Last Updated on February 1, 2014 by Steven Meurrens
Although it is not directly related to immigration, one of the questions that we are often asked is whether someone’s child is eligible for publicly funded education in British Columbia. Many school board websites, such as the Vancouver School Board‘s, state which documents certain foreign nationals and permanent residents should provide so that their children may attend publicly-funded elementary and/or secondary school. However, many people (including some staff at these school boards) are unaware of the “why” or the policies behind the information on these websites. The predictable result is uncertainty as soon as scenarios which are not listed on school board websites occur.
Section 82 of British Columbia’s School Act provides that school boards must provide education free of charge to every student of school age if the student and the student’s guardian are ordinarily resident in British Columbia. It states:
82 (1) A board must provide free of charge to every student of school age resident in British Columbia and enrolled in an educational program in a school operated by the board,
(a) instruction in an educational program sufficient to meet the general requirements for graduation,
(b) instruction in an educational program after the student has met the general requirements for graduation, and
(c) educational resource materials necessary to participate in the educational program.
(2) For the purposes of subsection (1), a student is resident in British Columbia if the student and the student’s guardian are ordinarily resident in British Columbia.
Because the School Act does not define “ordinarily resident,” the British Columbia government created a policy titled “Eligibility of Students for Operating Grant Funding.” It outlines the circumstances in which British Columbia’s Ministry of Education will provide operating grant funding to boards of education for students enrolling in their district. It outlines what qualifies as ordinarily resident as:
Boards of education must determine, in a fair and even-handed manner, whether an applicant falls within the definition of “ordinarily resident” for the purposes of Section 82 of the School Act. The term “ordinarily resident” is not defined in the Act. However, it has been interpreted by the courts to establish criteria for determining whether a person is ordinarily resident for the purpose of receiving free public education.
The courts have interpreted the term ‘ordinarily resident’ in this context by assessing whether the applicant has:
- a ‘settled purpose’ for taking up residence in the community; and
- sufficient continuity of residence, despite temporary absences.
To meet these requirements the applicant must show, on the basis of objective evidence, that they have established a regular, habitual mode of life in the community with a sufficient degree of continuity which has persisted despite temporary absences. It is not enough to qualify for free public education that the applicant has taken up residence for the ‘settled purpose’ that the children of the family receive public education.
Boards of education are entitled to scrutinize the purpose for which the person or family has established its residence in the community to prevent an abuse of the system under which higher fees may lawfully be charged for out of province/international students.
Consideration of the following indicia of ‘ordinary residence’ may assist boards in making the determination of whether a person is ordinarily resident in BC. While each of these indicators alone is not enough to establish residency for the purposes of Section 82 of the School Act, the larger the number of positive indicators as set out in the first list below, the more likely it is that the person qualifies as a resident of the province for the purpose of receiving free public education:
- ownership of dwelling or long-term lease or rental of dwelling
- residence of spouse, children and other dependent family members in the dwelling
- legal documents indicating British Columbia residence
- provincial driver’s licence
- employment within the community
- parent or guardian filing income tax returns as a BC resident
- provincial registration of automobile
- canadian bank accounts or credit cards
- links to community through religious organizations, recreational and social clubs, unions and professional organizations
- subscriptions for life or health insurance, such as MSP coverage
- business relationships within the community.
Again, while none of the factors alone are sufficient, the larger the number of negative indicators as set out below, the more likely it is that a person will not qualify for free public education:
- for the school-aged child, residence of the parents and/or family home in another jurisdiction, even if the student has a BC guardian
- existence of another dwelling outside of BC where the person and/or their family regularly resides
- foreign bank accounts or credit cards
- parent or guardian’s employment in another jurisdiction
- parent or guardian filing income tax return in another jurisdiction
- identification documents from another jurisdiction
- substantial ties with former country or place of residence.
Immigration status is relevant but does not determine ordinary residence. The determination of whether a person is ordinarily resident should never be based solely on the person’s immigration status. A person need not be a Canadian citizen or permanent resident to be ‘ordinarily resident’ in BC for the purposes of Section 82 of the School Act. For example, persons who have applied for convention refugee status but not yet received a determination, and persons who have applied for permanent resident status from within Canada, are ordinarily resident in BC if there are other indicators of continuity with the community and residence for a settled purpose other than receiving free public education. On the other hand, a person who comes to Canada on a time-limited basis and has not taken steps to obtain permanent residence in Canada usually will not be ordinarily resident because he or she has no legitimate expectation of remaining in Canada.
Similarly, persons who have relocated from another Canadian province or territory are ordinarily resident if they show sufficient other indicators of continuity and settled purpose.
If someone meets the requirements of “ordinarily resident” as outlined above, then a school board cannot charge fees.
Specific Immigration Scenarios
To promote consistency and clarity, the British Columbia government has identified that it will always provide funding to school boards whose students fall under the following immigration-related categories:
- A student who resides in British Columbia and who has made a claim for refugee status in Canada and whose claim has not yet been determined;
- A student who is in British Columbia with his or her guardian if the guardian has been lawfully admitted to Canada for temporary residence and is authorised to work for a period of one year or more, and is or will be employed for at least 20 hours per week;
- A student who is in British Columbia with his or her guardian if the guardian has has been lawfully admitted to Canada and is authorised to study for a period of one year or more, and is enrolled in a degree or diploma programme at a public post-secondary institution in British Columbia or in a degree programme at a private post-secondary institution in British Columbia;
- A student who is in British Columbia with his or her guardian if the guardian has been lawfully admitted to Canada and is authorised to study for a period of one year or more and all of the following conditions apply:
- The parent or guardian is enrolled in an English as a Second Language (ESL) program of up to a year in duration at an institution that has an Education Quality Assurance Designation (EQA). The ESL adult student will be deemed resident for up to one year only. Beyond one year, children of an ESL student will be considered international students and districts may charge international student fees.
- The parent or guardian has been accepted to a degree or diploma programme at a public post-secondary institution in British Columbia, or a degree program at a private post-secondary institution.
- The acceptance to the degree or diploma program is contingent upon the completion of an ESL program.
- A student who is in British Columbia with his or her guardian if the guardian has been lawfully admitted to and is authorized to study in Canada, and has been awarded a multi-year scholarship that covers the cost of both tuition and living expenses for a post-secondary program that includes both an ESL component and a degree program component. The ESL component must be completed at an institution that has an Education Quality Assurance (EQA) designation.
- A student who is in British Columbia with his or her guardian if the guardian has been lawfully admitted to Canada and is participating in an educator exchange program with a public school in British Columbia.
- A student who is in British Columbia with his or her guardian if the guardian is carrying out official duties under the authority of the Visiting Forces Act or as an accredited diplomatic agent, preclearance officer, consular officer or official representative in Canada of a foreign government with a consular post in British Columbia.
It is important to note that these are just certain scenarios, and that the definition of “ordinarily resident” applies to much more than the “deemed residence” situations listed above.