Submission to the Ombudsman of Ontario
Submission to the Ombudsman of Ontario by the Ontario Federation of Teaching Parents
For more than ten years the Ontario Ministry of Education and some Ontario public and separate school board representatives have been harassing families who have chosen to educate their children at home. Intimidation, threats, and outright misrepresentations about the law are some of the tactics that they have used with home-based educators particularly in the past three years. This abuse must be stopped. We are asking that you seriously investigate this matter so that homeschooling families can continue to educate their children without being harassed.
This report will present you with the necessary background and information to begin your investigation. It will also provide you with examples of cases of the abuse that families in Ontario are facing, as well as copies of correspondence with school boards and the Ministry of Education.
The Ontario Federation of Teaching Parents (OFTP) is a provincial organization designed to help families who are educating their children at home. OFTP is a grass roots group that developed out of a need for a link between home educating families and the Ministry of Education. Their statement of purpose explains that:
OFTP is a non-sectarian, non-profit organization committed to the examination and address of common concerns of home-educating parents. OFTP supports parental choice in education, and supports a parent's right to the due process of law. OFTP acts as a link between home educators in Ontario and the Ontario Ministry of Education, and lobbies the provincial government on issues of concern to home educating families.
OFTP is also a member of the Association of Canadian Home-Based Educators (ACHBE). This involvement nationally, provincially, and locally has given OFTP an accurate view of the treatment of home educating families. OFTP has been actively involved in assisting families who choose a home-based educational program for their children, helping literally hundreds of families. Appendix A contains a video tape of a phone-in program on Home-Based Education on TVO which clearly demonstrates the position and involvement of OFTP in the homeschooling community. Viewing this video cassette will provide an understanding of the role of OFTP as well as an introduction to the type of difficulties faced by homeschoolers.
Approximately one per cent of all school-aged children in this province are receiving their education at home. Statscan is currently investigating this figure for Ontario and, as well, the Chesterton Institute is planning a survey within the next year to investigate the population of home-based educators within the province. The Ontario Education Act clearly states that "a child is excused from attendance at school if the child is receiving satisfactory instruction at home or elsewhere" (Section 21 (2)(a)). It is clear that children following a home-based educational program and children attending a private school are exempt from the compulsory attendance regulation in the Act.
The Education Act also provides guidelines in the event of a dispute. Section 24 (2) states:
"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 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."
No other legal documents exist that demand anything from home-based educators. In other words, the law, as stated in the Ontario Education Act, allows families to choose to educate their children without requiring them to submit an application, submit to visits, or seek approval in any way from any board or Ministry official. In fact, inquiries, as stated in the Act, are to be held only when the Provincial Attendance Counsellor "is of the opinion that the child should not be excused from attendance." In other words, inquiries are not to be held in order to force the family in question to prove that the child should be excused; the family has that right by the wording of the law. The Provincial Attendance Counsellor must be of the opinion for some good reason that the child is not entitled to be excused from school.
The Ontario Education Act does not state that a family must register with a local school board. Therefore, some families choose to register and some families choose not to. The first stage of difficulties faced by families that do not register is often at the board level. Many boards have taken on the practice of sending letters to families requesting an enormous amount of information and often presenting the request as if it were law. The Act focuses on the duties of public servants in their tasks within the publicly-funded system, and is limited to those parameters. Nowhere does the Education Act state that a home educating family is required to submit any information for inspection by a board or government official.
Parents who choose to home educate their children are asking to be treated fairly and lawfully with respect for their civil rights. A parent who chooses home education for his/her child is no different under the law than a parent who chooses to send his/her child to private school, be it Upper Canada College or the Toronto Waldorf School. In the case of those independent private schools which offer OSSD credits, it is the Ministry itself which validates the accredited status. The school boards have no role to play in this determination.
It is being asserted by the Ministry that because the school boards must enforce compulsory attendance, they bear the responsibility for determining satisfactory instruction. This is patently false. The parent always has the duty and the right to determine whether the instruction given in the schools is satisfactory (at least in relation to the law, and always in relation to their own duty to educate their own children). No school board official goes to the aforementioned private schools to determine whether the instruction is satisfactory. It is the parent, by virtue of his/her choice of educational alternative who must determine whether instruction can be considered satisfactory. The notion that home-based education must be monitored by the state is supported by neither Ontario law nor educational research. The state has a role to play only when there is a reason to believe a parent has abdicated his or her educational responsibility. Ontario law, as shown above, allows for such a contingency in subsection 24 (2). It is inconsistent with the basic principles of civil rights to insist, as does the Ontario Ministry of Education, that all families should be monitored by the state out of a fear that somewhere, some time, some parent might not fulfil his/her educational responsibilities. In no other jurisdiction is the privacy of the family so invaded with no evidence that such invasion is justified.
Home-educating families choose not to send their children to school for many reasons. Many have chosen home-based education precisely because they reject both the policies and the practices of the public school system. Some cannot afford independent education, and some choose home-based education even though they could afford an independent school because they believe home-based education best meets the needs of their family and their child. It should be self-evident that families that have rejected the practices of public schools cannot be expected to then subordinate themselves to the very system they have rejected. We will further discuss the issue of "accountability" later in this report.
