LEGAL PRECEDENTS – CASE LAW
Nations differ in laws about caregiving. Even if they have signed international agreements, unless they have ratified them in their own country they are not easy to cite as laws in effect in that nation.
(The comments here are not legal advice. They are the observations of an ordinary citizen and best information known about the legal cases mentionned and the processes involved. If a person wishes further and more precise information about any legal issues on this website, they are urged to contact a lawyer.)
Laws are made by government, and the way to get a new law made or change a former law is to get legislators to have a motion to that effect, and propose a bill and vote and create the new law. Judges do not make laws. They interpret them and determine what laws apply to specific situations. However judges in determining fair enforcement of laws, have discretion within the law to adjust penalties depending on circumstance.
If a law seems unfair, that is a matter of opinion and the public has the right to question a law and ask legislators to change it. However until it is changed citizens are obliged to obey the law
HOW TO CHANGE A LAW OR TO CLAIM IT IS INCONSISTENT WITH HUMAN RIGHTS CHARTERS
In a democracy people have the right to input about the laws that govern them, the right to pick their representatives, to vote, to run for political office themselves and become legislators. They have a right to peaceful assembly, peaceful protest and free speech to make their case for why a law should be changed.
The law in most countries includes overarching human rights charters, which are deemed to be part of any law. In cases where someone feels a given law is unfair, that it violates the charter of human rights, they can make their case that the law in question is inconsistent and should be struck down because it violates a more basic freedom and right.
The first stage of trying to change an unfair practice is to talk with a member of government to discuss it. They may speak with colleagues and enter a motion in their legislature, propose a bill, bring the issue to a vote. They have the power in some cases to change the law. However the human rights complaints about caregiving usually are not at municipal but provincial and federal levels. Meetings with those officials, petitions, rallies, submissions to their committees on the issues are possible.
If legislators cannot be convinced to change a law however, ordinary citizens sometimes have other avenues to get a law reassessed to see if it is inconsistent with the more basic human rights. High level courts can be appealed to, to get a ruling about these conflicts between laws.
a. human rights complaint
In Canada an individual can lodge a complaint at the provincial or federal level on the basis of alleged discrimination. The case is argued that the law has been violated and that already existing rights have not been applied. Human rights commissions hear many such applications but in general the applicant has to make the case a specific way.
-the person applying is an individual and any ruling would be about that person’s situation only. This means that even a successful ruling that there was an unfair discrimination, would not set in place a change in the law for others.
-if the person applying wants to make the case on behalf of an entire group of people, as is the situation in the caregiving issues outlined here, the person must have official right to represent that group. It is difficult to prove that a mother at home is elected and chosen by all other mothers at home for instance to represent them. Therefore it is often useful to make the application for one’s own circumstance as instructive, but knowing there will not be change in the practice for others.
-it is common for the commission to also require that the group applying, if it is a group, has been a historically disadvantaged group, often a minority group. The argument about women’s rights therefore must be well researched and carefully framed. Women are not a minority in Canada. They are however a historically disadvantaged group, married women within that subclass are historically disadvantaged among women and women with children are historically disadvantaged within that class.
-it is common for the commission to also require that the complaint deal with a condition that is inherent in to the complainant. For instance the claim may be that their gender or race or physical handicap was being used as reason to treat them unfairly. The argument that unpaid caregivers make that they are discriminated against is less easily made partly because to become a mother or a caregiver of a child is voluntary. The woman chose those roles. A simple answer an observer might give is that if they did not want to incur the penalty they simply could have chosen not to become a mother, or, if a mother, could have chosen not to be a caregiver in the home. However, the case for discrimination could still be successfully made if it is noted that charters of rights also consider it unfair discrimination for some other conditions that are voluntary – such as a person’s religion, political views, marital status or place of residence. Some jurisdictions also prohibit discrimination based on source of income and the rights also may be interpreted, as in the case of gay rights, to be banning discrimination based on lifestyle. If it is admitted that some voluntary choices are also to be respected, then a case could be made that it is a violation to discriminate against a parent at home, for their choice to be home with the child, even though this was a personal decision and preference. The human rights complaint made on that basis could also point out other rights to respect, dignity, freedom to make decisions and the right to equal benefit under the law, also found in the charter of rights and that are violated by discrimination against the unpaid caregiver.
b.. court challenge
In the past caregivers have sometimes taken their case to court, claiming that a law or practice is not fair because it violates a basic human right. Successful rulings in these cases are sometimes useful. They do not suddenly change a law and are not binding legal precedent but they may clarify a principle. Then legislators may change the law or practice. In the case of caregiving, some court cases have done that.
