Canada has been described as a cultural “mosaic” and while multiculturalism is undoubtedly a boon to Canadian life, differing opinions about religion and culture can lead to issues from a family law context. Recently, I had this issue come up in one of my files and thought it would be good to clarify the law in this area.
Typically, when parties separate with children, they will have to decide who has decision-making authority for the children. Having decision responsibility means having the authority to make major decisions about how to care for and raise your children. In particular, major decisions typically include:
- Health care
- Education
- Religion or spirituality
Decision-making responsibility can be sole, joint, or even split depending on the agreement of the parties or a court order.
A difference of opinion about religion or spirituality can be a serious point of contention for separated parents. There are a variety of different religious or spirituality-based decisions to be made, ranging from attending certain religious ceremonies to having a faith-based education, to dietary considerations, and even faith-based medical decisions.
Not surprisingly, parties may have different feelings about a child’s level of involvement or affiliation with a particular organization or community. So, when parents cannot agree, how will the courts decide?
This issue was considered by the Supreme Court of Canada in the case of Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 SCR 3. In this case it was determined by the court that if a party has sole decision-making authority, they generally have the right to expose a child to a certain religion, so long as this is in the child’s best interest. When parties cannot agree with respect to a major decision, the courts will use the best interest of the child to decide. The preferences of the parents do not form part of the best interests of the child analysis.
Ontario Courts respect people’s right to freedom of religion, do not view a child’s exposure to a particular religion as inherently harmful, and often take the opposite view. The way such beliefs are practiced, together with the impact and effect they may have on a child, would be considered by a court. For example, religious groups can offer a community or network for a child, and losing this network or community may not be in the best interest of the child. In the case of P.(D) v. S.(C.), [1993] 4 SCR 141, the court set out that unless the religious practice is particularly fanatical or is a point of extreme contention between the parents, such that it is harmful to the child, the courts will generally respect a parent’s right to expose their child to certain religion.
If religion and decision-making responsibility are an issue in your family law matter, the experienced Family Law Team at Boardwalk Law LLP is happy to help. Please contact Alexander Cannon, Associate Lawyer at Boardwalk Law, at [email protected] / 905.288.7109 to book a consultation today.
