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A father whose conviction was upheld for failing to provide the necessaries of life to his son says he and his wife are taking their case to Canada’s top court.

In a Facebook post, David Stephan thanked his lawyers for initiating a conversation with the Crown to allow him to stay out of jail while they file a Supreme Court of Canada application.

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Stephan and his wife, Collet, were found guilty last year in their son Ezekiel’s 2012 death from bacterial meningitis.

Their trial in Lethbridge, Alta., heard they treated the 19-month-old boy with garlic, onion and horseradish rather than taking him to a doctor.

Because the three-member Alberta Court of Appeal ruling to uphold the conviction was not unanimous, the couple has an automatic right to have the Supreme Court hear arguments in the case.

David Stephan was sentenced to four months in jail and his wife was ordered to spend three months under house arrest — the only exceptions being trips to church and medical appointments.