Present: La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.
on appeal from the court of appeal for quebec
Family law ‑‑ Custody ‑‑ Access rights ‑‑ Restrictions ‑‑ Interest of child ‑‑ Conflict between parents concerning religious education of their 3½‑year‑old child ‑‑ Court order prohibiting access parent from continually indoctrinating child in Jehovah's Witness religion and involving her in their activities ‑‑ Whether child's interest is test applicable to access rights ‑‑ Whether restrictions on access in best interests of child -- Whether criterion of child's best interests constitutional -- Civil Code of Lower Canada, art. 30.
Constitutional law ‑‑ Charter of Rights ‑‑ Application ‑‑ Family law dispute ‑‑ Court order prohibiting access parent from continually indoctrinating child in Jehovah's Witness religion and involving her in their activities ‑‑ Whether Canadian Charter of Rights and Freedoms applies to court order in family law matter ‑‑ Canadian Charter of Rights and Freedoms, s. 32 .
Constitutional law ‑‑ Charter of Rights ‑‑ Freedom of religion -- Freedom of expression -- Court order prohibiting access parent from continually indoctrinating child in Jehovah's Witness religion and involving her in their activities -- Whether order infringing s. 2(a) of 2(b) of Canadian Charter of Rights and Freedoms .
Constitutional law ‑‑ Charter of Rights ‑‑ Vagueness ‑‑ Criterion of child's best interests in family law ‑‑ Whether criterion discretionary and vague within meaning of s. 1 or 7 of Canadian Charter of Rights and Freedoms ‑‑ Civil Code of Lower Canada, art. 30.
After three years of cohabitation, the parties ceased living together and agreed in writing that the respondent would have legal custody of their child and that the appellant would exercise access rights. This agreement was ratified by judgment of the Superior Court. Relations between the parties deteriorated when the appellant began practising the Jehovah's Witness religion. The respondent, a Roman Catholic, objected to the fact that, on such visits, the appellant would indoctrinate the child, who was 3½ years old at the time, and that he was not respecting the terms of the agreement. The appellant made a motion to the Superior Court to set aside the agreement and asked for the child's custody or, alternatively, greater access rights. The court dismissed the motion and allowed the respondent's contestation. The judge indicated that the applicable criterion was that of the child's best interest. He expressed the view that although the parents have complete freedom of religion, the courts may intervene when the religious practices of parents are harmful to the child's best interests. He noted that when parents follow different religious practices, religious education is, in principle, the responsibility of the parent having legal custody. The judge pointed out that, on the evidence, the main problem for the child resulted from the appellant's religious fanaticism and that such fanaticism disturbed the child. He concluded that her best interests required that such excesses should cease and made the exercise of the appellant's access rights subject to the following restrictions: the appellant may teach the child the Jehovah's Witness religion but does not have the right to indoctrinate her continually with the precepts and religious practices of Jehovah's Witnesses, and he may not take the child to Jehovah's Witness demonstrations, ceremonies or conferences or to do door‑to‑door preaching until the child is capable of deciding which religion she wishes to adopt. The majority of the Court of Appeal upheld this judgment.
Held (Sopinka and McLachlin JJ. dissenting): The appeal should be dismissed.
Per La Forest, L'Heureux‑Dubé and Gonthier JJ.: The sole criterion applicable in matters of custody and access is that of the child's best interests provided for, in this context, in art. 30 C.C.L.C. The child should be at the centre of the courts' 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 its parents and factors set out in art. 30 or resulting therefrom. Subject to the child's best interests, the right of custody includes generally the right to decide the child's religious education, until he or she is in a position to make his or her own choice. The non‑custodial parent continues to be vested with parental authority and he or she may exercise such attributes thereof as are not opposed to the exercise of custody by the custodial parent. It is therefore possible for the non-custodial parent, so long as he respects that limit, to give his child a religious education. Any agreement between the parties respecting access rights may be varied by the court if the child's interest so requires.
The criterion of the child's best interest set out in art. 30 C.C.L.C. confers a broad discretion on the courts. This does not mean, however, that it is contrary to the Constitution. The existence of a broad discretion is closely connected here with achieving the legislative objective of promoting the child's best interests. This criterion, which is universally recognized in modern family law, refers to the totality of the considerations relating to a child and is capable of application to the circumstances of each case. It is therefore not vague within the meaning of s. 1 of the Canadian Charter of Rights and Freedoms . Nor is this criterion vague within the meaning of s. 7 of the Charter since it provides a sufficient guide and an adequate basis on which to found a judicial debate.
The order made by the trial judge does not infringe the freedom of religion, expression and association and the right to equality protected by the Charter . The Charter does not apply to private disputes between parents in a family context. Nor does it cover judicial orders made to resolve such disputes since, apart from exceptional circumstances, the judiciary is not covered by s. 32 of the Charter . In any case, even if the Charter applied, the order made by the trial judge does not infringe the provisions of the Charter invoked by the appellant, in particular the freedoms of religion and of expression. These freedoms, like any freedom, are not absolute and a court may impose limits on them when the best interests of the child so require.
There is no reason to interfere in this case. The trial judge made no error of principle or error in assessing the evidence and his order should be affirmed.
Per Cory and Iacobucci JJ.: 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 opinion of parents regarding religious questions nor the frank discussion of their differing religious perceptions with the children will be automatically harmful. In fact it may often be beneficial. Here, the trial judge interpreted the evidence as demonstrating that the child was disturbed by the father's repeated references to his religious beliefs and imposed limitations on the father's access. The trial judge is in the best position to make the necessary findings on the issues of credibility and to assess evidence pertaining to the best interests of the child. He was aware of and applied the test of the best interests of the child and to that end imposed the two conditions upon visitation. These conditions are not so unreasonable as to require amendment.
Per McLachlin J. (dissenting): 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 is found in ss. 16(8) , 16(10) and 17(5) of the Divorce Act . These sections, and the standard, were considered in Young v. Young, [1993] 4 S.C.R. 3, and the analysis of the constitutionality of the standard under that Act applies equally to the Civil Code articles impugned in this appeal. The standard and these articles are constitutional and infringe no Charter rights.
The risk of harm to the child is 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. The trial judge erred, however, 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 conflict between her parents' religious beliefs was creating any problems for the child or that the child would be adversely affected as a result of the father's activities or teaching. In the absence of evidence capable of outweighing the benefit of full and free access, the trial judge should not have interfered with the access parent's activities.
Per Sopinka J. (dissenting): Subject to the comments in Young, the reasons of McLachlin J. were agreed with.
Cases Cited
By L'Heureux‑Dubé J.
Applied: Young v. Young, [1993] 4 S.C.R. 3; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Tremblay v. Daigle, [1989] 2 S.C.R. 530; distinguished: Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; referred to: Adams v. McLeod, [1978] 2 S.C.R. 621; Bockler v. Bockler, [1974] C.A. 41; King v. Low, [1985] 1 S.C.R. 87; Droit de la famille ‑‑ 274, [1986] R.J.Q. 945; C. (G.) v. V.‑F. (T.), [1987] 2 S.C.R. 244; Commission scolaire Pierre‑Neveu v. Poulin, J.E. 93‑234; Descôteaux v. Descôteaux, [1972] C.A. 279; Bleau v. Petit (1902), 6 Que. P.R. 353; Moquin v. Turgeon (1912), 42 C.S. 232; Nault v. Nault (1911), 13 Que. P.R. 221; Woollven v. Aird (1912), 14 Que. P.R. 165; Smith v. Copping (1922), 34 Que. K.B. 412; Bigman v. Belzberg, [1952] Que. Q.B. 391; Taillon v. Donaldson, [1953] 2 S.C.R. 257; Benisty v. Delouya, [1969] Que. Q.B. 720; Blanchette v. Collin, [1972] C.A. 352; Perreault v. Demers, [1974] C.S. 530; Legault v. Figueroa, [1978] C.A. 82, leave to appeal refused, [1978] 1 S.C.R. ix; Favreau v. Éthier, [1976] C.S. 48; Droit de la famille ‑‑ 52, [1983] C.A. 388; Droit de la famille ‑‑ 110, [1984] C.S. 99; Droit de la famille ‑‑ 411, [1987] R.J.Q. 2584; Droit de la famille ‑‑ 425, [1988] R.J.Q. 159; Droit de la famille ‑‑ 1717, [1993] R.J.Q. 166; Dugal v. Lefebvre, [1934] S.C.R. 501; Keller v. Kredl, [1956] Que. Q.B. 810; Wilson v. Thompson, [1959] Que. Q.B. 522; M. v. D., [1966] C.S. 224; Boily v. Vallée, [1966] Que. Q.B. 1001; Baron v. Canada, [1993] 1 S.C.R. 416; R. v. Beare, [1988] 2 S.C.R. 387; R. v. Corbett, [1988] 1 S.C.R. 670; R. v. Morgentaler, [1988] 1 S.C.R. 30; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; R. v. Keegstra, [1990] 3 S.C.R. 697; Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139; Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69; R. v. Butler, [1992] 1 S.C.R. 452; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; R. v. Morales, [1992] 3 S.C.R. 711; Valade v. Corbeil (1889), 33 L.C.J. 207; Bronfman v. Moore, [1965] Que. Q.B. 181, aff'd [1964] S.C.R. v; Harris v. Webster, [1975] C.A. 702; Droit de la famille ‑‑ 157, [1984] C.A. 497; Droit de la famille ‑‑ 368, C.A.P. 87C‑147; Droit de la famille ‑‑ 1472, J.E. 91‑1639; Droit de la famille ‑‑ 353, [1987] R.J.Q. 545; Bank of Montreal v. Bail Ltée, [1992] 2 S.C.R. 554; Lapointe v. Hôpital Le Gardeur, [1992] 1 S.C.R. 351; M. (M.E.) v. L. (P.), [1992] 1 S.C.R. 183; Laurentide Motels Ltd. v. Beauport (City), [1989] 1 S.C.R. 705; Lensen v. Lensen, [1987] 2 S.C.R. 672; Beaudoin‑Daigneault v. Richard, [1984] 1 S.C.R. 2; Schreiber Brothers Ltd. v. Currie Products Ltd., [1980] 2 S.C.R. 78; Joseph Brant Memorial Hospital v. Koziol, [1978] 1 S.C.R. 491; Métivier v. Cadorette, [1977] 1 S.C.R. 371; Dorval v. Bouvier, [1968] S.C.R. 288.