It is important to find the right lawyer who knows the relevant area of law and to make the challenge at the appropriate court. The route to appeal through the court system has been used on several occasions in Canada on caregiving issues. Lower courts may rule against the motion but appeals to higher courts may rule in favor. The process is long and often costly but groups of citizens may find the process so important it is worth this time and expense.
Under the BNA Act, any group of 5 citizens can petition the Supreme Court of Canada to rule on a constitutional point. This was tried in the Persons Case in 1927 . When the ruling at that level confirmed that women were not ‘persons’ under the law and not eligible to sit in the Senate, a further appeal was possible to the Privy Council in England. That appeal was made and the Privy Council ruled in favor. Women were deemed persons and were from then on eligible to sit in the Senate. The final application route to the Privy Council is no longer available in Canada however.
c.. assisted court challenge
In Canada there is an option that ordinary citizens can launch a challenge. The government of Canada provides a Court Challenge program in some limited circumstances to get a court ruling on whether a law is consistent with human rights. The Charter Challenge Access fund at one time could be up to $50,000 to fund a court case to try to address perceived violations of Section 15 of the Charter of Rights and Freedoms.
d. application for Supreme Court Reference
There may also in Canada the possibility, though rarely used, of a citizen asking the Attorney General provincially or federally to ask the Supreme Court for a legal opinion, under a Supreme Court Reference. The attorney general at his/her discretion can ask the court for such a ruling.
This application must be carefully reasoned with significant research about laws that are not being fairly applied. The case would be that a practice of national importance is inconsistent with overriding human rights principles. Though ordinary citizens usually cannot afford such an application and the lengthy court process it may entail, the law does permit such a process to be funded by government itself. It has been deemed by legislators in the public interest that laws the public must live by are consistent and fair and that citizens have some recourse to make sure they are. However a Supreme Court Reference in Canada cannot be made by citizens alone and must get the cooperation of an attorney general to feel there is a problem and to agree that it is necessary to have the court examine it.
e. complaint at an international body
The UN Commission on the Status of Women has in the past set up a route for individuals to lodge a complaint on an issue of international interest, if there are alleged violations of rights of women, with global importance of such violations. Such a complaint requires significant evidence cited and ideallysupport from others to make the claim. The complaint is then communicated to the national government involved and that government is given an opportunity to respond. The UN working group of the commission considers the complaint, its accompanying documents and the government response, and makes a ruling about the situation. However even if the ruling is favorable to the complainant, the nation involved is not required to change the law. The impact of such a UN complaint is therefore one of public awareness of an issue. The government involved and other governments dealing with similar issues may then decide to change laws or practices.
(All of these comments about legal process are not legal advice and over time avenues of appeal may have changed. Those who wish more information are advised to find a lawyer who knows current procedures)
f. become a legislator
The ones who can change laws are law-makers, elected representatives who sit in government. Ordinary citizens can contact these lawmakers with their concerns, hold rallies, write petitions, meet with them in their offices, make formal submissions to them in government committees that seek public input. Supporting candidates who agree with a citizen’s concern is part of the democratic process and there is also the option of becoming one of them, running for office, getting elected and trying to get new laws written that are fair.
