F.Conclusion In summary, the test applicable to the right to access in respect of a minor child by a non-custodial parent is that of the child's best interests, in accordance with art. 30 C.C.L.C. The child should be the focus of the court's concerns as it is the child's rights which are at issue, not those of the parents. The criterion of the child's best interests does not simply mean that the child must not suffer harm. Rather it means that the child is entitled to the best possible conditions in order to protect its best interests, taking into account the circumstances of the child and those of its parents and a range of factors such as age, sex, religion, needs, resources, and so on, as provided by art. 30 C.C.L.C., which governs this dispute between unmarried parties who are parents of a young
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child. Any agreement in this regard may be varied by the court if the child's interest so requires.
The criterion of the child's best interests set out in the Civil Code confers a broad discretion on the courts. This does not mean, however, that it is contrary to the Constitution or that it is vague within the meaning of ss. 1 and 7 of the Charter.
The case at bar is not a war of religion. It is simply a question of determining where the best interests of the child C. lie in respect of the rights of access of a non-custodial parent. The Charter does not apply to the order made by the trial judge, apart from exceptional circumstances not present here, as the judiciary is not covered by s. 32 of the Charter. In any case, even if the Charter applied, none of its provisions would be infringed here, in particular the freedom of religion and of expression relied on by the appellant, and s. 1 has no application.
As the trial judge made no error of principle and no error in his determination of the facts on the evidence, I agree with the majority of the Court of Appeal that there was no basis for intervention.
I would accordingly dismiss the appeal with costs throughout.
The constitutional questions should be answered as proposed by my colleague Madame Justice McLachlin.
The following are the reasons delivered by
S OPINKA J. (dissenting) -- Subject to my comments in Young v. Young, [1993] 4 S.C.R. 3 (released concurrently herewith), I agree with McLachlin J.
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The following are the reasons delivered by
C ORY AND I ACOBUCCI JJ. -- We have read with great interest the reasons of our colleagues L'Heureux-Dubé, Sopinka and McLachlin JJ. We agree that the fundamental issue to be determined in cases involving custody or access is what the disposition of the case would be in the best interests of the child.
Neither differences of opinions of parents regarding religious questions nor the frank discussion of their differing religious perceptions by both parents with the children will be automatically harmful. Indeed it may often be beneficial. We would repeat a portion of our reasons in Young v. Young, [1993] 4 S.C.R. 3, at pp. 110-11, which were to this effect:
We find it difficult to accept that any genuine and otherwise proper discussion between a parent and his or her child should be curtailed by court orders. Indeed, curtailment of explanatory or discursive conversations or exchanges between a parent and child should be rarely ordered in our view. To take an example, suppose custodial Parent A is a member of a fundamentalist religion and access Parent B is a scientist who espouses the pure Darwinian theory of evolution. We find it unacceptable that Parent B should be ordered, under the rubric of the best interests of the child test, not to discuss or explain his views to his child as opposed to being forbidden from indoctrinating or otherwise undermining the religious choice made by the custodial parent for the child or children involved. Surely the best interests of the child test embraces genuine discussion of religious belief as opposed to indoctrination, enlistment or harassment, having the aim or effect of undermining the religious decision made by the custodial parent.
The decision of the trial judge in this case is quite frankly troublesome. There was very little evidence that access by the father was not beneficial to the child. However there was some evidence that the child's behaviour after visits with the father was such that it might be interpreted they had been disturbing for her. As a result it might be said to be in her best interests to place some limitations on the father's access. The trial judge did interpret the evidence as demonstrating
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that the child was disturbed by the father's repeated references to his religious beliefs and imposed limitations on the father's access.
On issues of credibility, a trial judge is uniquely well placed to make the necessary findings. An appellate court should, apart from exceptional situations, refrain from interfering with those findings.
Similarly the trial judge is in the best position to assess evidence pertaining to the best interests of the child. It is the trial judge who not only hears the evidence but also has the great advantage of watching the demeanour of all who testify. It is the trial judge who can take into account the significant pauses in the responses, the changes in facial expression, the looks of anger, confusion and concern. In the vast majority of cases as a result of hearing and seeing all the witnesses, it is the trial judge who is in the most advantageous position to determine the best interests of the child. Here the trial judge was aware of and applied the test of the best interests of the child and to that end imposed the two conditions upon visitation. Although we would not have imposed them, they are not so unreasonable as to require amendment. It follows that despite our misgivings, his decision should be upheld. We therefore agree with the disposition of the appeal proposed by L'Heureux-Dubé J.