Behaviour of School Boards
In addition, OFTP and legal and lay representatives of families that have endured harassment by school boards have noted that neither school board nor Ministry officials have made the slightest effort to do any research on home-based education. They have no idea about home education methodology, they have done no reading in the area, and, as the cases outlined in this report document, they amazingly even have the arrogance to reject the evidence home educating families provide that their children are growing and learning at home. How, in good conscience, can Ministry and school board officials expect families to submit to being monitored and controlled by hostile officials who are ignorant of the intellectual underpinnings of their choice, and of the evidence supporting the validity of that choice, particularly when such monitoring and control is not required by law?
These school boards are demanding that the families submit to: home visits; an inspection of the program, materials, work samples, and assessment strategies; providing a rationale for choosing to provide home based education; and providing a written plan identifying educational intentions. Appendix B contains four examples of this type of correspondence from school boards. It is clear in each case that the school boards have misrepresented the law by stating or implying that their requests are required by law.
The Durham Board of Education, for example, includes the following statement in its communications with homeschooling families.
"The Durham Board of Education recognizes the right of parents/guardians to provide "satisfactory instruction" at home or elsewhere as specified in the Education Act, July 1995, Section 21 (2). Maintenance of "satisfactory instruction" is mandatory and will be further assured by direction from the Ministry of Education & Training if the need arises."
This is deliberately misleading since it implies that the Education Act states that such direction is required by law. Most parents trust school board officials to provide them with accurate information. This "homeschooling procedure" letter also states that "the Superintendent of Education shall provide for a home visit at least once per year to determine that satisfactory education is being provided." This is clearly not required by law; however, Ministry officials continue to present these requests as though they are. Some school boards continue to claim that they have the right to enter the child's home, with or without the parent's permission, and they often present this as a legal requirement. In fact, the Education Act, section 26 (1) clearly states the following:
"Where a school attendance counsellor has reasonable and probable grounds for believing that a child is illegally absent from school, he or she may, at the written request of the parent or guardian of the child or the principal of the school that the child is required to attend, take the child to the child's parent or guardian or to the school from which the child is absent provided that, if exception is taken to the school attendance counsellor entering a dwelling place, he or she shall not enter therein."
There can be no mistake in interpretation here. The only official who can request entry into a child's home is the school attendance counsellor. This may only happen when the child is believed to be illegally absent from school and only with the consent of the parent. It is important to make this point very clear, as it is one of the most contentious issues between school boards and home educating families.
A Selection of Experiences on File
In addition to the collection of samples of this type of correspondence from the boards, interviews were conducted in preparing this report. Appendix C contains a list of those interviewed and their contact numbers. Following are three representative examples of harassment. Many other examples will be forthcoming when the Ombudsman begins the investigation.
Dianna Cronin, a home educating mother, has experienced the kind of harassment referred to above. After home educating her child, she contacted the school because she was considering having her child attend school. Her problems with the school board started at this point. The School Attendance Counsellor requested that she submit her curriculum including the number of hours per day on a weekly basis for instruction by subject. A home visit was also requested, along with a meeting with her daughter. After contacting Kelly Green of OFTP, she learned that they couldn't legally demand this of her. She chose simply to inform the school board of her decision to continue to home educate her daughter.
She found that the first principal she dealt with was "great." However, after this principal retired in December 1996, Kathy Kobelski became the principal. She demanded that Dianna submit a curriculum. Dianna did not comply. In January, the principal again asked for her curriculum including: outcomes, goals, topics, units, resources, texts, etc. Again, she chose not to comply with the request.
At the end of January, Dianna contacted Provincial School Attendance Counsellor, Gary Diamond. He told her during their phone conversation that the school board has the legal right to ask for anything and that it was up to the board to determine satisfactory instruction. He also stated that "being uncooperative would lead to problems" and that it was in "everyone's best interest to cooperate." Gary Diamond has also told parents that the School Attendance Counsellor has permission to enter the home. Once again, Section 26 (1) is very clear and it specifically states that School Attendance Counsellors do not automatically have permission to enter the home. It appears to us that this is a case of a government official misrepresenting an Ontario statute, and abusing his power as a government official to intimidate parents into compliance with unofficial policies. Mr. Diamond's statements are clearly not within the spirit of the law. The Ministry has not laid any charges against her, but seems content to attempt to intimidate her into complying with its requests.
Unfortunately Dianna's situation is nether unique nor is it the worst a homeschooling family in Ontario has endured. The proper procedure for handling disputes, as outlined in the Education Act, is that the Provincial Attendance Counsellor call an inquiry when he or she "is of the opinion that the child should not be excused from attendance." The inquiry process is often mishandled and is seriously disadvantageous to the homeschooling parents. There are thousands of homeschooling families in Ontario and many of them refuse to comply with the requests of the school boards; however, only some nine families have been brought to inquiry during the past several months. These inquiries are being called without any evidence to suggest that satisfactory instruction is not taking place. The onus then falls on the "accused" to prove that they are innocent - a practice that clearly goes against what is established for justice in Ontario.
In all nine cases mentioned above, the families were found to be providing satisfactory instruction. This result reinforces home-educating families' contention that such inquiries are being called not to ensure that children are being educated, but rather to chastise, punish and control families that have, for whatever reason, rejected the public school system. Such behavior on the part of the Ministry and school boards is in direct contravention to the recommendations of section 26 (3) of the United Nations Universal Declaration of Human Rights, which states that, "Parents have a prior right to choose the kind of education that shall be given to their children."
