Legal Issues in Home Education

The Ontario Education Act

The sections of the Education Act most relevant to homeschoolers are sections 21(2)(a) and 24(2). The applicability of section 30 is still a point of disagreement between the homeschooling community and the government. [emphasis added in these excerpts:]

21 - (2) A child is excused from attendance at school if,

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

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

30. (1) 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.

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Policy/Program Memorandum #131

The entire PPM131 relates to home schooling, and we discuss the policy in detail on other pages, but the following excerpts represent the main points: [emphasis added]

Procedures for Parents

Parents who decide to provide home schooling for their child(ren) should notify the school board of their intent in writing.

Procedures for School Boards

When parents give a board written notification of their intent to provide home schooling for their child, the board should consider the child to be excused from attendance at school, in accordance with subsection 21(2), clause (a), of the Education Act. The board should accept the written notification of the parents each year as evidence that the parents are providing satisfactory instruction at home.

Normally, the board should not investigate the matter.

Guidelines for Conducting an Investigation

[...] Whether meeting with the family or reviewing information submitted in writing, board officials should recognize that the methodology, materials, schedules, and assessment techniques used by parents who provide home schooling may differ from those used by educators in the school system.

One of the areas in which home educators may still disagree with the government's interpretation of the law, is in terms of whether section 30 of the Education Act ever applies to homeschoolers. PPM131 expresses a disputable interpretation of that section of the law in the following paragraph of the Guidelines for Conducting an Investigation:

[...] If the board is unable to determine from this investigation whether the child is receiving satisfactory instruction at home, it may take further action, in accordance with subsection 24(2) and/or section 30 of the Education Act.

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Universal Declaration of Human Rights

Canada is among the signing nations of The Universal Declaration of Human Rights of the General Assembly of the United Nations. While it states [article 26(1)] that elementary education shall be compulsory, it also states [article 26(3)] that

Parents have a prior right to choose the kind of education that shall be given to their children. [emphasis added]

Because the public school system represents a gathering of people (schoolchildren and schoolteachers, etc) under a particular set of internal rules and regulations by which one is bound only if one is associating with it (- and not, for instance, if one is associating with a private school), one might also argue that it constitutes the equivalent of an association. In which case, article 20(2) applies:

No one may be compelled to belong to an association.

When there is a dispute concerning the legitimacy of the claim to be providing "satisfactory instruction," the principle underlying article 10 of the Universal Declaration of Human Rights applies:

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him. [emphasis added]

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The Canadian Charter of Rights and Freedoms has a similar article:

Canadian Charter of Rights and Freedoms

When there is a dispute concerning the legitimacy of the claim to be providing "satisfactory instruction," the principle underlying article 11 of the Canadian Charter of Rights and Freedoms applies:

11. Any person charged with an offence has the right
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; [emphasis added]

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To read the full text of the laws, policies, and documents on human rights that are referred to in this legal section, follow the links below:

• Ontario Education Act
• Policy/Program Memorandum No. 131
• Canadian Charter of Rights and Freedoms
• United Nations Declaration of Human Rights

To find out more about home education legislation in other provinces, visit the following websites:

• Canadian Home Based Learning
• Home School Legal Defense Association of Canada (Be aware the information may not be quite accurate — several inaccuracies were found on the page for Ontario, so the same may be true for other provinces.)