Access Denied to Parent without Legal Rights

May 31, 2013 | Nadya Tymochenko

The Information and Privacy Commissioner of Ontario (“IPC”) recently resolved an issue of access to school records that has concerned school boards for years.  Do parents who have neither custody nor access of their child have rights to review their child’s Ontario Student Record (“OSR”)?

The IPC determined that the right to examine a record pursuant to subsection 266(3) of the Education Act – the OSR provision – did not extend to a parent who does not have access rights to their child.

A request was made of the school board by a parent to examine his child’s OSR.  The parent was denied access to the record by the Board and appealed the decision to the IPC.  The appellant and the Board agreed that the OSR contained the personal information of the appellant’s child. 

The Municipal Freedom of Information and Protection of Privacy Act (“MFIPPA”) provides that a head must refuse to disclose personal information to any person other than the individual, excepted where authorized by legislation.  The appellant argued that, as a parent, he was entitled to access the OSR pursuant to subsection 266(3) of the Education Act.  The school board argued that absent custody and access rights to the child, the parent was not a parent for the purposes of subsection 266(3) of the Education Act.

By conducting a contextual analysis of the wording in subsection 266(3) of the Education Act; analyzing the objectives of the Education Act, and using a variety of conventions of statutory interpretation, the IPC determined that the appellant, who did not provide any proof of custody or access rights to the child, should not be granted the right to have access the child’s OSR. 

The Education Act does not provide a global definition for the word “parent”.  However, it is apparent in the sections of the Act that provide rights and responsibilities to parents that the Legislature intended the word parent to mean a custodial parent.  The IPC identified that in family law, custodial parents are responsible for the care and upbringing of children, including decisions regarding education.

Further, in subsection 266(3), “parent” is followed by “guardian”, which is defined in subsection 1(1) of the Education Act to mean “a person who has lawful custody of a child other than the parent of the child.”  The IPC found that the term parent must be understood in the context of the meaning of the word guardian.  As such, the definition could not include a parent with neither custodial nor access rights to the child.     

The IPC also considered the definition of parent in other legislation including MFIPPA, the Divorce Act and the Children’s Law Reform Act (“CLRA”).  MFIPPA grants certain rights of children under the age of 16 to their custodial parents.  Both the Divorce Act and the CLRA permit parents with access rights to receive educational information about their child.   But, parents without access to their child are not given rights to receive or obtain information about their child.

The IPC found that the proposed interpretation was one that the Education Act could reasonably bear.  Moreover, the IPC found that “the suggested interpretation that parent in section 266(3) does not extend to a non-access parent is reasonable and just.  There is no reason to permit a parent, who has no role in the life of his/her child, to access that child’s private educational affairs.”

Thus, the IPC held that the appellant was not a “parent” pursuant to subsection 266(3) of the Education Act because he had neither custodial nor access rights to his child, and because the OSR contained personal information, the OSR was exempt from disclosure.

The IPC made the only finding that would respect the privacy of students.  A finding that a parent without custodial or access rights could review a child’s OSR would arguably also permit the biological parent of an adopted child or the biological parent of a child who was a ward of the Children’s Aid Society to argue that they too should be able to review a child’s OSR.  Such circumstances would lead to significant intrusions into the personal privacy of students.



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