What Parents Need to Know About Private Schools and Education Law – Before Signing Their Kids Up In our education law practice, around half of our cases are on behalf of parents against private schools because the school did not meet the parent’s expectations, told a child to leave without good reason, or did not meet their child’s needs. This post is not intended to take a stand against private schools. Half of our cases on behalf of parents are against public schools. However, it is often the private school parents, not the public school ones, who have large misconceptions about how Ontario’s Education Act, or Education Law more broadly, apply to the schools their children attend. The reality is that Ontario Private Schools do not have the same curriculum, rules or legally imposed standards that public schools do. The Ontario Government allows a lot more choice when parents choose private education. That is precisely the reason why parents pick Ontario Private Schools. Some parents do not want their kids taking sexual education classes, some don’t like the anti-bullying component that is mandatory in public schools, some parents what subjects taught with a religious focus, some parents want schools that use permissible corporal punishment or other types of discipline that are not available in public schools, some parents don’t want their kids being taught alongside kids that have special needs or are otherwise disadvantaged, some parents want teachers with qualifications that are different from the qualifications required by the Ontario College of Teachers or want their children to have teachers that are not confined by the standards of practice and ethics imposed by that body. Choosing Private School is About Opting Out of Government Standards and Requirements In choosing a private school, parents are choosing an education that is very different from that provided by public schools. This post is not about whether public or private schools are better because that largely depends on the specific school in either system. But, what many parents do not understand is that while it is NOT true that the Education Act does not apply to private schools, more than 95% of the Education Act does not apply. Further, the Ministry of Education does not regulate, license, or otherwise oversee the day-today-operation of private schools. The Ministry does not even inspect elementary schools or high schools that do not grant Ontario Secondary School Diplomas, even if those schools provide other diplomas such as the IB program. The Ministry of Education provides a LOT of direction to public schools about how they will operate. It does this through the Education Act, Government Regulations, and Policy and Procedure Memoranda that all set out exactly how public schools must do things. In most, if not all, circumstances, those directions are rooted in the latest research into best teaching practices. In several areas, the expectations placed on public schools are considered to be the best in the world. But private schools are not required to follow them. To be clear, private schools do NOT have to follow the direction of the Ministry of Education in areas such as: Discipline – including suspensions, expulsions, or other forms of discipline Removing a child from his or her school Addressing the special needs of students Anti-bullying programs Specific curriculum content Student evaluation or testing procedures Communication with parents Participation in school activities Codes of conduct or dress code Vaccination or other health requirements or Record keeping Teacher or principal qualifications If your child needs or would benefit from the specific standards or procedures set by the Ministry of Education, then you may want to look at public schools and even what you have to get your child into a specific public school. Many private schools boast of having standards that exceed the requirements expected of public schools. But, there is no legislative nor government requirement that a private school even meet the standards in public schools. The Ontario Government is not going to step in to ensure that a child is being properly educated or treated at a private school and will look at the curriculum content only if the school wants to give the student an Ontario Secondary School Diploma. Private School Standards Are Set Privately Between Parents and the School That does not mean there are no legal requirements placed on private schools, just that those legal requirements do not come from the government. Instead, they come from the contract that the parents sign with the school. Like with End User Licence Agreements on apps and phones, parents tend to skip over these contracts assuming they have some form of standard terms, or that they are related only to the payment of fees or other unimportant matters. But, those contracts set out what education parents can expect their children to receive and how the school will treat those children. Private Schools Set Their Own Rules for Kicking Kids Out Looking at specifics, one area where private school parents are often caught off guard is about private schools kicking kids out. There are a lot of rules that public schools have to follow if they want to kick a kid out and public schools cannot just tell a kid not to come to school anymore. Private schools don’t have to follow any of those rules. Private schools can force a student to leave based on what is set out in the contract. Most of the established private schools have contracts that essentially say “We can permanently remove any student from the school at any time, for any reason and we do not have to have a hearing or listen to the parents at all and we do not have to refund any portion of the tuition.” Parents usually just sign that contract without thinking about it. Some schools set out a procedure, or say they will mirror the requirements placed on public schools by the Education Act, or that students can only be ejected for violating the code of conduct. However, most private schools do not have those sorts of terms in their contracts with parents and instead have contracts that allow them complete discretion as to when to remove students. Most private schools can even remove a student who is a victim of bullying or other acts because the victim student “does not fit in” or the aggressor students are more desirable. Almost all private schools reserve the right not to readmit students for future academic years. That means they can literally say in June that they don’t want to see a student anymore in September, although that can be difficult if the school and parents have signed a new contract earlier in the year. If parents do not like this possibility, they have to carefully read the contract and make sure they don’t enroll at a school where the contract will allow things to happen that they don’t like. And to be clear, our firm has done lots of cases where parents do not believe their child would be removed from the school. This can be because they went to the school themselves, or they have other children who are at the school or were at the school, or they cannot foresee any situation where a school would not want their child, or even because they have given the school a LOT of money. We have seen lots of cases where parents are absolutely shocked to learn that their child is no longer welcome at a private school and the school is using the terms of the contract against them. When parents come to see us, we do have some remedies under contract law or human rights law and some other strategies we can try to fix the situation. You can make an appointment by calling 416-446-5847. But, the stronger the contract, the more difficult – AND EXPENSIVE – it will be to try to fix things. So, parents should review the contract carefully – and usually the Code of Conduct that is incorporated into the contract – to make sure the contract meets their expectations and will not come back to haunt them if things go sour. Admission Processes And Decisions Are Made By the School We do understand that parents are often just glad that their child got accepted into a private school as it can be very competitive to get in and that it can be embarrassing when a child is not accepted into a private school, particularly when it seems their child is not “up to snuff” or may have unique needs that are keeping them out. Private schools are private businesses so they can choose who they serve and who they do not – unless the decision violates the Ontario Human Rights Code. But many private schools have complex multi-stage admission processes that allow them to deny admission for reasons that are not related to a student’s traits that would violate the Human Rights Code. The last thing that most parents want to do is start questioning the terms of the contract when the school might just turn around and offer the place