Varinder Masih v. Her Majesty the Queen in Right of Ontario as represented by the Minister of Children and Youth Services, 2010 HRTO 283

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Varinder Masih Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Children and Youth Services Respondent

DECISION

Adjudicator: Kaye Joachim Date: February 8, 2010 Citation: 2010 HRTO 283 Indexed as: Masih v. Ontario (Children and Youth Services)

1The applicant filed an Application on May 4, 2009, under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the grounds of age, citizenship, creed, ethnic origin, place of origin, race and family status with respect to services. In his written submissions, the applicant clarified that he was pursuing only an allegation of discrimination on the basis of family status relating to the treatment of his adopted children.

2The respondent filed a Request for Order seeking a ruling that the Application is not within the jurisdiction of the Tribunal.

Factual Background

3This Application involves an Intercountry adoption. In all Canadian international adoptions there are two separate processes: the adoption process, which is supervised by the provincial ministry responsible for adoptions, and the immigration process, which is supervised by the federal Ministry of Citizenship and Immigration.

4The following facts are based on the affidavit of Mirja Ramsey, a Liaison officer employed by the Ontario Ministry of Children and Youth Services, International Adoptions Unit (the “Ministry”). These facts were not challenged by the applicant, except as described below.

5The Intercountry Adoption Act, 1998, S.O. 1998, c. 29, as amended (IAA) came into effect in March 2000. Prior to the IAA coming into force, the Ministry had no authority to review the validity of foreign adoptions. When an adoption was completed in a foreign country, the Ministry would issue a “No Involvement Letter” to Citizenship and Immigration if any inquiry were made to them about the validity of the foreign adoption. Citizenship and Immigration would then make a determination about the immigration status of the persons involved.

6This changed with the passage of the IAA. The Ministry was required to consider the validity of a foreign adoption, when the adopting person resides in Ontario.

7In a Intercountry adoption, prospective parents who live in Ontario must meet three requirements:

• the adoption requirements of the IAA;
• The adoption requirements of the laws in the child’s home country; and
• The requirements of section 159 (valid foreign adoption) or 146 (court ordered adoption) of the Child and Family Services Act, RSO 1990, c.C.11, as amended (“CFSA”).

8It is the responsibility of the Ministry to assure itself that the IAA and the adoption requirements of the laws in the child’s home country are being complied with. When so satisfied, the Ministry will issue a Letter of No Objection to Citizenship and Immigration, which then makes its decision with respect to any immigration issues.

9Generally, a prospective parent wishing to adopt internationally must obtain a homestudy done by a licensed adoption practitioner assessing the person’s eligibility and suitability to adopt, submit the homestudy to the Ministry, and obtain the Director’s approval based on the homestudy, before they take any steps to adopt a child outside of Canada.

10Subsection 5(1) of the IAA provides that no Ontario resident shall leave Ontario for the purpose of an Intercountry adoption or shall finalize an Intercountry adoption without first complying with the above procedures.

11The Ministry has a Non-Compliance Adoption Policy (the “non-compliance policy”) to address situations where the above procedures were not followed. In order to qualify for amnesty under the policy, the person applying must not knowingly have breached the IAA. If the Ministry applies the non-compliance policy, they take steps to confirm the validity of the foreign adoption and following a positive homestudy, the Ministry will issue the Letter of No Objection required by Citizenship and Immigration to bring the child to Canada.

12The applicant and his wife are Canadian citizens and residents of Ontario. While in India they adopted twin girls born in August 2001. The applicant and his wife were granted a deed of adoption on September 3, 2001 by an Indian authority. The applicant also obtained birth certificates which falsely showed them as the birth parents, because he did not want his children to know they were adopted. The applicant and his wife had not previously obtained a homestudy or the approval of the Ministry and therefore they were in violation of section 5(1) of the IAA.

13Problems arose when the applicant and his wife attempted to bring the children back to Ontario. The applicant went to the Canadian embassy in New Delhi on September 12, 2001 to gets the girls’ names added to his passport. He was interviewed by Bill Marshall of the Canadian High Commission in New Delhi that day. Mr. Marshall advised the applicant that there are protocols for adopting children outside of Canada, including obtaining a homestudy through the Ministry.

14On October 17, 2001, the applicant wrote to the Ministry explaining the circumstances of the adoption and asking for “amnesty” which was essentially a request to be permitted to apply for adoption despite non-compliance with the IAA.

15The applicant’s request for amnesty was addressed by Mirja Ramsey in the Ministry’s office. Ms. Ramsey’s affidavit states that she spoke with the applicant in the spring of 2001 and advised him of the rules for adopting internationally. The applicant denies any such conversation. It is unnecessary to determine this discrepancy for the purpose of this Decision. I accept that Ms. Ramsey believed she had spoken to the applicant in the spring of 2001 and sent him information about Intercountry adoptions. Her affidavit also states that she spoke with an adoption practitioner on October 23, 2001 who advised her that she had told the applicant in the summer of 2001 of the requirements for international adoption, but the applicant expressed concerns about the costs. Accordingly, Ms. Ramsey concluded that the applicant had knowingly contravened the IAA and was not eligible to apply under the non-compliance policy.

