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Canada - Freedom of Religion

Author: Wren
Posted: October 3rd. 1997
Times Viewed: 22,026

Some Canadian case precedents and legal arguments on freedom of religion in schools and in child custody cases.

General Law Decisions: SCHOOLS

1996]-3 S.C.R.-Adler v. Ontario-609: Indexed as: Adler v. Ontario File No.:24347. 1996: January 23, 24; 1996: Novembe 21:

The constitutional questions before this Court queried: (1) whether th definitions of "board" and "school" in s.1(1) of the Education Act, together with the annual general legislative grants, infringe or deny the appellants' freedom of religion under s.2(a) of the Charter or their s.15(1) equality rights by not providing funding to dissentient religion-based schools, and if so, is this non-funding justified under s.1, and (2), whether s.14 of Regulation 552, R.R.O. 1990, which prescribed school health support services as insured services to an insured person who is placed in a special education program in a "school" as defined in s.1(1) of the Education Act, but not to an insured person in a dissentient religion-based school, infringes or denies the appellants' freedom of religion under s.2(a) of the Charter or their s.15(1) equality rights by not providing these services to dissentient religion-based independent schools, and if so, was this withholding of services justified under s.1.


"An individual, to make out a violation of his or her rights under s.15(1) of the Charter, must demonstrate:

(1) a legislative distinction;
(2) that this distinction results in a denial of one of the four equality rights on the basis of the rights claimant's membership in an identifiable group; and
(3) that this distinction is "discriminatory" within the meaning of s.15.
The examination of whether the distinction is discriminatory should be undertaken from a subjective-objective approach, i.e., from the point of view of the reasonable person, dispassionate and fully apprised of the circumstances, possessed of similar attributes to, and under similar circumstances as, the group of which the rights claimant is a member. In determining whether discrimination has occurred, it is necessary to reconstruct the context in which the distinction arises. Two categories of factors prove particularly instructive:

(1) the nature of the group adversely affected by the distinction and
(2) the nature of the interest adversely affected by the distinction.
This approach is primarily effects-oriented in its contextual determination of the impact of the legislation in question on a particular group.  Inherent in this model is a recognition of the importance of adverse impact discrimination in present-day society.

The legislature creates a distinction between the appellants and others who are able to access publicly funded education in the surrounding social context. As found at trial, remaining a member of the particular religious communities in question and acting in accordance with the tenets of these faiths required that the children be educated in a manner consistent with the faith and therefore outside of the public or Roman Catholic schools.

Control over the education of their children was essential to the continuation of the religious communities in question. This distinction results in the denial of the claimants' s.15 right to equal benefit of the law on the basis of their membership in an identifiable group.

State action which discriminates on the basis of religion cannot be excused on the grounds that religion is a choice and that the individuals may choose to avoid the negative impact which arises from the state's response to their religious identity. Discrimination on the basis of religion would become an empty concept.

The degree of choice which a person may be expected to have in identifying with a particular group, while relevant to a determination of discrimination, must be assessed from the subjective-objective perspective. In this case the appellants would see themselves as not having a choice.

Section 2(a) of the Charter is primarily concerned with the necessary limits to be placed on the state in its potentially coercive interference with the original, objectively perceived religious "choice" that individuals make. Section 15 ensures that consequences in behaviour and belief, which flow from this initial choice and are not perceived by the rights claimant as optional, are not impacted upon by state action in such a way as to attack the inherent dignity and consideration due all human persons. The protections afforded in s 15 may thus be of greater scope than those in s.2(a).

Accommodation as understood in human rights law is applicable to the rights enumerated in s. 15 of the Charter. The exemption for religious parents contained in s.21 of the Education Act does not constitute the accommodation necessary under s.15 to ensure equal access in real terms. Rather, it addresses the potential coercive aspect of mandatory secular education alone, and thus allows the impugned legislation to meet the requirements of s.2(a). In a case of unequal benefit, accommodation will mean taking the steps necessary to ensure access of these parents without discrimination. Given the complete denial of this benefit to those who cannot access it for religious reasons, the equal benefit of a publicly funded education has been denied the appellants on the basis of a distinction which relates to their membership in an identifiable group.