to another child. Still, we see many parents who are not happy with a private school and where that school failed to meet their expectations. Parents do need to carefully read that contract. If what it promises is different from what parents expect, they need to consider whether that school is the right one. It can be difficult to fight what a school is doing, even when kicking a student out if the school can point to their contract and say it is allowed under the contract, or our contract doesn’t require what the parents expect. Grades and Academic Discipline Giving out grades is one of the very few areas where the Ministry of Education does have expectations of private schools, but not in a way that really assists parents. Private schools are required to have a policy about how they will communicate student achievement to parents. But, how private schools communicate student achievement is entirely up to the private school. They can use the Ministry of Education standard report cards, but they do not have to do so. They do not even have to use formal grades. However, to grant a credit towards a course that will lead to an Ontario Secondary School Diploma, private schools must show that their evaluation of students is based on evidence of achievement of the provincial curriculum expectations, is conducted several times during a course and uses several methods for evaluating the student, as well as meeting other criteria. When it comes to challenging whether an evaluation of a student was fair or accurate, there is no direct way to challenge a private school’s methodology. Many private school contracts specifically state that parents cannot, and will not, do that. Doing so will be, at best, difficult. Similarly, there are no direct ways to challenge a school’s finding that a private school has acted with academic dishonesty, or the method used in the investigation. Where a school makes such a finding and the imposes consequences are consistent with a Code of Conduct that has been incorporated into the contract with the parents, there is little that private school parents can do. If the consequences are severe for the student, they may want to consult with a education lawyer to see if there are any unusual or creative legal solutions available. One course of action that might be available where the school imposed a grade or discipline that did not take into account a student’s special needs, is to pursue a remedy based on human rights grounds. Private Schools Usually Do Have To Accommodate Special Needs Ontario public schools have a refined process for identifying and providing assistance to kids. While, in most circumstances, private schools cannot refuse to admit a student because that student has special needs, they often find other reasons to refuse admission. However, once a student is in a private school, that school has to accommodate that child’s special needs to the point where it will cause undue hardship. For very small, usually religious based private schools, that are not-for-profits, and that charge very little for tuition and do not have much in the way of resources, the school may legitimately not be able to provide much accommodation for special needs. But larger schools can, and must, provide accommodation for student’s special needs. People cannot contract out of the Ontario Human Rights Code, so the contract is not a factor in those circumstances. If a private school student has a disability or needs some other type of special treatment or services, the private school cannot refuse to provide those accommodations if it is reasonably able to provide them. Private schools cannot refuse to continue to reach a student because that student has a special need that the school could reasonably accommodate. While we often hear private schools say “we don’t do things that way”, or “our standards do not allow us to provide accommodation”, the law says differently. Any parent faced with that sort of attitude should get advice from an education lawyer. Bullying – It’s Up To Private Schools What To Do, If Anything One thing that can actually CREATE special needs in a student is repeated bullying. Bullying can cause lots of long lasting serious problems and is rarely character building for the victim. It often leads to mental health problems that negatively impact a student’s ability to learn and the benefit of attending a private school. The Education Act and the Ministry of Education place a lot of legal obligations on public schools to prevent and address bullying. Those measures are based on the latest research into bullying and its effects. There is nothing in the legislation or from the Ministry of Education that requires private schools to do anything about bullying. Again, that is an intentional decision by government because some parents do not want their children exposed to anti-bullying programs and believe that bullying can be good for kids. They can chose to send their children to schools that allows or encourages bullying behaviour, hazing, peers teaching each other lessons, or other similar behaviour. Other private schools have very strict anti-bullying measures, some of which are modeled on what is required in public schools. Again, to a point, what a private school is legally required to do about bullying is set out in the contract with parents – to a point. There can be legal consequences for a private school that allows bullying. When a school fails to supervise students properly, it can be liable for damages for mental or physical harm caused to a student. The law does not permit students, or the student’s parents, to consent to the student being seriously harmed. So, a school that says parents agreed to let their child be bullied will not be successful with that position in court. In addition, many types of bullying, anything that is based on disability, race, ethnic origin, family status, sexual orientation, gender or similar traits is a violation of the Ontario Human Rights Code. So, there can be penalties for institutions when bullying is also bigoted. Since bullying can have a lot of serious negative repercussions, it can lead to mental or physical disabilities. Once a child has such disabilities, the child’s school is required to accommodate those challenges to the point of undue hardship. When those disabilities were caused by events at school, it is really difficult for a school to get away with saying that fixing a problem that it, in part, caused, will be too hard. Private Schools Can Hire Whatever Teachers They Like, Regardless of Qualifications Sometimes children run into trouble at private schools because one or more of their teachers or principals do not have any teaching qualifications and so do not know how to address certain educational situations or issues. Again, the Ontario Government made a policy decision to allow a broader range of qualifications than are required to teach in the public system, so there are no minimum qualifications for private school educators or administrators. In addition, private school teachers do not have to be members of the Ontario College of Teachers – in fact they can’t be if they don’t have the qualifications to get a teacher’s license. If a private school teacher is not a member of the college of teachers, there is no body to complain to about the competence of ethics of that private school teacher. Some private schools do require their teachers to be members of the college of teachers. But, the private schools themselves are not required to use only licensed teachers unless their contract with their parents says so. Conclusion To summarize, it is important for parents to read the contract with a private school, which often incorporates a code of conduct and other documents or policies, before signing their child up to attend that school. Even if they feel they have no choice but to send their child to that private school, that contract tells them what they can expect, including the standards (if any) that will be applied to their child’s education. There are no mandatory government standards for how children will be educated in private schools in Ontario, or what they quality of that education will be. Parents can only hold a price school to the contract, and perhaps human rights legislation. If the school does not violate either of those, but the school does not meet the parents’ expectations, there will not be any government intervention and there may few legal options – even if a child suddenly finds him or herself without a private school to attend. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.” By Fauzan SiddiquiBlog, Education Law, UncategorizedMarch 24, 2023July 5, 2023