*Historically women are less likely to run for political office, often because of their caregiving obligations in the home and difficulty being away serving in a legislature. This hurdle is a particular oddity of issues regarding women’s rights but it is possible that a few representatives could however find the time and
availability to serve in this way. Mothers with small children are competent to make the equality case but often not available to do so for the very reason that they prioritize being with the children. However women who have no children yet or whose children are grown may be more available, or other women who have no children but who understand the issue. or men who are compassionate and understand the issue may also make the case well. There is also hope that legislatures will accommodate better those who have caregiving obligations, can hold sessions during the day not evenings and frequently remotely so that it is not always required to be in a different city away from the family. In that way men and women who wish to be in government could be more able to serve there equally.
CANADIAN EXAMPLES OF CASES AND CAREGIVING
Nations differ widely regarding court cases they have dealt with and the case law that has been built up about caregiving. In Canada or its provinces and territories a brief look at some of the case law follows:
1929 – Persons Case-
The Supreme Court of Canada ruled that women were not ‘persons’ under the British North America Act 1867 so were ineligible to serve in the Senate. The British Judicial Committee of the Privy Council however reversed that decision and ruled that women were persons. They were therefore enabled to sit in the Senate.
1968 Gabco Limited v Minister of National Revenue
A corporation president hired his 19 year old son at a substantial salary with benefits, grooming him for a future role with the company. The court found that the amount paid to the son was reasonable raising the principle of a ‘reasonableness test’ to see if a business would pay the same salary to a nonfamily member in view of the business consideration only.
* Recognizing the work of someone regardless of their marriage or blood relationship is an important principle in terms also of domestic labor and care of children. If a stranger could be paid for the role, to not enable funding or support
for the role seems a discrimination..
1975 Murdoch v Murdoch (the Murdoch case)
An Alberta farm couple married in 1943 and separated in 1968. They both worked the land and had each brought horses and property to the marriage. When their marriage ended the wife sued for child custody and child support and for a share in the value of the property. Historically however no allowance was made for women in a marriage to get a portion of the land unless they owned in in their own names or had provided part of the purchase price. The court ruled that the wife did not deserve a share of the property since her unpaid work was ‘just about what the ordinary rancher’s wife does” Following public protests and later appeals, Murdoch did get a lump sum recognition of her unpaid contribution to the thriving of the farm.
1979 Bliss v Attorney General of Canada
A pregnant woman who had to quit her job four days before giving birth applied for maternity benefits and was denied them. The court ruled that under the Unemployment Insurance Act during that part of her pregnancy she was not entitled to benefits, The ruling was later overturned in 1989 Brooks v Canada Safeway Ltd. to clarify human rights and the recognition of pregnancy.
1984 – Ross v Ross
In a divorce case in Manitoba the idea was proposed of compensating for ‘systemic gender-based inequality’ since women have a harder time finding paid work after a divorce
1985 Her Majesty the Queen v Big M Drug Mart Ltd.
The Lord’s Day Act prohibited selling goods or conducting business on Sundays in accordance with the Christian tradition that Sunday is a day of rest. The Supreme Court ruled that the act itself violated fundamental freedoms of religion protected in the Charter of Rights, because it forced all people to follow Christian doctrine even if they were not Christian.
* those who provide care of children in formal situations are likely also obliged to ensure there is no religious discrimination and this may be difficult to do to meet all religious traditions equally. The way to ensure parents have their religious rights respected it could be argued then is to let the parents choosethe care location of their children, one that does satisfy their preferences and one way to do that is to let them be the caregivers themselves if they so wish with equal funding.
1987 Pelech, Caron and Richardson (Pelech trilogy)
A couple married in 1954, divorced in 1969. On divorce they agreed on a maintenance agreement for 13 months. However after that period the former wife suffered physical and mental problems and was unable to have a paid job, and was reduced to poverty. In 1982 she was living on welfare and went to court to ask for the divorce settlement to be reassessed. The court refused saying that though the financial situations of the two parties now significantly differed this was not attributed to the marriage. The ruling later was overturned in establishment of a principle of valuing the contribution of the nonearning spouse during a marriage and recognizing the income and career sacrifice that ensued.
