Ruling an affirmation of the freedom of conscience, religion

Foster parents had a right not to be compelled to speak

Government agencies have been reminded that they must respect the constitutional rights of foster parents. This month, the Ontario Superior Court of Justice rebuked the Children’s Aid Society of Hamilton (CAS) for having closed down the foster home of Frances and Derek Baars. The Baars had refused CAS demands to proactively tell the two young girls in their care that the Easter Bunny is real.

The Court’s recitation of the facts is almost surreal. CAS accepted the Baars as foster parents, knowing full-well that this Christian couple does not promote the cultural traditions of Santa and the Easter Bunny, as they would not lie to children. Two young girls, then four and three, were placed with Frances and Derek in December of 2015. The girls’ biological mother communicated with the Baars by way of a journal, and thanked the Baars for having provided a good and happy Christmas for her girls. She made no mention of Santa Claus. But social worker Tracey Lindsay upbraided Frances and Derek for not having taken a photo of the girls with Santa. Ms. Lindsay then began to demand that Frances and Derek celebrate Easter by actively telling the young girls that the Easter Bunny is real. The Baars tried to compromise with Ms. Lindsay, informing her they intended have a hunt for chocolate eggs, buy the girls new dresses and refrain from saying anything at all about a large imaginary rabbit.

CAS was stubbornly focused in its intention to control the minds and mouths of the Baars. CAS refused the Baars’ offer to have the girls stay with another family over Easter. CAS refused the Baars’ offer to keep their foster home open for infants, who are too young to appreciate or process information about mythical beings. CAS refused the Baars’ offer to foster only children coming from religious or cultural backgrounds that do not celebrate Santa or the Easter Bunny.

The removal of the young girls from the care of Frances and Derek, on only one day’s notice, was heart-breaking. The Court accepted the testimony of social worker Kathleen Kufeldt, that sudden removal of the girls from their environment would be traumatizing and detrimental to the girls’ best interests.

When cross-examined on her affidavit, Ms. Lindsay readily admitted that the girls were loved, cared for, protected, clothed, sheltered and well looked after. In court, CAS argued that the Baars lacked the capacity to meet the children’s cultural needs. But neither Santa nor the Easter Bunny was a high priority for the girls’ biological mother. No law requires foster parents to uphold the pet fancies of social workers.

The Court also took a dim view of Ms. Lindsay’s hostility in questioning the Baars about same-sex marriage, and expressing fears that the Baars would mistreat or disrespect same-sex couples. The Court rejected Ms. Lindsay’s claim that these questions and comments were somehow necessary or relevant. The Court noted that “there is potentially further evidence of an underlying animus” in the actions of CAS toward the Baars.

CAS violated the Baars’ Charter-protected freedom of conscience and religion, by attempting to coerce Frances and Derek to violate their religious beliefs, as a condition of continuing to serve as foster parents. Further, the requirement to say something that the Baars did not believe (that the Easter Bunny is real) is compelled speech, which violates Charterprotected freedom of expression.

The court’s denunciation of compelled speech is especially relevant to the Canada Summer Jobs program “attestation” in support of abortion being legal, and Ontario’s Law Society now requiring lawyers to express their agreement with “equity, diversity and inclusion.”

This court ruling will help protect Canadians’ freedom of conscience, religion and expression. Lawyer John Carpay is president of the Justice Centre for Constitutional Freedoms (www.jccf.ca), which represented Frances and Derek Baars in their court action against the Hamilton Children’s Aid Society.