Earlier this month, the Supreme Court of the Northwest Territories rendered judgement on this case, involving grandparents rights of access to their grandchildren and their right to expose the grandchildren to their religion.
The Cast.
Asia and Alecsa Ewanchuk: The grandchildren
Geraldine and Allen Ewanchuk (The Applicants): The grandparents. Practising Jehovahs Witnesses.
Tracy Ewanchuk (Respondent): The mother of Asia and Alecsa. Not a Jehovahs Witness.
Daniel Ewanchuk (Respondent): The father of Asia and Alecsa. No longer a practising Jehovahs Witness. Divorced from Tracy Ewanchuk.
The Case
The Grandparents brought the case for specified access to their grandchildren, supported by Daniel Ewanchuk.
There were several access issues not agreed upon, on which the court was required to rule, but the relevant issue to this board is the ruling on the limits of exposure of the children to the Jehovah's Witness religion.
The Ruling
The following is from the Memorandum of Judgement. Highlighting is mine.
Limits on exposure of the children to the Jehovah's Witness religion
[22] The grandparents adhere to the Jehovah's Witness faith. They are actively involved in their faith and believe that not to practise it while the children visit them would amount to not portraying themselves as they really are. Both grandparents say they will not have the children accompany them while they are evangelizing. However, they have friends of the same faith who visit them and converse about their faith and the Bible and the grandparents want to be free to have these friends to their home while the children are present. They would also like to take the children, as they have in the past, to their place of worship, the Kingdom Hall.
[23] The father, Daniel Ewanchuk, was raised in the Jehovah's Witness faith and considers himself a Christian, however he does not now practise any faith.
[24] Tracy Ewanchuk was raised in an agnostic household and does not attend church. She testified that she disagrees with many of the practices of the Jehovah's Witness faith and is strongly opposed to the children being involved in it. She testified that the exposure thus far has caused Asia to question some of the things she has told the girls.
[25] This application falls under the Children's Law Act, S.N.W.T. 1997, c. 14. Section 17(1) of that Act says that the merits of an application in respect of access to a child shall be determined in accordance with the best interests of the child. In determining the best interests of a child, the court shall consider all the needs and circumstances of the child, including the child's cultural, linguistic and spiritual or religious upbringing and ties [s. 17(2)(c)].
[26] The children were two and one years old when their parents separated. Tracy Ewanchuk has been their primary caregiver since then. She has decided that their needs do not include exposure to the Jehovah's Witness or any other religion. It was obvious from her testimony that she feels strongly about this. On the other hand, I conclude from his testimony that Daniel Ewanchuk does not have strong feelings about religious upbringing for the children. Although he did say that he has respect for any faith that teaches good morals, he did not say that he wants the children to be raised in the Jehovah's Witness faith. Since he does not practise that faith, this is not a matter of the children getting to know that aspect of his life. On the evidence, it appears that he has acquiesced in the mother's wish that religion not be part of the children's upbringing.
[27] Therefore, the children's "religious upbringing and ties" as per s. 17(2)(c) of the Children's Law Act must be described as non-religious.
[28] I found Allen Ewanchuk to be the more insistent of the two grandparents on the issue of exposure of the children to his religion. His testimony indicates there are three reasons why he feels strongly about this. One is that he views any restriction on the children's exposure to his religion while they are in his home as an infringement on his rights. A second is that he views their exposure to his religious practices as something that is healthy for them. Third, he stated that in his view, the mother has the right to choose her children's instruction when they are with her and the father has the right to choose when they are with him. He implied that he views it as the father's wish that the children be exposed to the Jehovah's Witness religion. However, as I have already noted, Daniel Ewanchuk did not say that in his testimony and did not appear to me to feel strongly about the issue of religion. The most that can be said based on the evidence is that Daniel Ewanchuk does not object to the children's exposure to his parents' religion.
[29] I start from the proposition that the grandparents are neither responsible for, nor do they have the right to decide, the religious upbringing of their grandchildren. In any event, the issue is not one of rights; it is the best interests of the children. If exposure to a religion or a religious practice is not in the best interests of a child, then a court is justified in restricting the child's exposure, even though that may affect how or whether a party has access to the child. This is consistent with the requirement that the terms and conditions of access be assessed from the perspective of the child's interests and not the rights of the party exercising access.
[30] The Supreme Court of Canada dealt with this issue, albeit in the context of parent, not grandparent, access in Young v. Young , [1993] 4 S.C.R. 3. In her reasons dissenting in the result, L'Heureux-Dub J. said the following about access:
As the ultimate goal of access is the continuation of a relationship which is of significance and support to the child, access must be crafted to preserve and promote that which is healthy and helpful in that relationship so that it may survive to achieve its purpose. Accordingly, it is in the interests of the child, and arguably also in the interests of the access parent, to remove or mitigate the sources of ongoing conflict which threaten to damage or prevent the continuation of a meaningful relationship.
[31] I see nothing in the reasons of the other members of the Supreme Court indicating disagreement with that statement and in my view it must apply equally in the case of grandparent access.
[32] Justice L'Heureux-Dub also pointed out that the court's task is not to cast judgment on the religious beliefs of the parties:
In instances where there is conflict over religion, it is important to emphasize that the court is not engaged in adjudicating a "war of religion" nor are the religious beliefs of the parties themselves on trial. Rather, as courts have often recognized, it is the manner in which such beliefs are practised together with the impact and effect they have on the child which must be considered ... . In all cases where the effects of religious practices are at issue, the best interests of the child must prevail ... .
[33] Finally, as L'Heureux-Dub J. also pointed out, "While a child's exposure to different parental faiths or beliefs may be of value, when such exposure is a source of conflict and is not in the best interests of the child, such exposure may be curtailed."
