Young v. Young

Young v. Young
Collection
Supreme Court Judgments
Date
1993-10-21
Report
[1993] 4 SCR 3
Case number
22227
Judges
La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank
On appeal from
British Columbia
Subjects
Constitutional law
Courts
Family law
Torts
Notes
SCC Case Information: 22227
Decision Content
Young v. Young, [1993] 4 S.C.R. 3
Irene Helen Young Appellant
v.
James Kam Chen Young Respondent
and
W. Glen How Respondent
and
Watch Tower Bible and Tract Society of Canada Respondent
and
The Attorney General of Canada,
the Attorney General for Ontario,
the Attorney General of Quebec,
the Attorney General of Manitoba,
the Attorney General of British Columbia,
the Law Society of British Columbia and
the Seventh‑day Adventist Church in Canada Interveners
Indexed as: Young v. Young
File No.: 22227.
1993: January 25, 26; 1993: October 21.
Present: La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.
on appeal from the court of appeal for british columbia
Family law ‑‑ Custody ‑‑ Access ‑‑ Best interests of the child -- Access parent insisting on instructing children on religion -- Custodial parent and children objecting to religious instruction -- Court ordering that access parent discontinue religious activities with children -- Scope of "best interests of the child" -- Whether or not "best interests of the child" equivalent of absence of harm -- Whether or not restriction on access in best interests of the children.
Family law ‑‑ Children ‑‑ Best interests of the child ‑‑ Access parent insisting on instructing children on religion -- Custodial parent and children objecting to religious instruction -- Court ordering that access parent discontinue religious activities with children -- Scope of "best interests of the child" -- Whether or not "best interests of the child" equivalent of absence of harm -- Whether or not restriction on access in best interests of the children.
Family law -- Property and financial awards -- Lump sum payment -- Family debts -- Principles governing reallocation of property.
Constitutional law ‑‑ Charter of Rights ‑‑ Freedom of religion -- Freedom of expression -- Divorce Act requiring that orders concerning children only take into account "the best interests of the child" -- Access parent insisting on instructing children on religion -- Custodial parent and children objecting to religious instruction -- Court ordering that access parent discontinue religious activities with children -- Whether or not access restriction infringing freedom of religion -- Whether or not access restriction infringing freedom of expression -- Divorce Act, R.S.C., 1985, c. 3 (2nd Supp .), ss. 16(8) , 17(5) -- Canadian Charter of Rights and Freedoms, s. 2 (a), (b).
Courts -- Costs -- Principles governing awards of costs on solicitor‑client basis.
Torts -- Maintenance -- Religious society carrying cost of action -- Common religious action -- Whether or not tort of maintenance.
Appellant's and respondent's separation was marked by a protracted series of court battles. Appellant was awarded custody of the couple's three daughters and respondent was granted access subject to court imposed restrictions arising from appellant's objection to his religious activity with the children. Respondent was ordered not to discuss the Jehovah's Witness religion with the children, take them to any religious services, canvassing or meetings, or expose them to religious discussions with third parties without appellant's prior consent. Organized religion was not important to appellant although she wanted the children to be raised within the United Church.
The two older daughters liked their father but came to dislike his religious instruction to the extent that it was damaging his relationship with them and was contributing to the stress the children were experiencing in adjusting to their parents' separation.
The trial judge also made orders for the distribution of property and for costs. The respondent's interest in the matrimonial home was ordered transferred to the appellant because any remaining interest in the house, after respondent paid what was already owing to appellant, was to be transferred in the form of lump sum maintenance. Respondent was found responsible for debts incurred by the appellant for the support of herself and the children pending maintenance and for a debt made to a family corporation. Costs were awarded on a solicitor‑client basis against respondent, his lawyer and a religious society not a party to the proceedings.
Respondent appealed. The Court of Appeal set aside the limitations on religious discussion and attendance, on the ground that it was in the best interests of the children that they come to know their non‑custodial parent fully, including his religious beliefs, unless the evidence established the existence of or the potential for real harm or the child did not consent to being subject to the access parent's views or practices. The Court of Appeal also altered the division of property and the awards of costs made by the trial judge. Appellant appealed these rulings to this Court.