By Cory and Iacobucci JJ.
Applied: Young v. Young, [1993] 4 S.C.R. 3.
By McLachlin J. (dissenting)
Young v. Young, [1993] 4 S.C.R. 3.
By Sopinka J. (dissenting)
Young v. Young, [1993] 4 S.C.R. 3.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , ss. 1 , 2( a ) , (b), (d), 7 , 15(1) , 32 .
Civil Code of Lower Canada, arts. 30 [ad. 1980, c. 39, s. 3], 165 [rep. idem, s. 14], 200 [repl. 1969, c. 74, s. 9; am. 1969, c. 77, s. 6; rep. 1980, c. 39, s. 14], 212 [repl. 1969, c. 74, s. 14; rep. 1980, c. 39, s. 14], 214 [rep. 1969, c. 74, s. 14], 215 [rep. 1980, c. 39, s. 14], 243 [repl. 1977, c. 72, s. 5; rep. 1980, c. 39, s. 14], 244 [repl. 1977, c. 72, s. 5; rep. 1980, c. 39, s. 14].
Civil Code of Quebec [en. S.Q. 1980, c. 39, s. 1], arts. 443, 568, 569, 570, 647, 648, 653, 654.
Convention on the Rights of the Child, Can. T.S. 1992 No. 3, Art. 3(1).
Divorce Act , R.S.C., 1985, c. 3 (2nd Supp .), ss. 16(8), (10), 17(5).
Authors Cited
Blondin, Marie‑Josée, et autres. "Évolution jurisprudentielle (1950‑1983) du critère de la conduite des conjoints dans l'attribution de la garde des enfants" (1986), 46 R. du B. 105.
Boisclair, Claude. Les droits et les besoins de l'enfant en matière de garde: réalité ou apparence? Sherbrooke: Faculté de droit, Université de Sherbrooke, 1978.
Cornu, Gérard. Droit civil: la famille, 3e éd. Paris: Montchrestien, 1993.
D.‑Castelli, Mireille. Précis du droit de la famille, 2e éd. Québec: Presses de l'Université Laval, 1990.
Deleury, Édith, Michèle Rivet et Jean‑Marc Neault. "De la puissance paternelle à l'autorité parentale: Une institution en voie de trouver sa vraie finalité" (1974), 15 C. de D. 779.
Groffier‑Atala, Ethel. "De la puissance paternelle à l'autorité parentale" (1977), 8 R.G.D. 223.
L'Heureux‑Dubé, Claire. "La garde conjointe, concept acceptable ou non?" (1979), 39 R. du B. 835.
Langelier, F. Cours de droit civil de la province de Québec, t. 1. Montréal: Wilson & Lafleur, 1905.
Lesage, Robert. "Garde ou autorité parentale; l'emprise de la sémantique" (1988), 91 R. du N. 46.
Marty, Gabriel, et Pierre Raynaud. Droit civil: les personnes, 3e éd. Paris: Sirey, 1976.
Mayrand, Albert. "Conventions de séparation entre époux" (1970), 73 R. du N. 411.
Mayrand, Albert. "Conventions entre époux en prévision de leur divorce et conventions entre divorcés" (1960), 20 R. du B. 1.
Mayrand, Albert. "L'évolution de la notion de puissance paternelle en droit civil québécois". Dans Mélanges offerts à René Savatier. Paris: Dalloz, 1965, 621.
Mayrand, Albert. "L'incidence de la conduite des époux sur le droit de garde de l'enfant" (1982), 85 R. du N. 28.
Mayrand, Albert. "La garde conjointe (autorité parentale conjointe) envisagée dans le contexte social et juridique actuel". Dans Droit et enfant. Cowansville: Yvon Blais, 1990, 19.
Mayrand, Albert. "La garde conjointe, rééquilibrage de l'autorité parentale" (1988), 67 Can. Bar Rev. 193.
Mignault, Pierre Basile. Le droit civil canadien, t. 2. Montréal: Librairie de droit et de jurisprudence, 1896.
Ouellette, Monique. Droit de la famille, 2e éd. Montréal: Thémis, 1991.
Pineau, Jean. La famille. Montréal: Presses de l'Université de Montréal, 1982.
Pineau, Jean, et Monique Ouellette. "La protection de l'enfant dans le droit de la famille" (1978), 9 R.D.U.S. 76.
Traité de droit civil du Québec, t. 1 et 2 par Gérard Trudel. Montréal: Wilson & Lafleur, 1942.
APPEAL from a judgment of the Quebec Court of Appeal, [1991] R.J.Q. 306 (sub nom. Droit de la famille ‑‑ 1150), affirming a judgment of the Superior Court, [1988] R.D.F. 40. Appeal dismissed, Sopinka and McLachlin JJ. dissenting.
W. Glen How, Q.C., and Daniel G. Pole, for the appellant.
Isabelle Michaud, for the respondent.
Michel Y. Hélie, for the intervener the Attorney General for Ontario.
Monique Rousseau and Isabelle Harnois, for the intervener the Attorney General of Quebec.
Shawn Greenberg, for the intervener the Attorney General of Manitoba.
Written submissions only for the intervener the Attorney General of British Columbia.
Gerald D. Chipeur and Karnik Doukmetzian, for the intervener the Seventh‑day Adventist Church in Canada.
The judgment of La Forest, L'Heureux-Dubé and Gonthier JJ. was delivered by
L'Heureux‑Dubé J. ‑‑ This appeal raises questions similar to those at issue in Young v. Young, [1993] 4 S.C.R. 3, heard at the same time and in which judgment is rendered concurrently. It will therefore be referred to herein as if set out at length. More precisely, the issue in the present appeal concerns the test applicable to the right to access to a minor child by a non‑custodial parent. Article 30 of the Civil Code of Lower Canada ("C.C.L.C.") is at the heart of this case:
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.
I ‑ Facts
The parties lived together between 1981 and 1984, and their daughter, C., was born on July 12, 1984. They ceased living together in August 1984, and, on October 16, 1984, they agreed that the respondent would have legal custody of the child, then a few months old, and that the appellant would exercise his right to access on 24 hours' notice, as set out in the following written agreement:
[translation]
Agreement
The parties agree as follows regarding custody and access rights:
(1)the applicant [the respondent] will have legal custody of the child [C.];
(2)access rights will be exercised as follows:
(a)one evening per week, from 5 p.m. to 11 p.m., Tuesday or Wednesday evening, with 24 hours' notice;
(b)one day per weekend, from 9 a.m. to 11 p.m., Saturday or Sunday, with 24 hours' notice;
(3)without costs.
Signed at Hull on October 16, 1984
This agreement was ratified by judgment of the Superior Court, district of Hull, dated October 16, 1984.
Relations between the parties seem to have subsequently deteriorated, mainly because of problems involving the exercise by the appellant of his right to visit C. In particular, the respondent objected to the fact that, on access visits, the appellant would indoctrinate their daughter, who was 3½ years old at the time, with fanatical zeal in his religious faith and impose his religion and religious practices on her, which, the respondent maintained, was against the child's best interests.
On November 19, 1987, the appellant made a motion to the Superior Court, district of Hull, to set aside the agreement of October 16, 1984. He asked for the child's custody or, alternatively, to be given greater access rights, concluding as follows:
[translation]
VACATE the agreement of October 16, 1984;
AWARD the applicant [the appellant] custody of the child;
DETERMINE the respondent's access rights;
ORDER the respondent to pay to the applicant [the appellant] maintenance in the amount of $150 per month, in advance, at his residence, on the first of each month;
OR ALTERNATIVELY:
THE FOLLOWING ACCESS RIGHTS:
Twice a week, on Wednesday from 7 a.m. to 7 p.m. and on Saturday from 9 a.m. to 8 p.m.;
One month in the summer, with one week's notice;
One day at New Year's or Christmas, at the option of the applicant [the appellant], with one week's notice;
Easter Sunday, with one week's notice;
ORDER the respondent to provide the applicant [the appellant] with the child's proper clothing to take her out;
ORDER the respondent not to take the child out of the province of Quebec without the consent of the applicant [the appellant];
On December 4, 1987, the respondent contested the appellant's application and, in her pleading entitled [translation] "Objection to the motion for child custody", sought changes to the parties' agreement, as appears from the conclusion of her contestation:
[translation]
VARY the judgment dated October 16, 1984, to provide for the following access rights:
(a)one day per week, on Saturday or Sunday, from 1 p.m. to 5 p.m., with forty-eight (48) hours' notice;
(b)should the applicant's [the appellant's] visiting day be Christmas Day, New Year's Day, Easter, the child's birthday or Halloween, the applicant shall exercise his visiting rights on either the Saturday or the Sunday which will not be the aforementioned day;
ORDER the applicant [the appellant] not to indoctrinate the child [C.] in the Jehovah's Witness religion and ORDER him not to involve the child in the religious activities of Jehovah's Witnesses;
On January 25, 1988, the Superior Court dismissed with costs the appellant's motion and allowed the respondent's contestation. That judgment was affirmed on appeal by judgment dated November 27, 1990. It is this judgment which is the subject of the present appeal.
II ‑ Judgments
Superior Court, [1988] R.D.F. 40 (Frenette J.)
Considering the appellant's motion for custody of the child, which he immediately disposed of, the trial judge found nothing in the evidence to justify modifying custody in favour of the appellant. According to that evidence, the respondent had always taken good care of the child, was responsible and provided adequately for her needs and development.
The judge, then, considered the advisability of modifying the access rights previously agreed to between the parties. After indicating that the applicable criterion should be that of the child's best interests, the judge expressed the view that, although the parents have complete freedom of religion, the courts may intervene when the religious practices of parents are harmful to the child's best interests. The judge noted that when parents follow different religious practices, religious education is, in principle, the responsibility of the parent having legal custody or parental authority, but that this is not an absolute rule, as he observed at p. 42:
[translation] Without favouring one religion over another, a court may, in the child's best interests, place certain restrictions on the exercise and terms of access to the child, especially when the child is very young.
