Eligibility of Students for Operating Grant Funding

Date came into force or revised

Issued and in effect May 25, 2011. Revised March 18, 2013.

Status

Current

Policy statement

This policy outlines the circumstances in which the Ministry of Education and Child Care will provide operating grant funding to boards of education for students enrolling in their district.

Rationale or purpose of policy

The policy ensures that the Ministry of Education and Child Care provides operating grant funding to boards of education in a fair and equitable way.  This policy is not intended to enable a person whose primary purpose for coming to British Columbia is to attend a public school and who would normally be charged tuition fees to avoid paying those fees.

Authority

• Section 82 of the School Act (PDF) and section 16 of the School Regulation
• The Family Law Act, the Infants Act, the Child, Family and Community Service Act, and the Adoption Act are also relevant

Policy in full

The Ministry of Education and Child Care provides operating grant funding to boards of education that enrol

• Children who, along with their guardian(s), are ordinarily resident in British Columbia
• Children who are deemed ordinarily resident in B.C. under the School Regulation 
• Other children who meet criteria set out in this policy

Boards are encouraged to seek their own legal advice should circumstances warrant.

Ordinarily resident for funding purposes – Section 82(1) of the School Act states: "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, instruction in an educational program …” Section 82(2) states "for the purposes of subsection (1), a student is resident in British Columbia if the student and the guardian of the person of the student are ordinarily resident in British Columbia."

Guardianship – The term “guardian” is defined in section 1 of the School Act to mean a guardian within the meaning of the Family Law Act or a personal guardian within the meaning of the Infants Act. For the purposes of applying Section 82 of the School Act, the following is an overview of how "guardian" is identified in the Family Law Act and “personal guardian” is identified in the Infants Act. Boards may wish to seek legal advice if in doubt about guardianship in a particular case.

Family Law Act:

• When the parents of a child are living together with the child, each parent is the child’s guardian. [Section 39(1) of the Family Law Act].  
• After a child’s parents separate, each parent of the child is the child’s guardian, unless the parents make an agreement, or the court orders that a parent is not the child’s guardian. [Section 39(1) and (2) of the Family Law Act]  
• A parent who has never resided with his/her child is not that child’s guardian unless one of the following applies:
  • The person is a parent pursuant to an agreement made before the child was conceived through assisted reproduction.
  • The parent and all of the child’s guardians make an agreement providing that the parent is also a guardian.
  • The parent regularly cares for the child. [Sections 30 and 39(3) of the Family Law Act]
• If a child’s guardian and a person who is not the child’s guardian marry or enter into a marriage-like relationship, the person does not become a guardian of that child by reason only of the marriage or marriage-like relationship.  [Section 39(4) of the Family Law Act]
• A person cannot become a child’s guardian by agreement except if the person is the child’s parent, or if guardianship is transferred by agreement under the Adoption Act, or the Child, Family and Community Service Act [Section 50 of the Family Law Act]
• A person may be appointed as a child’s guardian:
  • by court order,
  • in a will made in accordance with the Wills Act (alternatively, a guardian may be appointed by prescribed form  – see section 27 of the Family Law Act Regulation),
  • by a guardian who is facing terminal illness or permanent mental incapacity, provided the appointment is made in the prescribed form (see section 27 of the Family Law Act Regulation).[Sections 51, 52, 53 and 55 of the Family Law Act]

Infants Act:

• If a child has no guardian, or if the appointed guardian is dead or refuses to or is incompetent to act, then a director under the Child, Family and Community Service Act is the personal guardian of the child.  [Section 51 of the Infants Act]

Ordinarily Resident–  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
• 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 B.C.  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 B.C. 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 B.C. guardian
• Existence of another dwelling outside of B.C. 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 B.C. 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 B.C. 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.

Deemed Resident – Students are also entitled to free public education and are eligible for provincial operating grant funding if they belong to one of the categories of persons who have been deemed resident under Section 16 of the School Regulation (PDF).  These include:

• A youth who has entered into an agreement with the director under section 12.2 of the Child Family and Community Service Act (the guardian of the student is also deemed resident), and
• An inmate of a correctional centre under the Correction Act or a penitentiary under the Corrections and Conditional Release Act (Canada).

Other classes of persons for whom the ministry will provide operating grant funding–  In addition to those who have a clear entitlement to public education under Section 82 of the School Act, the minister will provide operating grant funding for school age students in the categories listed below if the board of education requests funding via Form 1701.  Boards are encouraged to seek their own legal advice should  circumstances warrant.

• 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 authorised 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 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 
  • 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.
  • 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.

Procedures

1. Students who are ordinarily resident or deemed resident in British Columbia are entitled to provincial funding under section 82 of the School Act; boards may not charge fees for these students except in accordance with Section 82 of the School Act.  The ministry will also provide funding for other students who meet criteria set out in this policy; boards should not charge tuition fees for these students. 
2. Students who are not eligible for provincial operating grant funding must be identified as “out of province/international students” on the Form 1701. Provincial education funding will not be provided for these students. 
3. For exchange students – Boards receive funding only for the ordinarily resident non-graduated school age student.  During a one in/one out reciprocal and equal exchange, the non-resident non-graduated school age student acts as a placeholder for the funded resident student during that student’s absence.
4. Student files should contain reference to the documentation used to support eligibility for funding.  Boards of education must maintain accounts and audits in accordance with Part 8 of the School Act, and under section 165, the file must be available to Ministry auditors upon their request. 
5. Boards of Education must ensure that the criteria for provincial education funding are met.  Boards will be required to reimburse the Ministry if students who are not eligible for funding are claimed for funding purposes.