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Family - Parent's Rights. Kudrocova v. Waterloo Region District School Board
In Kudrocova v. Waterloo Region District School Board (Div Court, 2023) the Divisional Court briefly reviews some of a parent's Charter s.7 rights:Alleged breach of the Respondent’s s. 7 Charter right
[39] It is also plain and obvious that there is no reasonable cause of action for breach of s. 7 of the Charter. On this issue the Respondent asserts that “at all material times, her right to life, liberty and security of the person pursuant to s.7 of the Charter encompassed a right to a protected sphere of parental decision-making in relation to [F.K.’s] well-being, including but not limited to a right to make decisions concerning [F.K.’s] health and well-being.” In support of this claim she relies on her custodial rights and her right to make decisions about her son’s education.
[40] The Supreme Court has recognized that the right to liberty in s. 7 includes “a protected sphere of parental decision-making which is rooted in the presumption that parents should make important decisions affecting their children”: B. (R.) v. Children's Aid Society of Metropolitan Toronto, 1995 CanLII 115 (SCC), [1995] 1 S.C.R. 315, at p. 372. However, that sphere has only been recognized in the context of “fundamental matters” such as decisions regarding medical treatment or “where state compulsions or prohibitions affect important and fundamental life choices”: Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 (CanLII), [2000] 2 S.C.R. 307, at para. 49. It has not been extended to include the right to choose one’s child’s school, let alone to some emotional upset or complaints about day-to-day supervision of a child at school: Jackson v. Toronto Catholic School Board (2006), 214 O.A.C. 39, 2006 CanLII 23951 (Div. Ct.), at para. 68.
[41] The liberty interest of a parent in s. 7 is not a wide-open freedom that is engaged every time a teacher or other state actor does something that relates to a child which the parent dislikes. Children have rights too, and teachers and principals have obligations towards them. It would trivialize the Charter to say that a parent’s s. 7 rights are infringed every time a school has been slow, or failed, to provide information to a parent, or because the school restricted a parent’s access to their child during the school day. That is not to say that deliberate and egregious wrongful conduct respecting a child could never amount to a s. 7 breach, but such facts simply do not arise on the pleading in this case. . Kudrocova v. Waterloo Region District School Board
In Kudrocova v. Waterloo Region District School Board (Div Court, 2023) the Divisional Court considered the duty of care element in negligence in a successful appeal of a denial of a R21 motion to strike pleadings - here in an action by a parent against a school board:[22] With respect to the alleged wrongfulness of the other actions, or inactions, the Respondent simply asserts that the Appellants – all of them – were aware of the joint custody order. But whether the joint custody order obligated the Appellants to act differently is not pleaded, nor is any breach of a legal duty, including a breach of a duty of care towards the Respondent. Rather, the Respondent has been careful to limit her claim to intentional torts. This is likely due to the jurisprudence holding that there is insufficient proximity between a parent of a pupil and teachers or school boards on which to ground a duty of care: Reyes v. Toronto District School Board, 2014 ONSC 2490, at paras. 12-16; Elkow v. Sana, 2006 ABQB 851, 410 A.R. 199, at paras. 13-22.
[23] The reason for not recognizing such a duty is illustrated by the facts of this case, in which teachers and principals have as their primary responsibility the safety and wellbeing of the pupils in their charge. They should not be put in a position of conflict, as they were here, of doing what they think best for the child and be put at risk of liability because the parent might disagree or even be hurt as a result. As quoted above from Odhavji, teachers, as public officers, “must retain the authority to make decisions that, where appropriate, are adverse to the interests of”, in this case, parents. This is consistent with the cautious approach the law has taken in imposing duties of care on public officials due, in part, to the specific concern that casting a duty of care too widely fails to respect the conflicting priorities faced by public officials: see Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537.
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