Applying these principles to the facts, Frenette J. noted that, on the evidence, the [translation] "main problem for the child results from the applicant's religious fanaticism" (p. 41) and that such religious fanaticism was disturbing to such a young girl. He concluded that her best interests required that such excesses should cease. Accordingly, he made the exercise of the appellant's right to access subject to the following conditions (at p. 43):
[translation] (1) The applicant [the appellant] may teach the child the Jehovah's Witness religion but does not have the right to indoctrinate her continually with the precepts and religious practices of Jehovah's Witnesses;
(2) He is ordered not to take the child to Jehovah's Witness demonstrations, ceremonies or conferences or to do door‑to‑door preaching until the Court determines that the child is capable of deciding which religion she wishes to adopt;
Court of Appeal, [1991] R.J.Q. 306 (Vallerand and Tourigny JJ.A., Proulx J.A. dissenting in part)
A majority of the Court of Appeal, per Vallerand J.A., refused to intervene. Vallerand J.A. rejected the proposition put forward by the appellant that, though the child's interests should be the primary concern, the child must suffer "real harm" for the appellant's right to access to be restricted. Citing Adams v. McLeod, [1978] 2 S.C.R. 621, the judge noted that the essential question was that of the child's best interests. Although, in his opinion, the trial judge's reasoning may have lacked rigour, Vallerand J.A. concluded that [translation] "the evidence easily supports the conclusion" (p. 308).
Observing, however, that the order made by the trial judge not to continually indoctrinate the child was of a general character, Vallerand J.A. emphasized the rule that every order must be worded so that [translation] "the person to whom it is applicable will know clearly what he or she has to do" (p. 309). As the primary purpose of this rule of "necessary precision" is to prevent a conviction for contempt of court in the event of disobedience, the judge saw no need to intervene, since, in his opinion, family law does not lend itself to contempt procedures, and is better enforced by strict limitations on rights to access. The appeal was accordingly dismissed and Frenette J.'s order upheld.
Proulx J.A., dissenting in part, noted at the outset that the real question the trial judge had to address was the child's interests, and not the appellant's freedom of religion. While pointing out that the trial judge had not mentioned the respondent's equally uncompromising attitude toward the appellant's religious beliefs, Proulx J.A. concurred in Vallerand J.A.'s opinion regarding the first part of the disputed order. However, he would have completely expunged the second part of the order on the ground that the child's participation in the appellant's religious ceremonies, conferences and demonstrations, could not be harmful if the appellant complied with the first part of the order. Proulx J.A. added that, in his view, the evidence did not show that the child accompanied the appellant when the latter was going from door-to-door. Proulx J.A. would have allowed the appeal only to the extent of striking out the second part of the disputed order.
III ‑ Arguments
The first argument raised before us by the appellant is that the trial judge's order restricting his right to access was made without any evidence of real harm suffered by C. In his view, the evidence offered no basis for the restrictions imposed when one takes into account all the factors listed in art. 30 C.C.L.C. (age, religion, character and family surroundings), which, although the Court of Appeal recognized, substituted with personal philosophy and values. The appellant, thus, underlined the danger of adopting a criterion as discretionary as the child's best interests. He further contended that the restrictions imposed on his right to access amounted to a partial deprivation of parental authority within the meaning of art. 654 of the Civil Code of Quebec ("C.C.Q."), and in so doing, gave the custodial parent [translation] "complete control" over C., contrary to arts. 443, 568, 570 and 647 C.C.Q.
The appellant's second argument concerns the theory of vagueness. In his submission, the criterion of the child's best interests, as set out in art. 30 C.C.L.C., is discretionary and vague within the meaning of ss. 1 and 7 of the Canadian Charter of Rights and Freedoms . He relied on the arguments put forward by the respondent James Kam Chen Young in Young, supra, adding a series of decisions and studies. Article 30 C.C.L.C. is therefore, in his opinion, unconstitutional.
The appellant next argued that the order infringes his freedom of religion and that of his daughter, that is, his right to propagate his religion and that of his daughter to be exposed to it, as well as his freedom of expression, contrary to s. 2( a ) and (b) of the Charter . The appellant invited the Court to consider Canada's international obligations regarding freedom of religion, and also cited certain documents to the effect that Jehovah's Witnesses are victims of systemic discrimination in Quebec, contrary to s. 15(1) of the Charter , which guarantees the right to equality. In the appellant's submission, these infringements cannot be justified under s. 1 of the Charter .
Finally, the appellant suggests a series of criteria which the Court should adopt as guidelines in matters of custody and access.
The respondent, for her part, maintained from the outset that the Charter has no application in private litigation. She then argued that there is unanimous support for the child's best interests standard, as a criterion relied upon by this Court, Canadian provincial courts of appeal and the international community. Furthermore, this criterion is not unconstitutional on the ground that it is discretionary and vague, otherwise a large part of the Civil Code would be unconstitutional as well. Additionally, according to the respondent, the test of real harm suggested by the appellant is not the applicable one and, in any case, is just as vague as the criterion of the child's best interests.
In the respondent's view, the appellant has not in any way been deprived of his parental authority, either wholly or partially. His rights to access have simply been restricted.
Assuming that the Charter applies, which she denies, the respondent argued that the appellant's right to equality has never been infringed. It is solely the appellant's case that is before the Court, and not that of all Jehovah's Witnesses in Quebec. Moreover, the order does not infringe the appellant's freedom of religion as he can still teach his religion to his daughter, provided he does not indoctrinate her. Indoctrination is not protected by freedom of religion. Further, the appellant cannot rely on his child's freedom of religion as this would be to plead in another's name. The respondent concluded that, in any case, any possible infringement of the appellant's rights would be justified under s. 1 of the Charter .
The respondent added, finally, that the trial judge's findings of fact, on which the judgment rested, should not be interfered with by a court of appeal.
IV ‑ Issue
It should be said at the outset that the parties never entered into a marriage, and, as a result, this matter is not governed by the Divorce Act , R.S.C., 1985, c. 3 (2nd Supp .), but by the Civil Code of Quebec. That being so, and given the arguments of the parties, this Court's main task is to determine the criterion applicable under the Civil Code of Quebec to the right to access by a non‑custodial parent to his or her minor child. My colleague Madame Justice McLachlin is of the view that "where all of the judges below erred . . . 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" (p. 196). I definitely do not agree. In my opinion, the only criterion applicable to the matter, and the one set out in the Civil Code of Quebec, is the best interests of the child. Having identified the sole criterion, the Court must, then, decide whether or not such criterion is constitutional while considering the appellant's Charter arguments.
Before turning to the main issue, the legal context of the rights raised in this appeal must be examined.
V ‑ Analysis
A. Right to Custody and Access
Although what is at issue is the right to access, which is but one of the components of the right to custody, it is worth examining, however briefly, the right to access in the wider context of the right to custody itself. The trial judge, in fact, ruled on custody: the first part of his order confirmed that the respondent should retain custody of C.
1.The Right to Custody
As in Young, supra, a brief review of the evolution of the concept of custody is appropriate. Unlike in Young, however, in Quebec, such evolution took place within the context of the civil law, not the common law.
The law of custody in Quebec has evolved since the coming into force of the Civil Code in 1866, from absolute paternal authority to the best interests of the child. As enacted in 1866, the Civil Code of Lower Canada makes no express mention of the right to custody, whether under the heading of marriage, filiation or paternal authority, or even under separation from bed and board, where it would logically have been found. At the time, the right to custody of fathers and mothers seemed to be self‑evident and to present little difficulty, especially considering that separation from bed and board was rare and divorce was almost unknown in Quebec.
In the context of a united family, the father had legal custody of the children and they were bound to live with him (art. 244 C.C.L.C.). In the event of separation or divorce, the legal basis of custody rested more on the obligations imposed on parents by the legislature, namely art. 165 C.C.L.C., requiring parents to maintain and bring up their legitimate children. Specifically, the right to the custody of children was based on arts. 200 ("The provisional care of the children remains with the father, whether plaintiff or defendant . . .") and 214 C.C.L.C. ("The children are entrusted to the party who has obtained the separation [from bed and board] . . ."). Article 200 C.C.L.C. was also consistent with art. 243 C.C.L.C., which stated that, although paternal authority belonged to both spouses, the father alone, to whom the mother was subordinate, exercised such authority during the marriage.
In theory, at the time of the final judgment or subsequently, custody of the children was awarded to the spouse in whose favour the separation was granted, that is, the spouse without fault. This rule was based on the assumption that the spouse who had failed in his or her obligations as a spouse would also fail with regard to his or her duties as a parent. Article 214 C.C.L.C., nevertheless, provided that courts could award custody to the spouse against whom the separation had been obtained, or even to a third party, depending on "the greater advantage of the children". In practice, it was only in unusual circumstances that a parent without fault would be deprived of custody. The Hon. Albert Mayrand, "L'incidence de la conduite des époux sur le droit de garde de l'enfant" (1982), 85 R. du N. 28, noted the effect of these Civil Code provisions, now repealed, at p. 29:
[translation] There was a time when there were two categories of separated or divorced spouses: the innocent and the guilty. The innocent were given custody of the children, as the first prize for good conduct; the guilty were deprived of custody as one of their punishments. This approach was in keeping with the spirit of the times, when marital fault had a greater degree of seriousness than in our own day.
It can thus be seen that, at that time, paternal authority amounted, for all practical purposes, to a right of ownership of the father over the children. Later, in the fifties, the courts moved towards recognizing the rights of children over those of parents, although the father continued to be favoured. Little by little the criterion of the child's best interests emerged in custody decisions, a change that coincided with movements toward equality of the sexes.
The rights of children became much more significant in the seventies. In 1969, the phrase "child custody" appeared in the Civil Code of Lower Canada for the first time. The new arts. 200 and 212 C.C.L.C. now authorized the courts to decide "as to the custody, maintenance and education of the children" in proceedings in separation from bed and board or divorce, both at the stage of the final judgment and at the time of provisional measures. Article 214 C.C.L.C. was repealed, and, with it, the presumption that custody should be awarded to the faultless spouse. However, paternal authority (art. 243 C.C.L.C.) remained in force. Bockler v. Bockler, [1974] C.A. 41, at p. 42, a unanimous judgment of the Court of Appeal per Gagnon J.A., summarizes the state of the law at that time:
[translation] Article 243 on paternal authority is still part of the Code, but has for some years existed in a new context. Authority in marriage is now shared: this evolution can be seen from comparing the new art. 174 C.C. with the old one.
