Broader border concerns

Broader border concerns
Illustration: Kim Rosen
Guidy Mamann was at a former employee’s wedding when he received a phone call. “The community called me to tell me that one plane made it to Guatemala and the other one was stuck in Trinidad and the Canadian government had gone out, chased them down, and brought them back,” says the senior partner with Mamann Sandaluk & Kingwell LLP. The “community” was Lev Tahor, a Haredi Jewish sect that had recently fled from Quebec to Ontario in an attempt to evade child protection authorities. A handful of the approximately 40 families had then tried to go to the Caribbean, but only a few made it successfully.

When Mamann arrived at the airport, four children had been taken into protective custody, but he was able to arrange for the release of the parents. Mamann, who is himself Jewish and fairly observant, says he’s known many Haredi families and was skeptical the allegations against the group could be true. “What I could say is that at the very least there is great suspicion about this community and a tremendous lack of cultural knowledge and cultural sensitivity of this community,” he says. “There just simply was a lack of trust on both sides of the table. And of course, when you have that, you have people doing crazy things like running away.”

Lev Tahor arrived in Canada over a decade ago, settling in the Ste-Agathe -des-Monts area of Quebec. Like most Haredi communities, they eschewed the modern world, instead focusing on studying the Torah. Their fundamentalist leanings meant morning prayer lasted for hours, people spoke only Yiddish, and women and girls wore a chador-like garment in public, covering everything but the oval of their face.

Quebec child protection authorities, who had been investigating the group for two years, allege some of the 129 children were being deprived of a proper education and were subject to harsh abuses, including corporal punishment and child marriage. The relationship between the community and the agency began to deteriorate, and when a court instructed the families of 14 of the children to appear for a hearing, the community decided to flee.

On Nov. 17, they filed into a number of rented buses and went to Chatham, Ont., leaving behind most of their belongings. But when they arrived in Ontario, neither the problems of Lev Tahor nor the dealings with child protection authorities were over.

The inter-jurisdictional movement of children is nothing new. But according to Nicholas Bala, a law professor at Queen’s University, as travel has become cheaper, the number of cases has increased significantly, and neither legislation nor the common law in Canada has kept pace with the issues that arise. “We’re certainly seeing an increase in international mobility of both adults and children and we will increasingly be facing these kinds of issues,” he says.

Even among isolated religious communities like Lev Tahor, international ties are common and a suspicion of government forces is prevalent. Bala points to Bountiful, B.C., which was settled by the Fundamentalist Church of Latter Day Saints, a polygamist Mormon denomination. Movement of children between other FLDS settlements in the United States and Mexico occurred often, even with authorities investigating the welfare of children. “It is often the case that fundamentalist religious groups like this have members around the world or at least in more than one jurisdiction. When they run into difficulties in one jurisdiction, there’s a tendency to move to another or to send people back and forth.”

But if governments try to intervene, the legal tools at their disposal are limited.

In the Lev Tahor case, when the Chatham-Kent child protection authorities petitioned the Ontario courts to allow them to send the children back to Quebec, the courts at first agreed. But in Chatham-Kent Children’s Services v. J.S., Superior Court Justice Lynda Templeton overturned the decision on appeal. She found the Child and Family Services Act did not allow for enforcement of extra-provincial child protection orders. “There is a fundamental premise that if children are at risk, the local agency that acts on behalf of the state where the children are located has and must have the power to act on the basis of its own information,” she wrote.

She went on to say: “Consistency in the foundation and application of the principles of law throughout the country with respect to child protection ensure that the consequence of flight by parents with respect to the children is not visited upon the children.

“In other words, it does not matter where you go in Canada, no parent will be allowed to place a child at risk and/or infringe upon that child’s rights with impunity.”

Bala worries about the precedent set by this case. “Certainly a case like this doesn’t discourage people who are embroiled within the child protection system from moving from one jurisdiction to another,” he says. “We have to look at our child welfare legislation and make sure in my view that [it] permits the enforcement of orders from other provinces.”

And when international travel comes into play, as with the flight of some Lev Tahor families to Guatemala, enforcement becomes even more difficult. While two international treaties exist to deal with these issues, the 1980 Hague Convention on the Civil Aspects of Child Abduction and the 1996 Hague Convention on Parental Responsibility and Protection of Children, Canada has never signed the latter and doesn’t recognize Guatemala’s accession to the former. “All our child welfare authorities have no legal basis now for taking steps to protect those children,” says Bala.

The Department of Foreign Affairs Trade and Development said in a statement Canada has not yet decided on whether to accept Guatemala’s 2002 accession to the convention or whether or not to sign the 1996 Hague Convention on Child Protection, but wouldn’t go into specifics. Instead, Quebec authorities tried to use the immigration system to get the community to return the children to Quebec. After Lev Tahor left Ste-Agathe-des-Monts, a Quebec court issued warrants for committal for all 129 children, not just the 14 children who were the subject of the missed court date.
That meant the children, almost all of whom are Canadian citizens, could not receive their passports, even after jurisdiction of the case was taken over by Ontario. Their parents are either Israeli or American citizens who had been staying in Canada on religious worker permits. Some of those permits are set to expire, but the Quebec government shows no signs of budging. “If an extension of their status is refused and if they don’t leave, they’re subject to arrest and deportation,” says Mamann. “So they do want to leave, but they can’t leave their children behind. And with that warrant for committal standing out there, they can’t get a Canadian passport.”

Now the community and child protection authorities are stuck in limbo. While Ontario is investigating the claims of child abuse and neglect for those community members in Chatham, they have no legal recourse against the families that have fled to Guatemala, some of whom had the most serious allegations leveled against them. Meanwhile, even Lev Tahor members who are not under investigation cannot get passports for their children, and so are chained to Canada, a country they’re increasingly disillusioned with — that is, until their permits expire, at which time they could be deported.

Bala thinks the only way to avoid these types of situations is for Canada and the international community to increase their institutional and legal competencies. “Our child welfare agencies need to be able to deal with these situations as does our legal system and our immigration system.”

Recent articles & video

How Awanish Sinha and his public law group at McCarthy Tétrault embrace uncertainty

Employers must be careful when it comes to electronic monitoring of workers: Roper Greyell lawyer

Ontario's new electronic monitoring law lacks clear definition of 'electronic monitoring:' lawyer

Canadian Hispanic Bar Association welcomes new board of directors

Proposed law creating new Canada disability benefit presented for second reading

No exceptional circumstances warranting reopening of appeal in murder case: Alberta Court of Appeal

Most Read Articles

MLT Aikins expands Vancouver footprint with addition of litigation practice of Hakemi & Ridgedale

BC outlines intentions to create a single regulator governing lawyers, notaries, paralegals

Can technology take over the legal profession?

Canada extending term of copyright protection from 50-to-70 years