Brett Coleman

Freedom of Religion in a Post-Separation, Co-Parenting FrameworkReligion is often a sensitive topic. Sometimes, a difference in faith is not an issue when two people are in love. However, religion invariably becomes a contentious issue post-separation, particularly if there are children involved.

Parents going through a separation quickly become well-versed in parenting “litigation language”, which holds at its center the “best interests of the child”. In this context, parents of different religious backgrounds who find themselves in conflict will often attempt to restrict the other parent’s practice of their religion at least insofar as the children of the marriage are concerned in terms of exposure while in that parent’s care.  A common argument made by the parent attempting to restrict the child’s exposure to the religious views, beliefs and practices of the (usually) access parent is that exposing the child to these different and often conflicting views is confusing to a child and therefore not in the child’s best interests.

The Supreme Court of Canada (“SCC”) made it clear in 1993 that this is not a valid best interests argument, without more.

In Young v. Young, the leading case on this issue, the SCC concluded that a risk of substantial harm to the child is an important factor that must be considered in any determination as to whether it is in a child’s best interests to restrict religious expression. In other words, it is not enough to say that being exposed to two or more different or conflicting religions is contrary to a child’s best interests, based on confusion alone.

In so holding, the right Honourable Justice Sopinka had the following to say:

The long-term value to a child of a meaningful relationship with both parents is a policy that is affirmed in the Divorce Act. This means allowing each to engage in those activities which contribute to identify the person for what he or she really is. The access parent is not expected to act or a part or assume a phony lifestyle during access periods. The policy favoring activities that promote a meaningful relationship is not displaced unless there is a substantial risk of harm to the child.

Justice Sopinka went on to note that in his view, and while best interest of the child is the generally applicable test, in applying that test to restrict religious expression risk of substantial harm is not only an important factor but also must be shown on the evidence before the court.

This issue arose in the recent 2017 case of S (MJ) v. M (SB) where, on appeal from a BC Provincial Court Trial decision, the appellate judge was satisfied that there had been no evidence led at Trial that demonstrated that exposing the parties’ 5-year-old child to the father’s religious views was contrary to the child’s best interests. The appeal court noted that while there could be circumstances where the conflict between two parents over religion could be significant such that evidence could be led to establish that the conflict was, indeed, causing harm to the child, no such evidence had been presented at Trial.

In that case, the father had been a member of the Jehovah’s Witnesses and, post-separation, had been deeply engaged in church activities. He wanted to be able to take the child to church and such activities during his parenting time. The Mother opposed this request.

The clause that restricted the parties from discussing religion with the child, taking him to church or church-related activities or events and prohibiting the parents from exposing the child to discussions on religion or religious material was removed.

Young, S(MJ) and other cases make it quite clear that it is not appropriate to try to limit religious activities by one or either of the parents, unless there is actual evidence that such exposure is harmful to the child in question.