Formerly, art. 200 C.C. gave the father, whether plaintiff or defendant, a priority right to provisional custody of the children pending the hearing. It was nevertheless held that, since it gave the judge some discretion, this provision moderated the rigour of the art. 243 rule. This priority no longer exists and the argument is even stronger.
Paternal authority was meant to ensure that the family unit would remain together, but when the family breaks up and unity is destroyed and replaced by discord, and quite often animosity between the parents, the judge is no longer subject to former constraints when he must decide on custody of the children, and it is the interest of the children that should more than ever be his primary concern, if not his only guide. [Emphasis added.]
In 1977, the Quebec legislature took a further step towards equality of the sexes by repealing art. 243 C.C.L.C. and replacing it with a new art. 244 C.C.L.C. Paternal authority, then, gave way to parental authority, which would now be exercised jointly by the father and the mother.
Finally, on April 2, 1981, that part of the new Civil Code of Quebec altering existing family law came into effect. Not only are spouses now regarded as equal, but the best interests of the child henceforth govern the awarding of child custody.
On the evolution of the right to custody, reference may be made, inter alia, to Albert Mayrand, "L'évolution de la notion de puissance paternelle en droit civil québécois", in Mélanges offerts à René Savatier (1965), 621; Ethel Groffier‑Atala, "De la puissance paternelle à l'autorité parentale" (1977), 8 R.G.D. 223; Marie‑Josée Blondin et al. (under the direction of Renée Joyal‑Poupart), "Évolution jurisprudentielle (1950‑1983) du critère de la conduite des conjoints dans l'attribution de la garde des enfants" (1986), 46 R. du B. 105; the Hon. Albert Mayrand, "La garde conjointe (autorité parentale conjointe) envisagée dans le contexte social et juridique actuel", in Droit et enfant (1990), 19.
The evolution in the common law noted by McIntyre J. in King v. Low, [1985] 1 S.C.R. 87, at p. 93, is parallel to that of the law on custody in Quebec:
The law relating to the custody of children and the rights of parents where custody claims are involved has undergone progressive change since early in the nineteenth century when the parent, usually the father, had a right to custody of an infant child unless disqualified by reason of some serious circumstance, having to do with the welfare of the child, making him unfit to have custody. By legislative intervention and evolving case law the situation has changed. The law has moved, first, toward an increase in maternal rights; a progressive diminution of parental rights; and then, a corresponding increase in the consideration of the interest or welfare of the infant, as the significant factor in custody determination. This latter factor has become progressively more important until it may now be said that the welfare of the child is the paramount consideration when the courts address the problem. [Emphasis added.]
Any analysis of the development of the concept of custody would not be complete without a brief review of its contents. In this regard, art. 647 C.C.Q. provides that the father and the mother "have the rights and duties of custody, supervision and education of their children. They must maintain their children".
It is generally recognized that a parent's custody rights include the right to make decisions about the child's education. As Marty and Raynaud indicate in Droit civil: les personnes (3rd ed. 1976), at p. 288, [translation] "the right to custody comprises all the rights of parents over the person of the child and essentially the right of education, with the related duties".
Droit de la famille ‑‑ 274, [1986] R.J.Q. 945 (C.A.), dealt with the custody of a four‑year‑old child. On the facts entered into evidence, the two parents practised different religions, without abuse or excess, and this had had the effect of emotionally disturbing the child. The Superior Court (per Macerola J.) had awarded custody to the mother, who was a Roman Catholic, and had given the father rights of access accompanied by an order prohibiting him from [translation] "influencing the child or taking the child with him to demonstrations, ceremonies or conferences of Jehovah's Witnesses". Chouinard J.A., for the Court of Appeal, was of the view that the appeal should be allowed to the extent of striking the words "influencing the child or" from the trial judge's order, as being too general and difficult to enforce. He said the following regarding the right to custody, at p. 949:
[translation] The right to custody of a very young child includes that of educating and instructing it in accordance with its best interests having regard to its moral, intellectual and physical development. A court has a clear duty to observe and apply this principle, and this has nothing to do with a violation of judicial neutrality or failure to respect the constitutional guarantee of freedom of religion.
. . .
The trial judge properly concluded that the child was emotionally disturbed by the different religious principles of its parents which served as an inducement to judge the behaviour of one of them, namely the respondent. [Emphasis added.]
The Court of Appeal imposed restrictions on the father's rights, and, in so doing, gave priority to the religion chosen by the mother for her child. This decision thus supports the principle that the right to custody confers on the custodial parent the right to decide on the child's religious education.
The comments of Professor Jean Pineau, in La famille (1982), are to the same effect when, regarding the content of custodial rights, he states at p. 283:
[translation] The duty of education is said to belong to the father and mother; but, as we have seen, in the event of disagreement the judge's opinion will determine the matter (art. 653 C.C.Q.). When the parents are separated, it is likely that the one who has actual custody of the children will prevail. [Emphasis added.]
The Hon. Albert Mayrand, "La garde conjointe, rééquilibrage de l'autorité parentale" (1988), 67 Can. Bar Rev. 193, at p. 197, expressed the opinion that:
[translation] Article 647 C.C.Q. lists the three main attributes of parental authority: ". . . the rights and duties of custody, supervision and education". By repeating them in art. 649 in the same order, the Code encourages us to consider them as indivisible, at least in their exercise.
. . . The three principal functions of parental authority overlap each other and form a whole, a pyramid the apex of which, education, rests on the other two [custody and supervision], which are the means of attaining it. The function at the base of this pyramid has kind of absorbed the other two, so that ultimately custody is given a very broad meaning . . . . [Emphasis added.]
The author continues, at pp. 206‑7:
[translation] During marriage, the exercise of the rights of supervision and education in complete equality by the father and mother requires concessions and compromises. It is natural that parents will not have the same ideas on such matters. Their differences may sometimes be aired before the child, so that as far as he is concerned the authority of one parent may be neutralized by the contrary opinion of the other. After divorce, however, the custodial parent remains close to the child and far from his usual opponent; his ideas on education have priority and the way he puts them into effect acquires greater authority. For the child, the absence of one of its parents increases the importance of the other's presence. To say that the custodial parent acts as both father and mother is only partially untrue.
Although the law is not clear and opinions are divided on the point, the accepted view is that the custodial parent has the right to make decisions regarding the child's education and upbringing. Placed in the position of command, he selects the school, type of instruction, hospital or physician.
. . .
For the sake of convenience, it is desirable for the custodial parent, exercising his parental authority, to be able to himself or herself make decisions regarding the child's education, without having to consult a former spouse with whom personal relations may have been severed or be difficult. [Emphasis added.]
The views of this jurist equally support the notion that religious training is part of the duty of education, a duty which emanates from general custodial duties.
Finally, in the opinion of Professor Monique Ouellette, Droit de la famille (2nd ed. 1991), education is a [translation] "broad concept", including "`instruction' and the teaching of fundamental moral principles" (p. 187).
Subject to and pursuant to the child's best interests, custodial rights include the right to decide upon the child's religious education, until he or she is in a position to make his or her own choice. I, therefore, conclude in this regard, that the trial judge was correct in stating that religious instruction is the responsibility of the custodial parent.
This, however, does not mean that the non‑custodial parent is excluded from the child's life, as the appellant argues. According to him, the restrictions imposed on his right to access by the disputed order amount to a partial deprivation of his parental authority within the meaning of art. 654 C.C.Q.
While the appellant cited no authority to support his argument, the Court itself has already considered the question of the deprivation of parental authority in C. (G.) v. V.‑F. (T.), [1987] 2 S.C.R. 244. In examining the conditions upon which custody of a child should be granted to a third party in Quebec civil law, Beetz J. wrote, at pp. 281‑83:
. . . a person having parental authority who loses exercise of the right of custody is not deprived of all the attributes of parental authority. Dividing up the exercise of parental authority does not result in the loss by the non‑custodial parent of the status of person having parental authority:
[translation] The parent, or parents, who are deprived of the exercise of custody do not thereby lose either the right to custody itself or the attributes of parental authority in general.
(Marty and Raynaud, op. cit., at p. 445.)
. . . Nevertheless, the non‑custodial parent who is deprived of the physical presence of his or her child most of the time enjoys a right to watch over the decisions made by the person who has custody. He or she has the remedy specified in art. 653 C.C.Q. if a decision by the person who has custody appears to be contrary to the child's interest . . . .
. . .
The non‑custodial parent continues to have a duty to see to the welfare and maintenance of the child (see s. 39 of the Charter of human rights and freedoms). Parental authority continues to be vested in that person and he or she exercises such attributes of the authority as are not opposed to the exercise of custody by the third person [or by the custodial parent]. The following passage from the reasons of Mayrand J.A. in Hébert v. Landry, [1975] C.A. 108, appears to me to be entirely applicable here though it was written in relation to a divorce (at p. 111):
[translation] In awarding custody of the children to one of the divorced spouses, the Court is not releasing the other from the obligation to concern himself with the education of the children and contribute thereto, while continuing to have as close relations with them as possible. . . . The appellant retains all the rights in respect of her children which she had when she was living with her husband and which have not become inconsistent with the respondent's right to custody of the children. . . . [Emphasis added; emphasis in last paragraph added by Beetz J.]
The non‑custodial parent is not in any way deprived of parental authority. He may and must, so far as possible, exercise its attributes, namely the duty of supervision and education. Reference may be made in this regard to, among others, Robert Lesage, "Garde ou autorité parentale; l'emprise de la sémantique" (1988), 91 R. du N. 46.
However, as Albert Mayrand notes, "La garde conjointe, rééquilibrage de l'autorité parentale", supra, at pp. 204‑5, the non‑custodial parent's duty of educating his or her child is considerably weakened and altered in the way it is exercised, but that does not make it impossible. When exercising the right to access, the non‑custodial parent may take the initiative in supervising and educating the child. The education may be of a religious nature, within the limits set out above, or of a more general nature, as was the case in Commission scolaire Pierre‑Neveu v. Poulin, C.S. Labelle, No. 560‑05‑000223‑927, January 5, 1993, J.E. 93‑234. In that case, Landry J., after noting that the granting of custody to one parent does not deprive the other of his parental authority, ordered that the non‑custodial parent be informed of the child's progress in school and that the Commission scolaire Pierre‑Neveu provide him with copies of the various reports sent to the custodial parent. The judge also pointed out that the custodial parent could not object to such requests, which made it possible for the non‑custodial parent to exercise his or her parental authority.