16The Ministry wrote to the applicant on October 31, 2001 advising that they believed he had knowingly contravened the IAA, they would not be recommending an exemption under the non-compliance policy or proceeding with a home study, or issuing a Letter of No Objection if requested to do so by CIC.

17In early 2002, the Ministry offered to reconsider their decision (that the applicant knowingly breached the IAA) upon presentation of further evidence that the applicant’s medical condition in the spring of 2001 may have impaired his ability to understand the requirements of IAA.

18Meanwhile, the Ministry continued to communicate with the applicant and to explore the options available to the applicant. It was the practice of the Ministry to seek the advice of Citizenship and Immigration about the validity of foreign adoptions, as they had detailed knowledge of the laws of adoption, marriage and divorce of foreign countries.

19In November 2001, Ms. Ramsey sought an opinion from Citizenship and Immigration in New Delhi whether the adoption as described by the applicant was legal under the Hindu Adoptions and Maintenance Act, 1956, Act No. 781956 (“HAMA”). The response from Citizenship and Immigration in December 2001 was that the deed of adoption was not sufficient. Usually Citizenship and Immigration personally interviews the adoptive and birth parents to ensure that the adoption was voluntary. When the applicant attended at the Canadian High Commission on September 12, 2001, he stated that he was no longer in touch with the birth parents and he had no photographs of the adoption ceremony. Accordingly, Citizenship and Immigration was not able to confirm that the adoption was in compliance with HAMA.

20The applicant applied to sponsor his adopted children to come to Canada. In assessing his application for sponsorship, Citizenship and Immigration had to determine the validity of the 2001 adoption. A Citizenship and Immigration officer considered section 11(ii) of HAMA which states:

If the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son’s daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption.

21The Canadian High Commission advised the applicant in February 2002 that they interpreted this section of HAMA to preclude the adoption of two girls. Accordingly they advised the applicant to sponsor the children as “children to be adopted” and obtain a Letter of No Objection from the Ministry.

22The applicant initially disregarded this advice and applied to sponsor the children as his adopted children. Citizenship and Immigration issued a formal decision in June 2003 rejecting the sponsorship application on the basis that the adoption of two girls was prohibited by HAMA.

23Eventually the applicant applied to sponsor his children as “children to be adopted.” He obtained a homestudy in April 2004 recommending that the applicant and his wife be approved as adoptive parents for the twins. Accordingly, the Ministry issued a Letter of No Objection in 2004.

24In order to remove the children from India, the applicant had to obtain an order of guardianship, which he did. In the fall of 2005, the applicant obtained visas for the children to come to Canada as permanent residents, as “children to be adopted.” They arrived in Canada on September 15, 2005.

25After they had resided in Ontario for at least six months, the applicant and his wife could apply for an adoption order from an Ontario Court.

26In June 2009, an adoption practitioner submitted a Report on the Adjustment of the Child for the twins, recommending to the Ministry that the proposed adoption was in the best interests of each child. The Ministry’s Director issued a statement under section 149(1) of the CFSA opining that the proposed adoption was in the best interests of the children. In October 2009, the applicant filed an Application for Adoption under section 146 of the CFSA. The status of that application is unknown at the time the parties made their written submissions.

Jurisdiction

27The respondent submits that the above narrative indicates that it was the decisions of federal agencies that contributed to the applicant’s difficulties in adopting and bringing the twins to Canada.

28The applicant concedes that the Tribunal has no jurisdiction to review the actions of federal agencies such as the CHC or the CIC.

29Under the Tribunal’s jurisprudence, an application will only be dismissed at this preliminary stage if it is “plain and obvious” on the face of the application that it does not fall within the Tribunal’s jurisdiction.

30I agree with both parties’ assertion that the Tribunal only has jurisdiction to address matters than fall within provincial jurisdiction and that any actions of the Canadian High Commission or Citizenship and Immigration fall within federal jurisdiction.

31However, the applicant asserts that he is challenging the provincial Ministry’s actions as discriminatory on the basis of family status. I have considered both his submissions on jurisdiction and the statement of facts set out in his Exhibit book.

32The applicant asserts that the Ministry discriminated in 2001 by refusing to recognize that his children were legally adopted under HAMA. By failing to recognize the legitimacy of the adoption and refusing to issue a No Involvement Letter to Citizenship and Immigration, they effectively caused or contributed to the subsequent difficulties he experienced in sponsoring his children.

33If an adoption is entirely “foreign” in that the prospective parents reside in a foreign country, the child resides in a foreign country and the adoption takes place in a foreign country, the Ministry issues No Involvement Letters.

34However, when the prospective parents reside in Ontario, the Ministry must look into the circumstances of the adoption and ensure compliance with the IAA and the law of the other country. When they are satisfied that both countries requirements are met, they issue Letters of No Objection, which facilitates the sponsorship application.

35Thus, the basis of distinction between a Letter of No Objection and a No Involvement Letter is where the prospective parent resides, which is not related to the ground of family status.

