S.D. v. Children’s Aid Society of Toronto, 2009 HRTO 2196

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

S.D.

Applicant

-and-

The Children’s Aid Society of Toronto and Mary Auld

Respondents

DECISION

Adjudicator: David A. Wright

Date: December 17, 2009

Citation: 2009 HRTO 2196

Indexed as: S.D. v. Children’s Aid Society of Toronto

APPEARANCES

S.D., Applicant ) Richard H. Parker

Children’s Aid Society of Toronto and ) Landon P. Young, Counsel

Mary Auld, Respondents )

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination on the basis of race and colour in the provision of services by the respondents Toronto Children’s Aid Society (the “Society”) and Ms. Auld, a child protection worker, in the course of carrying out their statutory duties under the Child and Family Services Act, R.S.O. 1990, c. C.11.

2The applicant is a parent of two children. He has been convicted of sexual offences regarding children, and the Society has been involved with the family since the children’s births. He alleges that the Society took various steps, including apprehending the children and placing them in the Society’s care, because it views him as “black and a criminal”.

3After apprehending the children, the Society sought a finding in the Ontario Court of Justice that the applicant’s children were in need of protection. It brought a motion for summary judgment which was heard on May 29, 2009, alleging that there was no genuine issue for trial about the fact that the applicant’s children were in need of protection pursuant to s. 37(2)(d) of the Child and Family Services Act, which reads as follows:

(2) A child is in need of protection where,

(d) there is a risk that the child is likely to be sexually molested or sexually exploited as described in clause (c).

4The mother of the children did not oppose the motion. The applicant did and argued that he has never posed any risk of sexual harm to the children and that there was a genuine issue for trial.

5On June 4, 2009, the Court granted the Society’s motion and found:

a) The father has been convicted of an offence of sexual abuse and sexual interference of an eight-year-old boy. He failed to provide any evidence addressing the issues raised in paragraph 30 [regarding mitigating circumstances or lack of risk to his children].

b) [The Centre for Addiction and Mental Health (CAMH)] has consistently found that the father poses a risk to sexually re-offend and this is a risk that this court finds unacceptably high.

c) CAMH has recommended that the father not be left unsupervised with children, after extensive contact and assessment of him.

d) The father failed to provide any evidence to rebut the CAMH findings, other than his own denials. Despite having ample opportunity, he chose not to cross-examine the makers of any of the reports or produce evidence to the contrary.

f) [sic] The CAMH findings, in conjunction with the nature of the original offense [sic], create an overwhelming case that the children were at risk of sexual harm at the time of the apprehension.

g) The father has had no treatment for his sexual problems, despite the CAMH findings that he should obtain this.

h) The father was in denial of any sexual problem and continued to have contact with the children in contravention of the Court order.

i) The mother was also in denial of the sexual risk posed by the father, permitting him contact with the children contrary to the court order. She was also emotionally overwhelmed at the time of the apprehension and exercising poor judgment, increasing the risk of harm to the children. I find that at the time of the apprehension she was unable or unwilling to protect the children from the risk of sexual harm.

6The respondent asks that the Application be dismissed under s. 45.1 of the Code, which reads as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

Pursuant to a previous Interim Decision, 2009 HRTO 1619, the Tribunal held a conference call on November 17, 2009, to hear submissions from the parties on this and other issues.

7I find that the substance of this Application was appropriately dealt with in the Ontario Court of Justice proceedings. The Court found on the motion for summary judgment that there was “an overwhelming case that the children were at risk of sexual harm at the time of the apprehension” stemming from the applicant’s original conviction and subsequent findings and that the applicant has been in denial of his sexual problems. These findings are inconsistent with the factual allegations underlying the Application. The essence of these allegations, that the Children’s Aid Society improperly apprehended the children and took actions against the family because of race, were included in the “pith and substance” or essence of the applicant’s arguments in court that his children were not in need of protection: Qiu v. Regional Municipality of York Police Services Board, 2009 HRTO 2187 at para. 39.

8Accordingly, I find that the Court proceeding appropriately dealt with the substance of the Application and it is dismissed.