In light of these principles, the appellant's argument regarding deprivation of parental authority cannot possibly succeed.
This, then, is the context in which the legal nature of the right to access, one aspect of the right to custody, must be examined.
2.Right to Access
The Civil Code of Lower Canada, amended on April 2, 1981 since the coming into effect of the Civil Code of Quebec regarding family law, and the Civil Code of Quebec contain no specific provisions regarding the rights of access of the non‑custodial parent. Before the enactment of the Civil Code of Quebec, art. 215 C.C.L.C., adopted in 1866, simply provided:
215. Whoever may be entrusted with the care of the children, the father and mother respectively retain the right of watching over their maintenance and education, and are obliged to contribute thereto in proportion to their means.
This article has been construed by courts as well as commentators as governing the right to access. In Descôteaux v. Descôteaux, [1972] C.A. 279, the Court of Appeal, on an appeal from a judgment on an action for separation from bed and board, expressed the following view regarding access, at p. 280:
[translation] Applying these principles [art. 215 C.C.L.C.] to the present case it follows, in our view, that the defendant retains with respect to the plaintiff the right, inter alia, to supervise the education of the parties' common child, and in respect of the latter is still required to contribute thereto. The visiting and "taking out" of that child every Saturday are, for the defendant, part of the contribution he must make to his child's education. It is not a "privilege", but an obligation towards that child. [Emphasis added.]
Many commentators voice similar opinions. Trudel, Traité de droit civil du Québec (1942), t. 2, mentions that the non‑custodial parent must be able to see and visit his or her child in order to carry out the duty of supervision, education and maintenance (p. 52). Langelier expresses a similar view in Cours de droit civil de la province de Québec (1905), t. 1, at p. 359.
More recently, Professor Ethel Groffier‑Atala, "De la puissance paternelle à l'autorité parentale", supra, at p. 229, writes concerning art. 215 C.C.L.C. that the [translation] "non‑custodial divorced spouse exercises his or her rights through the right to access". In "La garde conjointe, concept acceptable ou non?" (1979), 39 R. du B. 835, at p. 851, I expressed the view that the non‑custodial parent could exercise his or her parental authority by means of the right to access.
Article 647 C.C.Q., now in force, essentially reproduces the old art. 215 C.C.L.C. and reads as follows:
647. The father and mother have the rights and duties of custody, supervision and education of their children.
They must maintain their children.
The principles developed under the old art. 215 C.C.L.C. are thus equally applicable to this new provision. As the Hon. Albert Mayrand so elegantly puts it, [translation] "[t]he various means of exercising the right to access (visiting, taking out, accommodation) are only small pieces of the right of custody" ("La garde conjointe, rééquilibrage de l'autorité parentale", supra, at p. 208). This is as true now as it was before the new Civil Code of Quebec came into force.
B. The Child's Best Interests
Against this background, one must now consider the applicable criterion in determining the right to custody and, by logical implication, its component part, the right to access. As we know, under the Divorce Act , courts must take into consideration only the best interests of the child, as determined by reference to the condition, means, needs and other circumstances of the child (s. 16(8)). In separation from bed and board proceedings, art. 569 C.C.Q. imposes on courts a duty to decide as to the custody of children "in their interest and in the respect of their rights". However, apart from situations of divorce and separation from bed and board, what, according to the Civil Code, is the criterion applicable to the right to access?
Article 30 C.C.L.C., the sole article which applies to parents who are not married or divorced, sets out only one criterion, that of "the child's interest and the respect of his rights". This article is very wide in scope since it applies to "every decision concerning a child". While it is new law, the rule itself is very old, as can be seen from the legal situation that existed before its adoption as well as that existing since, in matters of custody and, subsidiarily, of access.
1.The Rule
(i)Prior to the 1981 Revision
Before the adoption of art. 30 C.C.L.C. in 1981, and even when its predecessor, art. 215 C.C.L.C., was the law, courts and commentators, despite the absence of any express provision to that effect in the Civil Code, gradually developed the criterion of the child's best interests as regard to custody and access.
As early as 1896, discussing the granting of custody, Mignault, Le droit civil canadien (1896), t. 2, mentioned that [translation] "[t]he greater advantage of the children is what will always guide the discretion given to the court" (p. 36). Langelier, supra, at p. 358, for his part, observed that the court [translation] "should consider exclusively what will benefit the children", as did Trudel, supra, at p. 49. The phrase "the greater advantage of the children" was drawn from the then art. 200 C.C.L.C., which dealt with interim custody of the children.
In Bleau v. Petit (1902), 6 Que. P.R. 353 (Sup. Ct.), a dispute arose between parents about the custody of their child that was brought before the court by way of habeas corpus. The judge held that the interests of a young child must be the sole guide for the judge in a habeas corpus proceeding.
The Superior Court again faced the same issue in Moquin v. Turgeon (1912), 42 C.S. 232, and held that it [translation] "is how the writers can logically say that the interests of children must be the sole guide for the judge". See, to the same effect, Nault v. Nault (1911), 13 Que. P.R. 221 (Sup. Ct.), and Woollven v. Aird (1912), 14 Que. P.R. 165 (Sup. Ct.).
In 1922, the Court of Appeal had to decide the custody of a minor child in an action for separation from bed and board in Smith v. Copping (1922), 34 Que. K.B. 412. Upholding the Superior Court judgment, it approved the following passage, at pp. 412‑13:
[translation] Whereas, in questions of this kind, the court should consider only the interests, advantage and welfare of the young child, without being concerned who, husband or wife, has a greater right to custody of the child when both are considered fit to look after it; [Emphasis added.]
See also Bigman v. Belzberg, [1952] Que. Q.B. 391, at p. 394 (per Galipeault C.J.).
This Court dealt with this issue in Taillon v. Donaldson, [1953] 2 S.C.R. 257. The parents were claiming their child from the uncle and aunt with whom they had "placed" him seven years earlier. The majority of the Court, per Kellock J., held that, as the evidence showed that the parents were unfit and incapable, custody of the child should be left with the uncle and aunt. Taschereau and Fauteux JJ., dissenting on the question of the assessment of the evidence by the trial judge, were of the view that there might be reasons other than lack of fitness and inability to care for the child that would lead a court to remove custody from the parents. In their view, the correct principle in this area was that [translation] "the interests of the child should be considered, and should even be the court's main concern" (p. 258, per Taschereau J.).
Subsequent decisions of the Court of Appeal adopted Fauteux J.'s view. Following the reasoning in Smith v. Copping, supra, the Court of Appeal has always recognized that the child's best interests is the primary concern in this area. In Benisty v. Delouya, [1969] Que. Q.B. 720, at p. 721, it reiterated that it is [translation] "the interests of the child which must prevail". See also, inter alia, Blanchette v. Collin, [1972] C.A. 352, and Bockler v. Bockler, supra.
In Legault v. Figueroa, [1978] C.A. 82 (leave to appeal to the Supreme Court refused, [1978] 1 S.C.R. ix), a divorced husband had applied for custody of his minor child, initially granted by decree to the divorced mother. The child had lived with his maternal grandparents since the mother's death. On an application for habeas corpus, the Superior Court (per Bard J.) had held that, on the evidence, the child's best interests required that custody be awarded to the father rather than the maternal grandparents. Speaking for the Court of Appeal, which upheld the Superior Court judgment, Mayrand J.A. said the following (at p. 85):
[translation] The fact that the divorced spouses have an equal right to custody of their child makes imperative the application of the golden rule that the child's interests is the determining factor.
. . .
The interests of a child are a function of a large number of factors which are difficult to assess . . . . [Emphasis added.]
The Superior Court had previously applied this "golden rule". On an application for child custody in Perreault v. Demers, [1974] C.S. 530, at p. 533, it had held that the court's discretion regarding child custody should be exercised in accordance with [translation] "the child's interests, advantage and welfare" (per Martel J.). Similarly, in a later case, Favreau v. Éthier, [1976] C.S. 48, at p. 48, Gervais J. wrote that, in analysing the evidence to determine who should have custody of the children, the child's welfare and interests [translation] "should take priority over any other consideration".
Commentators have also recognized that what is in the child's best interests is the sole criterion that should guide the granting of child custody. Professors Pineau and Ouellette, "La protection de l'enfant dans le droit de la famille" (1978), 9 R.D.U.S. 76, state at p. 90:
[translation] . . . and it [the court] makes [any decision on custody] based on the principle of the child's interests which is one of the fundamental rules of the new family law.
In Les droits et les besoins de l'enfant en matière de garde: réalité ou apparence? (1978), Professor Claude Boisclair is of the view, at p. 4, that [translation] "courts have always tried to make the best decision in `the child's interests'". After reviewing the cases dealing with the law in effect before the 1981 reform, the Hon. Albert Mayrand, "L'incidence de la conduite des époux sur le droit de garde de l'enfant", supra, at p. 48, concluded that [translation] "[t]he granting of custody of a child rests on a determination of his interests, namely of his welfare".
(ii)1981 Reform
Even though art. 30 C.C.L.C., enacted at the time of the general reform of family law in Quebec, is new law, Albert Mayrand J.A. noted in Droit de la famille -‑ 52, [1983] C.A. 388, at p. 391, that:
[translation] Even before the new reform of family law, paternal authority had to be exercised in the child's interests. The new article 30 of the Civil Code of Lower Canada transforms this case law rule into a legal rule and gives it indisputable prominence . . . [Emphasis added.]
See to the same effect Droit de la famille ‑‑ 110, [1984] C.S. 99, at p. 101 (per Gomery J.).
In C. (G.) v. V.‑F. (T.), supra, which concerned the conditions under which child custody should be granted to a third party in Quebec civil law, Beetz J., for the Court, set out the scope of art. 30 C.C.L.C. as follows, at pp. 269‑70:
The child's interest has become the cornerstone of decisions concerning it in Quebec civil law. The reform of family law introduced in 1980 by the adoption of the Act to establish a new Civil Code and to reform family law, S.Q. 1980, c. 39, has made the child's interest paramount. The rule that the child's interest must prevail was for the first time unequivocally recognized in the Civil Code with that reform . . . .
