After 10 months of court-enforced separation, Charles and Sandra Butler were reunited with their three children on December 15, 1995. Eleven-year-old Noelle, eight-year-old James, and six-year-old Sarah were placed in the "temporary care and custody" of the director of child welfare on March 10, 1995, by the provincial court in Grand Bank. The court labeled the children "in need of protection" on the assertion that they were receiving an inadequate education. Also at issue in the case was the court's suspicion of the family's life-style choice and religious beliefs. It took an appeal to the Trial Division of the Supreme Court of Newfoundland to reunite these parents with their three young children.
A Long Ordeal
In compliance with Newfoundland law, the Butlers attempted to register their home school under the school attendance act. However, none of the schools they contacted were willing to accept their registration.
In Newfoundland, home schools are allowed to register with any state or private schools in the province. The schools, however, are under no obligation to accept the registration. In the Butler's case, it seems that the schools Charles Butler contacted were simply unwilling to process the paper work associated with registering a home school.
On August 29, 1994, Charles and Sandra Butler were convicted in provincial court for failing to provide adequately for the education of their children. They were fined, placed on probation, and ordered to enroll their children in school for the 1994/1995 school year.
Convinced that home education is best for their children, the Butlers refused to enroll their children in school and continued home schooling. As a result, they were charged with a breech of probation.
On February 27, 1995, Noelle (11) and James (8), both of compulsory school age, were placed in foster care by the director of child welfare. At the subsequent hearing, the children were found to be "in need of protection," and a few days later, a "warrant to apprehend" was issued to grab the six-year-old and place her in foster care.
The court considered a number of factors in deciding to place Noelle, James, and Sarah in foster care. The first was the fact that they were not registered or had their home school program "certified" by the Newfoundland Department of Education. The court assumed, therefore, that the children were not receiving an adequate education. The court also found the fact that the children were not immunized and were subject to a vegetarian diet suggestive of over regimentation by the parents. The court also questioned the parent's use of corporal punishment and their religious beliefs.
Charles and Sandra Butler, contacted Home School Legal Defense Association of Canada Executive Director and lawyer Dallas Miller. Although the Butlers were not members of HSLDA of Canada, their plight, and the precedent-setting nature of their case for all Newfoundland home schoolers, demanded action. Dallas Miller secured local counsel David Eaton to represent the family, and HSLDA of Canada appealed the Grand Bank ruling to the Trial Division of the Supreme Court of Newfoundland.
Supreme Court Sends the Children Home
Madame Justice Maureen A. Dunn heard argument on the case in September and issued her written opinion in Butler v. Director of Child Welfare (1995, G.B. no.46, Supreme Court of Newfoundland, Trial Division) on December 15. Justice Dunn's ruling reuniting Noelle, James, and Sarah with their parents was cause for a joyous celebration, but it also marked a tremendous legal victory.
The numerous issues raised in the lower court were addressed by Justice Dunn, and in the process we now have significant rulings which will help all home schoolers who are facing out-of-control social workers.
Justice Dunn's opinion indicated that the Butlers had the right to home school based on section 7 of the Canadian Charter which states, "Everyone has the right to life, liberty and security of person and the right not to be deprived thereof except in the courts with the principles of fundamental justice." The court also favorably cited BRV C.A.S.S. of Metropolitan Toronto, 1995, (9 R.F.L. 4th 157), "In other words, parental decision making must receive the protection of the Charter in order for state interference to be properly monitored by the courts and be permitted only when it conforms to the values underlined in the Charter" (page 207). Justice Dunn states that the Supreme Court "endorses the right of parents to make decisions in all fundamental matters on behalf of their children."
On page six of the decision, Justice Dunn stated, "I am of the opinion that no evidence existed establishing neglect of the children in regard to their health and nutritional needs. No authority has been offered to suggest that refusal of immunization constitutes grounds for interference in the upbringing of the children by the state … the courts have only intervened where failure to do so might be life threatening … courts have generally preserved the right to raise children in a manner that they deem appropriate and consistent with their religious beliefs."