1988 R v Morgentaler
Dr. Morgentaler and others operated a clinic performing abortions on women who did not have the certificate from an accredited hospital for the procedure as required under the Criminal Code. The court ruled that the criminal code requirement of a certificate violated the woman’s right to security of person and did not allow women to make crucial decisions about their own life and health free of state interference.
* this ruling, though about abortion, may also apply to the rights of women to for their own physical and mental health prefer to breast not bottle feed, or prefer to make it legal to be home with a child but that only funds not being home with a child and instead preferentially funds care by a nonfamily member, could be seen to violate the right to make crucial decisions about one’s own life and health.
1989 Brooks v Canada Safeway Ltd.
Three employees who were part-time cashiers at Safeway became pregnant but were denied benefits for pregnancy leave from the employer. The Safeway insurance plan provided benefits for loss of pay due to sickness or accident but not for those unable to do paid work because of pregnancy. the court ruled that the insurance policy unfairly discriminated against pregnant women.
* pregnancy is being recognized in the paid labor force as a reason to get funding because a person for a time is unable to do paid work. There is no funding for the pregnant woman who is at home similarly unable to paid work who was not recently at paid work however, though their current situation is identical. This f failure to value pregnancy itself but to only see it through the lens of paid work attachment could be seen to unfairly discriminate between pregnant women and all pregnant women should get financial support.
1989 – Irwin Toy Ltd. v Quebec ( Attorney General)
A toy company that ran television ads for toys aimed at children was charged by the consumer protection office of Quebec for ads aimed at children under age 13. The toy company said the act unfairly limited their freedom of expression. However the court ruled that the law was intended to protect children who are vulnerable to commercial
*Children are vulnerable and should not be used for commercial endeavors to make a profit. In the same way it could be argued that greater vigilance is needed to protect children from exploitation to be used as consumers even of for profit childcare services if the goal of such enterprises focuses on profit rather than the best interests of the child. In a free society businesses are permitted to operate but government could be seen to err if it subsidies such operations preferentially over care by family.
1990 Mahe v Alberta
Three French speaking parents in Edmonton, Alberta wanted a new French elementary school within a separate French school board but the Minister of Education said the province does not create French school jurisdictions. The parents argued that their minority language rights were violated and the court ruled in their favor. It said that parents have the right to manage a minority language school and public funding must be provided for this purpose
* since minorities have language rights in the school system it is logical to assume they also have language rights in the early years when children are learning language. It is therefore logical to argue that any government funding for care of young children must also ensure minority language rights are respected. Since a uniform standardized childcare system cannot operate simultaneously in all known languages it is reasonable for government to permit parents to choose the language of care and to fund it wherever they choose to provide it, even if it is in the home. Giving parents the choice to select the care enables them to find the situation that meets their needs.
1991 Schachtschneider v the Queen
A married couple claimed that it was unfair that they were taxed differently than was an unmarried couple in meeting the costs of raising a child. They noted that a man could pay a woman not his wife to tend the child but could not pay his wife or deduct costs she incurred. They also claimed that they were disadvantaged due to marital status compared to a married couple living separately where the man could deduct costs of child support they could not. The court ruled against their claim
* this case also could be appealed. Marital status should not be a reason to penalize a care arrangement or deprive it of equal tax benefits.
1992 Her Majesty the Queen v Shalom Schachter
A couple had a baby in 1985 and the wife took 15 weeks of maternity benefits. The father applied for 3 weeks of paternity benefits under the Unemployment Insurance Act but was unable to claim them since they were limited to use by adoptive parents. The trial judge ageed that his charter rights have been violated. Subsequently the law was changed to ensure that birth and adoptive parents are eligible for the same benefits
*The benefits do not however flow to the situation but only based on paid work. it could be argued that maternity and paternity benefits logically should be based on maternity and paternity and not conditional on those who had paid work. Extending the benefits to both natural and adoptive parents is one step but to be even more inclusive and fair the benefits should go to all new parents not just those with paid work history.