The adoption of art. 30 C.C.L.C. was accompanied by a number of legislative amendments intended to apply this criterion to the various situations in which the child's welfare is likely to be compromised. The legislature also imposed on the courts a duty to ensure that the child's interest is protected. . . .
The wording of art. 30 C.C.L.C. itself confirms that the child's interest can sometimes prevail over that of the person having parental authority if these interests come into conflict. Article 30 C.C.L.C. states that the child's interest must be considered in light of, inter alia, "the child's age, sex, religion, language, character and family surroundings, and the other circumstances in which he lives". Despite the considerable weight that must be given to them, family surroundings are not the determining factor: they are just one factor among others to be considered. [Emphasis added; emphasis in last paragraph added by Beetz J.]
After referring to various authors, Beetz J. goes on to say, at p. 271:
There can be no question that art. 30 C.C.L.C. applies to custody matters. Article 30 C.C.L.C. is based on the Draft Civil Code proposed by the Civil Code Revision Office, which in a chapter entitled "Provisions Relating to Children", proposed an article which is fundamentally identical:
25 In every decision concerning a child, whether that decision is made by his parents, by the persons acting in their stead, by those entrusted with his custody or by judicial authority, the child's interest must be the determining factor.
Consideration is given in particular to the child's age, sex, religion, language, character and family surroundings, and the other circumstances in which he lives.
(Civil Code Revision Office, Report on the Québec Civil Code: Draft Civil Code (1978), vol. I, at p. 9.)
The comments of the Office on this provision clearly indicate its applicability to custody:
This article is new. It states the principle that the child's interest is of supreme importance when decisions concerning him are made. It also determines the criteria by which the court must be guided in its assessment, particularly in cases of adoption, custody or support.
(Civil Code Revision Office, Report on the Québec Civil Code: Commentaries, vol. II, t. 1, at p. 28.) [Emphasis added.]
Finally, Beetz J. wrote, at p. 272:
By adopting the very wording of art. 30 C.C.L.C., art. 569 C.C.Q. [applicable in divorce matters] makes it clear beyond doubt that the child's interest is the only criterion to be considered in awarding custody. [Emphasis added.]
There can be no question that these observations equally apply to one of the attributes of custody, the right to access.
Quebec courts have consistently followed this approach. In Droit de la famille ‑‑ 411, [1987] R.J.Q. 2584, Piché J. of the Superior Court relied largely on the comments of Beetz J. in disposing of a case concerning child custody and the rights of access of parents. Similarly, in Droit de la famille ‑‑ 425, [1988] R.J.Q. 159, the Superior Court had to rule on the custody of a child and rights of access. Reeves J. eloquently expounded on the view of the child's interests as proposed by art. 30 C.C.L.C., from which I find it useful to quote large extracts (at pp. 161‑62):
[translation] The solution to this dilemma is to be found in an objective assessment of the various specific aspects of this abstract notion of "the child's interest". This assessment has to be made in conjunction with that of the parents' interests, though without being subordinate to the latter. . . .
The child's interest is not defined by law: it is only mentioned in art. 30 C.C. . . .
. . .
It can be said that the interest of a human being is nothing but the measure of his welfare (In re Goyette: Centre de services sociaux du Montréal métropolitain, [1983] C.S. 429). There are generally four aspects to a person's welfare: the physical or material, the emotional, the intellectual or educational, and, finally, the moral and religious or spiritual aspects. The combination of all these aspects gives a person what may be called his particular "culture".
The second paragraph of art. 30 alludes to these aspects in part and by way of illustration.
. . .
Marital or family disputes result simply from the inability of parents and/or children to adapt to the occurrence, unforeseen in time and space, of the innumerable possible combinations of these four aspects of human activity.
. . .
Children, who are destined to become fully developed human beings, stable and responsible citizens, will survive their parents. The survival of children and, by extension, of society is thus the underlying reason for the priority given to the interests and rights of the child over its parents' interests and rights. Article 30 C.C. uses the phrase "determining factors": this is synonymous with "priorities". [Emphasis added.]
See also Droit de la famille ‑‑ 1717, [1993] R.J.Q. 166 (Sup. Ct.), at p. 172, per Frenette J.
The doctrine, to the same effect, does not seem to have led to any controversy. Professor Mireille D.‑Castelli, Précis du droit de la famille (2nd ed. 1990), at p. 226, considers that the only criterion in custody matters is consideration of the child's interests as provided for in art. 30 C.C.L.C. or, in the event of a divorce, s. 16 of the Divorce Act . Professor Ouellette, Droit de la famille, supra, at p. 186, notes that the criteria for awarding custody to a parent are many and varied, but the entire [translation] "approach is designed to identify the child's best interests, which is the only absolute criterion".
The same criterion is adopted by commentators and courts in France. In Droit civil: la famille (3rd ed. 1993), Collection Domat Droit Privé, Professor Gérard Cornu states that, when a court must rule on what will happen to the children in a divorce, [translation] "the law (Civ. C. arts. 287 and 287‑1) gives the judge the function of choosing among the solutions it offers the one dictated by the child's interests" (No. 416, p. 545). His reflections, at No. 414, p. 543, are just as valid in Quebec as they are in France:
[translation] Divorce reveals ‑‑ what parental consultation was supposed to assume ‑‑ that the interest of the child is a superior interest which society is to protect in the event of parental discord. A socially protected superior interest means, in one respect, an interest external to the parents, in the sense that the child is not their thing (not a thing to be divided like silverware), not a pawn in their dispute, a being which is not on earth in order to bear the burden of their problem, but to fulfil its destiny like any person who, since the origins of humanity, has by chance come into being in the long succession of generations, parents who have been children, until they themselves are parents of other children. This is the message which, in divorce, society gives to warring parents: you do not count.
Parents do count. A superior interest does not mean an exclusive interest or a foreign domain. Parents also suffer and their children love them. Their proper and respective interests are legitimate; and even their faults as spouses do not as such disqualify them as parents. Their natural vocation to promote their parental relations remains intact, and most importantly their vocation to participate together in the necessary adaptation. [Emphasis added.]
Accordingly, whether rights of custody or access are involved, the child's best interests as set out in art. 30 C.C.L.C. will be the sole guide. These best interests may properly require that certain restrictions be placed on the right to access. This is precisely the issue raised in the present appeal.
2.Its Content
Though there is no longer any doubt as to the rule of the child's best interests, its content has evolved so that it now includes a whole range of factors identified by courts and supported by commentators.
In Dugal v. Lefebvre, [1934] S.C.R. 501, Rinfret J. noted at p. 508 that [translation] "if the parents want the courts to help them retain their children's affection and devotion, they themselves must at least show some interest". Factors such as the child's physical health, well‑being, education and instruction, as well as his or her wishes, were regarded as an integral component of the child's best interests.
The Court again considered the point in Taillon v. Donaldson, supra. According to Fauteux J., dissenting on the question of assessment of evidence by the trial judge, the child's interests should not be regarded as purely material, but should be examined as part of the whole institution of the family with the resulting rights and duties therefrom (p. 269).
The age of the child was one of the criteria considered by courts in dealing with custody: see Keller v. Kredl, [1956] Que. Q.B. 810, and Wilson v. Thompson, [1959] Que. Q.B. 522. As Édith Deleury, Michèle Rivet and Jean‑Marc Neault, "De la puissance paternelle à l'autorité parentale: Une institution en voie de trouver sa vraie finalité" (1974), 15 C. de D. 779, at p. 848, observe, [translation] "[t]he child's age is one criterion used by courts in granting custody, but like all the other criteria it is subject to the general principle of the child's interests".
According to Martel J. of the Superior Court in M. v. D., [1966] C.S. 224, the conduct of the parents and the wishes of the child are among the factors relevant to the child's interests: [translation] "[t]he child's welfare being the objective, no consideration that can have any influence on the resolution of this question should be neglected" (p. 225). Similarly, in Boily v. Vallée, [1966] Que. Q.B. 1001, the Court of Appeal took into account the possibility of emotional shock in deciding where the child's best interests lay.
Commentators write to the same effect. In 1942, Trudel stated, supra, t. 1, at pp. 621‑22:
[translation] . . . the law thinks first and foremost of the children's interests. Protecting those interests is the only point to be considered by the judge or the court ‑‑ both have jurisdiction ‑‑ which must grant custody to the father or the mother. . . .
The facts recognized as most important are the age and religion of the children; the behaviour of the spouses toward their children, much more than their mutual feelings; the possibilities for education and instruction; the wishes of a child whose age enables him or her to make a reasonable choice; misconduct by the father or the mother.
Professors Pineau and Ouellette summed up the state of the law on the subject on the eve of the 1981 reform of Quebec family law in the study I have already cited, at p. 91:
[translation] Article 215 C.C. provides that a judge may award custody of a child to the father, the mother or a third party. In deciding where the best interests of the child lie, he will take into account the child's age and sex, the parents' age and conduct, the child's views, the possibility of providing him or her with a relatively normal home life, the child's psychological equilibrium, and, finally, occasionally, race and religion. The parents' conduct was for a long time the only factor in awarding custody. It was replaced by that of the child's age: a young child was nearly always awarded to the mother. At the present time, it is not untrue to say that Quebec judges give less importance to the criteria set out earlier: the compelling argument is that of the best interests of the child as assessed by the judge, based on the facts presented to it and over which it has the most complete discretion. [Emphasis added.]
From all of the foregoing I conclude that, on the eve of the 1981 family law reform, the criterion to be considered in matters of custody and access was the child's best interests, and this criterion was understood as including a whole range of factors such as age, sex, race, religion, education, psychological equilibrium, the child's views, the possibility of emotional shock to the child and the conduct of the parents, as well as the possibility of giving the child a relatively normal home life. Article 30 C.C.L.C. merely codified the view held by courts and commentators.
In Young, supra, the issue, as in this case, was a variation of the right to access to the children, within divorce proceedings. Since the Divorce Act makes the child's best interests the sole guide in this matter, the principles I discussed in Young are consequently just as applicable to the present appeal. I refer to that case in particular for the studies and statistics therein mentioned, which do not need to be repeated here.
