Law Times

Law Times • June 16, 2014 Page 11 www.lawtimesnews.com Does Lev Tahor case signal need for legislative change? By arsHy mann Law Times hild protection cases are always a difficult matter for the legal sys- tem to deal with, but a recent situation involving a fun- damentalist Jewish sect reveals how easily things can become complicated, especially when par- ents and children are moving be- tween jurisdictions. The case concerns the Lev Tahor, a fundamentalist Haredi sect that for about a decade had lived in the Ste-Agathe area of Quebec. Child protection au- thorities in the province began investigating the group about two years ago. They were following up on concerns the children weren't getting a proper education and some of them were subject to child marriage and physical abuse. The community decided to f lee Quebec last year, leaving behind most of their belongings and eventually settling in Cha- tham, Ont. Quebec child protection au- thorities issued warrants of com- mittal for all of the children. How- ever, when Chatham-Kent child protection services tried to act on those warrants, members of the Lev Tahor took them to court. Although they initially lost, the Ontario Superior Court eventu- ally sided with them. In Chatham-Kent Children's Services v. J.S., the court ruled the warrants were invalid once the Lev Tahor crossed into Ontario. "The jurisdiction of any court in Canada with respect to child protection or child welfare mat- ters ends at the borders of the province of that court," wrote Jus- tice Lynda Templeton. "There is currently no mech- anism in place that provides for the enforcement of non-mon- etary judgments outside of the province where the court sits save and except where specifi- cally legislated." Templeton found the Child and Family Services Act doesn't include any provisions for en- forcing out-of-province orders. Instead, she said the only option available to child protection agen- cies from another province is to inform local authorities and al- low them to assess the case within their own mandate. According to Templeton, this was an intentional feature of the law and not an oversight. "Unlike circumstances involv- ing child abduction, the children in this case have not removed from a parent without the consent of that parent. They have been found to be at risk with respect to all adults who were responsible for them and in need of protection," she wrote. "Armed with this infor- mation, the state's agency where the family is newly located is in a position to continue the quest for an appropriate order or take such further and other steps as the state deems fit." She also found Chatham- Kent child protection services couldn't gain custody of the children under the Children's Law Reform Act. Despite the Ontario Superior Court's ruling, Quebec child pro- tection authorities have kept the warrants for committal in place even for children not suspected of having suffered abuse. "The Ontario court has ruled that these children, whatever chil- dren, they all fall within the ju- risdiction of Ontario. There is no need anymore to apprehend these children," says Guidy Mamann, a lawyer for the Lev Tahor. "Now it's more arguable that not only is it not in the best in- terests of the children but it's against their best interest. These children's lives cannot be en- hanced whatsoever with these warrants of committal remain- ing in place." Nicholas Bala, a professor of law at Queen's University, believes the case demonstrates the need to change the provincial law. "In Ontario, we have to look at our child welfare legislation and make sure, in my view, that our child welfare legislation permits the enforcement of orders from other provinces," he says. He thinks the ruling may lead to other individuals and groups who are under investiga- tion by child protection authori- ties to f lee as well. "Certainly, a case like this doesn't discourage people who are involved in the child protection system from moving from one jurisdiction to another," he says. "Maybe people won't have the resources, but some of them will, and particularly moving from one province to another may not be that difficult if you're living close to the border." Bala thinks that to avoid situa- tions like this in the future, child welfare agencies in different prov- inces as well as internationally will have to find more effective ways to work with each other. "We're certainly seeing an in- crease in international mobility of both adults and children and we will increasingly be facing these issues in a broad sense," he says. LT FOCUS LEONARD KUNKA | CRAIG BROWN | DARCY MERKUR YOUR ADVANTAGE, in and out of the courtroom. Since 1936 Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. As a law firm specializing in civil litigation, we have a record of accomplishment second to none. With a group of 30 litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. Moreover, we are exceptionally fair when it comes to referral fees. We welcome the chance to speak or meet with you about any potential referral. We look forward to creating a solid relationship with you that will benefit the clients we serve. TF: 1.888.223.0448 T: 416.868.3100 W: www.thomsonrogers.com TRUST (YHU\WLPH\RXUHIHUDFOLHQWWRRXUßUP you're putting your reputation on the line. It's all about trust well placed. Untitled-1 1 14-02-04 7:47 AM Continued from page 10 courts don't always approve them. While the Child and Family Services Act mentions adult adoption, the legislation doesn't lay out clear grounds for when to allow it. Instead, four criteria have developed in the case law over the years: both parties have to be aware of the legal implications of an adoption; the application must be motivated by "the psy- chological and emotional need of the proposed adoptee for a new parent"; the adoption would create an actual change in the relationship; and the relationship would be "enhanced and strengthened" by the adoption order. In a 2004 case, Re Proposed Adoption of W.(S.), Superior Court Justice Robert Spence rejected an adoption application partly because he questioned whether the applicant might one day repair her relationship with her biological mother. Kevin Robins, a family lawyer with Lancaster Brooks & Welch LLP in St. Catharines, Ont., dealt with an adult adop- tion case last year. "I thought we could get it, but it certainly wasn't a sure thing and they understood that," he says. "But it was important to the parties. They wanted to do this. They both really expressed that to me, that it was an important step that they wanted to take and confirm their relationship as parent and child." The case involved a 66-year-old man who wanted to adopt his 30-year-old stepdaughter. The woman had had very little contact with her father, who lived in Ukraine, since her parents' divorce more than two decades ago. When her mother remar- ried, she formed a close bond with her stepfather. "He treated her like his daughter for all intents and purposes even though she was an older child by the time he came into the picture," says Robins. According to Robins, there are many legal reasons why two people may want to go through with an adult adoption. Among them is to ensure the adopted child can become the parent's legal guardian in case they become incapacitated. But for the two people Robins was representing, formalizing their relationship was especially important. "They just wanted to make legal what they saw as the rela- tionship, in fact, that he was the dad," says Robins. In order to satisfy the four criteria set out by the court, Rob- ins provided affidavit evidence from the stepdaughter, stepfa- ther, and mother. He says the most difficult bar to clear was to demonstrate the adoption would enhance the relationship be- tween the applicants. In his ruling, Justice Joseph Henderson accepted that that was the case. "They request confirmation that their relationship will be something that cannot be terminated; it will be in place forever, during good times and bad," he wrote. "The order will give the family a sense of stability and wholeness. " For Robins, this was a good result. "You've got a family that's happier," says Robins. "When dealing with family law, it's so often that one or both sides of a file are unhappy, but here everyone's happy, so it's a nice change in the practice of law to have that." LT C Approval not automatic

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