HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Y.D. by her Litigation Guardian S.D.
Applicant
-and-
The Office of the Children’s Lawyer and Krystal Dorion
Respondents
DECISION
Adjudicator: Geneviève Debané
Indexed as: Y.D. v. Office of the Children’s Lawyer
APPEARANCES
Y.D. by her Litigation Guardian S.D., Applicant
Self-represented
The Office of the Children’s Lawyer and Krystal Dorion, Respondents
Eric Wagner, Counsel
1S.D. filed an Application on behalf of his daughter Y.D. The Application relates to the respondents’ involvement with respect to the custody of Y.D. during a family court matter between her parents which resulted in Y.D.’s mother obtaining sole custody of her.
2The respondents filed a Response denying discrimination and raised a number of issues including that S.D. did not have the legal capacity to initiate an Application on behalf of Y.D. Further, the respondents assert that the doctrine of absolute privilege applies since the Application relates to events that occurred in the preparation of a report at the request of the Court pursuant to s. 112 of the Courts of Justice Act.
3The Tribunal issued a number of Case Assessment Directions (CADs) in an effort to ensure that Y.D.’s mother, who is the custodial parent, received notice of the Application. On July 31, 2013, the Tribunal issued a CAD (the “July 2013 CAD”) directing the applicant to provide the mother’s contact information so that it could deliver the Application to her.
4On August 3, 2013, the applicant sought reconsideration of the July 2013 CAD. Among other reasons the applicant stated:
Allowing (the mother) to be part of these proceedings would go against the reason why I started this application; the wrongful actions of the Respondents. If the mother of my daughter presently has custody, it is solely because of the wrongful actions of the Respondents, the issues in question which brought up my Application in the first place. (emphasis in original)
5On August 26, 2013, the Tribunal issued Interim Decision 2013 HRTO 1451 which directed the applicant to immediately comply with my direction to provide the mother’s contact information. I warned S.D. that if he failed to comply with my order that the Application could be dismissed.
6On August 26, 2013, the Tribunal received a faxed letter signed by the mother confirming that S.D. had contacted her and that the Tribunal should respect her privacy and S.D. did not need her consent to file the Application. S.D. has never complied with my direction and order that he provide the Tribunal with the mother’s contact information.
7On September 23, 2013 the Tribunal issued a CAD directing the parties to make submissions with respect to a number of issues including S.D.’s failure to comply with my order and directive. S.D. did not file submissions as directed but he did file a Request for an Order during Proceedings on October 23, 2013 seeking the production of a number of documents.
S.D’s standing to bring the Application on behalf of Y.D.
8The Supreme Court of Canada in Gronnerud (Litigation Guardians of) v. Gronnerud Estate, 2002 SCC 38 reviewed the factors relevant to determining the appropriateness of a litigation guardian. At para. 20 the Court states:
The Szwydky criteria provide guidance in defining the “best interests” test set out in Rule 49(1). The third criterion, that of “indifference” to the result of the legal proceedings, essentially means that the litigation guardian cannot possess a conflict of interest vis-à-vis the interests of the disabled person. Indifference by a litigation guardian requires that the guardian be capable of providing a neutral, unbiased assessment of the legal situation of the dependent adult and offering an unclouded opinion as to the appropriate course of action. In essence the requirement of indifference on the part of a litigation guardian is a prerequisite for ensuring the protection of the best interests of the dependent adult. A litigation guardian who does not have a personal interest in the outcome of the litigation will be able to keep the best interests of the dependent adult front and centre, while making decisions on his or her behalf. Given the primacy of protecting the best interests of disabled persons, it is appropriate to require such disinterest on the part of a litigation guardian.
9Having considered the matter I find that S.D. cannot bring this Application on behalf of Y.D. because he is not indifferent to the outcome of the litigation. In fact, S.D. is in a conflict of interest with his daughter’s interests and more specifically the issue of her custody. It is clear that the applicant is not indifferent to the issue of Y.D.’s custody and that he is directly impacted by this issue since he has a personal interest in the outcome of the litigation.
10The applicant has demonstrated through his conduct that he is in a conflict of interest. The Application, though purportedly filed on behalf of his daughter, focusses on S.D.’s interactions with the respondents.
11I find in these circumstances that S.D., as a non-custodial parent cannot initiate an Application on behalf of a minor child involving the very issue of custody.
12Given my findings on the issue of S.D.’s standing to bring the Application on behalf of Y.D. I will not consider the other issues raised by the respondents.
Order
13The Application is dismissed.
Dated at Toronto, this 17^th^ day of March, 2014.
“signed by”
Geneviève Debané
Vice-chair