Four constitutional questions queried (1) whether ss. 16(8) and 17(5) of the Divorce Act (requiring that judicial decisions regarding custody and access be made "in the best interests of the child") denied the Charter guarantees of freedom of religion, of expression and of association (s. 2 (a), (b), and (d)), and if so, (2) were they justified under s. 1 ; (3) whether ss. 16(8) and 17(5) violated the equality guarantee of the Canadian Charter of Rights and Freedoms (s. 15(1) ), and (4) if so, were they justified under s. 1 . The Court considered the requirements of the "best interests of the child" and whether this standard infringed the guarantees of freedom of religion and expression under the Charter . A main consideration was unrestricted access by a non‑custodial parent and the conditions necessary to curtail that access.
Held (L'Heureux-Dubé J. dissenting in the result): The appeal should be allowed in part.
The issues should be decided as follows:
1. The test regarding access is the best interests of the child (L'Heureux-Dubé J., La Forest and Gonthier JJ., and Iacobucci and Cory JJ.). McLachlin J. suggests that in cases such as this harm is usually an important element in determining the best interests of the child. Sopinka J. would recognize a threshold element of harm.
2. Sections 16(8) and 17(5) of the Divorce Act do not violate ss. 2 (a), (b), (d) or 15(1) of the Charter . L'Heureux-Dubé J. (and La Forest and Gonthier JJ.) found the Charter to be inapplicable. McLachlin J. found the impugned legislation did not violate the Charter . Cory and Iacobucci JJ. agreed that there was no Charter violation. Sopinka J. found that the Charter applied and could only be overridden in limited circumstances.
3. The restrictions on access should be removed (L'Heureux-Dubé J. and La Forest and Gonthier JJ. dissenting).
4. The judgment dealing with property and financial matters and the award of costs should be varied (L'Heureux-Dubé J. dissenting).
_____________________
Best Interest of the Child, Charter Considerations and Access
Per L'Heureux‑Dubé J.: The power of the custodial parent is not a "right" with independent value granted by courts for the benefit of the parent. Rather, the child has a right to a parent who will look after his or her best interests and the custodial parent a duty to ensure, protect and promote the child's best interests. That duty includes the sole and primary responsibility to oversee all aspects of day-to-day life and long-term well‑being, as well as major decisions with respect to education, religion, health and well‑being. The non‑custodial parent retains certain residual rights over the child as one of his or her two natural guardians.
Child placement decisions should safeguard the child's need for continuity of relationships, reflect the child's (not the adult's) sense of time, and take into account the law's inability to supervise interpersonal relationships and the limits of knowledge to make long‑range predictions. This need for continuity generally requires that the custodial parent have the autonomy to raise the child as he or she sees fit without interference with that authority by the state or the non‑custodial parent. A custody award is a matter of whose decisions to prefer, as opposed to which decisions to prefer. Courts cannot make the necessary day‑to‑day decisions which affect the best interests of the child. Once a court has determined who is the appropriate custodial parent, it must presume that that parent will act in the best interests of the child.
Decisions are made according to the best interests of the child without the benefit of a presumption in favour of either parent. The Act envisages contact between the child and each of his or her parents as a worthy goal which should be in the best interests of the child. Maximum contact, however, is not an unbridled objective and must be curtailed wherever the welfare of the child requires it.
The right to access is limited in scope and is conditioned and governed by the best interests of the child. The legislation makes it quite explicit that only the best interests of the child as it is comprehensively understood should be considered in custody and access orders. The role of the access parent is that of a very interested observer, giving love and support to the child in the background. He or she has the right to know but not the right to be consulted. Access rights recognize that the best interests of the child normally require that the relationship developed with both parents prior to the divorce or separation be continued and fostered. The right to access and the circumstances in which it takes place must be perceived from the vantage point of the child. Wherever the relationship to the non‑custodial parent conflicts with the best interests of the child, the furtherance and protection of the child's best interests must take priority over the desires and interests of the parent.