Student Rights During a Teacher Strike At the time of this article, Ontario’s education workers are on strike and Ontario’s public schools are closed to students. It is important to note that teachers (licensed teachers) are not on strike and are not doing anything to close the schools. Ontario’s school board’s have decided that they cannot allow students into the physical school buildings without the education workers present. This is because education workers perform many essential tasks in schools. Some are custodians, who keep the buildings clean, heated and maintained. Others are educational assistants and child and youth workers who provide critical assistance to students with special needs that allow those students to attend schools. The presence of early childhood educators (ECEs) was factored into the determination of how large kindergarten classes can be, so the size of some classes is too large for a teacher alone to manage safely. Other workers provided supervision of students, prevent bullying, or tend to other tasks that are necessary for schools to operate. With these (non-teacher) education workers providing services that are so critical to the functioning of the education system that the Ontario Government is trying to use the Notwithstanding Clause to take away their collective bargaining rights, people are asking about what about children’s right to an education in Ontario? Is there a right to an education in Ontario? Children in Ontario do not have an absolute right to an education, or to any particular standard of education. The Canadian Charter of Rights and Freedoms does not give an explicit right to education. Neither does the Ontario Human Rights Code. Article 28 of the UN Convention on the Rights of the Child creates a right to a primary education, but does not specify what exactly that means or how it will be delivered. Canada ratified that convention, but the Canadian Constitution gives power over education to the provinces. The Ontario Government could make education a right, but has chosen not to do so. This is because there are a lot of differences of opinions of what a child’s education should look like. Why hasn’t the Government of Ontario done more to make education a right? There is no universal agreement over what a right to an education would look like, which means creating such a right would be difficult or impossible because of the controversy it would create. Some people want their kids to go to religious schools, other want their children to go to schools that teach particularly values or emphasize particular subjects, other parents want to homeschool their children, others want schools that are free to teach kids as they see fit without government interference. Consequently there are no absolute standards for an education or an absolute requirement to follow a particular curriculum. As illustrated by how private schools work in Ontario, there is no minimum standard for a school education in Ontario. It is only or students to get an Ontario Secondary School Diploma (OSSD), which is coveted around the world, that their school does need to meet some curriculum and evaluation requirements. But there are private high schools that do not grant OSSDs. Over the pandemic, and with the introduction of online high school courses, the Ontario Government has been clear that it going to school does not necessarily require going into a school building. Are Child Legally Required to Go to School? While there is no right to an education, section 21 of the Education Act creates a legal requirement that children over the age of six attend school full-time or be registered for home schooling by parents who agree to take on the task of providing an education (although no particular education) themselves. Education is more of a responsibility for students than a right. However, there is a lot of flexibility as to how students can receive their education – they can get it in a school, on-line, or at home. Students Do Have Rights in School – That Is Part of the Current Problem There are some rights for students in the public education system. When any school or school board agrees to provide education to students, it is legally required to give every student, to the extent possible, equal access to the curriculum and the other services provided by the school. It must not discriminate and give some students preferential access or educational opportunities over other students. In other words, schools cannot discriminate when providing an education to students. Each student has an absolute right to have the same access to school services as other students. That means that schools cannot decide to stop providing special education services due to a labour disruption. They cannot say that accommodations for students with disabilities will be withdrawn until the unions and the government reach an agreement. If you look carefully at the labour actions that teachers took during their work-to-rule, they were not taking away services that are necessary for students with special needs to succeed in school. The labour actions have the same negative impact on all students, those with special needs and those without. Students continue to be given equal access to public education services in Ontario. Since so many education workers provide the essential services that students with special needs require just to go to school, they cannot do much short of striking to apply pressure during contract negotiations. If they were to withdraw or reduce services, they would disproportionately affect students with disabilities, or who otherwise have special needs, and that would be discriminatory and a violation of the children’s rights under the Canadian Charter of Rights and Freedoms and Ontario’s Human Rights Code. It may be that as a result of changes in the Ontario Government’s policy, or funding priorities, there are fewer, or poorer, special education services available to students with special needs – be they a disability, or economic disadvantage, or being from a member of a group that has been historically disadvantaged or unfairly treated. If these students with special needs are not allowed the same ability to attend school and receive the education that they need to fulfill their potential, then they will be discriminated against. There will be human rights cases against schools, school boards and the Ontario Government to ensure those disadvantaged children are as able to access the Ontario Curriculum and other aspects of the education system as every other child. The labour disruptions should not affect anti-bullying programs either. This is because bullying puts students at a disadvantage in the education system. It can impair the victim’s ability to learn. It can threaten their security while they are at a place that the government requires them to be. Bullying can truly be discrimination that gets in the way of an education. Bullying also impairs a child’s development. The Ontario College of Teachers requires its members to promote the healthy development of students. That is why during their labour talks, teachers did not take actions that promote, encourage or allow bullying to grow within schools. Education workers are not government by the Ontario College of Teachers, but they still should not promote bullying as part of a labour action. Whenever educators do not do enough to combat bullying, there’s a good chance that will result in a violation the human rights of students in their schools. What Could the Strike Mean for Students and Their Education? Ontario Public Schools do have some stringent standards that they have to meet, which has made Ontario’s public schools amongst the best in the world. Only the Scandinavian Countries consistently perform better. Those standards are the result of the strict regulation, guidance, required educational practices, research, and resources that the Ontario Government puts into the public education system. On behalf of the people of Ontario, the Ontario Government creates the standards that Ontario students have come to expect from the public education. In fact, it is those standards that the education workers’ union (and the teacher’s union before them) are saying they are fighting to protect. The people of Ontario have expectations for the quality of education found in public schools and, presumably, if any Government does not meet those expectation, it will be voted out. These government education standards may mean that some remedial steps must be taken to make sure that students have been given the necessary education, particularly for high school. So, there may be a need to add school days into the summer to so that students attend for the expected number of hours to get their high school credits. Mandatory, EQAO testing, may be rescheduled until after the labour disruption concludes. Extracurricular programs may be replaced by additional instruction on core subjects to make sure students cover the required material. Public schools may have to put other measures in place to make sure the education delivered to public school students meets the required standards. Conclusion The constitution and human rights law in Ontario do not give students a right to an education, but it does set requirements for how education is provided to Ontario Students. If your child is being denied the same opportunity to succeed in school that every other student has, then it is time to speak to an Education Lawyer about how to protect your child and make sure he or she gets the education every Ontarian deserves. If you need help with that, email us, or call 416-446-5847 to set up an appointment. For more information about Ontario Education Law, and other education law issues, such as assistance for students with special needs and discipline such as academic sanctions, suspensions and expulsions, check out the Education Law section of this website. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.” By Fauzan SiddiquiBlog, Education LawNovember 4, 2022July 7, 2023