Judy Gould is the single parent of three children, with only one of compulsory school age. Her family was brought to an inquiry, even though she tried to cooperate with the board. Her Family Benefits were suspended because she was homeschooling and the school board requested an inquiry. She brought a legal advisor with her to the inquiry and the Ministry objected to his presence. This is unfair to anyone undergoing any type of legal process. Although Judy brought an abundance of supporting information, the Ministry refused to consider it, saying "it wouldn't be necessary."
For over six months, there was no word about the results of the inquiry then Judy received a phone call from the board saying that her children were ordered back to school. She had not received any written notice of the inquiry's decision. She had not received any copy of the written order of the Provincial School Attendance Counsellor as required in the Education Act, Section 24 (2). She has not complied with this order and no further action has been taken against her. Judy continues to homeschool, but she has had to endure unnecessary stress and hardship as a result of the actions of the Ministry and the board. It is important to observe that even though Judy has not complied with the order, the school board has declined to charge her with causing her daughter not to attend school. From this decision it would appear that the Ministry is using the inquiry process to fish for an irresponsible family it can use as a test case to establish a court judgment and case law precedent to support its draconian unofficial policies, and possibly to establish judicial/public support for changes to the law. This fishing expedition constitutes a witch hunt that calls up images of past centuries' religious persecution of dissenters from the state church. Home-based education is dissent from the sacred cow of state-run public education.
Kim Gale is another single mother who has been unduly harassed by the school board and the Ministry of Education. Kim's daughter has severe anaphylactic reactions and as a result, attending school became impossible. The initial problem was transportation. The school refused to provide transportation for this student. Most days Kim was able to accompany her daughter to school. However, since Kim is in a wheelchair, there were many days when it was impossible for her to do so. Snow was a major obstacle for Kim, making it impossible for her to maneuver her wheelchair. During ongoing discussions with the school board about transportation, she was told to put chains on her wheelchair and get her daughter to school herself.
On one occasion, her daughter had to walk to school alone and along the way she had a severe reaction rendering her unconscious. She didn't make it to school that day and was found lying in the middle of the road. After this, Kim decided to pay for taxis to take her daughter to and from school, costing her roughly $200 every two months. As a single mother on disability benefits with two children, this is certainly a cost that is not easy to bear.
The worst incident occurred one day at school when the class had a supply teacher. Unfortunately, the school forgot to tell the supply teacher about this student's serious allergies. Kim's daughter had another severe reaction. The teacher failed to recognize this and only when a classmate ran from the room to get help (against the teacher's wishes), did someone come to her assistance. She was rushed to the hospital and she is lucky to be alive today. Her doctor insisted that this child could not return to school as she was too much at risk. The doctor wrote a letter to the board explaining the serious nature of the situation. The board, however, said that they did not have the funding to instruct her at home and they suggested that Kim homeschool her daughter.
When an inquiry was called concerning her home education, Kim gathered three baskets of work (one year's worth) which overwhelmed everyone, yet the education officers who conducted the inquiry denigrated some of the child's work as it had been done for Brownie badges. The two homeschooling mothers who attended the inquiry as witnesses were astonished that detailed, beautifully researched learning projects were dismissed because they weren't completed for "school." One of these witnesses wrote in a note to Kim's lawyer, after the inquiry, that neither of the education officers seemed to have the least notion of how children learn when they aren't in school, and seemed to be more concerned about timekeeping than about learning.
Both education officers admitted to Kim and to the witnesses that they had no knowledge of, or experience with, home-based education. They made it quite plain that they intended to judge Kim and her daughter as they would judge a teacher and a student in school. The fact that this sort of assessment was inappropriate for the situation was beyond their comprehension. Although the inquiry ruled in her favor, Kim was brought to court seven times on truancy charges. Six court appearances were adjourned and at the seventh appearance the charges were withdrawn. The effects of the stress of the entire experience put Kim at risk several times. Her health suffered tremendously and the stress and mental anxiety was very high. She also had to cover the costs for transportation and for child care for her children.
Kim's experience is particularly perplexing (not to mention outrageous and shocking), since the school board wanted her to homeschool. At great expense to herself, Kim tried very hard to work with the board and keep her daughter in school. Kim, Judy, and Dianne are examples of home-educating families facing harassment and abuse of the law across the province. However, their experiences also very clearly illustrate the type of abuse going on within the Ministry of Education and their unjust treatment of homeschoolers.
The Role of the Media
The belief that the Ministry's behaviour is law has become so pervasive that it is making it very difficult to solve the problems faced by homeschoolers. Many media reports seem to fall short of researching what the law actually has to say about homeschooling and they print school board policies as though they were law. The Kitchener-Waterloo Record printed the following in an article entitled, "Boards Have Role in Home Schooling" on May 26, 1997 :
"In (the) Waterloo Region, it does not appear to be as contentious an issue as elsewhere in the province. In talking to personnel from both school boards, I learned that most parents and guardians of "homeschoolers" accept quite freely that the board has the right and responsibility to make this decision and to monitor the progress of children who have been excused from formal schooling. This monitoring usually takes place three times a year and is often done during a visit by school officials to the child's home. Parents are expected to share how they plan each day for their child's learning, what educational resources they use, how they evaluate their child's work and what educational activities outside the home they organize. This expectation is consistent with the criteria provided by the education Ministry in a memorandum written a number of years ago by the former provincial school attendance Counsellor K.D. Johnson. Many school boards have established policies and procedures based on this memorandum and see it as a useful guide."
This expectation may very well be consistent with the criteria provided by Ministry officials, but it is not consistent with the law. This type of misconception is not only an example of poor research, but it clearly shows how readily incorrect information is transmitted from the Ministry to the public.
