they, in other respects, acted in a manner that was fundamentally unfair. Such would be the case with the imposition of standards extraneous to educational policy under the Act or with a failure to examine the facts or to fairly consider the appellant's representations."

In Jones, therefore, the Supreme Court recognized the interest of the state in the education of all children, but at the same time warned that school authorities could not "impose arbitrary standards."

Most recently, in R.B. v. Children's Aid Society of Metropolitan Toronto (1995) the Supreme Court ruled that:

"The right to nurture a child, to care for its development, and to make decisions for it in fundamental matters such as medical care, are part of the liberty interest of a parent. The common law has long recognized that parents are in the best position to take care of their children and make all the decisions necessary to ensure their well-being.....

"While parents bear responsibilities toward their children, they must enjoy correlative rights to exercise them, given the fundamental importance of choice and personal autonomy in our society. Although this liberty interest is not a parental right tantamount to a right of property in children, our society is far from having repudiated the privileged role parents exercise in the upbringing of their children....While the state may intervene when it considers it necessary to safeguard the child's autonomy or health, such intervention must be justified."

These three cases give home-educating parents the assurance that Ministry and school board officials must respect their right to educate their children as they see fit, and must presume that the parents are providing sufficient care for their children to meet the minimum standards of the law, unless there is reason to believe otherwise.

Ministry Criteria/School Board Policy

Web Editor's Note: the following paragraphs under this heading, describing the state of affairs at the time of original publication of this article (September 1996), are no longer current, but serve as an historical record of what has happened in the past. For the most up-to-date information, please see the main pages on Laws & Policies.

The Ministry of Education has, for some 10 years, circulated among Ontario school boards a memorandum written by former Provincial School Attendance Counsellor Ken Johnson. This memorandum only provides suggested criteria for assessing satisfactory instruction at home. The Ministry would like to see school boards develop policies based on these criteria to deal with home-educating families. According to Wendy Priesnitz, at least one subsequent Provincial School Attendance Counsellor (Jake Rogers) advised her that these criteria were not "must dos," but "it would be nice ifs," since the Ministry or Boards would likely lose if challenged in terms of the Canadian Charter of Rights.

These criteria are unacceptable to many homeschoolers, inasmuch as they provide for home visits, assessment of the child's work, assessment of instruction, and other invasive practices that go beyond the requirements of the law. OFTP holds that these criteria are unnecessary as they violate the principle that parents must be assumed to be providing satisfactory instruction for their children unless there is reason to believe otherwise. Many school board officials are under the impression that board policies based on these criteria have the force of law, and that families that do not go along with them are breaking the law.

They are mistaken.

School board policies and Ministry criteria do not have the force of law. Only the law, as it exists in Acts and regulations, has this power. A family that rejects home visits or meetings with the school board is not breaking the law.

Likewise, families are not legally required to "apply" to their local school board for "permission" to educate their children at home, any more than they are required to ask permission to send them to private school. Further, families are not required to "register" with the local school boards as homeschoolers. The law does not require that families have any dealings with their local school boards at all, except in cases in which the local attendance counsellor has legitimate reason to believe that a family is not providing satisfactory instruction for their children.

There have been so many cases of harassment resulting from the overzealous implementation of Ministry/school board policies regarding homeschooling, and from the misinformation propagated by these agencies, that it would take pages to list them all. Single mothers on Mother's Allowance have been threatened with loss of benefits. Families have been threatened with Children's Aid intervention and the loss of their children. Attendance Counsellors have literally forced their way into the homes of homeschoolers. Education officers have demanded to question young children without their parents' presence. Families have been told that homeschooling is illegal, or that they may not practice it because of personal factors (e.g. "The board won't allow you to homeschool because you are an immigrant."). These and other arbitrary attacks on families and their privacy are unacceptable, unwarranted, and illegal.

