Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m S E P T E M B E R 2 0 1 5 7 L awyers and their corporate clients across Canada will want to look closely at a recent Nova Scotia Human Rights Commission Board of Inquiry that deepens the definition of family status, makes it clear money is not always a sufficient remedy, and demonstrates the extent of a human rights tribunal's authority and a willing- ness to use that authority. At issue in Adekayode v Halifax (Regional Municipality) was a biological parent's right to have paternity leave ben- efits topped up by his employer, the city of Halifax. Under the collective agreement at the time, Ray Adekayode was not entitled to additional benefits as a biological par- ent. That same agreement, however, gave adoptive parents a top-up when they went on parental leave. Adekayode, a firefighter, contended that this differential treatment constituted discrimination on the basis of family status. The board of inquiry agreed. "The tribunal had to decide whether grounds for family status in the act included how someone became a parent. This wasn't clear in Nova Scotia and may not be clear in other jurisdictions as well," says Alison Bird, an associate with Cox & Palmer in Halifax. The board of inquiry concluded that inherent in family status is the way the parent and child came to be in their rela- tionship whether by birth, adoption, foster placement, or other means. "Whether the relationship between a child and his or her parents is initiated biologically or by place- ment, 'family status' really comprehends the whole essential social relationship of obligation and dependence between those acting as parents, and those who are chil- dren, with respect to care," Donald Murray wrote in his 28-page decision. Based on this interpretation, the board of inquiry found the nature of the parent/ child relationship is a protected ground under the province's human rights legisla- tion and that Adekayode had been dis- criminated against as a biological parent. The interpretation is new. Although it relied on Johnstone v. Canada (Border Ser- vices Agency) as a legislative barometer, the tribunal concluded that while that deci- sion was widely considered the leading case on family status, it did not address the issue of what constituted a "parent." That issue has now been clarified, at least in Nova Scotia. In terms of a rem- edy, the tribunal awarded Adekayode a paid parental leave with top-up even though the child in question is no longer an infant. The board determined the father had lost more than money; he had lost time with his son. "That signi- fies how broad a human rights tribunal's power really is," notes Bird. The decision, she adds, is a caution- ary tale for lawyers and employers. "[They] need to think carefully about the benefits they offer when people are on leave." — DONALEE MOULTON donalee@quantumcommunications.ca REGIONAL WRAP-UP AT L A N T I C \ AT L A N T I C \ C E N T R A L \ W E S T How family is formed now a protected ground MENTAL HEALTH COURT BENEFICIAL BUT RECIDIVISM NOT REDUCED S upporters of Nova Scotia's mental health court are applauding a review that concludes the program should continue. That recommendation is based more on the impact of the court process than its impact on recidi- vism. "The evaluation didn't find marked departures [in recidivism rates], but it did show the experience of the person in the mental health court was much more appropriate and responsive," says Chief Judge Pamela Williams, head of the provincial and family courts and the presiding judge in Nova Sco- tia's mental health court. The independent study, conducted by Dr. Mary Ann Campbell of the Centre for Criminal Justice Studies and the Psychology Department at the University of New Brunswick in Saint John, examined the mental health recovery, criminal behaviour, and recidivism risk of 22 people in the mental health court program between 2012 and 2014. It compared their outcomes with an equal number of analogous people dealt with in the traditional court system. According to the 72-page report, roughly 31 per cent of the people who par- ticipated in the mental health court were charged with a new crime in the 12 months after they were referred to the court compared to 31.5 per cent of those in the comparison group. "The [recidivism rate] surprised me a little bit," says Williams, "but when you put them into context — a small sample over a short period — it made sense." Campbell makes six recommendations in her report, many of which are in the works and all of which are endorsed by the mental health court. Among Continued on page 8

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