The following excerpt from an editorial from the Brockville, Ontario Recorder and Times, March 4, 1997, also illustrates the attitude that the Ministry policies are law and that homeschoolers who refuse are in violation of the law. This article was written in response to a series of meetings held between the Leeds-Grenville County Board of Education and home educators who were invited by the board as members of their Homeschooling Subcommittee.
"The parents, however, consider the board's latest policy proposal to be intrusive, especially the provision that would require twice-yearly visits by board staff. They contend it fails to recognize the parents' right to determine how much contact they will have with the board and to choose how their children will be educated. "This policy addresses the board's bottom line of doing what the Ministry of Education and Training tells them to do. To us, the proof of the board's good intentions will lie in its adherence to the principles of the Education Act and the Canadian and UN Charter of Rights and Freedoms, " said parents' group spokesperson Herb Jones. That comment suggests the parents recognize their main complaint is not with the local board, but with the Ministry and its policies. Rather than continuing the argument with local school board administrators and trustees over the new home-schooling policy, the parents should present their charter arguments to the provincial government, which governs school boards. The boards are limited by what the province says they can do. Frankly, we don't consider twice-yearly visits by school supervisory staff to be an onerous requirement, especially when the Ministry delegates that responsibility to the boards. Trustees didn't write or approve the Education Act. If parents want it changed they will have to appeal to the Ministry and provincial legislators to come up with terms they consider more favourable."
This last paragraph is especially significant. The Education Act as it is written does not require homeschoolers to submit to any of the requests made by school boards. There is an assumption behind the sentence "Trustees didn't write or approve the Education Act" that the Ministry has the authority it has "delegated" to school boards. This assumption is false because the Ministry does not have that authority: it is not conferred by statute. The reporter is writing as if the Ministry had the responsibility -- and could delegate it -- to cause homeschooling families to be visited twice-yearly. Since the Ministry doesn't have any supervisory responsibility or power in regard to homeschooling, it doesn't have a power in this regard that it can delegate, and a board doesn't have any authority to claim it has been delegated by the Ministry to perform this function, much less act as if it had been delegated to do so. Therefore, the reporter's claim is a misrepresentation of a provincial statute (due, no doubt, to the confusion of the reporter as to what the law actually says and doesn't say). Home-based educators do not want the Education Act to be changed, they want it upheld. It is the Ministry of Education and the school boards who are illegally trying to modify the Act and force homeschoolers to comply with their requests.
School Board and Ministry Personnel
It is easy to understand how so much misinformation can exist about homeschooling when you consider that the Ministry and its representatives are not clear on their position or what is law. School board trustee for the Leeds-Grenville County Board of Education, Dianne Arnold, stated in a meeting with the board and homeschooling representatives that "it is very suspicious that homeschoolers do not want people coming into their homes." This may be her opinion, but it is certainly not evidence to support enforcing home visits. Burt Perkins, Superintendent stated at the same meeting that when he encountered a homeschooling family that refused to cooperate, he turned their names over to the Children's Aid Society. He also stated that he knew of some families who were not truly homeschooling, but were using it to cover up for abuse. However, he was not able to provide any proof to support this very accusatory statement.
Mr. Ed James of the London Public School Board, told Gayle Remisch on April 3, 1997, that if (a homeschooler) could show him a piece of paper signed by someone at the Ministry of Education that told him he didn't have to bother with homeschoolers ever again that he would be thrilled. Clearly the Ministry of Education is instructing school boards to become involved with home educating families, yet the Act clearly classifies homeschoolers with private schools and as such school boards have no involvement with them.
In March 1997, Ms. J. Boulianne of the Ministry of Education's Ottawa office was adamant during a telephone conversation that home educated children do not come under the supervision of the local school board. From reading the Act, she affirmed that home educated children fall into a class outside the jurisdiction of the local school board, as do private schools. She noted that she had never seen a numbered Policy Memorandum stating that there had been such a major change in Ministry policy.
After Ms. Boulianne contacted Mr. Gary Diamond, the Provincial School Attendance Counsellor, she stated in a second telephone conversation that the policy within the Ministry had changed. She confirmed that the policy is not an official policy document, but a 'working policy' only. Clearly the Ministry is attempting to change the boundaries expressed in the Act between home educating families and the Ministry of Education and Training. They are doing this without an officially numbered Policy Memorandum.
The policy that the Ministry is advising school boards to use is based on the Johnston Memorandum. The Cochrane-Iroquois Falls, Black River-Matheson Board of Education sends out a document to the homeschoolers in its region which is a copy of the Johnston Memorandum (see Appendix B). It is important to note that former Provincial School Attendance Counsellor, Jake Rogers, refuted this memo in a letter to Lyle McBurney, who was the Director of the Ontario Association for Alternative and Independent Schools (later OFIS). The Ministry has no official policy memorandum on homeschooling. In 1990, Malcolm Powell, Provincial School Attendance Counsellor and successor to Mr. Rogers, told home-educating parents Mary Shaw and Susan Clarke that the law could not support an official policy based on the Johnston Memorandum, and in addition, he stated that he felt it was a dead issue.
