ONTARIO
SUPERIOR COURT OF JUSTICE
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
BETWEEN:
Chatham-Kent Children’s Services
Loree Hodgson-Harris for Chatham-Kent Children’s Services
Respondent
- and -
A.H. and E.H.;
E.K. and R.(H.)K.;
J.S. and S.T.
Appellants
Marnelle Dragile for A.H. and E.H.
E.K. not appearing
Gerry Wong for R.(H.)K.
J.S. and S.T. not appearing
Stephen Codas, Rayleen Cantin and William Sullivan for the Children’s Lawyer
HEARD: March 5 and April 4, 2014
On appeal from the decision of Mr. Justice Fuerth dated February 13, 2014.
TEMPLETON J.
[1] The pivotal issue in this appeal is ‘context’.
[2] Given the nature of the circumstances of this case, the significance of the issues and the attention this case has drawn in the public domain, a review of the evidence that was before the Chambre de la Jeunesse of the Quebec Court and the Ontario Court of Justice is warranted.
The Proceedings in Quebec
[3] The appellants are all members of a religious community known as ‘Lev Tahor’.
[4] The appellants J.S. and S.T. are the parents of eight children, namely, M.S. (a son, born […], 2013); C.S. (a son, born […], 2007); R.S. (a daughter, born […], 2005); Y.S. (a daughter, born […], 2004); M.S. (a son, born […], 2001); Y.S. (a son, born […], 2000); M.S. (a daughter, born […], 1999); and Y.S. (a daughter, born […], 1997).
[5] A.H. and his wife E.H. are the parents of a number of children including the appellant R.H.K. (a daughter, born […], 1996); Y.H. (a daughter, born […], 1999); T.H. (a daughter, born […], 2000); S.H. (a daughter, born […], 2002); and M.H. (a son, born […], 2004).
[6] R.(H.)K. (the eldest daughter of A.H. and E.H.) and E.K. are the parents of B.K. (a daughter, born […], 2013).
[7] The original Lev Tahor community founded by Shlomo Helbrans moved to the Ste-Agathe area in Quebec in or about 2000 and now consists of more than 250 people comprised of approximately 42 families[^1]. According to the group’s leaders, the religious beliefs of Lev Tahor are guided primarily by the Tora and their practices are analogous to the original practice of Judaism[^2].
[8] The record in this case supports the claim of the appellants that the traditional way of life of members of the Lev Tahor community is not “merely a matter of personal preference, but one of deep religious conviction, shared by an organized group, and intimately related to daily living”. For the appellants, like many communities brought together by their faith-based beliefs, “religion is not simply a matter of theocratic belief but pervades and determines their entire way of life regulating it with detail through strictly enforced rules of the church community”[^3].
[9] The acceptance by individuals of conformity to and daily practice of their deep religious conviction is not unique to Lev Tahor. Indeed, the observations regarding the Lev Tahor community above are quoted from the decision of the Supreme Court of the United States in Wisconsin v. Yoder et al. No. 70-110, in reference to members of the Old Order Amish who were the litigants in that case. Such is the commonality of the commitment of numerous and varied religious communities to the tenets of the founding and guiding principles of their faith.
[10] The adoption and practice of the Tora to the extent perceived by members of Lev Tahor as desirable or necessary in their daily lives include the type of clothing to be worn at all times; their food preparation and consumption; their language; their moral and social conduct; and, their education. All members of Lev Tahor, regardless of age or gender, adhere to the practices and tenets of their faith-based beliefs.
[11] The children in the Lev Tahor community, including the appellants’ children, are educated at home by other members of the community.
[12] The Education Act[^4] in Quebec commences with the following provisions regarding children living in that Province,
STUDENTS' RIGHTS
- Every person is entitled to the preschool education services and elementary and secondary school instructional services provided for by this Act and by the basic school regulation made by the Government under section 447, from the first day of the school calendar in the school year in which he attains the age of admission to the last day of the school calendar in the school year in which he attains 18 years of age, or 21 years of age in the case of a handicapped person within the meaning of the Act to secure handicapped persons in the exercise of their rights with a view to achieving social, school and workplace integration (chapter E-20.1)[^5] .
