# 2011-118 Pay and Benefits, Education Allowance

Case Summary

F&R Date: 2012–01–26

The grievor, who was posted outside Canada, applied for his young daughter to attend a Catholic primary school. Although his application was accepted by the school, his request for education allowance was denied by the Canadian Forces (CF) on the basis that none of the grievor's family members were Catholic.

The grievor took issue with the denial of his request stating that Foreign Service Directives (FSD) policy is based on providing resources, services and benefits equivalent to what would be available in Ontario. The grievor added that being of one faith is not a mandatory requirement to be educated in that faith. The grievor pointed out the Dependants Education Management instructions which provide that members of a specific faith wishing to attend a school of another faith have to produce proof of attendance prior to posting do not take into consideration children who were not of school age prior to the posting outside Canada. The grievor added he did intend to enrol his daughter in a Catholic school prior to his posting. He argued that given the age of his child at the time, he could not show a proof of attendance at a Catholic school immediately prior to posting outside Canada as she was not yet at the age to register. The grievor stated it was unfair and discriminatory that his child was excluded based on a requirement that could not be satisfied given her age at the time. The grievor requested that he be paid education allowance for his daughter to attend the school in question.

The Board noted that, according to policy, the faith of family members is not the only criteria to be examined when attributing an education allowance. FSD 34 - Education Allowances provides financial assistance to CF members serving abroad to ensure their dependent children obtain education which approximates Canadian standards so they can re-enter the Canadian school system upon their return with as little disruption as possible. The Board noted the Education Act of Ontario distinguishes the Roman Catholic board from the public board; accordingly, the basic entitlement pursuant to FSD 34 does not include an entitlement to Roman Catholic education.

The Board was of the view that when compatible education is readily available and free, CF members are expected to use those services; the Board noted that two primary schools in the area of the grievor's post were identified as representative of Canadian standards and were non-fee paying schools. The Board also noted the grievor had not demonstrated that the non-fee paying schools were not compatible for his daughter.

In the matter of discrimination, the Board noted that the Supreme Court of Canada has confirmed that the analysis of alleged discrimination is accomplished by way of a two-part test: 1) Does the law create a distinction based on an enumerated or analogous ground? and 2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?

In the Board's opinion, the situation of the grievor's child engages the first part of the test as the application of the education allowance eligibility criteria creates a distinction on the basis of age. However, for the grievor's discrimination argument to be accepted, he must demonstrate that the application of the eligibility criteria for the education allowance creates a disadvantage by perpetuating prejudice or stereotyping. With respect to this case, education is provincially regulated; each province deciding when children are entitled to enter the school system, normally at Junior Kindergarten, the first level where an education allowance is available under FSD 34. A child that has not yet entered the school system will be less subject to disruption if not granted the allowance. In the Board's opinion, the policy is well aligned with the provincial schooling entry level. The Board concluded that the policy does not perpetuate prejudice or stereotyping and therefore is not discriminatory.

The Board recommended that the Chief of the Defence Staff deny the grievance.

CDS Decision Summary

CDS Decision Date: 2012–11–13

The CDS agreed with the Board's recommendation to deny the grievance.