What’s at risk when children’s rights contravened | Marvin Zuker

By Marvin Zuker

Law360 Canada (October 12, 2023, 12:05 PM EDT) --
Marvin Zuker
Marvin Zuker
On April 26, 2022, the Ontario ombudsman released his report, Lost Opportunities, concerning an investigation into the Ministry of Children, Community and Social Services’ implementation of the decision to close secure custody programs at Creighton Youth Centre in Kenora and J.J. Kelso Youth Centre in Thunder Bay.

The ombudsman specifically addressed the Ministry’s obligations under the Child, Youth and Family Services Act, 2017(CYFSA), noting that the Act governs the provision of youth custody services and that its paramount purpose is to “promote the best interests, protection and well-being of children.” The ombudsman’s report contains specific consideration of the concept of best interests of young persons in the context of the justice system. The report references Article 3(1) of the United Nations Convention on the Rights of the Child (UNCRC). The report also considers general comment #14 issued by the UNCRC, which provides guidance on how the UNCRC reference to best interests of the child should be interpreted.

The right of a child to express his or her views is clearly stated in Article 3 of the UNCRC, which came into force on Sept. 2, 1990, and was ratified by Canada in 1991:

1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

2. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.

Article 12 of the UNCRC outlines the right of children to participate in legal proceedings that affect them.

a. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

b. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

A children’s lawyer can assist in cases where a child does not require full legal representation. For example, a children’s lawyer can assist by providing the court with information about the child’s views and preferences. This can include providing direct or written evidence from the child, participating in dispute resolution so a child’s views are heard, for example in mediation, or referring the child to a mental health specialist.

In M.M. (Litigation guardian of) v. Thames Valley District School Board [2022] O.H.R.T.D. No. 1436, the Human Rights Tribunal of Ontario dismissed an application brought by a mother against a school board where the mother alleged that the school board had discriminated against her on the basis of her family status and disability. The tribunal held that the school board did not have a service relationship with the parent, and therefore could not have breached its duty under the Human Rights Code to not discriminate in the provision of a service.

Education is a service that school boards provide to students. The Code prohibits discrimination in the provision of services. The Education Act specifically details the duties and powers of school boards, which include to provide educational services and accommodation to students.

Mental health, suicidality

In 2021, 22 per cent of high school students seriously considered attempting suicide during the past year. Female students were more likely than male students to seriously consider attempting suicide. Asian students were less likely than students from most other racial and ethnic groups to seriously consider attempting suicide. LGBTQ+ students and students who had any same-sex partners were more likely than their peers to seriously consider attempting suicide.

School connectedness, which is the feeling among adolescents that people at their school care about them, their well-being and success, has long-lasting protective effects for adolescents. Youth who feel connected at school are less likely to experience risks related to substance use, mental health, violence and sexual behaviour. School connectedness also protects against the co-occurrence of these risks. 

LGBTQ+ employees often take steps to avoid experiencing discrimination and harassment. For example, LGBTQ+ employees may conceal their sexual orientation or gender identity at work, avoid talking about their personal lives with co-workers, and change their appearance to conform to gender norms. Engaging in these behaviours, sometimes referred to as “covering,” can be a source of stress for LGBT people that negatively impacts their health and well-being. 

On Dec. 29, 2017, the Human Rights Tribunal of Ontario released its decision in U.M. v. York Region District School Board 2017 HRTO 1718. In this case, the tribunal addressed two applications against a school board in which a parent alleged discrimination and failure to accommodate his children’s respective disabilities under Ontario’s Human Rights Code.

The tribunal found that the school board had offered reasonable and appropriate accommodations to the students, even though their father clearly did not agree with many of the accommodation decisions. Parents do not have the “absolute power” or “control” to make all decisions about education, nor are school.

The tribunal applied the test for discrimination in the provision of educational services set out in Moore v. British Columbia (Education) 2012 SCC 61. In Moore, the court held that to demonstrate discrimination, applicants must show:

1. that they have a characteristic protected from discrimination;

2. that they have experienced an adverse impact with respect to their education, i.e., that they have been denied meaningful access to an education; and

3. that the protected characteristic was a factor in the adverse impact.

The court in Moore concluded that special education is not the service in and of itself; rather, it is primarily the means by which certain students get meaningful access to the general education services that are available to all students.

Moreover, “… While the Education Act of Ontario and the Regulations related to it acknowledge the importance and relevance of considering parental preferences and encourages communication with parents before implementing certain decisions, the legislation does not give parents the absolute power to make all decisions about the education of their children within the public education system, especially in the areas of curriculum and other related aspects of programming, such as teaching methodology.” (U.M. v. York Region District School Board).  

When lawmakers fail, when families don’t accept us, when our friends leave us. … You just want to feel safe at school.

Some may argue it is a politics of distraction to distract us from the core work of what schools are supposed to be doing around teaching and learning. Others might say this is an explicit effort to undermine public confidence in the public school system.

This is the third instalment of a four-part series. Part one: Notwithstanding, Premier Moe: Children’s day or shredding day. Your choice. Part two: Convention on Rights of the Child in child-friendly language.

Marvin Zuker was a judge of the Ontario Court of Justice, where he presided over the small claims, family and criminal courts from 1978 until his retirement in 2016. He is a professor at Ontario Institute for Studies in Education/University of Toronto, where he has been teaching education law for 42 years. Zuker is the author and co-author of many books and publications, including The Law is Not for Women and The Law is (Not) for Kids.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author's firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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