As the ultimate goal of access is the continuation of a relationship which is of significance and support to the child, access must be crafted to preserve and promote that which is healthy and helpful in that relationship so that it may survive to achieve its purpose. Sources of ongoing conflict which threaten to damage or prevent the continuation of a meaningful relationship should be removed or mitigated. Notwithstanding a general concern about the vulnerability of access rights to the caprices of a vengeful custodial parent, courts should not be too quick to presume that the access concerns of the custodial parent are unrelated to the best interests of the child. Courts should also not be blind to issues, such as financial support, which form part of the broader context in which these rights are exercised. The access parent has no obligation to exercise those rights and cannot be forced to comply with such an order even if that contact has been determined to be in the child's best interest.
Where there is a genuine problem with access, the non‑custodial parent is not without recourse in any case. This stems from the statutory directive to facilitate access where it is in the child's best interests and the role of the judge as the arbiter of those interests in the case of a dispute between the parents. Generally, courts will grant liberal access to the non‑custodial parent and usually this is consistent with the best interests of the child. Parents will also normally respect their children's wishes and best interests with regard to access. When disagreements between parents do reach the courts, the judge must always draw the line in favour of the best interests of the child, from a child‑centred perspective.
The best interests of the child cannot be equated with the mere absence of harm: it encompasses a myriad of considerations. Courts must attempt to balance such considerations as the age, physical and emotional constitution and psychology of both the child and his or her parents and the particular milieu in which the child will live. One of the most significant factors in many cases will be the relationship that the child entertains with his or her parents. Since custody and access decisions are pre‑eminently exercises in discretion, the wide latitude under the best interests test permits courts to respond to the spectrum of factors which can both positively and negatively affect a child. What may constitute stressful or damaging circumstances for one child may not necessarily have the same effect on another.
The most common presumption now governing the best interests test is the primary caregiver presumption. It explicitly restores the values of commitment and demonstrated ability to nurture the child and recognizes the obligations and supports the authority of the parent engaged in day to day tasks of childrearing.
The order of the trial judge is not subject to the Charter . Even if it were, the best interests test is nevertheless value neutral and does not, on its face, violate any Charter right. Its objective, the protection of a vulnerable segment of society, is completely consonant with the Charter 's values. Broad judicial discretion is crucial to the proper implementation of the legislative objective of securing the best interests of the child. Such discretion in a legislative provision does not of itself give rise to an inference of Charter infringement. It cannot be considered in the absence of an examination of the legislative objectives and must be rationally tied to those objectives.
The standard for finding a legislative provision unconstitutional because of vagueness is high. The provisions need only permit the framing of an intelligible legal debate with respect to the objectives contained in the legislation. The best interests test is not so uncertain as to be incapable of guiding a consideration of the factors relevant to custody and access determinations. The fact that it must be applied to the facts of each case does not militate in favour of its unconstitutionality.
The vagueness of a legislative provision cannot be examined in the abstract but must be considered within the context of the particular legislative objectives in question, bearing in mind that some objectives will require a panoply of judicial remedies for their meaningful fulfilment. Among the factors with which courts should be concerned when the vagueness of a law is at issue are: (a) the need for flexibility and the interpretive role of the courts, (b) the impossibility of achieving absolute certainty, a standard of intelligibility being more appropriate and (c) the possibility that many varying judicial interpretations of a given disposition may exist and perhaps coexist.
The custodial parent need not show harm in order to restrict access to the children by the non‑custodial parent. There is no rationale for defining the best interests of the child with the absence of harm. Nothing in the Act mandates or even suggests that "real danger of significant harm to the child" be the sole consideration in matters of custody and access. Indeed, the harm test would require courts to ignore the very factors which are set out in the Act and invert the basic focus of the inquiry into custody and access. The welfare of children is put at considerable risk if the prospect of harm becomes the sole prerequisite for restrictions on access. The best interests of the child is not simply the right to be free of demonstrable harm; it is the positive right to the best possible arrangements in the circumstances of the parties. The harm test cannot meet the legal system's primary goal in divorce situations ‑‑ minimizing the adverse effects of children. This goal requires a vision of the best interests of the child that is more than neutral to the conditions under which custody and access occur. Judges must exercise their discretion to prevent harm to the child rather than merely identify or establish its presence after the damage is done.