The confusion and inaccurate information continues within the Ministry of Education right to the most senior officials. Gary Diamond, at the time Provincial School Attendance Counsellor, made the following statement in a letter to Norm Damaren, educational management consultant and former superintendent with the Waterloo Region Separate School Board:
"Home schooling is done by parents on an individual basis for any number of reasons. Because the Education Act requires children of compulsory school age to attend school unless excused, it has been the Ministry's position that it is the school boards that decide whether the children have met the excuse. In the case of home schoolers, the school board must decide whether the child is receiving satisfactory instruction at home. If not for school board approval of the instruction, there would be no form of public accountability in the home schooling system. School boards have different ways of reviewing home schooling families for satisfactory instruction. Some time ago, the Ministry issued a policy document [the unofficial 'Johnston Memorandum' discussed above] setting out some guidelines for school boards to follow when assessing satisfactory instruction at home. While this guideline is not law, many school boards have adopted it."
With regard to Mr. Diamond's stated belief in the need for "public accountability" of home education, let it be noted that in Canadian law the exercise of public policy is guided by at least the following two tenets: the notion that no person can lawfully do what tends to injure the public or go against the public good; and, federal and provincial statutes and public law may be resorted to as a guide to public policy. In the first instance, it appears abundantly evident to the Ontario Federation of Teaching Parents that public policy as outlined in the Education Act is being overlaid by private policy being generated within the Ministry and imposed in public/social life. In the second instance, the Charter of Rights and Freedoms enjoyed by all Canadians supports a parent's choice to home educate his/her child as an expression of the public good and in the public interest, which indeed it is.
It is necessary here to further address the issue of "public accountability" with regard to home-based education, as it is a commonly expressed belief among people not familiar with this alternative that home educating parents "should be accountable to someone." Why is it unreasonable to ask for "public accountability" for homeschooling families? Is there a danger, as the Ministry and school boards suggest, that children may not be receiving "satisfactory instruction," and thus may not be ultimately fit to function in society?
Homeschoolers point out that our system of state-funded, compulsory schooling is only 150 years old, and can hardly be considered to have met the needs of all children. One basic precept of our common law is that parents must be presumed to be acting in the best interests of their children, and are the most fit to do so. All parents are publicly accountable, not just home educating parents. Conversely, home educating parents are not more accountable than other parents, who choose public or independent education. If a standard were set for home education, it could not legally be a higher standard than the lowest standard acceptable in the public schools!
This, however, is not an issue. We can also not express too strongly that all the research on homeschooling to date indicates that children educated at home do as well or better on average than their peers in every area measured, including social skills! The notion that home-based education must be monitored by the state is supported by neither Ontario law nor educational research. The state has a role to play only when there is a reason to believe a parent has abdicated his or her educational responsibility. Ontario law, as shown above, allows for such a contingency in subsection 24(2). It is inconsistent with the basic principles of civil rights to insist, as does the Ontario Ministry of Education, that all families should be monitored by the state out of a fear that somewhere, some time, some parent might not fulfill his/her educational responsibilities. In no other jurisdiction is the privacy of the family so invaded with no evidence that such invasion is justified.
And finally, "accountability" is a concept that can really only apply to public institutions, and does not translate well to private domains, such as homes. Some school officials say that monitoring protects children from abuse, but school boards are not child protection agencies. Children are protected from abuse by child welfare legislation. School attendance does not guarantee children protection from abuse. Home-based education is just that: based from the home, not confined to it. In fact, homeschooled children are in the public eye much more than their schooled peers as they are not confined to school buildings for thirty hours per week, but are rather moving through the world much as adults do.
In an article from Durham Parent, in March 1997, Mr. Diamond stated "that it is the Ministry of Education's interpretation that it is the responsibility of the school board to make a determination of satisfactory instruction." OFTP maintains unequivocally that the Ministry has no legal basis for this interpretation, and that any attempt to establish such a basis is a violation of basic educational freedom and civil rights.
School boards have been taking the law into their own hands. They are publicly misleading families and misrepresenting the legal facts as written in the Education Act. The Haliburton County Board of Education ran the following notice in the Haliburton and Minden newspapers early in September, 1997.
"NOTICE TO HOMESCHOOLERS
Parents who intend to home school their children this year must obtain approval for their children's program from the Superintendent of Education with the Haliburton County Board of Education. Please phone 457-1980 and ask for Julie to obtain registration forms. Parents failing to register with the Board are in violation of Section 30(1) of the Education Act and are therefore, upon conviction, subject to penalties imposed under the Act. Please register by Sept. 15, 1997."
The Education Act does not require anyone to register with a school board. Those who choose to do so, act of their own volition. It is not an offense not to register. For this reason there is no conviction to be made in the case of non-registration. The Act clearly states what the procedure is and it is, as previously discussed, for the Ministry to hold an inquiry. Section 30 (1) of the Education Act states that : "A parent or guardian of a child of compulsory school age who neglects or refuses to cause the child to attend school is, unless the child is legally excused from attendance, guilty of an offence and on conviction is liable to a fine of not more than $200." Children receiving their education at home are not illegally absent from school. There is no section of the Act which requires parents to register with the Board and therefore these parents are not in violation of the Education Act as the Haliburton County Board of Education would have the public believe. The notice they printed in the newspaper is not only false, it is threatening and intimidating. This notice misrepresents a statute (something we would not expect of highly educated and highly salaried public servants entrusted with the public responsibility of ensuring an education which inculcates the highest regard for, among other things, Judaeo-Christian moral principles, truth and justice).
OFTP has tried, unsuccessfully, to resolve this serious problem for home-based educators in Ontario. Appendix D contains samples of the correspondence that has been ongoing between the Ministry of Education and OFTP representatives.
