Rob Young v. Lynwood Charlton Centre and Her Majesty the Queen in Right of Ontario as represented by the Ministry of Children and Youth Services, 2012 HRTO 1133

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rob Young

Applicant

-and-

Lynwood Charlton Centre and Her Majesty the Queen in Right of Ontario as represented by the Ministry of Children and Youth Services

Respondents

DECISION

Adjudicator: David A. Wright

Date: June 8, 2012

Citation: 2012 HRTO 1133

Indexed as: Young v. Lynwood Charlton Centre

APPEARANCES

Rob Young, Applicant

Self-represented

Lynwood Charlton Centre, Respondent

Brent J. Foreman, Counsel

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

Mimi Singh, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services because of sex. The applicant, a single father, wanted to attend the “Lone Mothers and Kids Recreation Program” (the “program”) offered by Lynwood Hall Child and Family Services, since renamed the Lynwood Charlton Centre (“Lynwood”). He was not permitted to attend because he is a man. He alleges that his exclusion from the program violates the Code. The applicant named Lynwood as a respondent and Lynwood named the Minister of Children and Youth Services (the “Ministry”) as an additional respondent. The Ministry funds the program.

2Lynwood, supported by the Ministry, argues that there is no discrimination, as the program is a special program protected by s. 14 (1) of the Code, which reads as follows:

A right under Part I is not infringed by the implementation of a special program designed to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity or that is likely to contribute to the elimination of the infringement of rights under Part I.

3A hearing was held on January 9, 2012. In advance, the Tribunal directed in a Case Assessment Direction that the first hearing dates would deal with the issue of whether there is substantive discrimination against the applicant and whether s. 14 of the Code applies. For the reasons that follow, I find that the Lone Mothers and Kids Recreation Program is a special program under s. 14, and the Application is therefore dismissed.

EVIDENCE

4Two witnesses testified: Dr. Ellen Lipman, a child psychiatrist who spearheaded the development and design of the program, and Alex Thompson, the Executive Director of Lynwood.

5The program is offered to single mothers ages 19 and over with children 6-12 years old who are seeking to improve their parenting skills and wish to engage their children in recreation activities. Mothers participate in guided sessions to learn new skills and increase their capacity to interact appropriately. The program is offered twice per year, and seven or eight mothers are accepted per 10-week session.

6The program’s expressed purposes are: (1) to provide education and psychosocial support, reduce isolation and promote well-being among participating single mothers; (2) to increase recreational participation by family members; and (3) to reduce emotional-behavioural problems in children raised in lone mother families.

7There are three components to the program, which takes place at the YWCA. There is an evening meal. The mothers and children then separate, and the mothers participate in a group session with a female group leader, while the children engage in recreation programs with child and youth workers and volunteers from Big Brothers and Big Sisters. The mothers’ group is an education/support group to help with parenting skills and developing positive feelings about their experiences of being a single parent. At the end of the evening there is a planned activity with the mothers and kids. The participants are provided with transportation and a recreation pass to the YWCA.

8The program was initially established through the auspices of the McMaster Children’s Hospital, previously called the Chedoke-McMaster Hospital (the “Hospital”). In 2008, it moved to Lynwood, but the essential nature of the mothers’ program has remained consistent throughout this time. The recreation program for children developed from babysitting services that were originally offered while the mothers were participating in the support group.

9Dr. Lipman is the Acting Medical Director of Child Psychiatry at the Hospital. There is no question of her extensive expertise and experience as a clinician and a researcher. In addition to the field of psychiatry, she has appointments in clinical epidemiology and biostatistics, psychology, and paediatrics. A considerable portion of her research and clinical work has focused on lone mothers and their children.

10Dr. Lipman and colleagues engaged in research on the mothers’ portion of the program, originally called the Alone Mothers’ Together program, including a peer-reviewed, randomized controlled trial published in the Canadian Medical Association Journal and a peer-reviewed, qualitative study of eight participants published in BMC Public Health. The research showed the effectiveness of the program in promoting and improving mental health and parenting skills.

11Dr. Lipman testified that families with single mothers are vastly overrepresented among families living below the poverty line and are particularly vulnerable to health problems. Compared with mothers in two-parent families, single mothers are more likely to have depression, lack of social support, difficulty accessing mental health services, and low incomes. Children in such families generally do worse academically and are more likely to need special education than children of two-parent families. Dr. Lipman testified that many of the effects on children can result from the mother’s mood.

12Dr. Lipman testified that about 80% of single-parent families are headed by women. She stated that single-father families tend to be more economically advantaged than single-mother families. She stated that including single fathers would change the nature of the program and would have a negative effect on it. She noted many of the women participating in the program have experienced male violence. Having a man participate would disrupt the feeling of safety and universality and could trigger post-traumatic stress for participants.