This distinction is capable of promoting or perpetuating a view that the appellants are, by virtue of their religious beliefs, less capable or worthy of recognition or value as human beings or members of Canadian society equally deserving of concern, respect, and consideration. Consideration must be given to both the nature of the group affected and the nature of the interest. Dissentient minority religious groups have suffered severely from the historic disadvantage which has adhered to religious identity. They are necessarily discrete and insular minorities given the forces of secularization in society. The consequences which flow from the denial of an economic benefit are necessarily incidental to protecting the dignity and value of the appellants. Denial of any funding to the appellants constitutes not only a financial prejudice, but also a complete non-recognition of their children's educational needs and the children's and parents' fundamental interest in the continuation of their faith. In applying s.15 in the context of the denial of funding for education to those who cannot access it for religious reasons, s. 27 of the Charter (dealing with the preservation and enhancement of a multicultural heritage) supports a finding that the interests at stake, the preservation and continuation of the communities in question, form interests fundamental to the purposes of the Charter. The Education Act funding scheme represents a prima facie violation of the s.15 guarantee of equal benefit of the law.

While deference has been granted the state in its legislative role by the courts in undertaking a s. 1 analysis, this deference has been designed to give better effect to the general purposes of the Charter. Generally, where the nature of the rights infringement falls far from Charter values and where the legislative objective promotes these values, deference will be shown. As a corollary, however, where the nature of the infringement lies at the core of the rights protected in the Charter and the social objective is meant to serve the interest of the majority as a whole, as represented by state action, courts must be vigilant to ensure that the state has demonstrated its justification for the infringement. A less deferential stance should be taken and a greater onus remain on the state to justify its encroachment on the Charter right in question. In each case, therefore, only after the objective of the legislation has been identified can the appropriate degree of deference be determined. "Social" legislation per se will not, in the absence of these factors, warrant deference. Indeed, cases will be rare where it is found reasonable in a free and democratic society to discriminate.

The objectives of providing free public education and of fostering tolerance are clearly pressing and substantial in a democratic society. The former objective dictates that the latter be linked to the discouragement of non-secular education. The value underlying the legislation is the provision of education in a manner which fulfills the majoritarian interests of a secular society and it is the majoritarian interests, and not the interests of vulnerable and discrete social groups, which are threatened by the funding of religious schools. The infringement, by contrast, affects members of an insular religious minority within a minority to the extent of touching upon its members' ability to maintain their practices and therefore upon its ability to survive as a community. The degree of judicial deference allowed in other cases is not warranted here. The state must clearly discharge the burdens of evidence and proof which are mandated under s. 1....The appeal should be dismissed."

General law decisions: CHILD CUSTODY:

[1993] 4 S.C.R.-Young v. Young-3 Indexed as: Young v. Young-File No.:22227.1993: January 25, 26; 1993:-October 21.

Appellant's and respondent's separation was marked by a protracted series of court battles. Appellant was awarded custody of the couple's three daughters and respondent was granted access subject to court imposed restrictions arising from appellant's objection to his religious activity with the children. Respondent was ordered not to discuss the Jehovah's Witness religion with the children, take them to any religious services, canvassing or meetings, or expose them to religious discussions with third parties without appellant's prior consent. Organized religion was not important to appellant although she wanted the children to be raised within the United Church.

Respondent appealed.

Result: The appeal should be allowed in part.


Best Interest of the Child, Charter Considerations and Access Per L'Heureux-Dubé J.: The power of the custodial parent is not a "right" with independent value granted by courts for the benefit of the parent. Rather, the child has a right to a parent who will look after his or her best interests and the custodial parent a duty to ensure, protect and promote the child's best interests. That duty includes the sole and primary responsibility to oversee all aspects of day-to-day life and long-term well-being, as well as major decisions with respect to education, religion, health and well-being. The non-custodial parent retains certain residual rights over the child as one of his or her two natural guardians.

Child placement decisions should safeguard the child's need for continuity of relationships, reflect the child's (not the adult's) sense of time, and take into account the law's inability to supervise interpersonal relationships and the limits of knowledge to make long-range predictions. This need for continuity generally requires that the custodial parent have the autonomy to raise the child as he or she sees fit without interference with that authority by the state or the non-custodial parent. A custody award is a matter of whose decisions to prefer, as opposed to which decisions to prefer. Courts cannot make the necessary day-to-day decisions which affect the best interests of the child. Once a court has determined who is the appropriate custodial parent, it must presume that that parent will act in the best interests of the child.

