This story is stranger than fiction! A foster parent couple has held the Children's Aid Society of Hamilton, Ontario accountable for violating their constitutional right to freedom of religion. Child welfare law transitions into constitutional law. The Children's Aid Society ran roughshod over the foster parents' religious beliefs, summarily terminating their foster care of two youngsters. And it was all over the Easter Bunny! Unbelievable? You bet. True? Absolutely!
The plaintiffs (Derek and Francis Baars) sought a declaration from the Ontario Superior Court of Justice that the Society, in summarily closing their foster home, had acted in a manner that was unreasonable, discriminatory and contrary to their fundamental rights and freedoms under section 2 of the Canadian Charter of Rights and Freedoms. The Court granted a declaration that the society violated Mr. & Mrs. Baars' fundamental rights to freedom of conscience and religion and freedom of expression. The closure of their foster home was declared to have been "unreasonable, arbitrary and discriminatory" - comments that the judge repeated in his decision more than once.
When the Baars had first applied to foster children, they had made no secret of their sincere fundamentalist religious beliefs. Throughout the interview and training process the Baars disclosed that because of their religious beliefs, they do not celebrate Halloween, promote Santa Claus or the Easter Bunny, as they did not want to lie to children. Their sincerely held beliefs were squarely on the table from the outset. With full knowledge of these beliefs, the Society nonetheless accepted the Baars as foster parents. The judge wrote [¶ 69]: "It is clear to me that the Society was prepared to accommodate the Baars before they became foster parents. At the outset, the Society clearly acknowledged and accepted the applicants' bonafide religious beliefs."
The Baars became foster parents in mid-December 2015. Mrs. Baars communicated in a friendly manner with the birth mother to ensure that the children's Christmas experience was a pleasant one. The birth mother expressed her gratitude in writing to Mrs. Baars. So far so good. Then with Easter still months away, the primary worker embarked on an irrational and totally unnecessary campaign to ensure that the Baars told the children that it was the Easter Bunny who brings the chocolate Easter eggs. (I am not joking here. This is real.) Mrs. Baars protested as that would be a lie and her religious beliefs would not permit her to lie. She was more than open to arranging an Easter egg hunt for the children but she would not lie about the source of the Easter eggs. For some unexplained reason, the Society worker became apparently apoplectic with the principled yet totally realistic and indeed child focused approach that Mrs. Baars espoused.
Prior to Easter, with a mere one day's notice, the Society scooped the kids from the foster home. There was precious little time to prepare the children for this astonishing disruption in their young lives. The Society directed the Baars to use the Society internal appeal procedure. The Baars did just that; the Society ignored their letter.
The judge carefully examined the evidence including the documents. He found quite clearly that the Society's motivation for removal from the foster home was that the foster parents "refused to either tell or imply to the children that the Easter Bunny was delivering chocolate to the Baars' home." [See ¶72.]
Believe it or not the Society persisted that the reason they removed the children was that the Baars' allegedly "were not in agreement with supporting the parent's wishes for the children's care". The judge declared in response: "Nothing can be further from the truth." [See ¶ 84.] And later in his Reasons, the judge stated [¶ 150]: "The Society is unable to point to any concrete evidence as to these alleged wishes of the birth mother." I could present here many other excerpts from the Reasons where the judge totally rejects the untruths that the Society advanced.
The judge's excoriation of the Society was startling in its most vehement condemnation of the Society and its prime witness - the principal worker. It was not just a matter of interpretation; rather, there were Society documents that proved their witness was not being truthful. Based upon the judge's decision, it would be appropriate for the Crown Attorney to consider perjury charges.
In at least one Facebook group I had noticed some discussion that the foster parents were allegedly not sensitive to birth mom's wishes. Such comments are entirely (albeit surely unintentionally) misguided once you read the decision itself. The judge found as a fact that [see ¶ 138] "there was no indication that the biological mother was concerned with the manner in which the Baars were caring for her children." And later at ¶ 171, the judge wrote: "Despite the Society's assertion to the contrary, there is a complete lack of evidence that the Baars failed to be respectful of the cultural and religious need of the children, nor that they were unsuccessful in their obligation to meet the children's cultural needs."
The plaintiffs were obviously solid good citizens who out of their simple desire to improve the world in some small way for two kids, were treated abominably by the Children's Aid. It is to their credit that they did not seek any damages; they only asked for a Declaration with respect to violation of their rights. Had they possessed legal standing with respect to the children themselves, they could have successfully petitioned a court for a declaration that the children's rights had been grossly violated as well. I only wish that accountability were more a feature of child welfare/child protection law.
Finally, we have one case where a Children's Aid Society and its prime worker were clearly held to account. Will the Crown Attorney take notice? Will the province take notice? Will anyone call for an inquiry into the high handed anti child tactics of the Children's Aid Society? Will the C.A.S. of Hamilton truly ensure that nothing like this happens in the future to any foster parent, to any parent, to any child? I wonder.
To listen to a radio interview of me concerning this case, click here.
To read the case decision, click here.
To read more on C.A.S. accountability, click here.