Expert evidence should not be routinely required to establish the best interests of the child. Expert testimony, while helpful in some circumstances, is often inconclusive and contradictory because such assessments are both speculative and may be affected by the professional values and biases of the assessors themselves. Experts are not always better placed than parents to assess the needs of the child. The person involved in day to day care may observe changes in the child that could go unnoticed by anyone else and normally has the best vantage point from which to assess the interests of the child. The custodial parent, therefore, will often provide the most reliable and complete source of information to the judge on the needs and interests of that child. The importance of the evidence of children in custody and access disputes, too, must be emphasized.
Restrictions on access do not necessarily prevent children from coming to know their parents in meaningful ways. Interpreting the goal of maximum contact as requiring unrestricted access may defeat the Act's objective if the pre‑eminence of unlimited "knowledge" results in the ultimate destruction of the relationship. In this case, the purpose of the restrictions was to ensure that the children will continue to know their father "at all".
Freedom of religion and freedom of expression are public in nature and encompass the freedom of the individual from state compulsion or restraints. The state's role in custody and access decisions does not transform the essentially private character of parent‑child interchanges into activity subject to Charter scrutiny. Legitimate questions may arise about the role of the state, and hence the application of the Charter in regulating other aspects of family law. A valid purpose can hardly be served, however, by importing the discourse of freedom of expression and religion into orders made in the resolution of custody and access disputes. Once the best interests test itself has been found to accord with Charter values, the trial judge's order itself is not subject to further constitutional review, as the necessary state infringement of religious rights required to sustain a Charter challenge is not present. The principles enunciated in Dolphin Delivery apply as custody and access matters are essentially private in nature and there exists no state action to be impugned.
Decisions regarding custody and access must not be based on the parents' faith. The religion of the parties, however, may be relevant as one of the circumstances to be assessed in the determination of the best interests of the child. Where there is conflict over religion, the court is not engaged in adjudicating a "war of religion" and the religious beliefs of the parties themselves are not on trial. Rather, it is the manner in which such beliefs are practised together with the impact and effect they have on the child which must be considered. In all cases where the effects of religious practices are at issue, the best interests of the child must prevail.
Ordinarily, the exposure of a child to different religions or beliefs may be of value to the child. Where religion becomes a source of conflict between the parents or is the very cause of the marriage breakdown, it is generally not in the best interests of the child and may in some circumstances be very detrimental for the child to be drawn into the controversy over religious matters. Where there is conflict over religion, courts must secure the longstanding authority of the custodial parent to make decisions over religious activities. This ensures that stress occasioned by such issues does not become a continuing and ultimately destructive feature in the life of the child after divorce.
Freedom of religion is not an absolute value. Here, powerful competing interests must also be recognized, not the least of which, in addition to the best interests of the children, are the freedoms of expression and religion of the children themselves.
Respondent's religious beliefs and practices and his general rights of access were not threatened. The restrictions were aimed at reducing the area of conflict which had arisen on account of the respondent's behaviour with his children during access and the effects of that behaviour on their best interests. Much of the stress the children were experiencing was related to their resistance to becoming involved in their father's religious practices. The restrictions were to further the best interests of these children by removing the source of conflict, particularly as the ultimate purpose of the restrictions was to preserve the relationship between the respondent and his children. Evidence supported the conclusion that the respondent would not respect the wishes of the children without an order to do so.
Per La Forest and Gonthier JJ.: Agreement was expressed for the reasons of L'Heureux‑Dubé J. holding that access be determined on the basis of what is in the best interests of the child and for her resolution of the constitutional issue.