The Honorable John Snobelen, former Minister of Education, met with OFTP President, Albert Lubberts on February 27, 1997. During this meeting, Mr. Snobelen stated that while he knew some of his colleagues did not agree, his personal opinion is that parents, not the Ministry, have the primary responsibility for the education of their children. However, in a letter to Mr. Lubberts dated May 20, 1997, Mr. Snobelen stated that "because school boards are required to enforce compulsory attendance, this Ministry has always taken the position that school boards must ensure that satisfactory instruction is taking place in order to excuse a child from compulsory attendance at school." He also stated that "the Education Act recognizes that children may be excused from attendance at school if they are receiving satisfactory instruction at home." However, he is not able to provide any sources for why school boards are required to regulate homeschoolers.
The Elimination of Alternatives
Another difficult hurdle for home-based educators in Ontario regards the existence of independent schools for homeschoolers. These schools were established over a decade ago, with the help of Ministry of Education officials, who were sympathetic to homeschoolers and the difficulties they faced when dealing with hostile school boards. These officials advised homeschoolers to set up their own independent schools, thus removing them from the school boards' jurisdiction, and placing them directly under the aegis of the Ministry.
This concept worked well for many years. Families that did not wish to deal with unwanted contact from school boards could register their children in an independent school. Each school had a principal, usually a home educating parent, and its own procedures. Some have regular meetings for the families, field trips, theatre outings, regular reporting procedures, social gatherings, etc. The principals represent the families in all contact with school boards and the Ministry of Education.
About four years ago, the Provincial School Attendance Counsellor, who is also charged as the Ministry contact with independent schools, began stating that these private schools were not really schools, and were just "support networks." Mr. Diamond was requested by one parent who was considering enrolling her six-year-old son with such a school to clarify his views. After she wrote him a letter, and received no response after several weeks, she called and spoke with him on the telephone. He assured her that his response would be forthcoming. After receiving no response within a reasonable length of time, the parent wrote to the Minister, then Dave Cooke, and to Globe and Mail education columnist Andrew Nikiforuk, who quoted from her letter the following week. Mr. Diamond finally responded to the parent's request, in writing. His letter was dated for the business day following Mr. Nikiforuk's column.
Mr. Diamond affirmed that he did not accept the existence of independent schools for homeschoolers as actual schools. Even though the schools met every criteria in the Education Act for independent schools, he maintained that they were not "institutions." The parent who had asked for the response then went to the Ontario Federation of Teaching Parents. Albert Lubberts, president of OFTP called a meeting for early that fall of 1993. A number of principals and families enrolled in the independent schools met in Ajax, and began formulating plans to fight for their schools.
Mr. Lubberts has maintained communication with the Ministry of Education on this issue for the past four years, both directly from OFTP, and through the Ontario Federation of Independent Schools (OFIS), of which OFTP is a member, and Mr. Lubberts a board member. OFIS and its president, Elaine Hopkins have always supported the independent schools for home-based educators wholeheartedly.
OFTP and OFIS began by countering Mr. Diamond's argument that independent schools for home-based educators are not institutions. Mr. Diamond's argument was based on the fact that the children do not come together physically every day in the same place at the same time. When OFTP and OFIS pointed out that children enrolled in public distance education courses (e.g. the EDEN Project and the Independent Learning Centre) are considered to be enrolled in school, and that many well known independent schools for home-based education, such as the U.S.-based Oak Meadow, Calvert and Clonlara, are accepted throughout the world as viable educational institutions, Mr. Diamond had no response. When one parent asked Ministry officials if they were aware that the Michigan-based Clonlara had a number of Ontario families enrolled in its home-based education program, they said they were not aware, and that Clonlara would not be accepted as an independent school by the Ontario Ministry of Education, despite the fact that it was founded and is run by a well known educator and writer, Pat Montgomery Ph.D Ed., and has families enrolled from every province and every U.S. state, as well as many foreign countries.
Nevertheless, the Ontario independent schools for teaching parents continued to file their paperwork and conduct business as usual. School boards continued to treat the schools as regular independent schools for some time. In 1995 and '96, however, Mr. Diamond stepped up his attack on the schools by not sending their required paperwork in the summer, and by delisting several of them from the official Ministry list of independent schools.
Two of the longest-running schools, Kettle Creek Private School Inc., and Pinewood Alternative School, were among those delisted. Mr. Lubberts, OFTP president, is also the principal of Kettle Creek Private School. He strongly protested the Ministry's actions, and again went to OFIS for support. He ignored the Ministry's actions, obtained the required paperwork from the Ministry of Education and Training, submitted it, and continued to operate the school, with the board of directors, as in the past. He advised other schools in the same predicament, including Pinewood and another school called Mater Mea, to do the same.
Melisande Neal, principal of Pinewood Alternative School for more than 10 years, began to experience problems in 1993. Ministry officials appeared at her home, without notice, in the spring of 1994. While the Education Act allows for such inspections, other independent schools, she learned, are given the courtesy of telephone calls and established appointments. When she demanded the same courtesy, she was treated disrespectfully, and told to be ready the next time.
The day of the "inspection," Mrs. Neal prepared herself with the student records, a parent witness, and a tape recorder. The Ministry officials were uncomfortable with the tape recorder, but continued with the inspection.
After beginning the interview with a peremptory comment that Pinewood was not really a school, according to the Ministry's definitions of a school, the officials began to go through the school's records. Two hours later, the officials were in a much more conciliatory mood. "Once they determined that we were not flakes, but were concerned, educated parents attempting to stand up for our own chosen educational alternative, they began to treat us with respect. By the end of the interview we were chatting like old friends, and they were giving us advice on how to keep going," said Mrs. Neal.