Every person is also entitled to other educational services, student services and special educational services provided for by this Act and the basic school regulation referred to in the first paragraph and to the educational services prescribed by the basic vocational training regulation established by the Government under section 448, within the scope of the programs offered by the school board.
The age of admission to preschool education is 5 years on or before the date prescribed by the basic school regulation; the age of admission to elementary school education is 6 years on or before the same date.
COMPULSORY SCHOOL ATTENDANCE
Every child resident in Québec shall attend school from the first day of the school calendar in the school year following that in which he attains 6 years of age until the last day of the school calendar in the school year in which he attains 16 years of age or at the end of which he obtains a diploma awarded by the Minister, whichever occurs first.
The following students are exempt from compulsory school attendance:
(1) a student excused by the school board by reason of illness or for the purpose of receiving medical treatment or care required by his state of health;
(2) a student excused by the school board, at the request of his parents and after consultation with the advisory committee on services for handicapped students and students with social maladjustments or learning disabilities established under section 185, by reason of a physical or mental handicap which prevents him from attending school; ….
(4) a student who receives home schooling and benefits from an educational experience which, according to an evaluation made by or for the school board, are equivalent to what is provided at school (my emphasis).
In addition, the school board may exempt one of its students, at the request of his parents, from compulsory school attendance for one or more periods totalling not more than six weeks in any school year, to allow him to carry out urgent work
[13] In or about 2011, the Lev Tahor community came into conflict with the local school board responsible for the geographic area in which the appellants lived with respect to the education of their children. According to Mr. Goldman, a Lev Tahor community organizer, the school board took issue with the fact that (a) the children of their community had not been registered in the local schools, and (b) the children were not educated in accordance with the curriculum required by Quebec law.[^6] In other words, the children in the Lev Tahor community were not receiving benefits from an educational experience, which were equivalent to what was provided at school.
[14] The religious beliefs of the Lev Tahor include but are not limited to (a) a rejection of the concept of Zionism; (b) a belief that God is present in everything and controls everything; (c) a rejection of Darwinism because it is based on a concept of randomness and mutation that suggests a lack of direction by a higher power; and (d) an acceptance of science generally but an interpretation of scientific principles that accords with their religious beliefs.
[15] Mr. Goldman deposes that the community attempted to work co-operatively with the school board to resolve their concerns but the board refused to accommodate their religious beliefs.
[16] As early as April 2 2013, the leaders of the Lev Tahor community developed a contingency plan in the event that the authorities would initiate action and seek to apprehend the children. Over the course of the following months, they met with municipal officials in Smiths Falls, and Belleville, Ontario and retained a licenced real estate agent to explore the possibilities of relocation and settlement in Picton, Vanklik Hills, Brighton, Bracebridge, Peterborough, Chatham and other communities[^7].
[17] In August 2013 the Director of Youth Protection (“DYP”) became involved with the appellants. The evidence indicates, however, that the DYP had been concerned about and investigating the circumstances involving the children of the Lev Tahor community for some months prior to this time[^8].
[18] The Youth Protection Act[^9] applies to children who are in situations that could potentially threaten their lives or compromise their security or development. These children are often in serious difficulty and need protection. The DYP is responsible for enforcing the Act. The DYP intervenes to put an end to and prevent the recurrence of a situation in which the security or development of the child is in danger.
[19] The Youth Protection Act specifies six situations in which the DYP is required to intervene, namely when a child is abandoned; neglected; subject to psychological abuse; sexually abused; physically abused; or has severe behavioural problems (when the parents fail to take the necessary steps or the child is 14 or older and refuses to comply with the parents' wishes).
[20] The DYP may also be required to act in three other situations in which, according to the Youth Protection Act, the security or the development of a child is in danger, namely, when the child has run away; the child is not attending school; or parents have abandoned a child following placement, such as in a foster home, under the terms of the Health and Social Services Act.
[21] A letter dated September 3 2013[^10] from Mayer Rosner and Nachman Helbrans to Denis Baraby (who is the director of the Centre jeunesse des Laurentides[^11]) with respect to the steps the community had taken in response to the concerns raised under the Youth Protection Act was filed with the court. The residents of Ste-Agathe reside within the jurisdiction of this agency.