The court further ruled on the vegetarian diet: "As to the dietary regime, no medical evidence was offered suggesting that it is either healthy or unhealthy. The only evidence before the court was that of the parents, one of whom suggested that the children are very rarely ill. This might lead one to the conclusion that the dietary regime is in fact healthier than the standard North American diet."
Regarding the parents "inflexibility in regimentation" of their children, the court stated, "Such practice does not warrant interference in the custodial arrangement unless and until it is shown to be medically detrimental to their health" (p. 8 of the opinion).
Justice Dunn also noted that the provincial court's presumption of possible physical and mental abuse based on the fact that Mr. Butler has some "control" of his wife was not evidence of abuse of the children. Rather, the Court pointed out, Mrs. Butler's change of heart a few days after the children being apprehended could just have easily been because she simply wanted to be with her children.
Commenting on the issue of corporal punishment, Justice Dunn stated clearly "Reference was made to some measure of corporal punishment, but Canadian law has recognized that such punishment within reason is acceptable."
On the issue of the parent's religious "zealotry," Justice Dunn ruled that no evidence indicated that the children's religious education impacted them negatively. Furthermore, Justice Dunn quoted the Supreme Court of Canada's position in the R.V. Jones case of 1986 (69 N.R.241 at p. 251) "For a court is in no position to question the validity of a religious belief, notwithstanding that few share the belief."
The Bulers testified that the board had failed to consider their representations concerning their home school program. Justice Dunn, citing Jones, held that "it must be shown [by the school board] that the home school program falls below a demonstrable standard before it can be rejected." She also noted the fact that the Butlers did not have an "approved" or "certified" program is "not sufficient to prove the children are not under efficient home instruction. This would carry over into the determination under the child welfare legislation. I am of the viewpoint that lack of a certified home schooling program does not prove failure to adequately educate the appellant's children. It would appear, therefore, that the liberty interest of the appellants has been infringed" (p. 24 of the decision).
On page 14 in the decision, Justice Dunn explains, "I am satisfied that the onus upon the Director to show that these children were 'in need of protection' was not discharged." In other words, the burden is upon the welfare department to prove that the child is not receiving an adequate education. The court quotes the Kind decision (R.B. Kind, 1994, 50 Nfld. and P.E.I.R. 332 [Nf Dist.Ct.]) where Justice Berry states that "It also robs him of his right according to him under section 11(d) of the Charter, to be assumed innocent until proven guilty of the charge against him." The Butler family's liberty interest guaranteed under the Charter has been infringed. They were considered guilty until they could prove themselves innocent.
This section of the ruling is particularly significant in light of the fact that many social workers operate on flimsy evidence or anonymous tips to take children away from their parents. Now, because of Butler, social workers will no longer be able to get orders to stop parents from home schooling, or remove children from the home, simply on prejudice or suspicion. They will be required to submit evidence or show probable cause to obtain an order to gain access to or remove children from the home.
Lastly, the court found that, according to the guidelines established in the Child Welfare Act, the director's handling of the case was replete with procedural deficiencies.
First of all, Sarah Butler was not of school age, therefore, the charge of failure to provide an adequate education was not applicable to her. Secondly, the Butlers were given no notice before the hearing that the charges of failure to educate were being expanded to include medical considerations, religious zealotry, and abuse. Thirdly, the parents did not have the ability to represent themselves or object to the introduction of evidence which was inadmissible, nor did they have the opportunity to gather their own witnesses and evidence concerning the additional charges and considerations. The court made it clear that this was not "an emergency situation." The court also made it clear on page 28 that "The apprehension and placement in foster care is to be considered a last resort measure."
Good News for Newfoundland
The precedent set by this case is significant. The rights of parents are protected against the abuses of an out-of-control welfare system and the burden of proving abuse or neglect is shifted to the social worker. Families in Newfoundland and throughout Canada are rejoicing with Charles and Sandra Butler, for their victory is a victory for all home schoolers.
[CAPTION] The Butler Family: (back row, l-r) Charles, Sandra (front row, l-r) Noelle, James, and Sarah