I had the pleasure of attending a lecture by Jim Davies, the general counsel for the Edmonton Public School Board. He gave a group of family law lawyers the educator’s perspective on parenting disputes.1 Today’s dynamic family configurations can be complicated – divorced biological parents, foster parents, relatives, same-sex partners, step-parents, and even mature minors. Just who holds the educational rights and responsibilities and what do they mean?
The School Act’s guiding principle is stated in its preamble: “… the best educational interests of the student are the paramount considerations in the exercise of any authority under this Act.” The principal is charged with maintaining order and discipline in the school and on its grounds during all activities approved by the school board (s.20 (f ). Principals must promote co-operation between the school and the community that it serves. Their main point of contact is, of course, parents. The School Act says that a “parent” is the child’s guardian as defined in section 20 of the Family Law Act.2 Each guardian has equal rights to be informed, consulted, and to make significant decisions affecting the child unless those rights have been limited by a parenting order. Thankfully, most parents, separated or not, put their children first. The fact that there is a court order signals that there might be some stress in the family, and the principal and staff will be sensitive to this. The school will accommodate reasonable requests for special arrangements (for example, separate parent-teacher interviews) provided it is in the child’s best educational interests. However, school administrators are not bound by court orders.
This took me by surprise. I had assumed that schools must obey parenting orders. Not so. This is because of the principle of “legislative supremacy”. Court orders cannot override legislation. The principal must run her school the way the School Act, not a judge, tells her to. For example, if parents are fighting and mom gets a judge to order that the school must give copies of report cards directly to her, the principal can ask herself – what is in the best educational interests of this student? If she decides it is not in the student’s best educational interests, she can refuse.3
The biggest challenge is handling hostile parents who make opposing demands, or dealing with a parent who is alienating and controlling a child. In severe situations, principals do not worry about a guardian’s rights. They worry about safety, especially the child’s. The principal can choose to withhold information that someone might be ‘entitled’ to. An angry parent may want to transfer their child to a different school, but the move can be refused (s.45.6). A school is a publicly-funded building but not a public building, and school administrators have the power to ban a parent from school property (s.27). An aggrieved parent cannot sue a school administrator for making a decision they disagree with or for doing something that is contrary to a court order. The School Act protects school staff from liability for loss or damages if the action was done in good faith in accordance with the Act (s.144.1(1).
Parental authority can end before a student finishes school. If a student is over age 18, or over age 16 and living independently, all the rights and obligations are transferred from the parents to the student (s.1(3). Even well-intentioned parents are not entitled to any information about their child.
It is not the principal’s job to interpret court orders. Principals are not referees, judges, or enforcers, and will resist anyone’s attempt to put them in that position. Principals see trouble brewing when one parent:
- says the other parent is not allowed to visit the child for lunch or recess, even though that parent cannot be there.
- tries to block the other parent from participating in classroom or school events.
- insists that report cards and other documents be given only to them and not the other parent.
- withholds copies of school announcements.
- says personal things to make the other parent look bad.
- insists that the child says she/he does not want to see the other parent.
- isolates the other parent from teachers and school officials.
- hides a good relationship between the child and the other parent, or tries to stifle communication so that the teachers do not hear the truth.
- makes a scene at school functions – if the other parent is there, they will look disturbed or go out of their way to avoid the other parent.
- does not want to use the school as an exchange point, and insists on a location of their choice. Generally, this is a place where they can have more control, such as their home.
Parent hostility is a big factor in the daily lives of school administrators and staff. A parent who hates the school hurts their child. When parents cannot agree, the principal will tell them they need to figure out a way to agree or to get a court order that solves their problem. In the meantime, the principal will do what she thinks is in the child’s best educational interests, and create the best learning environment possible for all the children.
1 The comments in this column are specific to the EPSB and may not apply elsewhere. If you have questions, search for information where you live. For example, you can find the Saskatchewan School Board Association’s instructions for educators here.
2 Family Law Act s 20(2). Not all parents are guardians. A parent is a guardian only if the parent has acknowledged that he or she is a parent of the child and has demonstrated an intention to assume the responsibility of a guardian. The legislation outlines the factors which determine if the section 20(2) requirements have been met.
3 Court orders are not legally binding on a party who has not had the opportunity to speak to the matter. The American Council of School Attorneys says that principals should not even read court orders. Canadian school administrators do not go this far.