Per Iacobucci and Cory JJ.: The best interests of the child standard does not violate in ss. 2 (a), (b), (d) and 15 of the Canadian Charter of Rights and Freedoms substantially for the reasons given by L'Heureux‑Dubé and McLachlin JJ. No opinion was expressed on the questions of whether a Charter infringement, if found, would be so trivial as not to warrant Charter protection and of whether or not the Charter applies to judicial orders made in custody or access proceedings.
For many of the reasons advanced by L'Heureux‑Dubé J., access to children should be determined on the basis of what is in the best interests of the child. Expert evidence, while sometimes helpful, is not always necessary to establish the best interests of the child; that question can be determined normally from the evidence of parties themselves and the testimony, where appropriate, of the children concerned.
The matters of the children's attending religious services with the respondent and accompanying him on his proselytizing activities were resolved by the respondent's undertaking to respect his children's wishes in this regard. The order forbidding the respondent from discussing his religion was not supported by a proper application of the best interests of the child test. Indeed, curtailment of explanatory or discursive conversations between a parent and his or her child should only be rarely ordered.
Per McLachlin J.: The Divorce Act mandates that, on matters of access, the ultimate test in all cases is the best interest of the child. This is a positive test, encompassing a wide variety of factors, including the desirability of maximizing contact between the child and each parent if compatible with the best interests of the child. The custodial parent has no "right" to limit access. The judge must consider all factors relevant to determining what is in the child's best interests. The risk of harm to the child, while not the ultimate legal test, may also be a factor to be considered. This is particularly so where the issue is the quality of access ‑‑ what the access parent may say or do with the child. In such cases, it will generally be relevant to consider whether the conduct in question poses a risk of harm to the child which outweighs the benefits of a free and open relationship which permits the child to know the access parent as he or she is. The judge must act not on his or her personal views but on the evidence.
The legislative provision for the "best interests of the child" does not limit and therefore does not violate the Charter right to religious and expressive freedom. Religious expression not in the best interests of the child is not protected by the Charter because the guarantee of freedom of religion is not absolute and does not extend to religious activity which harms or interferes with the parallel rights of other people. Conduct not in the best interests of the child, even absent the risk of harm, amounts to an "injury" or intrusion on the rights of others and is clearly not protected by this Charter guarantee. "Injure" in this context is a broad concept. To deprive a child of what a court has found to be in his or her best interests is to "injure", in the sense of not doing what is best for the child. A child's vulnerability heightens the need for protection and any error should be made in favour of the child's best interests and not in favour of the exercise of the alleged parental right. An additional factor which may come into play in the case of older children is the "parallel right" of others to hold and manifest beliefs and opinions of their own.
The ambit of freedom of expression is broader than that of freedom of conscience and religion because even harmful expression may be protected. Some forms of harmful expression, however, are not constitutionally protected: violence or threats of violence or a direct attack on the physical integrity and liberty of another. Criminal conduct is an indication, although not a conclusive one, that expressive conduct is constitutionally unprotected.
A prima facie case for protection under the guarantee of freedom of expression can be made out here. The expression challenged does not take the form of the non‑protected categories of expression. The harm done, if any, is of a psychological nature.
A purposive approach to Charter interpretation requires that associated rights ‑‑ religious freedom and freedom of expression ‑‑ be interpreted in a consistent and coherent manner. The ambit of a particular right or freedom, moreover, cannot be defined in the abstract but rather should be defined in the context of the particular activity in question.
The teaching of religious beliefs and practices to one's children, while it has an expressive aspect, is predominantly religious. In seeking to reconcile the rights of freedom of religion and freedom of expression in this context, it is the religious aspect which must dominate. Reading the two guarantees together, the limits of the guarantee of freedom of expression should govern in the context of religious instruction of children.
The custodial parent does not have the "right" to determine limits on access. The only question to be considered, where limitation of access is in issue, is what is in the best interests of the child. The custodial parent's obligation to make certain basic decisions as to how the child is educated (which may extend to religious matters) does not automatically mean that religious contacts with the access parent of a different faith are to be excluded. The failure of the child to consent to instruction on the part of the access parent does not necessarily preclude such instruction's being in the child's best interests.
