Life and the Law

Susan Kootnekoff is a lawyer with Inspire Law. Phone: 250-764-7710. Email: info@inspirelaw.ca. On the web: inspirelaw.ca. The content of this column is intended to provide general thoughts and general information, not to provide legal advice. This column appears Fridays in The Daily Courier.

Several years ago, our young daughter needed to know: “Is Santa Claus real?”

Despite my attempts to fend off these questions, they continued. As did the lack of clear responses.

Then, a few months later, she had a burning desire to know: “Mom, is the Easter Bunny real?”

These questions have vexed many a parent who believes in the wonder of childhood, and in honesty between parents and children.

It had not occurred to me that anyone would try to compel me to provide a particular response.

But that is exactly what happened to some foster parents in Ontario a few years ago.

Frances and Derek Baars, who were devout Christians, applied to become foster parents. They also hoped to adopt one day.

During the application process, they disclosed that based on their religious beliefs, they did not celebrate Halloween or promote Santa Claus or the Easter Bunny. They did not want to lie to children.

In December, 2015, two sisters were placed with the Baars. The intention was that they would some day return to their biological parents.

The birth mother wanted the children to experience the Easter Bunny and Santa Claus.

Within days, an issue arose because the Baars would not promote Santa Claus. Mrs. Baars told a children’s aid worker that Santa does not come to her house. The worker then advised the children that Santa would be delivering presents to their mother’s home.

Then, a few months later, a children’s aid worker insisted that the Baars inform the girls that the Easter Bunny was a real entity.

They refused to either tell or imply that the Easter Bunny was delivering chocolate to their home.

The Baars believed that “truth-telling in every area of life is important. … It was crucial that we knew we were telling the children the truth and they had the right to expect us to tell the truth.”

They intended to hide chocolate eggs for the girls, and play other games. They did not plan to speak to the children about the Easter Bunny, unless the girls specifically asked.

For this reason, the Aid Society closed their foster home. The girls, aged three and five, were taken away, their lives disrupted once again.

The Baars moved West, and commenced a legal challenge against the Children's Aid Society of Hamilton.

They sought a declaration that the society violated their freedom of conscience and religion, freedom of expression, and the right to be free from discrimination under sections 2(a), 2(b), and 15 of the Canadian Charter of Rights and Freedoms. They also sought a declaration that closing their foster home was unreasonable, discriminatory and contrary to and violated their Charter rights.

In a 62-page judgment, the court agreed. It found that the society violated the Baars’ fundamental rights to freedom of conscience and religion and freedom of expression.

The evidence was that the Baars did “attempt to preserve the children’s enjoyment of the holidays, even if they were not able, pursuant to their religious beliefs, to positively perpetuate the existence of … characters that are associated with those holidays.”

The court found that the society had created in bad faith and for an improper purpose a requirement to actively or proactively inform the children that the Easter bunny is real.

It said the CAS’s actions were “capricious,” “not in the children's best interests,” and potentially revealed an “underlying animus” by the society and its workers.

The agency’s decision to remove the children prevented the couple from fostering other children and likely interfered with their plans to adopt.

The couple hoped that the decision would assist their adoption process to go more smoothly.

No doubt they were glad that they had fought for their rights, and held to account those who had wronged them.

Susan Kootnekoff is a lawyer with Inspire Law. Phone: 250-764-7710. Email: info@inspirelaw.ca. On the web: inspirelaw.ca. The content of this column is intended to provide general thoughts and general information, not to provide legal advice.