1992 – Moge v Moge
A couple married in the 1950s and divorced in 1980. The court ordered spousal support till 1989 at which time it was deemed Mrs. Moge has had ‘sufficient time’ to become self-supporting. She had trouble finding paid work however and sued for more support. After appeal she was successful. The court ruled to recognize the income and career loss of being a caregiver in the home, saying “the reality of the feminization of poverty and the social forces disadvantaging women following divorce is very clear’. The court therefore rejected the Pelech decisions earlier. The goal of each spouse on divorce becoming self-sufficient was re-examined. The ‘clean break’ model was deemed unfair and other considerations were deemed necessary to determine fair spousal support including earning capacity. The principle became the equitable distribution between spouses of the economic consequences of the marriage, both advantages and disadvantages. This became a compensatory approach to recognize the sacrifice the caregiverspouse had made in earnings in order to care for children
1993 Boland v Income Tax Court of Canada
A married man challenged the income tax principle that it is permitted to pay a 3rd part to take care of your children but not permitted to pay a spouse to do the exact same role. He said this inequality discriminated against him based on family status and as such violated a charter right. The judge agreed that there is a discrimination in the law about who can claim childcare expenses, a denial of equal benefit under the law. However the judge also said that parents at home are not a historically disadvantaged group so are not able to lodge a discrimination case.
*this judgment could have been appealed. Mothers at home have chosen to be home but have not chosen to be poor. They historically have been forced into
financial dependency and could be seen as a group historically discriminated
1993 Peter v Beblow
A couple lived in a common law relationship for 12 years and one did the domestic role in the household and taking care of the children of their blended family. The appellant gardened, planted a hedge and enhanced the value of the property and the respondent was able to pay off the house mortgage and buy a van and houseboat. When the relationship ended the caregiver at home sued the respondent and won financial compensation. The trial judge ruled that the respondent had been enriched by the unpaid work of the appellant. The legal principle was established that it is
fair for the one who receives such benefit, of indirect and nonfinancial contributions
be required to provide recompense for those contributions. It was ruled that domestic
services are equivalent to other contributions. It was also noted that a person cannot be expected to forgo compensation merely because the two had a love relationship.
Two methods were suggested for evaluating the contribution of a party in a relationship. One was the amount the person would have had to pay a 3rd party for the services. The other was the value of the assets at present compared to previously, based on the service.
1993- Symes v Canada
A lawyer hired a nanny to take care of her children while she practised law full time and she deducted the wages of the nanny as a business expense. Revenue Canada disallowed the deductions saying the expenses were not required expenses in order to conduct a business but were personal or living expenses. She was permitted to deduct childcare expenses of a smaller amount as under the Income Tax Act, but not full nanny expenses.
* the issue is not so much between women or men and who can deduct costs of childcare though this issue was discussed. The more important aspect if that whoever claims the cost, male or female, what value the state sees in the care of children by a third party. If the state values care of children, because it values children and sees their care as vital as human rights laws suggest, that would require that costs of care of children be deductible universally, without favoritism to any child or parenting style. If the state only recognizes and permits deduction of costs of care by a third party, nonfamily member, and only in order for the parent to do paid work, this is not technically support of care of children but support of earning money since it is conditional on the earning. It could be argued that to be consistent with charter rights to provide equal benefit under the law, childcare expenses could be more broadly defined, not as a business expense but as an expense all parents incur, whether receipted or not.
1999 – M v H
A lesbian couple identified by the initials of their lawyers, began to live together in a same -sex relationship in 1982. They lived in a home H had owned since 1974, started their own advertising business which thrived, purchased business and vacation property together. They later sold the business property and used proceeds to fund construction of a home. The advertising business suffered a downturn, their debt increased and H took a job outside the firm to help meet expenses. In fall 1992 the relationship ended, M left the home and sought an order for a part of the proceeds of sale of the house and for spousal support. The court examined the current exclusion of same sex couples from the right to claim spousal support and noted that common law heterosexual spouses could claim spousal support. The court ruled that excluding same sex couples from the claim for support was a discrimination violating the Charter of rights, and discrimination based on sexual orientation. The court ruled that excluding the couple would violate equality rights in the charter and the right to equal benefit under the law. The court identified the situation of voluntarily entering into economic interdependence as a feature of the couple, parallel to the same interdependence of heterosexual couples. The court considered the vulnerability of the lower earning partner and economic imbalance similar to the same situation among heterosexual couples on breakdown of a relationship. The court outlined the need to alleviate the burden on the public purse by ensuring that spouses who have capacity to provide support do so.