In Young, the Court of Appeal ((1990), 50 B.C.L.R. (2d) 1) adopts "harm" as the criterion for determining whether or not to restrict parental rights to access. Given the clear, precise and unambiguous wording of art. 30 C.C.L.C., the only section applicable, it is hard to understand how the concept of "harm" as the sole criterion could have made inroads into this area of law. Neither courts nor commentators have taken this approach.
Further, as I noted in Young, the right to custody, and especially its attribute, the right to access, exist only in so far as they are provided for by the legislation itself: the right is a purely statutory creation, under the Civil Code. In interpreting such a disposition, one should not violate the meaning of the text, nor improperly expand it. In my opinion, the scope my colleague gives to the wording of the Civil Code is one which neither, the letter nor the spirit, of the provision may support.
The test of harm could not be the determining factor even though it is within the circle of all the factors making up the child's best interests in determining rights of access. It is clear that if the exercise of such rights causes "real and significant" harm to the child, those rights will automatically be restricted. Nevertheless, it is also true that, even in the absence of harm, the range of factors, listed in the Code and made explicit in commentary and case law, which are used to determine where the child's best interests lie (age, sex, religion, need, resources, environment, physical and psychological well‑being, special characteristics, and so on), may require courts to restrict the rights of access of a parent, temporarily or otherwise, wholly or partially, or limit it to certain conditions. In this area, judicial discretion is broad precisely so the judge may take into account all the factors relevant to each case, as required by the Civil Code.
In short, although harm to the child is one of the factors a court must take into account if the circumstances so require, it was not isolated by the legislature as being the sole criterion. In my view, it would be going against the wording of the Civil Code to propose as a sole criterion a factor which is only one of the many components of the criterion adopted by the legislature, namely the interests of the child, assessed from the standpoint of the child and his or her needs, and not from that of the "rights" of parents. This theory of the predominance of parents' rights has long been rejected in favour of that of the paramount rights of children, as I discuss at greater length in Young, supra.
Finally, as I also observed in Young, waiting for harm to occur, which is essentially the theory of harm, is not only contrary to the child's best interests but puts the burden of error on the child and places the emphasis a posteriori rather than a priori, which definitely distorts the purpose of these Civil Code provisions, which are designed specifically to avoid subjecting the child to harm. It is the child, as I stated above, who should always be the focus, not the interests or needs of the parents. The right to access is a right designed primarily to benefit the child, not the parents. It is the parents who have the duty of providing for, protecting and promoting their children's best interests.
I, therefore, conclude that, like the Superior Court, the Court of Appeal, in applying the criterion of the child's best interests to the present case, made no error of principle. The appellant's arguments on this aspect of the case should, therefore, be rejected.
3.Its Constitutionality
The appellant, however, raised the unconstitutionality of the criterion of the child's best interests, arguing that it is too vague and discretionary. In his submission, the discretion conferred upon the courts under art. 30 C.C.L.C. infringes the Charter, and, moreover, the criterion of the child's best interests is so vague as to infringe ss. 1 and 7 of the Charter.
Like my colleague, I am of the view that the provisions of the Civil Code at issue here do not infringe any principle enshrined in the Charter. On the contrary, those provisions are consistent with the values underlying the Charter. First, this Court has already held that even very broad judicial discretion in a legislative provision does not in itself give rise to a constitutional review of that provision (Baron v. Canada, [1993] 1 S.C.R. 416, at p. 439 (per Sopinka J.); R. v. Beare, [1988] 2 S.C.R. 387, at p. 410 (per La Forest J.); and R. v. Corbett, [1988] 1 S.C.R. 670, at pp. 691‑92 (per Dickson C.J.)), provided that such discretion has a rational connection with the legislative objective of the provision. There can be no doubt that such a connection is present in this case.
For the same reasons as those set out in Young, supra, I am of the view that the existence of a broad discretion is closely linked to achieving the legislative objective of promoting the child's best interests. This is what emerges upon an examination of the context of art. 30 C.C.L.C. as well as its wording. This discretion conferred by art. 30 C.C.L.C. makes it possible for one to consider the circumstances of each case, circumstances which can be infinitely varied. The flexibility of this article does not make it vague. On the contrary, the legislative provisions adopted in family law, in particular those dealing with custody and access rights, such as art. 30 C.C.L.C., are probably the best example of the type of legislation which, in order to properly achieve its objectives, requires broad judicial discretion. The following remarks by the Hon. Albert Mayrand, "La garde conjointe, rééquilibrage de l'autorité parentale", supra, at p. 228, are very apposite here:
[translation] It is sometimes argued that the courts are given excessive discretion in family law; but this discretion makes it possible to devise judicial solutions better suited to new situations than rules enacted by the legislature would be. [Emphasis added.]
Seen from this perspective, the criterion of the child's best interests, set out in art. 30 C.C.L.C., which is quite explicit in content, could not be vague within the meaning of s. 1 of the Charter. Though it is a fairly broad legislative concept, the criterion of the child's best interests, especially as defined in art. 30 C.C.L.C., refers to the totality of the considerations relating to a child and is capable of application to the circumstances of each case.
As I discuss at greater length in Young, supra, this criterion is universally recognized in modern family law and has been adopted in the United States as well as in Australia and Europe. Moreover, it is put forward in the United Nations Convention on the Rights of the Child, Can. T.S. 1992 No. 3, Article 3(1). This criterion has also been applied for decades by courts in Quebec and abroad, giving rise to a large body of case law. This indicates the universal and lasting value of the criterion, as well as the fact that its content is significant. In my view, this disposes of the appellant's argument regarding judicial discretion.
Moreover, as in Young, supra, contrary to the submission of the appellant, art. 30 C.C.L.C. is not vague within the meaning of s. 7 of the Charter. The constitutional theory of vagueness has no application in this case, as art. 30 C.C.L.C., in using the criterion of the child's best interests, provides a sufficient guide and an adequate basis on which to found a judicial debate (R. v. Morgentaler, [1988] 1 S.C.R. 30; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; R. v. Keegstra, [1990] 3 S.C.R. 697; Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139; Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69; R. v. Butler, [1992] 1 S.C.R. 452; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; and R. v. Morales, [1992] 3 S.C.R. 711).
For these reasons, the appellant's argument that the criterion of the child's best interests set out in art. 30 C.C.L.C., and the judicial discretion it entails, are a vague and therefore unconstitutional standard, cannot succeed.
C. Freedoms Guaranteed by the Charter
I shall now deal with the arguments raised by the appellant that the trial judge's order infringes his rights and freedoms protected by the Charter, namely his freedom of religion (s. 2(a)), his freedom of expression (s. 2(b)), his right to equality (s. 15(1)) and his freedom of association (s. 2(d)).
1.Section 2(a)
The appellant alleges that the trial judge infringed his freedom of religion guaranteed by s. 2 (a) of the Charter. As I stated in Young, supra, the Charter does not apply to private disputes between parents in a family context. The Charter can no more cover judicial orders made to resolve disputes of a private nature (RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; and Tremblay v. Daigle, [1989] 2 S.C.R. 530). Furthermore, this is not a situation similar to that of an arbitrator appointed pursuant to a statute and deriving all his or her powers therefrom, as in Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038. We are dealing here with the judiciary, a separate branch of government within the meaning of s. 32 of the Charter. The Charter, accordingly, will not apply here to the order of a court in a family matter. Certain exceptions to this rule, which I set out in Young, supra, are not applicable here.
Despite the foregoing, however, courts can in no way ignore the values underlying the Charter in any decision they are called upon to make. In this connection, I would like to point out that, in ruling on a child's best interests, a court is not putting religion on trial nor its exercise by a parent for himself or herself, but is merely examining the way in which the exercise of a given religion by a parent through his or her right to access affects the child's best interests.
I am of the view, finally, that there would be no infringement of the freedom of religion provided for in s. 2(a) were the Charter to apply to such orders when they are made in the child's best interests. As the Court has reiterated many times, freedom of religion, like any freedom, is not absolute. It is inherently limited by the rights and freedoms of others. Whereas parents are free to choose and practise the religion of their choice, such activities can and must be restricted when they are against the child's best interests, without thereby infringing the parents' freedom of religion. It is important to note that the trial judge's order refers to the appellant's "religious fanaticism" and not to the normal exercise of his religion in respect of his child. Like the trial judge and the Court of Appeal, I would dismiss this argument.
2.Section 2(b)
The appellant argues, in this regard, that the order made by the trial judge infringes his freedom of expression guaranteed by s. 2 (b) of the Charter. As I have just mentioned, no freedom is absolute and this is equally true of the freedom of expression the appellant is claiming. The child's best interests may require imposing limits on this right. If the Charter did apply, which, in my view, it does not, the order here in question would not infringe the appellant's freedom of expression provided for in s. 2 (b) of the Charter. The disputed order does not prohibit any communication by the appellant with C.; it only prohibits him from indoctrinating his daughter in the way he is doing, both by his words and by his activities.
3.Section 15(1)
The appellant also contended that the disputed order infringed his right to equality contrary to s. 15(1) of the Charter. Not only does the Charter not apply to the order, but, in addition, the appellant presented no argument in support of this contention. He simply cited several decisions and authors and gave a brief historical background in support of his contention that Jehovah's Witnesses have been the victims of discrimination as a group. That is not in any way the question before the Court and these arguments, valid though they might be in some other context, have no bearing on the case at bar. If the Court were concerned with the practice by a Catholic, Protestant or atheist, to mention only a few religious beliefs, the decision would be the same: the child's best interests remain a court's only guideline. This argument simply cannot stand in the present debate.
4.Section 2(d)
On this point, the appellant did not even attempt to show how the order at issue infringed his freedom of association guaranteed by s. 2 (d) of the Charter, and there is no need to discuss it further.
In view of the foregoing and given my conclusion that the Charter has no bearing on the order made by the trial judge, and that even if it did apply, no infringement of the appellant's rights and freedoms has been established, s. 1 of the Charter does not come into play. The appellant's arguments relating to the infringement of his rights guaranteed by the Charter must, therefore, be rejected.
D. The Agreement
Before turning to the application of art. 30 C.C.L.C. to the facts of the case at bar, another aspect of the dispute must be disposed of, even though there was no particular discussion of the point.