Unfortunately, two years later, she was contacted again by different officials, and told that another inspection would be forthcoming. She was then contacted and told that she had never submitted her paperwork for the school year, and Pinewood was being removed from the private school list. She produced the paperwork, but the school was delisted anyway.
The following year she was contacted yet again for another inspection. This time, she had three parents and the principal of another school present. This time, go through the issues and arguments as they might, the education officials steadfastly maintained that Pinewood was not an institution, and hence would not be considered a school by the Ministry. Mrs. Neal shortly thereafter received a letter to this effect. She has continued to operate Pinewood, and to file her legal paperwork, but the Ministry has taken a public position that the school does not exist. She has requested the assistance of her MPP to determine the reason for the Ministry's position. In January 1998 an assistant in the MPP's office was told that the Ministry refuses to recognize the school because it is "a home." Mrs. Neal herself was told that the school was not recognized because it failed to meet the criteria of the Education Act, an assertion she contests. Nowhere in the Education Act does it state that an independent school can not be "a home."
Ethel Fintas, a public school teacher and principal of Mater Mea school for home-based educators, had a similar, harrowing experience as Ministry officials contacted her in the fall of 1996 and informed her that the Ministry was "closing" her school. She considered fighting the Ministry, but decided the strain of dealing with the hostile officials would be too great on her family and the families enrolled in her school. She closed the school, warning her families to expect calls from their local school boards, as the Ministry officials had told her they would be sending the families' names to the boards.
One of these families immediately enrolled in Kettle Creek, despite its delisted status. The mother wanted the advocacy of Mr. Lubberts, as she feared being targeted as a single parent, and for her "unschooling," child-led approach to education. While she herself was not receiving family benefits, she had heard enough of homeschooling single mothers who were targeted by both the Ministry of Education and the Ministry of Social Services, sometimes with the loss of family benefits, that she felt she needed the support of Mr. Lubberts' experience. Another mother whose family had been in enrolled in Mater Mea, but has chosen to remain anonymous, was the subject of hostile and threatening telephone calls from the same education officer that had influenced the closing of Mater Mea.
Mr. Diamond's objective in closing the independent schools for home-educating families was to force all homeschoolers into a situation of being monitored by their local school boards. There is no room for conscientious objection to the public school system in Ontario, unless one is wealthy enough to buy one's way out through an independent school. The Ministry of Education has drawn a line in the sand, with its demand that all homeschoolers be monitored and approved by their local school boards, despite the fact that the law does not support this requirement. The Ministry of Education, it would appear, considers its policies, official or not, to be above the law. The Ministry of Education has established itself as an educational dictatorship, and brooks no opposition. There is no place for this type of highhanded bureaucratic rejection of alternatives in a free society.
Clearly, the problems faced by home educators in Ontario are serious and do not seem to be close to any resolution. The Ontario Ministry of Education continues to harass and misinform parents and continues to encourage school boards to make demands which have no basis in law on home schooling families. It is our hope that the Ombudsman's office will investigate this matter in order to reach an acceptable solution.
OFTP strongly supports the right of Ontario parents to choose from the available education alternatives for their children. Very often home-based education, a choice that is becoming a success story worthy of considerable study and media attention across North America, does not conform in either principle or practice to the very rigid and narrow requirements which the Ontario Ministry of Education attempts to force on families choosing this alternative.
Virtually all research ever conducted on home-based education indicates that it is a hugely successful educational method, in virtually every category of study, from academic ability to social skills. There is absolutely no evidence to support the notion that all home educating families should be monitored by the education officials of the state. The fact that the Ontario Ministry of Education and Training has not done its research, and chooses to remain in a comparatively dark age with regard to alternatives in education does not make these alternatives less viable. The fact that the Ministry does not choose to honor the letter or spirit of the law in Ontario with regard to rights of families does not change the law. Parents like Judy Gould, Kim Gale, and Dianne Cronin, deserve to have their rights respected, and their children deserve to have the form of education their parents have chosen to meet their needs.
TVO video tape
Samples of Correspondence Between School Boards and Parents
[phone numbers removed from the web archive for privacy and because they are no longer valid]
List of Interviewees
List of Contacts for Further Investigation
1. Kelly Green [phone number]
2. Albert Lubberts [phone number]
3. Herb Jones [phone number]
4. Eve Petersen [phone number]
Letters of Correspondence Between the Ontario Ministry of Education and OFTP
"Bureaucratic Fear, Official Fury: Homeschooling in Ontario"
by Kelly L. Green
OFTP Press Release
Reply from the Ombudsman
The Ombudsman Replies
June 9. 1998
Ontario Federation of Teaching Parents
c/o Ms. Eve Petersen
[address removed from the web archive for privacy and because it is no longer valid]
Dear Mrs. Petersen,
Re: Our File No. 121996
On February 6, 1998 you attended our office and filed a complaint against the Ministry of Education and Training (the Ministry) on behalf of the Ontario Federation of Teaching Parents ("OFTP").
The OFTP complained to the Ministry in letters dated February 12 and June 14, 1997 about the treatment of home schooling parents by local school boards and the Provincial School Attendance Counsellor ("PSAC"). The OFTP believes that inappropriate guidelines/procedures applied by local boards and the PSAC to home schooling parents are not in keeping with ss 21(2) and 24(2) of the Education Act and amount to unequal treatment under the law.