[22] It is clear from this letter that the concerns of the DYP had gone far beyond those regarding the education of the children. The authors of this letter wrote as follows,
“With the DYP as a guide, the bar has been set to higher standards. It is truly a delight to see such a positive change by the community members and their offspring. Kitchens have been repaired, dinettes restored to perfection, floors redone, lawns and trees are tended to in a timely manner, truly a new era has arrived to our community…
Much credit is due to the DYP for their advice and patience with us on the matter and encouragement provided, hence allowing us to take the required corrective measures to ensure a healthy, safe and happy environment for all, young and old alike…
Assessments for general home safety and specifically child safety were done by licensed and professional individuals. Licensed contractors are actively repairing porches, stairways and basements etc. Other home renovations such as roofing, leak repair are just a few of the corrective measures taken as parts (sic) of our ongoing effort to improve the quality of our daily lifestyle…
Health concerns were also identified and resolved…
In a community gathering, we have put a great emphasis on cleanliness in the home. The community has started a non-profit venture to ease the burden of mothers and allow more time for them to tend to the needs of their children and household chores. A bakery is now in operation for the purpose of baking bread and other baked goods to ease the workloads of mothers at home…
In addition to confronting general environmental issues, dental health was considered and accounted for. Fungal care has been dealt with medically and naturally. Where medical advice or doctor’s orders were applicable, natural methods were overridden.
Educational material on personal and home hygiene has been prepared for lectures and distribution…Education by a certified hygienist will be lecturing to the men, woman (sic) and children of the community in the near future. A date has yet to be announced…
We aim to be in full compliance and reach our goals by March 20, 2013. We thank you in advance for your patience on the matter…
The action plan is divided in 5 sections: Health; Safety; Clothing; Education; Home Repairs…
Safe personal hygiene has been at the top of the list. In areas such as home cleaning, dental treatment and prevention, and fungal care a lecture has been delivered in a community gathering to raise further awareness on the subject…Once again, we thank you for the recommendations offered by your organization…
[Dental/oral hygiene] will be given special attention specifically to children and young adults, ensuring routine cleaning and good brushing habits…
Those with fungus and other foot maladies have booked appointments and/or seen doctors…
In the home, child and general safety was given detailed attention…repairs done and/or preventative measure taken…electrical outlet inserts; porch repairs; railings installed; gate installations; deck repairs; ceiling leak repairs; floors replaced; exhaust fans installed; steps repaired; suffocation hazards removed (ie draper cords, blind cords etc.)…safety gates repaired or installed where applicable; high chairs verified to be certified CSA or equivalent; smoke detectors installed, batteries replaced…
We are proud to inform you that as of March 20, 2013 we will be integrating French, English and Mathematical studies into the school curriculum. A complete and comprehensive guide on the new curriculum will be available on the universal deadline of March 20, 2013…
[23] According to Mr. Primeau, on October 30 2013, he met with the directors of the Lev Tahor community and another real estate agent at the Chatham address where the community now lives. They also met with officials from the municipality of Chatham-Kent to discuss expansion and other zoning-related issues.
[24] Aline Beaumier, a worker with the “Centre jeunesse des Laurentides” (“the Centre”),has deposed that on Monday, November 11 2013 she and Mr. Baraby met with the Lev Tahor community leaders, Mayer Rosner, Nachman Helbrans and Uriel Goldman. The leaders requested that the social workers from the Centre schedule appointments with the Lev Tahor families rather than making unannounced visits to their homes. She has denied the allegation by members of the Lev Tahor community that they met on November 4, 2013 and that they were ever informed that the community intended to move to Ontario.
[25] On Thursday, November 14 2013 two other workers from the Centre met with the appellant S.S. in her home. Her husband was not present. The workers explained to S.S. that a motion for “provisional measures”[^12] would be presented to the court on Tuesday, November 19 2013 and that their presence would be required. She was also advised that her regular workers from the Centre would talk to her in greater detail about the hearing on Monday, November 18 2013. S.S. was advised of her right (and the right of her husband) to be represented by a lawyer at the hearing.