* by this ruling the partnership aspect and situation of economic interdependence not simply dependency was recognized. The court ruled that how to share income was a feature of personal autonomy. For caregivers the claim could be made that this groundbreaking ruling for same sex couple salso identifies the dignity of the lower earner and of the caregiver role.
2005 HMTQ v Hutchinson
The Court upheld a decision that a woman with cerebral palsy and her father were discriminated against on the ground of physical disability and family status when the provincial Ministry of Health refused to provide funding for her to hire her father as her caregiver. The Ministry had a policy excluding hiring of family members. The Court concurred that the Tribunal had jurisdic tion to order monetary compensation against the government for discriminatory acts.
2012 Moore v British Columbia (Education)
J suffered from severe dyslexia for which he received special education at his public school. In Grade 2, a psychologist employed by the school district recommended that since he could not get the remedial help he needed at his school, he should attend the local Diagnostic Centre to receive the necessary remediation. When the Diagnostic Centre was closed by the school district, J transferred to a private school to get the instruction he needed. His father filed a complaint with the B.C. Human Rights Tribunal on J’s behalf against the school district and the Province on the grounds that J had been denied a “service . . . customarily available to the public” under s. 8 of the B.C. Human Rights Code. The Tribunal concluded that there was discrimination against J by the District and the Province and ordered a wide range of sweeping systemic remedies against both. It also ordered that the family be reimbursed for the tuition costs of J’s private school. The reviewing judge set aside the Tribunal’s decision, finding that there was no discrimination. A majority of the Court of Appeal dismissed the appeal.
2015 Guillemette v Minister of National Revenue
The employer hired 3 individuals who were related to him by birth or marriage and paid them salary and processed their employment insurance deductions as for other employees. The Minister of National Revenue rejected the employment insurance agreements on the basis that the 3 employees were not ‘at arm’s length’ from the employer. The Court rejected the Minister’s argument however and ruled that the 3 were treated no differently from other employees.
*the ‘at arm’s length’ principle’ that has excluded family members from equal treatment compared to nonfamily members has been re examined in several paid work situations and the case could be made that the same principle holds true regarding care roles. If a person could legally pay a nonfamily member to provide care of a child, it is a discrimination based on family status to deny them the right to provide such pay for the same service if provided by a family member.
2015 Truth and Reconciliation Commission
Residential schools were set up in Canada with the intention of removing Indigenous children from their homes and exposing them to white culture, and removing them from their own. The program was funded by the Canadian Department of Indian Affairs and administered by churches. It operated for over 100 years, affected about 150,000 childrnn In 1894 attendance at such schools was made compulsory for aged 7 to 16 years and later for a aged 6-15 years. Even when attendance was not made compulsory parents found that their Treaty payments or family allowance bonuses were withheld unless their children attended the schools, creating a financial pressure. Over time complaints were received not only about the intent of the schools to prevent spread of indigensou language and culture but also in the administration of the school for health standards and adequate nutrition. Children died, with estimates of death numbers from 3200- 6000. In 2006 Prime Minister Stephen Harper issued a formal apology for the operation of the schools and set up a Truth and Reconcilion Commission to investigate what had gone on there. This commission was not federal as a similarly named one in South Africa, but was part of a legal settlement, the Indian Residentail School Settlement Agreement. between the school survivors, the Assembly of First Nations, various churches and government. The eventual 2015 report about the schools observed that they had been set up to provide assistance to native people to transition from hunting to farming but that this transition was not enabled. They as farmers were not able to sell produce or borrow money under the Indian Act. The land they had been given was not good agricultural land. The schools kept children from learning traditional skills of food preparation. Food provided at the schools was affected by shortages, funding was inadequate, housing was poor, sanitation was inadequate and there was only limited access to clean water.