Ontario School’s COVID-19 Vaccination Policies Months into the rollout of the COVID-19 vaccines, various sectors around the province have begun to implement vaccination policies for high-risk settings. On August 17th, 2021, the Ontario government announced that the COVID-19 Mandatory Vaccination Policy is required for specific environments, including post-secondary institutions and school employees. The policies include proof of full vaccination status or regular antigen testing, among others. Ontario has also now mandated, as of September 1st, 2021, that evidence of the COVID-19 vaccine is required for select settings. The Ministry of Education will begin to introduce a vaccination disclosure policy for the 2021-2022 school year for publicly funded school board employees, private school staff, and all licensed child care facilities staff. Many Ontario Universities and Colleges have announced the same, requiring students and staff to show proof of vaccination. The educational school systems in the Greater Toronto Area include Toronto, York Region, Peel, and their Catholic School System counterparts. At this time, there is not a vigorous policy for COVID-19 vaccinations for students, only for their respective staff. This could, however, quickly change, pending approval on those individuals under age 12. Ontario Ministry of Health provides as current law that, unless there is a valid exemption, all children who attend a primary or secondary school must be immunized against a list of vaccines available as per the Immunization of School Pupils Act, R.S.O. 1990, c. I.1. The Toronto District School Board (TDSB) has asked that the Ontario Government make the COVID-19 vaccinations mandatory for all school children aged 12 and up. The Toronto District School Board (TDSB) has developed a mandatory COVID-19 vaccine procedure that requires that all TDSB staff, trustees, and visitors disclose and provide proof of vaccination status and require them to be fully vaccinated. However, if you are not vaccinated, TDSB will comply with all human rights obligations to accommodate employees legally entitled to any accommodation. Those individuals will be subjected to an education on the benefits of vaccination. These are subjected to change after September 9th, 2021. Similarly, various colleges and universities across Ontario are requiring those not vaccinated to attend a mandatory information session on the positives of the vaccine. This too may change but is in place for now to follow. Possible Exemptions to Potential Policies: Ontario’s Health Protection and Promotion Act R.S.O. 1990, Chapter H7 allows a Medical Health Officer the ability to restrict students from attending school to prevent the spread of certain diseases. It is also now possible in Ontario to expel a student aged 8, the equivalent to grade 3 or below if this student potentially poses a risk to the safety of those at their respective school. While policies continue to update for adults, there is still no clear indication of whether Ontario school systems will include the COVID-19 vaccine for students amongst the list of mandatory vaccines required to attend school. With students expected to be back in class full time starting the fall semester, Ontario school systems will have to outline policies and exemptions for students who are eligible to be vaccinated, the same which was done for those unable to wear a mask or other face covering. Parents can provide a valid exemption for non-vaccination for their children under the Immunization of Schools Pupil Act, R.S.O. 1990, c.I.1. COVID-19 Consequences for Children at School: Ontario schools are not typically liable for damages within school boundaries. If your child does contract COVID-19, it would be difficult to prove that this happened at school itself. This would also include proving negligence beyond reasonable doubt by your child’s school as per the policies set forth by the Ministry of Education and the Ontario School Board policies. While this unprecedented time for teachers, parents, and students has left little reassurance, with the start of the 2021-2022 fall semester, there are expected to be updated policies and procedures. To discuss your COVID-19 policy concerns for you or your children or if you feel that you may be entitled to compensation for negligence by your child’s school, please contact Education Lawyer Katelyn Bell, or you can phone her to discuss at 416 446-5837 for any assistance with this matter. *This blog was co-authored by Angela Victoria Papeo* “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, COVID-19, Education LawSeptember 8, 2021September 17, 2021
Student’s Rights During Covid-19 School systems in Ontario have seen challenges over the last several years regarding funding allocations and other additional issues that come along when discussing a large-scale academic school system like most school boards in Ontario. These issues are even more prevalent when discussing the massive Peel and Toronto Public and Catholic School systems. These challenges are now exemplified when discussing the additional funding and protocol now required by school boards to be compliant with government, and Minister of Education, Stephen Lecce’s regulations. Minister Lecce announced on August 3, 2021, via Twitter, that students will be #backtoclass full time in the fall (via @sflecce, Minister Lecce’s Twitter hashtag used to announce in-person learning). This plan includes additional mental and physical health support as well as restoring physical education, sports, and other important activities that are essential to Ontario’s youth development. Although Minister Lecce has a fantastic and exciting plan to bring Ontario Students back to school, questions regarding the pandemic and the fear of future Covid-19 outbreak waves have left parents with a significant amount of ambiguity regarding the idea of their children’s rights once they return to in-person learning at their respective schools in the fall. One of the most common and important questions that most parents are asking at this time is what rights do my children have in the school system? Does my child have to go back to school? Does the school have to accept them? If you are questioning if your child can be forced to stay home, the answer is yes. Ontario’s Health Protection and Promotion Act R.S.O 1990, Chapter H7 authorizes a Medical Officer of Health to order any person to refrain from school to prevent any spread of disease. Although before it was not possible to expel a student in grade 3 or below, in August of last year, the Ontario government gave school officials (not only Principals) the right to remove any student indefinitely if they believe the student poses any risk to the safety of anyone in the school. It’s important to note that even though the pandemic has often left parents in the dark, children in Ontario school systems still have rights that can still be enforced by parents and guardians. Unfortunately for parents, there is no law stated in Ontario that a student has to attend the school closest to their home. This is why the province has the right to convert students to at-home learning, especially when discussing special needs or safety concerns. What about contracting COVID-19? If your child contracts Covid-19 while at school, schools are usually not liable for damages. In addition to that, it will be difficult to prove that a child did contract Covid-19 from the school itself, and not at any other places. Also, there will have to be negligence on the school’s behalf. Meaning that the school must fail to have done something that it is required to do pursuant to the Ministry of Education and Ontario School Boards’ Covid-19 protocols. If the school fulfills all the mandated recommendations and a child still contracts Covid-19, it will be very difficult for the court to find the school liable. If you still believe that your child is entitled to damages, then the child must have received some sort of permanent damage and prove that they received permanent damage from Covid-19 caused directly by the negligence of the school which breached Covid-19 protocol. This may be difficult to prove in the immediate future. Staying home has its consequence too: Questions now are arising due to growing concerns of mental illness and delayed social development of children who are not in schools for in-person learning. It is important to note that not sending a child to school for in-person learning is not a zero harm option. There are additional implications that can come into play when a child is kept at home without contact with any classmates and does not experience a classroom and social environment. If you believe that your child’s rights are not being considered by their school board, or that you may be entitled to compensation for negligence by your child’s school, please contact Devry Smith Frank LLP Lawyer Katelyn Bell or call her at 416 446-5837 for assistance with this matter. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see or speak to a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, COVID-19, Education LawAugust 10, 2021August 21, 2021