[26] According to Mr. Primeau, he received a call from Mayer Rosner on Thursday, November 14 2013 and was told that the issue concerning the education of the children had forced the community to move ahead with their plans to move to Ontario. He was asked by Mayer Rosner to secure all of the vacant homes in Chatham at the location they had visited on October 30 2013. Mr. Primeau did as he was asked and has deposed that on November 15 2013 he confirmed that many of the homes would be available for occupancy on Monday, November 18 2013, with more to become available in the weeks following.
[27] On Sunday, November 17 2013 he received a notice from Mayer Rosner that buses had been booked and everything was arranged for their move to Chatham.
[28] The documentary evidence before the court confirms that a contract was entered into with a bus company in Saint-Jerome, Quebec on or about November 15 2013 for three buses with a capacity of “Autocar 56” to leave from 571 rue des Bouleaux, Ste-Agathe on November 17, 2013 at 23:59 and take the passengers to Chatham-Kent.
[29] On Monday, November 18 2013, four workers from the Centre attended at the homes of the appellants in the Lev Tahor community in Ste-Agathe and found that the entire community had left. It is their evidence that the home of the appellants J.S. and S.T. was in complete disarray with everything the family owned seeming to be left on the floor. They were apparently barely able to walk through the bedrooms[^13].
[30] With the assistance of the Quebec Provincial Police, the Centre was able to locate the appellants in Chatham. The Chatham-Kent Children’s Services were notified of the location of the families.
[31] It has since been confirmed that approximately 31 families, including 129 children, who are all members of the Lev Tahor community have relocated to the Municipality of Chatham-Kent.
[32] On Tuesday, November 19 2013 the Centre presented a Request for Protection and a Request for Provisional Measures to the Chambre de la Jeunesse of the Quebec Court with respect to each of the children of the appellants and the appellant R.(H.)K. herself. The Centre sought orders that would (a) keep the children in the care of the appellants subject to supervision by the Centre; (b) require that they report periodically to the Centre; and (c) require the appellants to comply with the law with respect to the education of each child.
[33] It was the submission of the Centre that the security or development of each of the children was compromised in that:
(i) the children are isolated from the outside world;
(ii) the children neither attend school nor receive educational instruction according to the law in Quebec;
(iii) the children do not know how to read or write in English or in French;
(iv) the children do not have the same level of general knowledge as other children of the same age outside the community;
(v) the children do not have access to any books or educational materials;
(vi) the female children spend their days learning to maintain a home, to cook and to pray;
(vii) for several hours a day, the male children receive religious education;
(viii) the children do not have access to games or toys;
(ix) the children react negatively in fear, distrust or disgust when in contact with people from outside of the community and their way of life;
(x) from the age of three, the female children are required to adhere to a strict dress code and are dressed in a chador which reveals only the oval of their faces;
(xi) most of the female children in the community are obliged to wear stockings both day and night, a practice that has resulted in fungal infection in their feet;
(xii) the children are threatened that they will go to hell if they disobey the rules of the community;
(xiii) several times a day, melatonin in the form of tablets is administered to the children; and
(xiv) the removal of children from their families is a form of punishment used in the community should the parents of the children breach the rules of the community.
[34] In addition, the Centre submitted that a wedding may be arranged for a female child who has reached the age of 14 years and lives in the community. The marriage is arranged by the Rabbi and the parents of the bride and groom. A ceremony is conducted and the marriage is then formalized by the bride and groom by way of sexual relations, which must occur following the wedding ceremony and prior to Sunrise. The sexual relationship between the bride and groom is then to be confirmed by a Rabbi.
(continues exactly as in the original judgment…)
Justice L. Templeton
Justice L. Templeton
Released: April 14, 2014
COURT FILE NO.: 5838/14; 5839/14; 5340/14
DATE: April 14, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Chatham-Kent Children’s Services
Respondent
- and -
A.H. and E.H.;
E.K. and R.(H.)K.;
J.S. and S.T.
Appellants
REASONS FOR JUDGMENT
TEMPLETON J.
Released: April 14, 2014