36The applicant asserts that he was living in India at the time of the adoption and therefore he met the criteria for a No Involvement Letter. The Ministry considered that the applicant was a resident of Ontario. I find the applicant’s assertion that he was residing in India to be contrary to facts he has previously asserted. The applicant filed an affidavit on January 10, 2002 stating that he had lived in Canada since 1966, that he was educated in Ontario, and that he had been working in Ontario since 1988. He stated that he departed for India in June 2001 for a vacation. Therefore, he was visiting India in September 2001 when the adoption took place, not residing there.

37In any event, whether or not the Ministry correctly applied the concept of “residing in Ontario” does not amount to discrimination on the basis of family status.

38The applicant states that it was discriminatory for the Ministry to refuse initially to apply the non-compliance policy in 2001.

39The basis for the initial refusal to apply the non-compliance policy was the Ministry’s belief that the applicant had knowingly breached the IAA. Although they subsequently reconsidered that decision, after the submission of medical documentation, the refusal to apply the non-compliance policy was not discriminatory on the basis of family status. The basis for the decision was the applicant’s alleged breach of the IAA and had nothing to do with the fact that he had adopted children.

40The applicant asserts that the Ministry’s statement in October 2001 that commencing a homestudy would serve no purpose was discriminatory. Again, the Ministry’s comment was based on their view that he was not entitled to a No Objection Letter under the non-compliance policy.

41He asserts that the Ministry discriminated by issuing a Letter of No Objection in 2004 instead of No Involvement Letter. I have dealt with that argument above. The Ministry only issues Letters of No Involvement to persons residing in a foreign country at the time of the adoption.

42The applicant asserts that the Ministry continued to discriminate against him by issuing a Director’s Statement in 2009 under section 149 of the CFSA recommending that his already adopted children be re-adopted, rather than applying section 159 of the CFSA.

43Section 149 of the CFSA provides:

Where an application is made for an order for the adoption of a child under subsection 146(1), a Director shall, before the hearing, file a written statement with the court indicating,

(a) that the child has resided with the applicant for at least six months or, in the case of an application under clause 146(1)(b), for at least two years and, in the Director’s opinion, it would be in the child’s best interests to make the order;

(b) in the case of an application under clause 146(1)(a), that for specified reasons it would be in the child’s best interests, in the Director’s opinion, to make the order although the child has resided with the applicant for less than six months; or

(c) that the child has resided with the applicant for at least six months or, in the case of an application under clause 146(1)(b), for at least two years and, in the Director’s opinion, it would not be in the child’s best interests to make the order,

and referring to any additional circumstances that the Director wishes to bring to the court’s attention.

44Section 159 of the CFSA provides:

An adoption effected according to the law of another jurisdiction, before or after the 1st day of November, 1985, has the same effect in Ontario as an adoption under this Part.

45The Ministry’s Director did issue a statement under section 149 in order to facilitate the adoption of the applicant’s children. When an application is made for an order for the adoption of a child under section 146(1), the Director is required to file a written statement with the court, indicating how long the child had resided with the prospective parents and whether in the Director’s opinion, it would be in the child’s best interest to make the order for adoption.

46The applicant states that this is discrimination on the basis of family status, as he had already legally adopted his children in India and should not be forced to re-adopt them.

47The Tribunal’s authority is restricted to determining breaches of the Code. It does not extend to supervising the Ministry to ensure that it is properly applying and interpreting the IAA or the CFSA.

48There is nothing in the Application as framed that indicates that the Ministry interpreted or applied the IAA, the CFSA or its policies in a manner which discriminated on the basis of family status. It was not entirely clear to me what the applicant meant by discrimination on the basis of family status. In this case, it could encompass the notion of treating adopted children differently than birth children. It could also encompass the notion of treating some adopted children differently from other adopted children.

49The focus of the Adoption Unit of the Ministry is to assess and assist in ensuring that Intercountry adoptions comply with the CFSA and the IAA. Thus, there is no differential treatment by them between adopted children and biological children.

50If the allegation is that some adopted children are treated differently than other adopted children, there might be a potential breach of the Code if the basis for the differential treatment, or a factor in the differential treatment was rooted in a prohibited ground under the Code.

51However, the only distinction raised by the applicant relates to the treatment between prospective parents residing in Ontario and prospective parents residing in a foreign country. As I stated earlier, where the prospective parent reside does not encompass any notion of family status.

52The root of the problem resides in the applicant’s initial non-compliance with the IAA in 2001 and the decision of Citizenship and Immigration to refuse to permit the applicant to sponsor the children as the applicant’s adopted children, because they did not accept that the adoption was valid. As a result, the applicant applied to sponsor the children as “children to be adopted.” The status of the children in Canada was that they were children “to be adopted.” The parties agree and I find that I have no authority to review the decisions or actions of Citizenship and Immigration.

53While the facts are somewhat convoluted, I find that it is plain and obvious that the Tribunal has no jurisdiction over the Application because the applicant has not alleged any facts or actions by the Ministry that could give rise to a finding of discrimination in the provision of services on the basis of family status.

54The circumstances of this family’s odyssey to adopt and bring their children to live in Canada are undoubtedly unfortunate and complicated, but they do not engage any breach of the Code.

55The Application is dismissed.