Back To School Amid Covid-19? The Ontario Superior Court of Justice (ONSC) has recently, and in numerous instances, been called upon to decide the question as to whether children should be sent back to school amid the current Covid-19 pandemic. According to the Guide to reopening Ontario’s schools issued by the Ministry of Education, parents can choose between online schooling from home or in-person schooling for the next semester. However, when separated or divorced parents cannot agree on this, the courts are, often perhaps unnecessarily, asked to get involved. This Blog reports on four Endorsements released on this issue by the ONSC over the course of the last few weeks and comments on alternative strategies to resolve the back to school question in the best interest of the child and everyone involved. Home-schooling may only be ordered when a medical condition or the safety of a child’s inner circle requires it The two cases Chase v Chase and Wilson v Wilson come to different outcomes that can nevertheless be reconciled. In Chase, the ONSC ordered for the child to be registered for in-person schooling, whereas the court came to the opposite conclusion in Wilson. Factually, the two cases differ, because only in Wilson did the court find that there were underlying health concerns, namely asthma, that would put one of the Wilson children at disproportionate risk if they had to return to school in September. This important health factor is was weighted by the court and balanced against the child’s mental health, psychological, academic and social interests, as well as many parents’ need for childcare which usually speak in favour of attending school in-person. The ONSC’s approach to expert evidence on the safety of in-person schooling Notably, the ONSC in Chase pays deference to the government’s decision to reopen schools. The court holds that the government is better placed to decide upon the reopening than the courts are because the government is benefitting from extensive expert evidence and is conducting consultations with relevant stakeholders on this matter. As a consequence, the ONSC rejects to consider a recently released report by the Toronto Hospital for Sick Children that the parties, in this case, made reference to in the proceeding. Stating that there is evidence on both sides, the ONSC declines to be the adjudicator between differing expert opinions, leaving it to the government to evaluate the conflicting evidence. The court does, however, look to the particular facts of each case to determine whether there are individual risk factors that weigh in favour of making an exception from the general in-person attendance requirement set out in the respective provincial Education Act, i.e. in s. 21(1) of the Ontario Education Act, R.S.O. 1990, c. E.2 In its finding in Chase, the ONSC draws upon non-binding, yet persuasive arguments from two Quebec Superior Court decisions delivered on May 7, 2020: Droit de la famille – 20641, 2020 QCCS 1462 (CanLII) and Droit de la famille – 20682, 2020 QCCS 1547 (CanLII). The two decisions, too, come to different conclusions due to the fact that in only one of the two cases a family member suffers from a medical condition that puts the family at disproportionate risk, outweighing the child’s interest to return back to school. The approach by the ONSC taken in Chase following the Quebec decisions falls neatly in line with the principled division of powers between the executive branch and the judiciary. It is the responsibility of the government to establish general policies with broad application, whereas the judiciary has to focus on individual cases in order to ensure that the government’s policies in their application to actual people do not lead to unintended hardships. In Wilson, however, the ONSC takes a slightly different approach. Here, the court in fact considers the report of the Toronto Hospital for Sick Children, which recommends a return to in-person schooling. The court determines that it is unclear whether the in-person plan actually conforms with expert reports and that it appears to lack some of the recommended safeguards. The court concludes that it did not have any evidence to the contrary that returning to school was safe. To some degree, the ONSC in this case did evaluate the evidence and made a finding on its reliability in order to justify a decision that diverges from the recommendation of the Sick Children report. For this reason, it remains somewhat unclear whether reliance on expert reports will help a parent’s case to achieve the desired order. Conclusion from current case law In a third decision, Manabat v. Smith decided on September 2nd and involving one of DSF’s family lawyers, Katelyn Bell, the court affirmed a test previously set out in another very recent case, Zinati v. Spence, 2020 ONSC 5231. This test summarizes the factors determined in the (sparse) case law on the question of whether it is in the child’s best interest to be schooled at home or in person during the current pandemic: The risk of exposure to COVID-19 that the child will face if she or he is in school or not in school; Whether the child or a member of their family is at increased risk from COVID- 19 as a result of health conditions or other risk factors; The risk a child faces to their mental health, social development, academic development or psychological well being from learning online; Any proposed or planned measure to alleviate any of the risks noted above; The child’s wishes if they can be reasonably ascertained; and The ability of the parent or parents with whom the child will be residing during school days to support online learning, including competing demands of the parent’s work or caregiving responsibilities or other demands. Overall, the outcome of every case will really depend on the children and the family involved. Alternatives to an Application to Court A further comment made by the ONSC in Wilson deserves mentioning. The Honorable Justice Himel points out that bringing the issue of whether the child should return to school or not before a judge is not the most recommendable course of action. For one, the decision is likely going to be made on the written evidentiary record due to a lack of time and resources and a large number of emergency applications that need to be decided upon before school starts. This means that a judge who has never met the parties, let alone the child, will decide on what is in the best interest of the child and the family. A course of action that would empower the parties to make the decision and yet provide the benefit of professional advice and opinion is court-based mediation. This service is readily available and often free or subsidized. It has the further benefit of mitigating the tremendous burden on the family justice system that has arisen from the Covid-19 pandemic. If you have more questions about your education law matter for both private or public schools contact John Schuman at 416-446-5080 and john.schuman@devrylaw.ca or Katelyn Bell at 416-446-5837 and katelyn.bell@devrylaw.ca. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, COVID-19, Education Law, Family LawSeptember 17, 2020January 12, 2021
