S.G. v. Ontario (Children and Youth Services), 2014 HRTO 1009

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

S.G. Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Children and Youth Services; North Eastern Ontario Family and Children’s Services; and Richard Lambert-Belanger Respondents

DECISION

Adjudicator: David Muir Date: July 10, 2014 Citation: 2014 HRTO 1009 Indexed as: S.G. v. Ontario (Children and Youth Services)

1This is an Application filed alleging discrimination in the provision of goods and services on the basis of family status, association with a member of a protected group and reprisal.

2In a Case Assessment Direction (“CAD”) issued on January 8, 2014 the Tribunal directed that a summary hearing by telephone conference call be scheduled to hear submissions on whether or not this and several other related Applications should be dismissed in whole or in part. Subsequent to the January 8, 2014 CAD all of the other related Applications were withdrawn by the applicants.

3Two issues were identified by the Tribunal as they relate to this Application:

a. Whether all or part of the Application should be dismissed pursuant to section 45.1 of the Code because its subject matter has been appropriately dealt with in another proceeding; and

b. Whether all of part of the Application should be dismissed because it has no reasonable prospect of success.

4A summary hearing was held by conference call on June 2, 2014. All parties participated. At the outset of the hearing the applicant requested an adjournment. For reasons given at the hearing the adjournment was denied but the applicant was given three weeks to provide written submissions in response to the case law provided by counsel for the Ministry. The applicant has provided those submissions and they were reviewed prior to the release of these reasons.

5For the reasons that follow the Application is dismissed.

6In her Application the applicant alleges that she has experienced discrimination on the basis of ancestry, family status and because of association with a member of a protected group in the provision of services by the respondents. The applicant self describes as Metis. The applicant is also a grandmother. The essential claim of the applicant is that she has only restricted access to her grandchild because she is the mother of the child’s mother from whom the child has been removed. The remedy sought by the applicant is an order returning the child to her mother. The remedy sought recognizes that the current custody arrangements for the child have as one consequence restricted the applicant’s access to her grandchild.

7In her Application the applicant alleges that her granddaughter was illegally apprehended by the respondent North Eastern Ontario Family and Children’s Services (NEOFACS) on July 12 and 13, 2012 based on false allegations about her daughter, the child’s mother. She also alleges that as a consequence access to her grandchild has been unfairly restricted because of her association with her daughter from whom the grand child was removed. Although this was not clear from the Application the matter of the child’s custody is currently before the courts.

8The Application as against Ontario (Children and Youth Services) is dismissed. There are no allegations made against this respondent in the Application. The applicant alleged at the hearing that the Ministry supports the respondent’s discrimination but no facts were plead which would tend to support this claim. The applicant also alleged that by retaining counsel and making submissions in this case the respondent has diminished her Application and that this is discriminatory. None of these claims are allegations of discrimination within the meaning of the Code and accordingly this aspect of the Application must be dismissed as having no reasonable prospect of success.

9The Application to the extent that it is based on the alleged illegal apprehension of the applicant’s granddaughter on July 12 and 13, 2012 is dismissed pursuant to section 45.1 of the Code and because this allegation has no reasonable prospect of success. This allegation was considered by the Tribunal and dealt with in 2012 HRTO 1268, an Application filed by the applicant’s daughter related to exactly the same facts and issues. The Tribunal concluded that the allegation that the apprehension of the child by the respondent NEOFACS with the assistance of the police was discriminatory had no reasonable prospect of success. The Tribunal held in that case that NEOFACS acted in accordance with its mandate which required to apprehend a child when it had reasonable or probable cause to believe that the child might be in need of protection. The allegation of the applicant in that case, which is the same as the allegation here, is that NEOFACS proceeded to apprehend the child based on false information and because the mother of the child was associated with the applicant in this case. The Tribunal concluded that the fact that NEOFACS may have been wrong in its assessment of the risk to the child at the time does not make its actions discriminatory and noted that the Tribunal does not have a role in assessing the correctness of the actions taken by agencies such as NEOFACS. In my view this aspect of the current Application is indistinguishable from the Application brought by the mother of the child and accordingly I find that it would be an abuse of process to relitigate the identical underlying facts. Accordingly the allegations are incapable of being proved and must be dismissed because they have no reasonable prospect of success.

10The remainder of the Application relates to the restrictions on the applicant’s access to her grandchild, a consequence of the child’s being apprehended by the respondent NEOFACS. In her written submissions following the hearing the applicant argues that the best interests of her grandchild require that she have access to her maternal family and that NEOFACS and the court have a duty to ensure that they have access to their grandchild. The applicant also suggests that unless NEOFACS and the court can prove that it is not in the child’s best interests the applicant and her family should have unrestricted access to the grandchild.

11The issues of custody and access and ultimately the best interests of the child are currently before the Court and will be determined there. The applicant is not a party to the proceeding but the mother of the child as well as the father are. Both respondent’s took the position that the Tribunal has no jurisdiction to award the remedy sought – an order returning the child to her mother’s custody. This is critical because the consequences for the applicant flow from the custody arrangements currently in place. In my view the matter of the child’s custody and a consideration of the child’s best interest is a matter that the court will deal with and the Tribunal has no jurisdiction to interfere with that process. More specifically it would be inappropriate and beyond the Tribunal’s jurisdiction to suggest what test the court should apply in determining the best interests of a child, or how it should apply a test, with respect to a matter before it.

12I also find that the applicant can point to no evidence which would tend to support her contention that any of the grounds she has cited were factors leading to the restricted access to her grandchild. As indicated the issue of what is in the best interests of the child in terms of access and custody is a consequence of the apprehension of the child which was found to be not discriminatory. Independent of that fact the applicant makes a number of assertions but points to no evidence available to her that would tend to support the inferences that she has drawn of differential treatment. She seeks to draw a comparison with all other grandparents, but points to no evidence that the respondent has treated other grandparents differently in the circumstances where a child has been apprehended by a children’s aid society.

13I appreciate that the consequences of the child’s apprehension had an impact on the applicant as it did on other family members but that does not make it discriminatory under the Code. In any event as indicated above the issues arising from that apprehension are before the court and the Tribunal has no jurisdiction to interfere in that issue and would have no authority to grant the remedy the applicant is seeking.

14For these reasons the Application is dismissed.