Decisions are made according to the best interests of the child without the benefit of a presumption in favour of either parent. The Act envisages contact between the child and each of his or her parents as a worthy goal which should be in the best interests of the child. Maximum contact, however, is not an unbridled objective and must be curtailed wherever the welfare of the child requires it.

The right to access is limited in scope and is conditioned and governed by the best interests of the child. The legislation makes it quite explicit that only the best interests of the child as it is comprehensively understood should be considered in custody and access orders. The role of the access parent is that of a very interested observer, giving love and support to the child in the background. He or she has the right to know but not the right to be consulted. Access rights recognize that the best interests of the child normally require that the relationship developed with both parents prior to the divorce or separation be continued and fostered.

The right to access and the circumstances in which it takes place must be perceived from the vantage point of the child. Wherever the relationship to the non-custodial parent conflicts with the best interests of the child, the furtherance and protection of the child's best interests must take priority over the desires and interests of the parent. 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. Sources of ongoing conflict which threaten to damage or prevent the continuation of a meaningful relationship should be removed or mitigated. Notwithstanding a general concern about the vulnerability of access rights to the caprices of a vengeful custodial parent, courts should not be too quick to presume that the access concerns of the custodial parent are unrelated to the best interests of the child. Courts should also not be blind to issues, such as financial support, which form part of the broader context in which these rights are exercised. The access parent has no obligation to exercise those rights and cannot be forced to comply with such an order even if that contact has been determined to be in the child's best interest.

Where there is a genuine problem with access, the non-custodial parent is not without recourse in any case. This stems from the statutory directive to facilitate access where it is in the child's best interests and the role of the judge as the arbiter of those interests in the case of a dispute between the parents. Generally, courts will grant liberal access to the non-custodial parent and usually this is consistent with the best interests of the child. Parents will also normally respect their children's wishes and best interests with regard to access. When disagreements between parents do reach the courts, the judge must always draw the line in favour of the best interests of the child, from a child-centred perspective.

The best interests of the child cannot be equated with the mere absence of harm: it encompasses a myriad of considerations. Courts must attempt to balance such considerations as the age, physical and emotional constitution and psychology of both the child and his or her parents and the particular milieu in which the child will live. One of the most significant factors in many cases will be the relationship that the child entertains with his or her parents. Since custody and access decisions are pre-eminently exercises in discretion, the wide latitude under the best interests test permits courts to respond to the spectrum of factors which can both positively and negatively affect a child. What may constitute stressful or damaging circumstances for one child may not necessarily have the same effect on another. The most common presumption now governing the best interests test is the primary caregiver presumption. It explicitly restores the values of commitment and demonstrated ability to nurture the child and recognizes the obligations and supports the authority of the parent engaged in day to day tasks of childrearing.

The order of the trial judge is not subject to the Charter. Even if it were, the best interests test is nevertheless value neutral and does not, on its face, violate any Charter right. Its objective, the protection of a vulnerable segment of society, is completely consonant with the Charter's values. Broad judicial discretion is crucial to the proper implementation of the legislative objective of securing the best interests of the child. Such discretion in a legislative provision does not of itself give rise to an inference of Charter infringement. It cannot be considered in the absence of an examination of the legislative objectives and must be rationally tied to those objectives.

The standard for finding a legislative provision unconstitutional because of vagueness is high. The provisions need only permit the framing of an intelligible legal debate with respect to the objectives contained in the legislation. The best interests test is not so uncertain as to be incapable of guiding a consideration of the factors relevant to custody and access determinations. The fact that it must be applied to the facts of each case does not militate in favour of its unconstitutionality.

The vagueness of a legislative provision cannot be examined in the abstract but must be considered within the context of the particular legislative objectives in question, bearing in mind that some objectives will require a panoply of judicial remedies for their meaningful fulfilment. Among the factors with which courts should be concerned when the vagueness of a law is at issue are: (a) the need for flexibility and the interpretive role of the courts, (b) the impossibility of achieving absolute certainty, a standard of intelligibility being more appropriate and (c) the possibility that many varying judicial interpretations of a given disposition may exist and perhaps coexist.

