A Seamless Approach to Service Delivery in Legal Aid: Fulfilling a Promise or Maintaining a Myth?

Appendix D: All Children Have a Right to Education and Health Care

Over the last several years, Parkdale Community Legal Services has helped many parents who are not Canadian citizens or landed immigrants with issues surrounding their children's right to education and health care.

According to the Education Act (Ontario), a school board may not refuse admission of any child under the age of eighteen to an elementary or high school. Moreover, it is illegal for a child between the ages of six and sixteen not to be in school, according to Section 21(1)(a) of the Act.

In addition, a school board may not refuse admittance of a child under the age of eighteen to an elementary or secondary school based on the child's immigration status or the immigration status of the child's parent or guardian.

A person who is otherwise entitled to be admitted to a school and who is less than eighteen years of age shall not be refused admission because the person or the person's parent or guardian is unlawfully in Canada. (S. 49.1 of the Education Act).

Yet, many parents who attempt to enroll their children into school are asked for papers proving their children's status in Canada. Given the clear directions in the Act, why are schools requesting authorization?

The problem is the federal Immigration Act, which requires all children who are not landed immigrants or Canadian citizens to have a "student authorization" document, issued by Canada Immigration, before they can attend school. Under the Constitution, education is the exclusive jurisdiction of the province. This means the Education Act should take precedence. However, many school boards are advised otherwise by the Immigration Department. As a result, parents who are legal immigrants often have to wait months for student authorizations, and parents who are undocumented immigrants are afraid to send their children to school.

The innocent victims in all of these situations are the children themselves, whose lives are often irreparably damaged by being kept out of school.

At Parkdale, we work on many levels to assist parents with this problem. On an individual basis, we will provide letters for parents to take to school, explaining the law to school principals and requesting that they admit the child. Most of the time, particularly in Toronto, this is sufficient. However, we are also working to change the law by lobbying the Minister of Immigration, Elinor Caplan, and by working with our federal and provincial representatives, community organizations and the media to raise awareness of this issue.

Health

Many children in Ontario are denied health coverage under OHIP. Canadian-born children who are Canadian citizens by birth right, but whose parents do not have permanent resident status, are routinely denied OHIP coverage because of the status of their parents. Yet this policy is contrary to OHIP regulations, which prescribe that children's eligibility for OHIP be determined by their parents' intent to reside in the province. Many parents without permanent resident status fully intend to reside in the province, and many in fact have immigration applications in process to regularize their status. But their children are still being denied OHIP coverage. Parkdale Community Legal Services has many clients whose Canadian citizen children have been denied OHIP due to their parents' immigration status in Canada.

Sometimes children in these situations are able to obtain OHIP coverage if their parents appeal the original negative decision. But most parents are not even aware of their right to appeal, which requires that the negative eligibility assessment from the OHIP office be given in writing. Furthermore, parents who are undocumented are afraid to appeal their cases so if they are told by the OHIP officials that their child does not qualify for OHIP, they do not pursue the matter further. This can result in tragedies for children who do not get adequate medical care because the services they need are only available if they have OHIP.

In any case, ad hoc solutions for individual children are not adequate to resolve the problem. Parkdale Community Legal Services is involved in educating parents on their children's right to OHIP, and in lobbying the government of Ontario to ensure that no Canadian child who lives in the province is denied their right to health coverage under OHIP. Denial to these children of health care under OHIP is not only inconsistent with the Ministry of Health's own regulations, but is also inconsistent with Canada's obligations under international conventions such as the Convention on the Rights of the Child.

Conclusion

The right of all children to education and health care is recognized under the United Nations Convention on the Rights of the Child, as well as under the International Covenant on Economic, Social, and Cultural Rights. Canada has ratified both of these conventions and should be living up to its international commitments. Having children who are healthy, educated, and accepted in Canadian society is good for everyone.

If you are a parent and need assistance helping your children get into school or obtain an OHIP card, please call us at 531-2411, ext. 262. We may be able to help. Your confidentiality is assured.

Produced by:

Parkdale Community Legal Services
1266 Queen Street West
Toronto, Ontario
M6K 1L3
Telephone (416) 531-2411
with OPSEU 525 Union Labour