Home Education Legalities in Ontario

Homeschooling in Ontario is governed by the Education Act. Instead of regulations, there is a Policy/Program Memorandum (PPM), specifically PPM131, to provide direction on the requirements and responsibilities involved.

Note: A policy is not a law, and this one includes directives that would seem to go against the law where it concerns investigations. See the discussion below, on the legal status of PPM131.

Education Act

Section 21 of Ontario’s Education Act deals with compulsory school attendance. Subsection (1) sets out the compulsory school age and subsection (2) lists the circumstances under which a school-age person is excused from attendance, including homeschooling (“receiving satisfactory instruction at home or elsewhere”).

Compulsory attendance
21 (1) Unless excused under this section,
(a) every person 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 person attains the age of 18 years; and
(b) every person 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 person attains the age of 18 years.

[…]

When attendance excused
(2) A person is excused from attendance at school if,
(a) the person is receiving satisfactory instruction at home or elsewhere;

https://www.ontario.ca/laws/statute/90e02#BK30

Section 24(2) of the Act outlines the procedure to be followed in cases where there is a dispute between parents and school authorities about whether a child is excused from attendance under section 21(2).

Inquiry by Provincial Counsellor
(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.

https://www.ontario.ca/laws/statute/90e02#BK33

Section 30 of the Act deals with truancy. It should not be applied to homeschooling parents, whose child is not “required to attend school” and yet schools and school boards do sometimes take families to court under Section 30. In those cases, the judge is allowed by the Act to refer the matter to the Provincial School Attendance Counsellor in the way outlined in section 24(a), except that the PSAC doesn’t make the final decision, the court does based on the PSAC’s report.

Offences: non-attendance
Liability of parent or guardian
30 (1) A parent or guardian of a person required to attend school under section 21 who neglects or refuses to cause that person to attend school is, unless the person is 16 years old or older, guilty of an offence and on conviction is liable to a fine of not more than $200.

[…]

Reference to provincial counsellor for inquiry
(7) Where, in a proceeding under this section, it appears to the court that the person may have been excused from attendance at school under subsection 21 (2), the court may refer the matter to the Provincial School Attendance Counsellor who shall direct that an inquiry shall be made as provided in subsection 24 (2) which subsection shall apply with necessary modifications except that the Provincial School Attendance Counsellor shall, in lieu of making an order, submit a report to the court. 

https://www.ontario.ca/laws/statute/90e02#BK39

Policy/Program Memorandum No.131 (PPM131)

The entire PPM131 relates to “home schooling.” Here are 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.

http://www.edu.gov.on.ca/extra/eng/ppm/131.html

PPM131 includes a disputable involvement of section 30 of the law (intended for cases of truancy) in the following paragraph of the Guidelines for Conducting an Investigation (emphasis added):

[…] 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.

Legal status of PPM131

PPM131 directs all homeschooling parents to send a letter of intent to the school board, and to do so every year they homeschool. Many parents do not follow this directive, choosing instead to notify the school board in writing only at the time they withdraw their child(ren) from the school system, and not at all if the child has never attended or been registered to attend.

Are they breaking the law? The answer is no. A policy is not a law nor a regulation, and is not itself legally enforceable. Here are some documents in support of that assertion:

1) from the Government of Canada Regulation website:

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

Excerpted from a (now removed) pamphlet of the Department of Justice called “What Tools: The Panoply of Rules,” presented at the Justice Instrument Choice Conference, March 26-27, 2002, by John Mark Keyes.

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

2) from the website of the Council on Licensure, Enforcement and Regulation (CLEAR):

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

and

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

as compared to Regulations:

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

Excerpted from a paper on Administrative Rulemaking by Richard Steinecke, presented at CLEAR’s 23rd Annual Conference, Toronto, Ontario, September, 2003