13In cross-examination, Dr. Lipman acknowledged that her research focused on single mothers and comparisons between them and two-parent families. She acknowledged that some single fathers and their children have experiences similar to those of mothers targeted by the program.

14Mr. Thompson testified that discussion of male violence continues to be a theme of discussions in the mothers’ group. A clinical supervision note summarizing the themes discussed in one of the groups confirms this; they included the termination of pregnancy because of a controlling partner, the fact that the child was the product of a rape, violence experienced in the sex trade, and a child abducted by a male partner.

15In cross-examination, Mr. Lipman acknowledged that the program description did not focus on domestic violence and that there are other services for women who have experienced domestic violence.

ANALYSIS

16For convenience, I set out s. 14(1) of the Code again:

A right under Part I is not infringed by the implementation of a special program designed to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity or that is likely to contribute to the elimination of the infringement of rights under Part I.

17Section 14 protects programs designed to remedy disadvantage from challenge by persons whose needs do not fall within the purpose or underlying rationale of the program: see Ontario (Human Rights Commission) v. Ontario, 1994 CanLII 1590 (ON CA) (“Roberts”); Ball v. Ontario (Community and Social Services), 2010 HRTO 360 at para. 123 (“Ball”). As the Supreme Court of Canada explained in R. v. Kapp, 2008 SCC 41 at para. 28, interpreting a similar provision in the Canadian Charter of Rights and Freedoms, s. 15(2), this is because promoting substantive equality may involve making distinctions between groups:

[N]ot every distinction is discriminatory. By their very nature, programs designed to ameliorate the disadvantage of one group will inevitably exclude individuals from other groups. This does not necessarily make them either unconstitutional or “reverse discrimination”. Andrews requires that discriminatory conduct entail more than different treatment. As McIntyre J. declared at p. 167, a law will not “necessarily be bad because it makes distinctions”.

18In support of his argument that this program is not protected by s. 14, the applicant suggests that there is a lack of programs for single fathers, and emphasizes that the research supporting this program compared single mother families with two-parent families, not families with single fathers. He notes that nothing in the formal documentation refers to domestic violence, and he suggests that there are many other programs that serve women affected by domestic violence. He states that as a single father, he feels alone and that there are few programs to support him. He emphasizes the many ways in which he has needs that are similar to those of the mothers in the program.

19The jurisprudence on the application of s. 14(1) of the Code and s. 15(2) of the Charter will doubtless develop and be refined significantly in the years to come. However, it is clear in the established jurisprudence now that where a purpose or underlying rationale of the program is to relieve disadvantage of a particular group, where there is a rational basis to conclude that the program will do so, and where the needs of the person do not fall within that purpose, the program falls under s. 14(1) and is not discriminatory: see Kapp at para. 41; Roberts; and Ball at paras. 110-124.

20The evidence of Dr. Lipman establishes that single mothers and their children, in general, experience economic and social disadvantage, and that the program was designed to relieve that disadvantage by developing mental health and parenting skills for single mothers. While not every single mother experiences these disadvantages, and some single fathers may share them, this is not necessary for a program to be protected by s. 14(1): see Kapp at para. 55.

21This support group is aimed at assisting single mothers in dealing with particular issues facing them. Many of these issues relate to gender dynamics including male violence against women. I accept the evidence of Dr. Lipman and Mr. Thompson that it would be impossible for the group to deal with these issues in the same way, and that there could be a negative impact on many of the women and on the group as a whole if men were to participate. The applicant suggested that he could leave the room when such issues were discussed, but it is obvious that this would not be consistent with the nature of this single gender support group. The Tribunal recently found, in Vandervelde v. Goodlife Fitness Centres Inc., 2012 HRTO 1042 at paras. 13-15, that a women-only fitness club is consistent with substantive equality, applying s. 20(3) of the Code. Similarly, a single-sex support group for single women with children promotes substantive equality.

22I recognize that society has often not recognized men as child-care providers, and that this can have stereotypical and negative effects on fathers, including single fathers, as well as on mothers. I accept that the applicant feels unsupported in his role as a single father. Whether or not there is a lack of programs for single fathers, however, that does not mean that this program, which targets a different set of needs, must admit fathers. Section 14(1) of the Code allows for programs targeted at the needs and disadvantage of a specific group, in this case single mothers.

23In the Application, the applicant named only Lynwood as a respondent. Lynwood added the Ministry of Children and Youth Services, which funds and licenses the program, as an additional respondent. The Ministry seeks to be removed on the basis that it is not a proper respondent. In view of my conclusions, there is no need to address this issue.

ORDER

24The Application is dismissed.