Since education in Canada is a provincial responsibility and there are many variations between the provinces, the answer to the above question will be limited to the rules in effect in British Columbia. In order for you children to receive free education in British Columbia, boards of education must determine 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 or international students.
Immigration status is relevant but does not determine ordinary residence. The determination of whether a person is ordinarily resident is not 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.
The following persons may receive free public education in BC:
- 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 or
- who is detained in custody in a youth custody centre.
- A student who is in British Columbia with his or her guardian if the guardian meets one of the criteria set out below. Guardians must be able to provide documentation to substantiate that they meet these criteria:
- has been lawfully admitted to Canada for temporary residence and is authorized to work for a period of one year or more, and is or will be employed for at least 20 hours per week;
- has been lawfully admitted to Canada and is authorized to study for a period of one year or more, and is enrolled in a degree or diploma program at a public post-secondary institution in British Columbia or in a degree program at a private post-secondary institution in British Columbia
- has been lawfully admitted to Canada and is authorized 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 program 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.
- 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.
- has been lawfully admitted to Canada and is participating in an educator exchange program with a public school in British Columbia.
- 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.