DSF Lawyer Gets Damages For a 3-Year-Old Subjected to Harsh and Degrading Treatment at a Private School DSF’s education lawyer Katelyn Bell successfully defended the parents of a three-year-old student against a claim for unpaid tuition. The pupil’s parents were instead awarded $2,000 in damages against the school. The Plaintiffs own a private Montessori school which has what they claim to be a “strict uniform policy” for all enrolled students. The pupil in our case – again, only three years old – was uncomfortable in her uniform and although the school raised no issue with the pupil not having worn her uniform on the first day of school, on the second day, the Plaintiff’s, the private school owners, refused the pupil entry. The evidence was clear that the pupil heard the Plaintiff school administrators deny her entry and that denial caused her to cry and grow fearful of school and of the Plaintiffs. The Plaintiffs never contacted the Defendant parents about this incident and their decision to refuse the pupil entry after she arrived to her second day of school with her nanny. Just days after having had their child refused entry at school, the Defendants received notice from the Plaintiff’s that all tuition for the entire year of school was due and payable. The Court did not agree. Not only was no tuition payable despite the school’s Enrollment Agreement (their contract) but the Defendant parents were also awarded damages against the school. The Judge hearing the matter in Burlington provided the following reasons for the Court’s decision: The school’s own handbook asks parents not to approach them with issues in front of their children. Therefore, it was reasonable that this expectation would apply to the school as well. The school’s materials included the following as a prohibited practice: “Use of harsh or degrading measures or threats or use of derogatory language directed at or used in the presence of a child that would humiliate, shame or frighten the child or undermines his or her self-respect, dignity or self-worth”; and “It is important to note that such discussions should never be held in the presence of the child”. The tone and demands made to the pupil and her nanny were harsh and degrading that humiliated the pupil to the point that she cried and refused to return to the school and there was no notification to her parents about the incident. There was an understanding from the pupil’s parents that the uniform policy would be respected as they had two other children who already attended the school in full uniform. They just needed some more time to prepare the full-uniform and to allow the pupil to acclimatize to it. It was reasonable for the parents to have expected the situation be handled with more care to allow for a gradual transition to school. The judge concluded that the Defendant parents were within their rights to terminate their child’s enrolment due to breach of contract as the school failed to follow their own policies, as set out in their Enrollment Agreement, Parent Handbook and their website. As a result, the Plaintiff school’s claim was dismissed and the pupil’s parents were awarded damages of $2,000 for reimbursement costs of alternative child care, the days the parents took off from work and the return of the cost of tuition for the entire month of September. So, what does this mean for you and your child(ren)? Just because you have signed a contract with your child’s school that all tuition is payable, no matter what the circumstance, this may not always be the case. Failing to adhere to school policies from either party can become the basis for breach of contract. Private schools should also be vigilant about maintaining clear and open communication with parents instead of relaying information through third parties such as nannies and caretakers. Finally, strict compliance with certain policies should be adjusted keeping in mind the age of the student and the parent’s willingness to work with the school to ensure compliance. Katelyn has acted as counsel for the following reported decision: Prestige Montessori v Muhammad and Amina Shahzad If you have more questions about your education law matter for both private or public schools contact John Schuman at 416-446-5080 and john.schuman@devrylaw.ca or Katelyn Bell at 416-446-5837 and katelyn.bell@devrylaw.ca. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Education LawJune 18, 2020September 29, 2020
My child has been suspended from school. Do I have the right to appeal this decision? In Canada, a child’s right to receive an education is an important one. As a result, children both in private and publicly funded schools are entitled to have any allegations put forth against them, fairly and impartially investigated. Additionally, an appeal process whereby the principal’s decision to expel or suspend a student for more than one day should form part of the process – particularly in publicly funded schools whereby a student can evoke his or her rights under the Canadian Charter of Rights and Freedoms to a fair hearing. However, it should be observed that the nature of these appeal hearings can be somewhat complex. Consequently, having legal representation can significantly increase chances of success and ensure that the opposing party is in compliance with human rights legislation and will fairly consider all legal considerations applicable to the situation. When the decision is made to suspend or expel a student, the school must provide written communication that explicitly explains what penalty the school is imposing, including the precise length of any suspension. The school must also detail the events or behaviour that led to the decision, a reference to which ground for suspension or expulsion the school is relying upon, and the appeal route that is available to the student to challenge the punishment. The suspension or expulsion may not be valid unless the letter sets out all of these considerations. In addition, the school must provide the student, and the parents, an opportunity to be heard before making the punishment final. For publicly funded schools, the Education Act sets out two types of activities that relate to suspension or expulsion: Activities for which a principal may suspend a student, but does not have to suspend a student. These are listed in section 306 of the Education Act. In deciding whether to expel a student for the type of conduct described in this section, the principal must consider mitigating factors, both in terms of whether suspension is appropriate, and if so, for how long. Activities for which a principal must expel a student and may expel the student. These are listed in section 310 of the Education Act. Probably the most recognized conduct that falls under that section is repeated bullying. Since suspension is mandatory for the conduct described in this section, the principal does not have consider mitigating factors and has no choice but to suspend a student. While a student is suspended for one of these possible offences, the principal is required to further investigate whether the student ought to be expelled. The principal can then decide to expel the student. Private schools on the other hand, are not governed by Sections 306 and 310. Instead, the conduct that is likely to result in a suspension or an expulsion is specified within the school’s policies or contract, if you will. Nevertheless, once a private school accepts a student, it can only remove a student as permitted by its contract with parents. Sometimes those contracts incorporate a “code of conduct” that sets out rules and procedures for suspension. Others just give the school absolute discretion to remove a student, which is only tempered by human rights laws. A fair hearing is required before such measures are finalized. A public school principal must consider certain factors which affect the overall decision. Among other considerations, these can be mitigating factors for a suspension, or evidence that a child did not intend the actions that could lead to an expulsion. Some examples of these factors are: A child who has been the repeated victim of bullying and feels vulnerable until the day he or she responds violently to the aggression of a bully. A child who has special needs which are not being met and who is either frustrated, or in a position where he or she feels the need to act out of character for attention, or whose disability makes the impugned action involuntary. A surprising statistic is that children who are receiving special education services in public schools represent less than nine percent of the total student population. However, children with special education needs make up almost 50% of all students who are suspended or expelled from school. Statistics such as these, suggest that many suspensions or expulsions may be a form of discrimination as they result from a school who is unable or unwilling, to meet a child’s needs according to the Education Act and Ontario Human Rights Code. Each school has some latitude in establishing its appeal procedure. However, the Education Act does set some requirements and the hearing must adhere to some formality as there are rules pertaining to such hearings that must be followed. This information must also be conveyed to the parents or guardians of the child and the length of time in which they have to appeal. Furthermore, it is important to note that “informal discussions” with a Superintendent of Education, that are not part of the school’s formal appeal process, do NOT extend the deadline for bringing an appeal. If you are trying to resolve matters with the school board, you still have to take the necessary steps to bring your appeal on time – or you will lose your right to appeal. If your child has been suspended or expelled, it is important to speak to an experienced education lawyer immediately. The time lines for appeals are short – and there may even be things the lawyer can help you do before bringing an appeal to resolve matters. Suspensions stay on a student’s records and expulsions obviously not only stay on the student’s record but profoundly affect his or her education. For assistance with education law, contact education lawyer, John Schuman of Devry Smith Frank at 416-446-5080 “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Education LawJune 25, 2019July 5, 2023
