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We Can Make Changes to the Family Court System A Call to Action

Saturday, January 12, 2019 - Information - Jordan Warman - Author

Human Rights Legislation: A Possible Alternative Route in Family Law

In Ontario, the Ontario Human Rights Code (OHRC) prohibits discrimination on a number of grounds, including Family Status (FS). ?

From the code:

“family status” means the status of being in a parent and child relationship; (“état familial”)?

The OHRC also defines “constructive discrimination” as follows:

Constructive discrimination?
11 (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or
(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.  R.S.O. 1990, c. H.19, s. 11 (1).
(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.  R.S.O. 1990, c. H.19, s. 11 (2); 1994, c. 27, s. 65 (1); 2002, c. 18, Sched. C, s. 2 (1); 2009, c. 33, Sched. 2, s. 35 (1).

The OHRC protects rights using a ‘social area’ X ‘grounds’ formula. One of the social areas is Contracts:

3 Every person having legal capacity has a right to contract on equal terms without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.  R.S.O. 1990, c. H.19, s. 3; 1999, c. 6, s. 28 (4); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (4); 2012, c. 7, s. 3.

Further, I believe that generally, human rights legislation prevails over other laws. That is, unless there is a specific exception, you must comply with the OHRC before other laws.

If we take the case of a parent who has legal access to a child, where the other parent is blocking that access, perhaps a Human Rights Tribunal of Ontario (HRTO) complaint against the blocking parent could be submitted, generally, as follows:
social area: contracts
code grounds: family status

The idea is as follows: A separated or divorced couple can be said to be operating out of an explicit or implied separation agreement. In the current situation, the implied agreement is that the complaining parent has no way to contract with the other parent, such that her family status is not severed. The blocking parent would be required to allow the complaining parent to contract on terms that did not sever the complaining parent’s family status, up to the point of undue hardship.

I have read of a case where the HRTO made an interim order, likely because of perceived urgency.

Again, I don’t know if this will work, but, it’s more than worth a try. HRTO applications do take a bit of time, but, don’t require a lawyer.

And, there may be other scenarios that would apply. Perhaps even if the court denied access, in certain situations. Every case would need to be analyzed separately. It can be tricky. One needs to understand the code well enough.

If you would like some free, non-professional, at-your-own-risk help with this, send me an email and I will do what I can. I’m submitting a similar type of complaint soon. I have a disability and was discriminated against by a family law firm. I submitted an HRTO complaint about this and it is moving forward. I hope my upcoming support/access complaint will also move forward.

My email: is attached to this page and gets notified on replies 

- Author
In reply of

We Can Make Changes to the Family Court System A Call to Action

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by PRobertson
X This will be a very long read, but I am asking you to spend the time, read the entire article, and take action. It will cost you nothing, all I am asking for is that you support me and all other parents that have been denied access to their childr... More >>
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