Children routinely suffered from hunger, and had to eat scraps and some died. Shortage of trained teachers made it so many students did not progress beyond a rudimentary education. There were claims that many children endured harsh punishment and physical abuse and levels of health care varied. Some schools had a nurse on staff or a doctor who visited The 2015 report concluded the school system to have been cultural genocide
*the alarming facts of the operation of the schools, to deny parents rights to transmit to their children their language and culture, and to provide suboptimal care depriving children of basic rights to health and life, offer important insight about the right of the state to decide how children are raised. There is an obligation for the state to not dictate care language or culture, to not financially or socially pressure parents to use one care style. A government run program in the 21st century must also avoid similar problems, and must not financially favor nonparental over parental care, or favor care in one language or culture not another. The obligation of the state under human rights charters to ensure the well-being of children is admitted and care by the state in an institutional setting clearly struggles to meet the needs of all cultures in a standardized curriculum. When parents are empowered to make choices, the rights of children and of parents are more easily met. The residential school problem revealed that institutional care settings operating large scale are more vulnerable to gaps in care due to staffing, salary, supply of goods and underfunding that may negatively impact care of children. The more efficient funding formula to ensure the rights of children are met is to fund the child directly and to let parents choose care style, including care by family.
2018 Webber Academy v Alberta (Human Rights Commission)
A nondenominational private school in Calgary had among its high school students two who were Muslim. Their tradition requires them to pray at certain times of the day but school officials permitted such prayers only off campus however, or if on campus, only if the children did not pray aloud or bow or kneel. The parents of the children rejected this plan and the school threatened to no longer permit the children to enrol at the school the next year. The parents complained to the Alberta Human Rights Commission alleging discrimination. The Commission ruled for the rights of the students and fined the school $26,000.
2020- BC Ministry of Children and Family Development – BC Court of Appeal
A Vancouver father of five split up with his wife but maintained close contact with the children. When they had to ride the bus he spent two years training the children ages 7- 10 how to navigate this trip so they could attend school near his ex-wife’s home. He later did not accompany them but provided them with a cellphone with GPS tracker so they could make the trip themselves . Someone noticed the unsupervised children however and in 2017 the Ministry of Children and Family Development received an anonymous complaint. The Ministry issued an order requiring the father to supervise the children on transit, in the community and at home until they were ten years old or had someone 12 or older providing their care. The father lodged a court complaint that this instruction was a violation of his rights as a parent to make decisions he felt in the best interests of his children and said he was not violating any law. He argued that he had carefully trained them to cross the street safely and ride the bus and had often accompanied them for this training. Though a lower court confirmed the Ministry’s decision, the father appealed to higher courts claiming the ministry exceeded its authority and jurisdiction under the Child, Family and Community Service Act. The BC Court of Appeal has ruled in favor of the father saying the official who ordered supervision in a certain style is not authorized to order parents how to care for their children. The court ruled that social workers may make recommendations but those are nonbinding.
* this respect for parental judgment, for parental rights to know their own child’s skill level and to train them as the parent deems best for growing independence is an important confirmation of the rights of parents. This same principle that lets care decisions rest in the hands of parents, as long as they are obeying laws and ensuring rights of the child are met, is an important principle. It could be argued similarly that government funding of care only in nonparental settings that flows to that setting directly and does not got to parents so they can choose, deprives them of the parental rights to freely make decisions about the best interests of the child.
2020 Gibson v Quebec Department of Education
During the covid-19 pandemic provincial governments legislated opening or closing of schools based on health considerations. When schools were closed many set up online learning options. When schools were re opened, some parents preferred to still have the online learning style, while the pandemic was till happening and un sure of the sanitary measures provided by the school. However provinces differed in whether they would still permit that option. In Ontario parents could choose online or in person classes but in Quebec students were required to go back to school unless they had valid medical exemptions.. A group of Quebec parents lodged a complaint arguing that they had a right to choice based on their own assessment of best interests of the child. This case is ongoing.