The benefits which might enure to the children from coming to know their father as he was ‑‑ as a devoutly religious man devoted to the Jehovah's Witness faith ‑‑ were not considered at trial and no reference was made to Parliament's instruction that a child have as much contact with both parents as is compatible with his or her best interests. The question of whether there was any evidence of a risk of harm to the children which might offset the benefit of full access to their father's values, including those related to religion, was not adequately considered. While access may be limited in some circumstances on grounds unrelated to harm, where the issue is whether entirely lawful discussions and activities between the access parent and the child should be curtailed, the judge should enquire into whether the conduct poses a risk of harming the child. The evidence did not establish that harm was being caused to the children.
The order restricting respondent's access was unnecessary given his undertaking and the order enjoining him from preventing blood transfusions was unnecessary from a practical point of view. Parents should not make disparaging comments about the other parent's religion, but the matter might best be left to the parents' good sense.
Per Sopinka J.: While the "best interests of the child" test is the ultimate determination in deciding issues of custody and access, it must be reconciled with the Charter . General language in a statute which, in its breadth, potentially confers the power to override Charter values must be interpreted to respect those values. Here, the best interests test must be interpreted to allow the Charter right to freedom of religious expression to be overridden only if its exercise would occasion consequences that involve more than inconvenience, upset or disruption to the child and incidentally to the custodial parent.
The long‑term value to a child of a meaningful relationship with both parents is a policy that is affirmed in the Divorce Act . Each parent, therefore, can engage in those activities which contribute to identify the parent for what he or she really is. The access parent is not expected to act out a part or assume a phony lifestyle during access periods. The policy favouring activities that promote a meaningful relationship is not displaced unless there is a substantial risk of harm to the child.
The best interests of a child are more aptly served by a law which recognizes the right of that child to a meaningful post‑divorce relationship with both parents. The "rights" must be distributed between the custodial and the access parent so as to encourage such a relationship. The traditional notion of guardianship giving the custodial parent the absolute right to exercise full control over the child, even when the other parent is exercising his or her right of access, is at odds with this concept.
"Harm", in this context, connotes an adverse effect on the child's upbringing that is more than transitory. The impugned exercise by the access parent must be shown to create a substantial risk that the child's physical, psychological or moral well‑being will be adversely affected. Exposure to new experiences and ideas may upset children and cause them considerable discomfort but these experiences are not necessarily in the long‑term best interests of the child. Similarly, conflict between parents on many matters including religion is not uncommon, but in itself cannot be assumed to be harmful unless it produces a prolonged acrimonious atmosphere.
Risk of substantial harm must be shown if religious expression is to be restricted in applying the best interests of the child test. The statutory test in s. 16(10) of the Divorce Act does not constitute a limitation on freedom of religious expression. This freedom does not extend to protect conduct which is harmful to others. However, the concept of harm should not be expanded to reach the conclusion that anything which is not in the best interests of the children is injurious within the meaning of s. 2 (b) and thus not protected by the Charter .
Financial Considerations and Costs
Per McLachlin J.: A judge, to fix lump sum maintenance, must fix it in a sum certain with reference to the principles applicable to such an award. The goal of conveying the entire interest in the matrimonial home to the wife did not support an award of lump sum maintenance; more was required. There was ample basis here for an order under s. 51 of the Family Relations Act awarding appellant a greater portion of the family assets because respondent, for a considerable time, paid little or nothing for the support of the family. The debts incurred during this period can serve as a consideration supporting reduction of respondent's interest in the family property. The equity in the home was not substantial and respondent was permitted to retain other assets.
The trial judge, in effecting a de facto reapportionment of the interest in the family assets to do justice, as was permitted on the facts and the law, did not expressly allude to the factors for reallocation. This omission should not result in a new trial being ordered because of the length and cost of the current litigation. The result achieved by the trial judge should be endorsed because the evidence was capable of supporting an order for reallocation of the parties' interest in the family assets to the extent required to give the appellant the entire interest in the matrimonial home.