Inquiries

Because the law allows for the calling of an inquiry in the event of a dispute between an attendance counsellor and a family, families that reject dealings with their school boards may find themselves facing such a procedure. We have heard from Ministry education officers that as many as 17 Ontario families were facing inquiries for the 1995/96 school year. We have only located three such families, and to the best of our knowledge, all three inquiries went well for the families. While some of the families found the inquiry less troublesome than dealing with their local boards, OFTP's position is that inquiries should not take place merely because school boards presume unsatisfactory instruction where families have refused to comply with the board's intrusive and unacceptable policies. The law requires that inquiries must be conducted in an unbiased and fair manner. Unfortunately, some inquiries of the past have not been so conducted, so homeschoolers must be vigilant in demanding the unbiased and fair procedure to which we are entitled.

As homeschoolers, we must decide if we will allow the Ministry and school boards to control our families with false presumptions and harassment. Where does the fact that we are supposed to be living in a free society with protected rights and liberty come into play? Where are the alternatives for those who choose not to force their children into the state-sponsored system? The civil right to choose alternatives for our families is protected by the law, and as homeschoolers we must ensure that these rights are not violated.

Paradigm Shift

It is very difficult for those who are products of the current state system of compulsory education, including some lawyers and judges, to understand that many of us feel that the choice of an alternative education for our children is a fundamental civil right, and that the state's interest is secondary.

The Pastor Jones case determined that the state has an interest in the education of every child. On the surface, this seems reasonable. After all, if we as families fail our children, who is there to pick up the slack but the state? Shouldn't the state ensure that all children receive an education?

This would be a reasonable proposition if it were not so laughably out of touch with reality. If we look around at the unemployable and illiterate members of our society, we will find that virtually all these people were educated by the state in its compulsory system. If the state has a compelling interest in the education of every child, then why does the state not exercise its interest by making sure that every child in the state system is receiving an adequate education?

We need to effect a paradigm shift, a way to allow others to understand that as homeschoolers, we are simply claiming our authority to choose a different path for our families, and to help our children make their own choices. This is no easy task, because the vast majority of those who have a vested interest in the system, including school boards, teachers, and even some parents whose children are in school, become very defensive when faced with alternatives.

Public Education

So what do we do to protect our rights? The current harassment of homeschooling families by Ontario school boards, the misinformation about homeschooling being propagated by both school boards and the Ministry of Education, and the unjustified inquiries into the instruction of home-educated children certainly seem to be instances of the state arbitrarily exceeding the powers allowed by either Ontario statute or case law precedent.

OFTP recommends that families who are questioned or forced to defend their position emphasize two things--right to choice and evidence. We have the right to choose an alternative education for our children, and virtually all the evidence collected to date indicates that home-educated children are academically and socially adept, lifelong learners, have a solid sense of self and of their own values, and are willing to take on new tasks and challenges. In short, they are the outcomes-based-educator's dream.

If school board officials are asking for things you don't want to do, such as home visits or monitoring the child's work, be polite, but do not do anything you are not personally comfortable with. Be aware that home visits and monitoring have gone disastrously for many families.

If you are being threatened in any way, with court action or an inquiry--get help. Contact OFTP and we will do our best to make sure your family has the support you need. We are a volunteer organization, but are connected to experienced support groups and homeschoolers across the province. There is absolutely no need for a family to feel alone or afraid. Those families who have stood up for their rights have in virtually all cases ended up with their rights recognized. Unfortunately, many families have undergone considerable harassment before they could resolve the situation. Getting help quickly can end the harassment.

As with most potentially dangerous situations, our worst enemies are ignorance and misinformation. Make sure that you and the other home-educating families you know fully understand the law as it applies to home-based education. Know your rights, as well as your responsibilities. Read the Education Act (available at public libraries), share the information in this article with others, encourage other families to join OFTP, and counter misinformation whenever you run across it. When you can quote the law and case law precedents, school officials spouting incorrect information almost invariably back down. Knowledge is power.

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Topics: Laws & Policies