The Ministry responded to the OFTP's concerns in letters dated May 20 and August 12, 1997. The Ministry's August 15th response stated the Ministry's position as:
"because school boards are required to enforce compulsory attendance, the boards therefore have the responsibility for determining that satisfactory instruction is taking place at home in order to excuse the child from attendance at school. Where satisfactory instruction is not being provided, there may be certain remedies that school board staff can suggest to assist the parents. If the board is unable to determine whether satisfactory instruction is being provided, it may ask the Provincial School Attendance Counsellor to appoint someone to hold an inquiry into the validity or excuse for the non-attendance of the child at school."
The OFTP outlined a number of concerns to my office relating to the interpretation and application of the Education Act by local school boards and the Ministry.
Before addressing your issues, I would like to outline my role, function and jurisdiction. The Ombudsman has the authority to investigate decisions, actions or omissions made by provincial government organizations in the course of their administration. The Ombudsman may investigate only those decisions, actions or omissions of provincial government organizations which personally affect the complainant. It is important to note that the Ombudsman odes not advocate for or represent complainants, but acts as an unbiased investigator of the concerns presented to her. The Ombudsman is a forum of last resort, to be used when all statutory or available rights of appeal have been exhausted.
Although your complaint raised issues against the Ministry, the primary subject of your complaint appears to be related to the actions or decisions of local school boards. Although investigations into complaints against the Ministry may be conducted by this office, the Ombudsman, has no jurisdiction over local school boards.
As you know, the principles included in the Education Act is that of compulsory school attendance as defined under s. 21(1):
"Unless excused under this section:
(a) every child who attains the age of six years on or before the first school day in September in any year shall attend an elementary or secondary school on every school day from the first school day in September in that year until the child attains the age of sixteen years; and
(b) every child who attains the age of six years after the first school day in September in any year shall attend an elementary or secondary school on every school day from the first school day in September in the next succeeding year until the last school day in June in the year in which the child attains the age of sixteen years."
Parents or guardians of a child who is required to attend school under this section are required to cause the child to attend school (s. 21(5)). Subsection 21(2)(a) of the Act provides that a child is excused from attendance at school if, the child is receiving satisfactory instruction at home or elsewhere.
The Lieutenant Governor in Council may appoint the PSAC, who under the direction of the Minister is responsible for supervising and directing the enforcement of compulsory school attendance (s. 24(1). The PSAC may direct that an inquiry be made as to the validity of the reason or excuse for a child's non-attendance at school.
Every school board is required to appoint one or more school attendance counsellors (s. 25(1)). The counsellors have the jurisdiction and are responsible for the enforcement of compulsory school attendance in respect of every child who is required to attend school and who is qualified to be a resident pupil of the board (s. 25(5)(a). Where a school attendance counsellor has reasonable and probable grounds for believing that a child is illegally absent from school, he or she may, at the written request of the principal of the school the child is required to attend, take the child to school. However, the counsellor cannot enter a dwelling is exception if taken (s. 26(1)).
The school attendance counsellor is required to report to the board that appointed him or her (s. 26(2)). A school attendance counsellor is also required to inquire into every case of failure to attend school within his or her knowledge or when requested by the appropriate supervisory officer, the principal of a school or a rate payer. The counsellor must give written warning of the consequences of such failure to the parent or guardian of the child who is not attending school . Written notice to the parent or guardian to cause the child to attend school and advise the parent or guardian in writing of the provision of s. 24(2) (s. 26(4)) is required.
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 (s.27). The principal of every elementary and secondary school is required to report to the appropriate school attendance counsellor and supervisory office the names, ages and residences of all pupils of compulsory school age who have not attended school as required and to furnish the school attendance counsellor with such other information as the counsellor requires for the enforcement of compulsory school attendance (s. 28).
The responsibility of determining "satisfactory instruction" in order to be excused from compulsory attendance is the responsibility of the local school attendance counsellors, who are not within my jurisdiction to review, and the PSAC, who is jurisdictional. Given the provisions of the Education Act, which imposes broad mandatory duties and discretionary powers, the Ministry's position that the local school boards are responsible for determining satisfactory instruction in the home does not appear to be unreasonable.
You have suggested that the authority to obtain information regarding home schooling from parents can only be exercised in situations where there is evidence suggesting that an inquiry or other specific remedial process is warranted under the legislation. However, the Education Act is also capable of being interpreted in such a way as to imply that the schools, school attendance counsellors and the PSAC may attempt to obtain information informally to determine whether or child is receiving satisfactory education before instituting more severe measures.
If the language of the legislation can withstand more than one reasonable interpretation, then it is my practice in keeping with my role as an impartial investigator, not to prefer one interpretation over another. Consequently, in this case, I am not in a position to make any conclusive findings relating to the interpretation and application of the Education Act. This is a matter that you may wish to raise through the courts or at a political level, by contacting Members of the Provincial Parliament.
Under s. 17 (1) (b) of the Ombudsman Act, I may use my discretion or refuse or discontinue an investigation where it appears that, having regard to all the circumstances of the case, any further investigation is unnecessary. Due to the limits of my jurisdiction and provisions of the Education Act, I will not be pursing investigation of your complaint any further.
I will now be closing my file on this matter. I realize that your organization may be disappointed by the outcome but please be assured that, in coming to my decision, I gave your case careful consideration.
Roberta L. Jamieson