The following are the reasons delivered by
M C L ACHLIN J. (dissenting) -- This case, heard concurrently with Young v. Young, [1993] 4 S.C.R. 3, challenges the constitutionality of arts. 653 and 654 of the Civil Code of Quebec ("C.C.Q."), and of art. 30 of the Civil Code of Lower Canada ("C.C.L.C."). It also raises the question of whether, if the articles are constitutional, the courts below erred in interpreting them so as to permit restrictions on the access of the appellant, more particularly, orders that he not "continually indoctrinate"
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his child with the beliefs of the Jehovah's Witness faith, that he not take her to the meetings or ceremonies of his faith, and that he not take her on any door-to-door canvassing activities.
The impugned articles of the Civil Codes read:
Article 30 C.C.L.C.:
30. In every decision concerning a child, the child's interest and the respect of his rights must be the determining factors.
Consideration may be given in particular to the child's age, sex, religion, language, character and family surroundings, and the other circumstances in which he lives.
Articles 653 and 654 C.C.Q.:
653. In the case of difficulties relating to the exercise of parental authority, the person having parental authority may refer the matter to the court, which will decide in the interest of the child after fostering the conciliation of the parties.
654. The court may, for serious cause and in the interest of the child, on the motion of any interested person, declare the father, the mother or either of them, or a third person on whom parental authority may have been conferred, to be totally or partially deprived of such authority.
I note immediately, because the argument was raised by the appellant, that this appeal does not raise an issue of the deprivation of parental authority, and there is no need for the Court to consider the civil law notions of "autorité parentale" and "garde" for the purpose of disposing of this appeal. Article 648 C.C.Q. provides that parents of a child have parental authority, irrespective of their marital status; the courts by virtue of art. 654 are the arbitrators of disputes between the holders of parental authority, when such disputes arise. The courts below did precisely as this latter article contemplates, and arbitrated such a dispute; no deprivation of parental authority was involved.
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The dispute takes the following character. The mother of the child objected to the fact that the father, on access visits, taught the child the teachings of his faith. The child was very young. She was influenced by the teachings of her father. There was evidence that when the child would return home from visiting her father, she made repeated references to "Jehovah", i.e. [ TRANSLATION ] "Jehovah made [C.], the moon, made the stars, made everything". The child told the mother that her father said that it was wrong to dress up on Halloween and wrong to celebrate Christmas, there being no Santa Claus. Finally, the evidence indicates that the father took the child to a reunion of Jehovah's Witnesses in Montreal, without the mother's prior consent. This reunion was attended by many parents with children. For this act, and others which the mother thought objectionable, the mother denied the father the opportunity to see the child outside of her home.
The trial judge's finding that the appellant [ TRANSLATION ] "took the child for a few hours while he was going door-to-door spreading his religion" ([1988] R.D.F. 40, at p. 41) is nowhere supported in the transcripts of evidence. More importantly, there was no evidence that the child suffered, or was likely to suffer, any psychological or physical harm as a result of any of the foregoing conduct or teaching.
The trial judge made the orders to which I have alluded above. He applied the "best interests of the child" standard, and interpreted this standard as, in this context, requiring some demonstration that the father's activities were harmful (nuisibles) to the child. He was prepared to assume that where the religious views of separated parents conflict, and where the child in question is not of an age where she can choose for herself between religions, the existence of harm incompatible with the best interests of the child is incontestable.
The Court of Appeal affirmed the orders: [1991] R.J.Q. 306. The majority found that there were no
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grounds for overturning the findings of fact below, which, while partially erroneous, supported the orders. The majority also appears to have accepted a lower evidentiary standard in determining the best interests of the child, stating (at p. 308):
[ TRANSLATION ] At that particularly vulnerable age, where, as everyone knows, psychological and emotional traumas often prove to be irreversible, there is no need to wait for such traumas to occur before intervening. The risk is unacceptable and the proposition that she should run the risk before being protected is inadmissible.
Proulx J.A. dissented, in part, on the ground that he did not agree that the evidence supported the inference of harm from attendance at religious meetings or ceremonies. He added that there was no evidence that the appellant's door-to-door canvassing could harm the child, and indeed, no evidence that the child had accompanied the appellant on such activities. Proulx J.A. accordingly found that the trial judge's second order should be struck in its entirety, although it should be noted that he so found because he presumed that the appellant would be bound by the first order.