What Does The Court Decision On the Repeal Of The Sexual Education Curriculum Mean? On February 28, 2019, the Ontario Divisional Court released its decision on the constitutional challenge to the provinces repeal of the 2015 Sexual Education Curriculum brought by the English Public Teachers Union and the Canadian Civil Liberties Association and others. While the Court dismissed the challenge, the decision does not prohibit teachers from teaching the 2015 Sexual Education Curriculum. To the contrary, to some extent, it requires teachers to teach at least some aspects of the 2015 curriculum or lessons that are very similar to it Teachers at publicly funded schools will want to consult with their Board and their union about their rights and obligations. The decision does not apply to private school teachers as they do not have to follow the Ontario Curriculum at all. This page will provide a general overview and explanation of the Divisional Court’s decision about what sexual education curriculum is in place in public schools. The challenge to the Ontario Government’s repeal of the 2015 Sexual Education Curriculum, resulting in the return to the curriculum as it existed in 2010, can be summarized as follows: The repeal of the curriculum violated teacher’s freedom of expression because the government has threatened to punish teachers who taught the 2015 curriculum. A prohibition on teaching topics such as “consent” and alternative lifestyles threatened the lives and the security of the persons of students, particularly students who could be harmed by a lack of understanding of the meaning of consent amongst students and a lack of information about alternative lifestyles that could result in harm to student who either have a LGBTQ+ lifestyles or are from families that do. A prohibition on teaching alternative lifestyles and focusing on heterosexual relationships offends the equality rights guaranteed in the Canadian Charter of Rights and Freedoms. The repeal of the curriculum particularly threatens the security of the person and equality rights indigenous persons. As a result of the residential schools system and the “Sixties Scoop”, it is more important for indigenous children to learn about consent, bodily integrity and sexual assault at a young age to address the significantly higher rates of sexual violence faced by indigenous children. The repeal of the sexual education curriculum unreasonably discriminated on elementary students on the basis of age and deprived them of information that is important to their wellbeing due to their age without a sound basis for doing so. The Court did not find any violations the Canadian Charter of Rights and Freedoms, nor of the Ontario Human Rights Code. But it recognized the validity of the above concerns. However, it said that the Ontario Government was not preventing teachers from covering the “new” topics in their classrooms. Moreover, the Ontario Human Rights Code may actually require teachers to cover these topics to avoid discrimination against disadvantaged groups who could be harmed by a lack of information on these topics. Importantly, despite some initial “ill-considered pubic statements”, the Ministry of Education is not prohibiting teachers from teaching topics in the 2015 Sexual Education Curriculum. The 2010 Sexual Education Curriculum does not prohibit teachers from covering the additional topics in the 2015 curriculum. Further, there will be no repercussions for teachers who do teach the new topics. To the contrary, teachers may be required to teach topics found in the 2015 curriculum. Despite the repeal of the 2015 sexual education curriculum, the law may require teachers to teach elementary students about consent, body parts, LGTBQ+ lifestyles, the risks of technology, sexual violence and sexually transmitted infections. This is because: Nothing in the 2010 Curriculum prohibits teachers from covering these topics. The Ministry’s Policy and Procedure Memorandum (a directive from the Ministry of Education to publicly funded school boards) number 119 requires boards to have an equity and inclusive education policy that is comprehensive and covers the grounds of discrimination in the Ontario Human Rights Code. PPMs 128. 144, and 145 require school to ensure a “safe positive and inclusive school climate”. The 2010 Curriculum requires that sexual education be provided in an accepting and inclusive manner that reflects the diversity of the student population and ensures that all students feels safe, comfortable and accepted. The Ministry of Education’s position is that how teacher’s meet the above expectations is a matter of the teacher’s professional judgment and discretion. The 2010 Curriculum allows teachers to “amplify” instruction to include current examples. Section 169.1 of the Education Act and the section 1 of the Ontario Human Rights Code require teachers and school environments to be inclusive, tolerant and respect diversity. The Ontario Human Rights Code requires to protect gender identity and gender diversity. The Court did hold that a government, as part of its policy decisions, is permitted to modify the Provincial Curriculum and the Canadian Charter of Rights and Freedoms does not require a particular curriculum. Since the concerns raised by the challenges have otherwise been addressed by Ontario Law to ensure that students are protected from harm, there is no basis to set aside the Government’s decision to repeal the sexual education curriculum. The results of the analysis of large-scale studies of the efficacy and safety of Viagra (Sildenafil) in patients with erectile dysfunction (ED), simultaneously taking antihypertensive drugs (AHDs) have been published. According to the data received, the use of one or more AHDs (diuretics, b-adrenoceptor blockers, ACE inhibitors or calcium channel blockers) doesn’t affect the efficiency and safety of Viagra. Despite all the rhetoric from the Provincial Government about repealing the 2015 sexual education curriculum, Ontario Law and Ontario Ministry of Education Policy, actually require teachers to continue to cover the “new topics” in the 2015 curriculum. The curriculum just does not provide as much guidance on how to cover those topics, so teachers may actually have to refer to the 2015 curriculum, which teachers are permitted to do. The repeal of the 2015 sexual education curriculum was not unconstitutional because Ontario Law still requires teachers to cover the “repealed topics” with elementary school students. The Ministry of Education is just not explicitly telling them how to do so. For more information on legislation pertaining to education in Ontario, contact experienced family and education lawyer, John P. Schuman of Devry Smith Frank LLP directly at: john.schuman@devrylaw.ca, or alternatively, 416-446-5869. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Education LawMarch 6, 2019June 14, 2020