The money owed by the family's jewelry corporation was not, in law, a debt for which respondent was personally liable. Only the corporation was liable. The debt appellant incurred to support herself and the children before she applied for maintenance is similarly unenforceable against respondent as a debt, although it could be taken into consideration in an order for reduction of his interest in the family assets.
Solicitor‑client costs are generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties. The facts that an application has little merit and that part of the cost of the litigation may have been paid for by others do not justify awarding solicitor‑client costs.
No order for costs should have been made against respondent's barrister. Costs are awarded as compensation for the successful party, not to punish a lawyer. Any member of the legal profession might be subject to a compensatory order for costs if it is shown that repetitive and irrelevant material, and excessive motions and applications, characterized the proceedings in which he or she was involved, and that the lawyer acted in bad faith in encouraging this abuse and delay. The courts have jurisdiction to make such an award, often under statute and as part of their inherent jurisdiction to control abuse of process and contempt of court. The proceedings here, despite their length and acrimonious progress, did not fall within these characterizations. Courts, moreover, must be extremely cautious in awarding costs personally against a lawyer, given the duties upon a lawyer to guard confidentiality of instructions and to bring forward with courage even unpopular causes. A lawyer should not be placed in a situation where his or her fear of an adverse order of costs may conflict with these fundamental duties of his or her profession.
Since the Society did not appear as a party, the costs awarded against it must be taken to be the equivalent of an award for the tort of maintenance. A person must intervene "officiously or improperly" to be liable for the tort of maintenance. Provision of financial assistance to a litigant by a non‑party will not always constitute maintenance. Funding by a relative or out of charity must be distinguished from cases where a person wilfully and improperly stirs up litigation and strife. The society's support was "out of charity and religious sympathy" and so did not constitute maintenance. It did not put forward respondent in an attempt to escape liability for costs. Its interest in the constitutional issue was insufficient to distinguish it from interveners who appear on constitutional cases and who have never been liable for costs.
Per La Forest and Gonthier JJ.: The reasons of McLachlin J. were agreed with on the property and monetary issues and on the principles governing costs.
Per Iacobucci and Cory JJ.: The reasons of McLachlin J. were agreed with on the property, monetary and costs issues.
Per L'Heureux-Dubé J. (dissenting): The reasons of the trial judge on the issues of maintenance, division of property and costs were agreed with.
Cases Cited
By L'Heureux‑Dubé J.
Distinguished: Hockey v. Hockey (1989), 21 R.F.L. (3d) 105; referred to: Anson v. Anson (1987), 10 B.C.L.R. (2d) 357; Andrews v. Andrews, B.C.S.C., June 9, 1983, unreported; Brown v. Brown (1983), 39 R.F.L. (2d) 396; DeLaurier v. Jackson, [1934] S.C.R. 149; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; In re Agar-Ellis, [1883] Ch. D. 317; R. v. De Manneville (1804), 5 East. 221, 102 E.R. 1054; Re Orr, [1933] O.R. 212; Talsky v. Talsky, [1976] 2 S.C.R 292; Re Moores and Feldstein, [1973] 3 O.R. 921; Kruger v. Kruger (1979), 25 O.R. (2d) 673; Baker v. Baker (1979), 8 R.F.L. (2d) 236; C.(G). v. V.‑F.(T.), [1987] 2 S.C.R. 244; Dussault v. Ladouceur (1987), 14 R.F.L. (3d) 185; Gunn v. Gunn (1975), 24 R.F.L. 182; Benoit v. Benoit (1972), 6 R.F.L. 180 (Ont. Prov. Ct.), rev'd (1972), 10 R.F.L. 282 (Ont. C.A.); Charlton v. Charlton (1980), 15 R.F.L. (2d) 220; Hewer v. Bryant, [1970] 1 Q.B. 357; Clarke v. Clarke (1987), 7 R.F.L. (3d) 176; McCahill v. Robertson (1974), 17 R.F.L. 23; