Judge rejects church appeal

Note: This church is independent and not affiliated with the Church of God congregations.

The London Free Press/March 1, 2005

By Jonathan Sher

A case that drew international attention when seven children were dragged from their Aylmer home by social workers wilted yesterday before an appeal court judge in London. There were no rows of singing children yesterday from Aylmer's Church of God, no men dressed in hand-made garments or women with hair pulled tightly back in buns, as there had been at court hearings in St. Thomas.

Nor was there church pastor Henry Hildebrandt, described by the trial judge as an instigator of a confrontation that ended July 4, 2001, when the children were pried from the arms of church members.

There was no debate about parenting methods in the Aylmer home that had included hitting children with belts, an electrical cord and the handle of a fly swatter.

In fact, there was barely time for argument at all. The parents' lawyers were stunned when their appeal was dismissed before it got going.

"I'm just in a daze," said lawyer Valerie Wise, who represented the Aylmer mother of the children.

After the lunch break, it took Superior Court Justice Lynne Leitch only moments to dismiss the appeal, which had been months in the making.

So swift was the judgment that Wise's co-counsel, Michael Menear, who had been detained several minutes, returned to an emptying courtroom.

Leitch didn't discuss her reasoning, saying she would prepare a written order to be released later this week. But it was clear as she questioned the parents' lawyers that she had concerns about the merits of the appeal. An appeal court can consider if a trial judge made a mistake in the law but can't question conclusions made about facts.

But when Wise was asked if she would accept the facts determined by the lower court, she replied, "By and large."

That drew this remark from Leitch: "What causes apprehension . . . to myself is when you use the phrase 'by and large.' "

When Wise went on to dispute a finding by the trial judge that the mother had consented to her children being questioned and examined by social workers, Leitch was blunt.

"I'm really having trouble with this. I could conclude the trial judge made a mistake in a finding of fact. That's what you're really asking me to do."

Leitch also questioned if there was a basis for the appeal as the parents have long since settled their dispute with Family and Children's Services of Elgin and St. Thomas and their children are no longer under its supervision.

Such a circumstance, called a moot appeal, can be heard if it can result in a ruling that would have a broad effect beyond the parties to a case.

But how could there be a broader effect, said Leitch, when Wise wasn't questioning laws that govern the children's agency, but rather how the trial judge applied it.

"Isn't that particular to this case?" the judge asked.

Afterward, Wise said she wouldn't decide whether to file an appeal until she could read Leitch's written decision.

Yesterday's ruling was a victory for children, said Alf Mamo, the lawyer for Family and Children's Services.