Is it Illegal For A Teacher To Secretly Film Their Students’ Cleavage? Most, if not all, of us can likely agree that it is wrong to film someone without their consent. We can also probably agree that it is even more wrong when the filming is sexual in nature. Take for example someone filming you inside your condo while changing and/or focusing their camera in on your private parts. Those same people are probably also in agreement that when it is a teacher filming one of his/her students at school, it is even more wrong. So hypothetically speaking, if a teacher were to film his students and more specifically, his female students’ chests, without their knowledge, this would be very wrong and that teacher should be sanctioned. Seems pretty cut and dry, right? Wrong. In late 2010, Ryan Jarvis, a then high school teacher in London, Ontario, was caught secretly filming the chests of his female students with a camera pen. Jarvis filmed over 25 of his female students, all of whom were between the ages of 14 and 18 and all of whom had no idea they were being filmed. Jarvis was charged with voyeurism under section 167(1) of Canada’s Criminal Code. Section 167(1) reads: 162 (1) Every one commits an offence who, surreptitiously, observes — including by mechanical or electronic means — or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if (a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity; (b) the person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such an activity; or (c) the observation or recording is done for a sexual purpose. At trial, Jarvis was acquitted of his charges. According to the trial judge, there was no evidence that Jarvis filmed the students for sexual purposes. On appeal at the Court of Appeal for Ontario, the panel found there to be clear sexual intent but the court upheld the acquittal on the basis of the students having “no reasonable expectation of privacy while at school”. So although it seems absurd that something so inherently wrong went all the way to Canada’s top Court to decide, it did. The Supreme Court of Canada was tasked with determining whether the students recorded by Jarvis were in circumstances that gave rise to a “reasonable expectation of privacy.” Jarvis argued that because the students were at school, where there were several other various surveillance cameras, such a reasonable expectation did not exist. The Supreme Court released their decision yesterday and the court disagreed with Jarvis’ argument and instead advanced a position held by most of the Canadian public: girls (and boys) should be able to go to school without having to worry about whether they are being secretly recorded, especially by someone in a position of trust, such as a teacher. However, although all nine Supreme Court judges agreed that Jarvis was guilty of voyeurism, the Justices were split on the legalities of the case, thereby demonstrating its complexity and the fact that this was not in fact an “open-and-shut case,” despite many Canadians having felt so. Ultimately, the Supreme Court’s decision has set clearer (and more expansive) guidelines around what a reasonable expectation of privacy means when in public spaces in the context of voyeurism. The court considered the example of a drone taking high-resolution photographs of unsuspecting sunbathers at a public swimming pool and noted that this too would raise similar privacy concerns to Jarvis’ case. Not surprisingly, Jarvis’ lawyers feel that the Supreme Court has cast the net of what constitutes a “reasonable expectation of privacy” too wide, but legal scholars, Ontario’s Information and Privacy Commissioner and women’s rights group alike all consider the decision the “right” one in the face of something that was so obviously wrong. The best way to protect yourself and your children is keep abreast of laws pertaining to education in Ontario. Additionally, it is always recommended that you seek help from an highly experienced legal professional such as John Schuman of Devry Smith Frank LLP who can be contacted at: john.schuman@devrylaw.ca, alternatively, 416-446-5869. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Education LawFebruary 26, 2019June 16, 2020
What Happens When Your Child’s School Registration Form Contains False Custody Information? Family and Education lawyer John Schuman was asked the following question: What are the legal penalties for someone who has filled out an Ontario elementary school registration form with false information concerning a court child custody order? John’s Answer: This question is a good one because it touches on the intersection between schools, parents, kids and the law when parents separate. Parents separating can cause a lot of stress and tension for other people as well. First, it is critical to remember that the school, the principal, the teachers, and the school board do not want anything to do with your separation or divorce. If you think any of them are going to “take sides” and support you, then you are wrong. Most school boards have policies that prevent them from becoming involved in disputes between parents. This does not mean that Family Court Judges do not find the thoughts and observations of teachers useful when deciding which parent gets custody. But, nobody wants them involved (I will mention how to get the useful information below). The most important reason why schools will not become involved in disputes between parents is that schools are the kids’ “space.” School is more than just a child’s “workplace.” It is the center of their social lives, it is where they develop an identity independent of their parents, it can be the center of their non-academic activities and, during times of parental conflict, it is often their sanctuary away from that. So, it is very important that fights between parents do not use the school as the battleground. Section 305 of the Ontario Education Act and Ontario Regulation 474/00 give principals the authority to bar any parent from entering school premises because he or she has done anything to upset any pupil. If a principal does that, a Family Court Judge is sure to notice. With that said, it is very important for schools to know what the current custody order says. This helps the school avoid making mistakes that can create tensions between parents or can even allow a parent to abduct a child. It also avoids having the school hand off the child to the wrong parent – or to a parent who is not supposed to visit the child or go to the school. While it is important for schools to get copies of court orders that relate to the school, it is important that parents do not use those orders as weapons. If the school has a copy of a court order that it should not have, or that is no longer valid, parents can do something about it. Section 266(4) of the Education Act allows parents to request in writing that the principal remove any inaccurate information from a student’s record. If the principal does not remove the information, then a School Board superintendent can hold a hearing to determine whether the information should be removed. The Ontario School Record Guideline sets the test for whether a document or information should be removed from a child’s OSR. Any document that is “no longer conducive to the improvement of the instruction of the student” should be removed from a student’s school record. Therefore, a principal should remove any expired, repealed, or irrelevant court order from a student’s record. That should get the court order out. When deciding custody cases, judges need evidence, and they really like the evidence of impartial professionals. The observations of those professionals of the behavior of the parties, and more importantly, how a child is doing, can really influence a judge when deciding custody cases. But, judges do not want educators put in the middle. Section 35 of the Ontario Evidence Act allows judges to admit into evidence any record that a teacher (or other professional) has made “in the ordinary course of business” without having the teacher testify. Those are any records that someone does as part of their job and not for the purposes of any form of litigation (including disputes in Family Court.) So, judges will look at report cards, school attendance records, school IPRC reports, individual education plans, school forms and school emails that are not directly about the custody/access dispute. Those can give the judge a really clear picture of what is going on, how involved each parent is, and whether either parent is being a “problem.” A parent who is being a “problem” or whose actions are having an adverse impact on a child can get into big trouble in family court. Not being supportive of the other parent, acting unilaterally with respect to the children (especially in contravention of a court order) and not putting the children’s needs first are some of the best ways for a parent to lose custody of children It is often possible to get these helpful school records without involving any school personnel directly in the Family Court Fight and, most importantly, without bringing the fight to the child’s school and sanctuary from the parent’s fighting. You can learn a bit more about the family court process by watching this video or listening to these podcasts (iTunes version here). You can get a lot more information about Ontario Family Law issues, including a further explanation of child custody issues and tips to help you and protect your child in and out of court, by downloading this $9.99 e-book for Kindle, Kobo, or iPad/iPhone/Mac or ordering the paperback version. But, to keep out of trouble, it is always best to speak with a good family law lawyer. On school issues, it can also be helpful to get speak to a lawyer who knows about education law. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Education Law, Family LawJanuary 31, 2018July 7, 2023
