HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
G.M. by his next friend J.M.
Applicant
- and -
Ariss Place Residential Care and Treatment,
Leisa Garniss-Marsh and Vivien Pukarowski
Respondents
A N D B E T W E E N:
G.M. by his litigation guardian J.M. and J.M.
Complainants
- and -
Ontario Human Rights Commission
Commission
- and -
Waterloo Catholic District School Board,
Deb Zettel-Schmidt, Peter Gross and Roger Lawler
Respondents
INTERIM DECISION
Adjudicator: David A. Wright
Indexed as: G.M. v. Ariss Place Residential Care and Treatment
APPEARANCES
G.M. by his litigation guardian J.M., and J.M., ) M. Kate Stephenson
Applicant/Complainants ) and Elle Venhola, Counsel
Ontario Human Rights Commission ) Cathy Pike, Counsel )
Ariss Place Residential Care and Treatment, )
Leisa Garniss-Marsh and Vivien Pukarowski, ) Kathryn J. Bird, Counsel
Respondents )
Waterloo Catholic District School Board, )
Deb Zettel-Schmidt, Peter Gross ) John W. Woon, Counsel
and Roger Lawler, Respondents )
Children’s Aid Society of the Regional )
Municipality of Waterloo, Affected Party ) Virginia Torrance, Counsel
INTRODUCTION
[1] This Interim Decision relates to two proceedings filed by J.M. as litigation guardian for her minor son G.M., and one filed on her own behalf. Tribunal File Nos. HR-1553-08 and HR-1554-08 are Complaints referred to the Tribunal by the Ontario Human Rights Commission under the old Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”). Tribunal File No. 2009-02365-I is an Application filed under the Code as amended.
[2] In these matters, the issue arose as to whether J.M. could continue to be G.M.’s litigation guardian. By order of the Ontario Court of Justice dated May 28, 2009, the Children’s Aid Society of the Regional Municipality of Waterloo (the “Society”) has interim custody of G.M. The Society is seeking permanent Crown wardship, which, if granted, would permanently sever J.M.’s and her spouse’s parental rights, with the exception of a right to access. This issue will be determined following a trial, which is expected to occur in the winter or spring. The Society estimates that it may be up to a year before a final decision on custody is made.
[3] Both sets of respondents took the position that J.M. should not be permitted to act as G.M.’s litigation guardian, given these circumstances. They sought an order to this effect. The applicant opposed this. She argued that she should continue as litigation guardian of G.M. In view of the effect of the proceedings on the Society, J.M.’s current legal guardian, the Society was invited to make submissions on this issue. The Society opposed J.M.’s continuation as litigation guardian, and asked that the proceedings be discontinued or withdrawn.
[4] In a Case Assessment Direction dated August 13, 2009, the Tribunal directed that the issue of whether G.M. could continue in her role would be heard together in the two proceedings on September 18, 2009. On August 26, 2009, counsel for the Commission wrote to the Tribunal taking the following position:
It is our view that the human rights matter should only proceed after the Court determines who has final custody of G.M. and who can, therefore, make litigation decisions for G.M., including if and how to continue with the human rights proceedings. Consequently, we propose that the Tribunal continue to adjourn the human rights proceeding, including the hearing of the litigation guardian issue scheduled for September 18, 2009, pending resolution of the child protection matter.
[5] At the outset of the hearing, I asked the parties for their positions on this request. The applicant opposed the request. The Commission advised that it had changed its position as a result of new information about the potential length of the child protection proceedings, and now took the position that the matters should proceed. The respondents and the Society took the position that proceedings should be suspended until the child protection matter was concluded.
[6] I directed that I would hear submissions from the parties on the issue of whether the proceedings should be suspended and issued the following oral ruling:
I want to thank all counsel for their helpful and thoughtful submissions, both in writing and orally, which have been of great assistance to me. In all the circumstances, I find that it is appropriate to make an order staying the proceedings in Tribunal files HR-1553-08, HR-1554-08 and 2009-02365-I. Full reasons will follow. The order will read as follows:
The Tribunal shall take no further steps in these Complaints and Application for a period of up to one year unless contacted by one of the parties to advise that the child protection proceedings have been completed. If no party communicates with the Tribunal by September 18, 2010 to advise that the child protection proceedings have been completed or remain ongoing, the Complaints and Application may be dismissed as abandoned.
What follows are the reasons for this Order.
[7] I note that no party has suggested anyone other than J.M. or the Society could act as G.M.’s litigation guardian. The Children’s Lawyer, while notified of these proceedings, has not sought to be appointed as litigation guardian, and there is no suggestion that the Tribunal could order it to do so. It is clear that the Society is of the view that it is not in the best interests of the child for either piece of litigation to continue, while J.M. is of the view that it should.
[8] The respondents and the Society argue, essentially, that proceedings should be suspended because the issue of custody is central to whether J.M. can continue as litigation guardian. They submit that it would not be appropriate to make a final decision on this issue without knowing what the result of the court proceedings will be. They submit that the litigation should not proceed when there is a good possibility of a change in litigation guardian occurring once the court has rendered its decision in the child protection matters. J.M. opposes the suspension of proceedings. She argues that there is no good reason for a delay in the proceedings, that any change in custody of the child will have no effect on the issue of whether J.M. is the appropriate litigation guardian, and stresses the importance of the case to the child, among other arguments.
[9] In my view, the Court’s decision about who will have permanent custody of the child will be an important factor in determining whether J.M. should be litigation guardian in these proceedings. Equally significant is the fact that J.M. and the Society are currently engaged in litigation in which they are taking different positions about the best interests of the child and whether J.M. should lose parental rights. In my view, this ongoing litigation is a significant factor in deciding whether either J.M. or the Society has the necessary absence of conflict of interest to be litigation guardian at this time.
[10] These circumstances – the uncertainty over permanent custody and the ongoing litigation – should not affect the final determination of whether J.M. should be replaced as litigation guardian. I find that the negative effects of any delay are outweighed by the child’s, the parties’ and the public interest in ensuring that these temporary factors do not affect the important final decision over whether J.M. can remain litigation guardian, which may well affect whether the matters continue and the course of the proceedings generally. Accordingly, I exercised my discretion to grant the order suspending the proceedings.
[11] The Tribunal shall take no further steps in these Complaints and Application for a period of up to one year unless contacted by one of the parties to advise that the child protection proceedings have been completed. If no party communicates with the Tribunal by September 18, 2010 to advise that the child protection proceedings have been completed or remain ongoing, the Complaints and Application may be dismissed as abandoned.
[12] I am not seized.
Dated at Toronto, this 21st day of October, 2009.
“Signed by”
David A. Wright
Vice-chair