The parties in this case entered into an agreement, which I reproduced above, recognizing the appellant's right to access and setting the modalities of its exercise. As a general rule, the judicial tendency is to respect such agreements, even though they are not bound to do so. Such agreements are not in any way prohibited: on the contrary, they are encouraged as no one is in a better position than the parties themselves to resolve the question of rights of access. However, courts may and must occasionally intervene where the circumstances and the child's interests so require. The circumstances of both the parties and the child may vary, and it is, then, for courts to ensure that the children's best interests are respected.
For the most part, courts and commentators have considered this type of agreement in the context of divorce proceedings, especially as they concern child custody and maintenance. There is no longer any question as to the validity of such agreements, as Professor Pineau, La famille, supra, at p. 122, points out:
[translation] If the agreement dealing with the separation itself is void, certain corollary agreements regarding alimony, child custody or the status of the spouses' property may nonetheless be admitted when the spouses are involved in a separation or divorce proceeding or are on the point of being so.
However, these agreements cannot override the power of the courts to alter them or even set them aside, to the extent that they prove to be against the child's best interests. As the Hon. Albert Mayrand, "Conventions entre époux en prévision de leur divorce et conventions entre divorcés" (1960), 20 R. du B. 1, at p. 27, noted:
[translation] The child's interests determine who will have custody and be primarily responsible for the child's education. As those interests vary with the circumstances, neither an agreement by the parents nor a judicial decision before or after a divorce removes the essentially temporary nature of child custody. However, since one of the divorced parents may by action (not by motion) obtain custody of the child, he or she may also obtain it without a judicial contest, by contract. Like a judgment, such a contract may award one of the parents only a custody right subject to the other parent's visiting right. It is always subject to review since it is legally valid only to the extent that it is consistent with the child's interests at a given time and to the non‑transferable rights resulting from parental authority. [Emphasis added.]
More recently, the same jurist returned to the point in "Conventions de séparation entre époux" (1970), 73 R. du N. 411, at p. 428:
[translation] As alimony is always subject to review because it depends on the variable relationship between the needs of the creditor and the resources of the debtor, so child custody is always provisional because it is based on the child's interests, which changes over time and with the circumstances. In principle, an agreement on child custody or access rights is never irrevocable. [Emphasis added.]
Mignault, supra, at pp. 36‑37, was already of the view, in 1896, that judgments awarding custody of a child could be revoked, always for the latter's greater advantage, if new circumstances were demonstrated. He cited in support the decision of the Superior Court in revision, Valade v. Corbeil (1889), 33 L.C.J. 207, where it is stated, at p. 209, that [translation] "all decisions on child custody and education are subject to being vacated and modified, in light of new circumstances . . .". See to the same effect Trudel, supra, t. 2, at pp. 49‑50.
The case of Bronfman v. Moore, [1965] Que. Q.B. 181, affirmed by the Supreme Court at [1964] S.C.R. v (unreported), is one of the first attempts by courts to deal with this question. In Bronfman, divorce was granted in 1961, and, pursuant to an agreement, custody of the daughter was given to the mother. In 1963, the father unsuccessfully tried to obtain custody of the child; Smith J. of the Superior Court granted him only rights of access. Taking advantage of trips made by his ex‑wife on several occasions, the father decided to keep the child with him. The mother then asked the Superior Court to issue a writ of habeas corpus, which was granted and affirmed on appeal. Responding to an argument raised by the father, the Court of Appeal, per Choquette J.A., said at p. 186:
[translation] Moreover, just like a separation agreement between spouses, an agreement on custody of a common child can only be valid as long as it subsists, although such an agreement may influence any future determination of the child's interests. In principle, such an agreement, when it is broken, cannot prevail over the interests of the child, which always remains the primary consideration. [Emphasis added.]
In Harris v. Webster, [1975] C.A. 702, the Court of Appeal examined an agreement between divorced parties regarding the payment of maintenance for their three children. The appellant had made a motion that the agreement, ratified by decree, be amended, in order for her to obtain an increase in child support. The Court of Appeal, dismissing the appeal, refused this request as it considered that a [translation] "court may intervene against the wishes of the parties when the interests of the children is at stake" (p. 703, per Dubé J.A.).
Dealing with the same type of application in Droit de la famille -‑ 157, [1984] C.A. 497, Dubé J.A., for the Court of Appeal, noted at p. 499:
[translation] Moreover, it is well known that the Divorce Act as well as the Civil Code of the province of Quebec give the judge complete discretion to vary orders made pursuant to a separation or divorce, even though those orders were made in accordance with an agreement between the parties, where the parties' circumstances have changed since the divorce decree was granted . . . . [Emphasis added.]
With respect to agreements between divorced parties regarding custody and access rights considered by courts, see also Droit de la famille -‑ 368, C.A. Montréal, No. 500‑09‑001589‑845, March 17, 1987, C.A.P. 87C‑147, and Droit de la famille ‑‑ 1472, C.A. Québec, No. 200‑09‑000546‑918, October 9, 1991, J.E. 91‑1639.
The same principles are equally applicable to agreements between unmarried parties regarding access. Reference may be made, for example, to Droit de la famille ‑‑ 353, [1987] R.J.Q. 545, a decision in which the Court of Appeal imposed restrictions on an agreement between parents (who had never married) providing for the right to access by the father, as a result of changes in the religious activities of the father.
I, therefore, conclude that an order ratifying an agreement on custody and/or access is always subject to review in so far as the child's circumstances and interests so warrant. This principle must govern the appeal now before this Court.
E.Application to the Facts of this Case
Returning to the main issue before the Court, and bearing in mind that the sole criterion in this field is the child's best interests, as mentioned earlier, the only question is whether the trial judge erred as to the applicable criterion, and, if not, whether the facts adduced in evidence support the conclusion he drew from them.
After identifying the applicable guideline as being the child's best interests, the judge appears to have referred to a criterion that goes beyond the one provided for in the Civil Code. His analysis of the evidence led him to conclude that the appellant's right to access should be restricted, even applying this stricter standard.
The evidence disclosed inter alia that the appellant did 20 to 25 hours a week of preaching and solicitation, mainly door-to-door, and only worked for 16 to 20 hours a week as a cleaner to provide for his basic necessities. He devoted the rest of his time to reading the Bible and studying his religion. He cannot be faulted for these activities, as such. However, he sought to impose his religion on everyone around him. The evidence also indicates that when she was very young, C. was influenced by her father's teaching, so much so that she repeated up to 15 times a day on returning from visits with the appellant that [translation] it is "Jehovah [who] made [C.], [who] made the moon, [who] made the stars, [who] made everything". The child also told the respondent that the appellant had told her that [translation] "it was not good to celebrate Christmas" and not to dress up on Halloween. The evidence further discloses that the appellant took the child to Montréal to a religious meeting without the respondent's knowledge and that he did not observe the terms of the agreement regarding his visiting rights, often bringing C. back to the respondent's home late without telling her and neglecting to give her the necessary 24‑hour notice before the visit.
Without specifically mentioning in his judgment each and every piece of evidence he considered, the trial judge saw and heard this evidence, evidence which was not contradicted in any way. He must certainly have weighed the witnesses' credibility and he concluded that the evidence met an even more stringent criterion. A fortiori he would have found this evidence sufficient to meet the less stringent test of the child's best interests. My reading of the evidence leads me to the same conclusion.
The trial judge concluded, as a question of fact, that restrictions should be placed on the appellant's right to access to C. He noted the appellant's "religious fanaticism" and "intransigent behaviour", observing at p. 42:
[translation] In the case of a young child (3½ years old as in the case at bar), courts may impose limits on the practice of religion in the child's best interests.
. . .
This reasoning fully applies to the facts disclosed in the case at bar.
I entirely agree with the conclusion of Vallerand J.A., affirming the judgment, when he says at p. 308:
[translation] . . . a young girl 3½ years old must be able to benefit fully from her childhood without being constantly bothered by conflicts, namely whether God is in heaven or in her heart, whether or not she should put on a clown's costume for Halloween, and so on. 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.
It is well established that a court of appeal must not intervene in the determinations and findings of fact made by a trial judge unless an error has been demonstrated. It is well‑settled case law that a court of appeal will only intervene in a trial judge's findings of fact if the judge has made a manifest error, ignored conclusive or relevant evidence, has misunderstood the evidence or drawn erroneous conclusions from it. See Bank of Montreal v. Bail Ltée, [1992] 2 S.C.R. 554, at pp. 572‑73 (per Gonthier J.); Lapointe v. Hôpital Le Gardeur, [1992] 1 S.C.R. 351, at pp. 358‑61 (per L'Heureux‑Dubé J.); M. (M.E.) v. L. (P.), [1992] 1 S.C.R. 183, at p. 205 (per Gonthier J.); Laurentide Motels Ltd. v. Beauport (City), [1989] 1 S.C.R. 705, at pp. 794 and 799 (per L'Heureux‑Dubé J.); Lensen v. Lensen, [1987] 2 S.C.R. 672, at p. 683 (per Dickson C.J.); Beaudoin‑Daigneault v. Richard, [1984] 1 S.C.R. 2, at p. 9 (per Lamer J.); Schreiber Brothers Ltd. v. Currie Products Ltd., [1980] 2 S.C.R. 78, at p. 84 (per Laskin C.J.); Joseph Brant Memorial Hospital v. Koziol, [1978] 1 S.C.R. 491, at p. 504 (per Spence J.); Métivier v. Cadorette, [1977] 1 S.C.R. 371, at p. 382 (per de Grandpré J.); and Dorval v. Bouvier, [1968] S.C.R. 288, at p. 293 (per Fauteux J.). No such error by the trial judge is present here. The Court of Appeal found none nor did I.
In view of the foregoing, in the absence of any error of principle by the trial judge or error in assessing the evidence, which, in any case, was not disputed, I agree that the majority of the Court of Appeal was right not to intervene.
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 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
Sopinka J. (dissenting) -- Subject to my comments in Young v. Young, [1993] 4 S.C.R. 3 (released concurrently herewith), I agree with McLachlin J.
The following are the reasons delivered by
Cory and Iacobucci 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 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
McLachlin 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" 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.
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 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.
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 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 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.
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