CLF advocates for parental rights and religious accommodation in Ontario’s education reform consultation

“Parental rights, especially the right to decide the moral education of one’s child, have long been recognized among the most fundamental principles of both Canadian and international law.”

In a detailed brief submitted as part of Ontario’s consultation on education reform, Christian Legal Fellowship (CLF) has urged the government to affirm in its proposed Parents’ Bill of Rights that parents have the primary right to care for their children, and are best positioned to make decisions for their education and well-being.

CLF’s brief summarizes case law, legislation, constitutional protections, and international human rights instruments which affirm the primacy of parental rights in education. As the brief summarizes: “This should be the starting point for any Parents’ Bill of Rights: a recognition that parents have paramount authority as it pertains to their children’s education, and that the authority of the state to educate children is delegated from, and secondary to, the parents’ prior authority.”

Derek Ross, CLF’s Executive Director and General Counsel, comments:

“The family is the fundamental building block of society, and the unit in which children are best supported, protected, and nurtured. Canadian law has long recognized this with good reason, and presumes that parents, not the state, are best positioned to advance their children’s well-being.”

Background

In August 2018, the Ontario Government announced that it would hold a province-wide, “unprecedented consultation into education reform” and create a “Ministry of Education Parents’ Bill of Rights”. The government invited feedback from individuals and interested organizations. CLF submitted its brief to the Ontario government on Friday, December 14, 2018.

CLF’s Submissions

Christian Legal Fellowship (CLF) has long advocated for parents’ right to educate their children in accordance with their own moral and religious beliefs. CLF has intervened as a friend of the court in numerous constitutional cases addressing the issue, including S.L., et al v Commission Scolaire Des Chenes, Loyola High School v. Quebec, and E.T. v Hamilton Wentworth District School Board. CLF also has expertise in international law, having Special Consultative Status with the Economic and Social Council of the United Nations and participating in proceedings before international courts. CLF draws on both national and international law in its brief.

CLF welcomes the notion of specifically affirming parental rights in Ontario’s education system. Parental rights, especially the right to decide the moral education of one’s child, have long been recognized among the most fundamental principles of both Canadian and international law.

Key Principles

In particular, CLF’s detailed brief explains how Canadian and international law affirm the following key principles:

“the right of parents to care for their children and make decisions for their well-being, including decisions about education, is primary, and the state’s authority is secondary to that parental right” (see E.T. v Hamilton-Wentworth District School Board at para 65)
“the authority of the state to educate children is a delegated authority” (see E.T. v Hamilton-Wentworth District School Board at para 66)
parents are granted a “protected sphere of parental decision-making which is rooted in the presumption that parents should make important decisions affecting their children both because parents are more likely to appreciate the best interests of their children and because the state is ill-equipped to make such decisions itself” (see B. (R.) v. Children's Aid Society of Metropolitan Toronto at 372)
parental rights precede the Charter and are grounded in natural law, as well as the common law and international human rights law
the government is not permitted to discourage religious faith in the public education system
Canada has committed itself to numerous international human rights documents which specifically affirm parents’ rights to ensure the religious and moral education of their children in conformity with their own convictions
parental rights are not absolute, and must be exercised in a manner that respects the best interest of their children; however, as a starting point, the law has always presumed that parents will make decisions in the best interests of their children, and the state will only intervene in those exceptional cases where parents fail to do so, in order to protect the welfare of the child

CLF’s Recommendations

With these guiding principles in mind, CLF recommended that the following provisions be included in a Parents’ Bill of Rights:

Parents have paramount authority as it pertains to their children’s education; the government’s authority to educate children is delegated from, and secondary to, the parents’ prior authority
The family is the fundamental building block of society, and the unit in which children are best supported, protected, and nurtured
Parents, not the government or its schools, are best positioned to make decisions in the best interests of their children (absent evidence to the contrary); therefore, family decisions relating to matters such as religion, healthcare, and education will be free from interference unless demonstrably justified
The public education system will operate in a manner that does not undermine parents’ ability to transmit religious faith to their children, and any concerns will be addressed by the provision of reasonable accommodation to the point of undue hardship
Parents are entitled to be informed of what is being taught to their children, and afforded the right to:
- be notified, subject to applicable legislation, of any medical or health-related treatment provided to their children
- access school curriculum, and to express concerns to their child(ren)’s educators and school board
- access information about the nature and purpose of school approved programs (including guidance and counselling programs), clubs, and activities
- opt out of activities or lessons they determine will be harmful to their child(ren), or which violate their religious beliefs*

Other Considerations

In addition to a Parents’ Bill of Rights, the Ontario government sought feedback on other aspects of the province’s approach to education, including sex-ed, among other topics.

As a general matter, CLF emphasized that, as stated by the Ontario Human Rights Commission, “schools must maintain environments that are free of pressure or compulsion in matters of belief.”

CLF noted that, while respect and understanding for others and their different beliefs ought to be promoted, schools must be careful not to over-extend this to mandating student approval or celebration of views that contradict theirs’ or their family’s beliefs. The brief cited Chief Justice McLachlin’s comments in Chamberlain v Surrey School District No. 36: “[T]he demand for tolerance cannot be interpreted as the demand to approve of another person’s beliefs or practices. When we ask people to be tolerant of others, we do not ask them to abandon their personal convictions.”

CLF explained that attempts to indoctrinate students or pressure them to conform to majoritarian norms, contrary to their religious beliefs, would violate the Charter.

CLF advocates for parental rights and religious accommodation