Family

Decision lambasting CAS demands reaction

By AdvocateDaily.com Staff

A judge’s admonition of a children’s aid society’s (CAS) actions towards two Hamilton, Ont. foster parents brings a refreshing dose of accountability to the area of child protection, Toronto family lawyer Gene C. Colman tells AdvocateDaily.com.

The judge in the case lambasted the CAS for closing the couple’s foster home over their refusal to pretend to children in their care that the Easter Bunny was real.

In fact, Ontario Superior Court Justice Andrew Goodman ruled that the foster parents’ s. 2 Charter rights to freedom of conscience and religion and freedom of expression were violated as a result of the CAS’s “unreasonable, arbitrary and discriminatory” behaviour.

“It was fantastic to see a decision that so strongly holds a CAS to account,” says Colman, principal of Gene C. Colman Family Law Centre. “Where behaviour like this exists, it needs to be called out, but it takes an exceptional couple like the one in this case to see it through all the way.”

Colman says he was particularly impressed with the couple’s decision to take money out of the equation, by limiting their application to a declaration that their Charter rights were breached, rather than seeking any monetary damages.

“When you’re dealing with the CAS, whether as a birth parent, an adoptive parent or a foster parent, and you run into conflict with them, it can be a traumatizing experience,” Colman says. “When it’s over, people usually just want to get on with their lives, but this couple has my utmost respect for seeing it through.”

He says courts occasionally signal their dissatisfaction with the CAS's conduct with an adverse order for costs.

“CAS workers have a very tough job to do, and they usually do it very well. In the throes of litigation, things can happen and you do get decisions dealing with costs where the behaviour of a society or individual worker approaches or even surpasses bad faith,” Colman says. “The Easter Bunny case was quite different, because there was no litigation and the CAS was behaving, to put it charitably, unreasonably.”

The couple launched their case in April 2017, a year after two girls aged three and five were removed from their care. Trouble arose in the spring of 2016, just months after they took the girls in.

According to Goodman’s decision, a CAS caseworker acknowledged the children were well cared for but pressed for them to hold an egg hunt for chocolate eggs brought by the Easter Bunny.

The foster parents agreed to host a hunt but objected to any suggestion to the two girls that the Easter Bunny was real because they said it interfered with their strong religious beliefs, and they were unwilling to lie to the children. Ahead of the holiday, the society removed the children with a day’s notice, prompting the couple to appeal under its internal procedure. The CAS then ignored the appeal and the foster parents brought the matter to court.

In court, the CAS insisted the removal was as a result of the couple’s disagreement with the children’s birth mother over their care.

“Nothing can be further from the truth,” Goodman wrote.

"There is ample evidence to support the fact that the children were removed because the [couple] refused to either tell or imply that the Easter Bunny was delivering chocolate to [their] home," he added. "I am more than satisfied that the Society actions interfered substantially with [their] religious beliefs."

Colman says he’s hopeful the decision will spur action within the province’s 49 designated children’s aid societies.

“Societies should ask themselves all the time whether they have behaved fairly toward parents, foster parents, and whoever else they are dealing with,” he says. “There needs to be proper in-house training for CAS workers and supervisors, and seminars looking at the situations where they have been found not to have behaved properly.

“Nobody’s perfect, and mistakes are made, but the important thing is that we learn from them. I hope they get the message from this case, but we’ll see,” Colman adds.

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