[34] In Young, L'Heureux-Dub J. emphasized the right of the custodial parent to determine and put limits on the child's exposure to religion. McLachlin J. (as she then was) emphasized instead the benefits to the child of unrestricted contact with the access parent, relying in part on s. 16(10) of the Divorce Act, which provides that in making a custody or access order, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child. Here, too the emphasis is on the child's best interests rather than parental rights.
[35] There is no statutory provision relating to grandparents or other non-spouses which corresponds to s. 16(10) of the Divorce Act. So the issue falls to be decided according to the best interests of the children, but without any statutory presumption in favour of contact with the grandparents. For that reason, in my view, although the relationship with the grandparents is one that the court should encourage because the evidence indicates that it is important to the children and because relationship with extended family is generally of benefit to a child, the grandparents are on a different footing than a non-custodial parent would be. This, I think, must mean that more weight is to be given to the wishes of the primary caregiver in relation to religious upbringing and exposure.
[36] Tracy Ewanchuk is not opposed to the grandparents saying a prayer with the children before a meal or at bedtime. She does not want the grandparents to take the children to the Kingdom Hall or to teach them their religion or conduct Bible study with them. The grandparents have agreed not to evangelize and proselytize in the presence of the children and they say they do not engage in formal Bible study. So the real issues are whether they should be allowed to take the children to the Kingdom Hall or expose them to discussions between adults which might touch on the Bible and religion.
[37] There was very little in the grandparents' testimony at the trial about what the children would do at the Kingdom Hall. Religious services take place there, although it was not clear from the evidence whether the grandparents have taken the children to such services. There was some reference in Allen Ewanchuk's testimony to social activities involving other children but the nature of the activities was not described, although Mr. Ewanchuk did say it is not Sunday school. Counsel for the grandparents suggested in his submissions that there may be occasions such as weddings that the children would like to attend.
[38] The line between taking the children to religious services on a regular basis and indoctrinating them in that religion is probably so fine as to be virtually non-existent. I do not see that any benefit will accrue to the children from such activity when their mother is so adamantly against it. This has nothing to do with whether the Jehovah's Witness faith itself has merit or might be of benefit to the children. The point is that it is a source of conflict as between the parties. The conflict between their grandparents' strongly held beliefs and the mother's opposition to them and strong insistence on her own way of thinking may cause confusion to the children but, more significantly, can only be stressful to them. It seems to me that the best thing to do, in the interest of preserving the children's relationship with their grandparents in a way that does not threaten the mother's way of raising her children, is to remove the source of the conflict.
[39] Counsel for the grandparents submitted that some regard must be had to the right of the children to be involved in the Jehovah's Witness religion should they wish to be involved. There was evidence from the grandparents that the children have expressed a wish to go to the Kingdom Hall with them. However, these children are still very young and this evidence suggests only that the attraction for them is simply being able to accompany their grandparents where they go, rather than any conscious desire to be involved in their religion.
[40] In light of the conflict that has arisen from the children's attendance at the Kingdom Hall, I am persuaded that it is not in their best interests that they attend religious services there. As to other events they might attend at that location, as I have indicated above, the evidence was not detailed about that and I am unable to find that there is any benefit to the children in going to the Kingdom Hall, considered against the background of their mother's opposition to it. There must be activities elsewhere which would bring these children into contact with other children. Allen Ewanchuk indicated in his evidence that there are playgrounds and a school and children of all ages living near his home.
[41] As a practical matter, the time these children spend with their grandparents is not lengthy. Allen Ewanchuk acknowledged in his testimony that the father has the children with him for the major part of any access period. For what may be a few days or a week at a time, I am sure that the grandparents can work around the fact that the children will not be able to accompany them to the Kingdom Hall and I am sure that, as reasonable people, they will find a way of explaining this to the children that will not create more conflict with Tracy Ewanchuk. If there is a special event, such as a wedding at the Kingdom Hall, the grandparents will have to seek the permission of Tracy Ewanchuk to take the children to it. Again, I would hope this would be done in such a way as not to create expectations in the children before their mother's permission is obtained.
[42] For the same reasons, I will order that the children not be exposed to formal Bible study or to group discussions, the main purpose of which is the discussion of religion or the Bible. I appreciate that this is something that will be difficult to monitor and enforce, especially when the natural curiosity of children comes into play. It is not my intention to prohibit casual conversation or to prohibit the grandparents from answering questions which may be asked by the children. It would not be possible to prevent children in today's society from ever coming into contact with religion, for example, when they are visiting their friends. However, if the grandparents choose, during the time they have access to the children, to invite individuals to their home for the purpose of discussing religion or the Bible, they will have to ensure that the children are not part of that. I would expect that this will actually get easier as the children get older and have their own interests to pursue in preference to adult business.
[43] It is unfortunate that the end result of this must be restrictions that the grandparents will no doubt view as adversely affecting their ability to profess and practise their strongly and sincerely held beliefs. However, the conflict between them and the mother, and the negative impact of all this on the children, convinces me that this is the only option if access is to be a good experience for these children.
[44] Accordingly, I order that:
a) the Applicants shall not indoctrinate the children in the Jehovah's Witness faith, or evangelize or proselytize in the presence of the children;
b) the Applicants will not engage in formal Bible or religious study with the children or expose the children to group discussions, the main purpose of which is the discussion of religion or the Bible;
c) the Applicants will not take the children to the Kingdom Hall, except with the written consent of Tracy Ewanchuk.
Thus, it would seem that this was a defeat for the Watchtower, in that all formal indoctrination into the Jehovahs Witness religion was ruled as not being in the childrens best interests. It also demonstrates that the best interests of the child take precedence over any supposed religious rights, and that if religion is a source of potentially harmful conflict, that source can be removed.
Expatbrit.