1.The Constitutionality of Arts. 653 and 654 C.C.Q. and Art. 30 C.C.L.C.
Articles 653 and 654 C.C.Q. and art. 30 C.C.L.C. affirm the "best interests of the child" standard -- the same standard as in the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), ss. 16(8), 16(10) and 17(5). These sections, and the standard in particular, are considered in Young, supra, released concurrently. The analysis of the constitutionality of the standard under the Divorce Act, applies equally to the articles of the Civil Codes impugned in this appeal, and need not be repeated here. The standard, and the articles that set it forth, are constitutional, and infringe no entrenched rights.
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2.The Application of the Test
The trial judge below concluded that in order to justify limits on the activities and speech of an access parent when with his child, there must be some indication that the impugned activities might harm the child. He correctly identified the risk of harm to the child as an important factor in determining the best interests of the child where the issue is whether a parent can share his religious beliefs with his child: see my reasons in Young.
This issue aside, where all of the judges below erred, with great respect to each, is in inferring harm from the mere presence of conflict between the parents on religious questions, and concluding from this that restrictions were required in the best interests of the child. There was nothing in the evidence to suggest that the child would be adversely affected as a result of the father's activities or teaching. In short, there was nothing in the record to offset the benefit which might accrue to the child from learning to know her father fully, including his religious values. There was no evidence that the conflict between her parents' religious beliefs was creating any problems for the child. It is not uncommon for married couples to have different beliefs, nor for one or both to wish to impart their beliefs to their children. It is not suggested that children in such families suffer harm. Nor, it seems to me, should it be assumed of children whose parents are separated. Indeed, the provisions of the Civil Code of Quebec suggest that no such distinction can be made: see art. 648. The fact that the mother wanted, as she put it, her child to grow up with the same joy in Halloween and Christmas as she had grown up with (at p. 136 C.O.A.) is insufficient to support an order forbidding the father to impart his views on such holidays. Nor is the fact that the mother felt the father spoke too much about his religion with the child sufficient in itself to justify an order restricting
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him from "continually" doing so (presuming that such an order could be enforced).
In the absence of evidence capable of outweighing the benefit of full and free access, the court should not have interfered with the access parent's activities, in my view. I would allow the appeal and set aside the orders. I would answer the constitutional questions as follows:
1.Do articles 653 and 654 of the Civil Code of Quebec, and art. 30 of the Civil Code of Lower Canada, which provide that judicial decisions regarding custody and access be made "in the interest of the child" deny the rights and freedoms guaranteed in s. 2(a), (b), and (d) of the Canadian Charter of Rights and Freedoms?
No.
2.If the answer to question 1 is affirmative, are arts. 653 and 654 of the Civil Code of Quebec, and art. 30 of the Civil Code of Lower Canada, justified as reasonable limits by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982?
Given my answer to question 1, there is no need to answer this question.
3.Do articles 653 and 654 of the Civil Code of Quebec, and art. 30 of the Civil Code of Lower Canada violate the guarantees to equality set out in s. 15 of the Canadian Charter of Rights and Freedoms?
No.
4.If the answer to question 3 is affirmative, are arts. 653 and 654 of the Civil Code of Quebec, and art. 30 of the Civil Code of Lower Canada, justified as reasonable limits by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982?
Given my answer to question 3 there is no need to answer this question.
The respondent requests costs on a solicitor-client basis, which she justifies by submitting that the appellant did not raise a meritorious argument that he receive custody, and that those allegedly financing him have used this appeal as a means of promoting and gaining publicity for the "cause" of
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the Jehovah's Witness faith, adding unnecessary expense. I am not entirely unsympathetic to the respondent's concerns, to the extent that the appellant here made allegations which were not directly relevant to the outcome of this particular case. I do not find, however, that these actions on the part of the appellant were sufficiently egregious as to permit the award of solicitor-client costs. I refer to the discussion of the propriety of such an award in Young.
In the circumstances of this case, I would order that each party bear his or her own costs of this appeal.
I'm no lawyer, but my understanding of this ruling, is that if a custodial parent is concerned that a 'fanatical' non-custodial parent is 'indoctrinating' their child, the custodial parent has the right to legally order the non-custodial parent to not attempt to 'indoctrinate' the child, for the best interest of the child.
Also of interesting note, this was found to be a matter of the child's right of protection of their best interest, instead of the parent's right to preach to their kids.