The custodial parent need not show harm in order to restrict access to the children by the non-custodial parent. There is no rationale for defining the best interests of the child with the absence of harm. Nothing in the Act mandates or even suggests that "real danger of significant harm to the child" be the sole consideration in matters of custody and access. Indeed, the harm test would require courts to ignore the very factors which are set out in the Act and invert the basic focus of the inquiry into custody and access. The welfare of children is put at considerable risk if the prospect of harm becomes the sole prerequisite for restrictions on access. The best interests of the child is not simply the right to be free of demonstrable harm; it is the positive right to the best possible arrangements in the circumstances of the parties. The harm test cannot meet the legal system's primary goal in divorce situations -- minimizing the adverse effects of children. This goal requires a vision of the best interests of the child that is more than neutral to the conditions under which custody and access occur. Judges must exercise their discretion to prevent harm to the child rather than merely identify or establish its presence after the damage is done.

Expert evidence should not be routinely required to establish the best interests of the child. Expert testimony, while helpful in some circumstances, is often inconclusive and contradictory because such assessments are both speculative and may be affected by the professional values and biases of the assessors themselves. Experts are not always better placed than parents to assess the needs of the child. The person involved in day to day care may observe changes in the child that could go unnoticed by anyone else and normally has the best vantage point from which to assess the interests of the child. The custodial parent, therefore, will often provide the most reliable and complete source of information to the judge on the needs and interests of that child. The importance of the evidence of children in custody and access disputes, too, must be emphasized.

Restrictions on access do not necessarily prevent children from coming to know their parents in meaningful ways. Interpreting the goal of maximum contact as requiring unrestricted access may defeat the Act's objective if the pre-eminence of unlimited "knowledge" results in the ultimate destruction of the relationship. In this case, the purpose of the restrictions was to ensure that the children will continue to know their father "at all".

Freedom of religion and freedom of expression are public in nature and encompass the freedom of the individual from state compulsion or restraints. The state's role in custody and access decisions does not transform the essentially private character of parent-child interchanges into activity subject to Charter scrutiny. Legitimate questions may arise about the role of the state, and hence the application of the Charter in regulating other aspects of family law. A valid purpose can hardly be served, however, by importing the discourse of freedom of expression and religion into orders made in the resolution of custody and access disputes. Once the best interests test itself has been found to accord with Charter values, the trial judge's order itself is not subject to further constitutional review, as the necessary state infringement of religious rights required to sustain a Charter challenge is not present. The principles enunciated in Dolphin Delivery apply as custody and access matters are essentially private in nature and there exists no state action to be impugned.

Decisions regarding custody and access must not be based on the parents' faith. The religion of the parties, however, may be relevant as one of the circumstances to be assessed in the determination of the best interests of the child. Where there is conflict over religion, the court is not engaged in adjudicating a "war of religion" and the religious beliefs of the parties themselves are not on trial. Rather, 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.

Ordinarily, the exposure of a child to different religions or beliefs may be of value to the child. Where religion becomes a source of conflict between the parents or is the very cause of the marriage breakdown, it is generally not in the best interests of the child and may in some circumstances be very detrimental for the child to be drawn into the controversy over religious matters. Where there is conflict over religion, courts must secure the longstanding authority of the custodial parent to make decisions over religious activities. This ensures that stress occasioned by such issues does not become a continuing and ultimately destructive feature in the life of the child after divorce.

Freedom of religion is not an absolute value. Here, powerful competing interests must also be recognized, not the least of which, in addition to the best interests of the children, are the freedoms of expression and religion of the children themselves.

Respondent's religious beliefs and practices and his general rights of access were not threatened. The restrictions were aimed at reducing the area of conflict which had arisen on account of the respondent's behaviour with his children during access and the effects of that behaviour on their best interests. Much of the stress the children were experiencing was related to their resistance to becoming involved in their father's religious practices. The restrictions were to further the best interests of these children by removing the source of conflict, particularly as the ultimate purpose of the restrictions was to preserve the relationship between the respondent and his children. Evidence supported the conclusion that the respondent would not respect the wishes of the children without an order to do so.

Important Note: The Witches' Voice Inc. does not offer legal advice nor are we qualified to do so. This document does not constitute legal advice but is intended to be used in conjunction with the legal services of an attorney licensed to practice in your state. This document can be copied and distributed to your lawyer should you decide that you need the services of one.



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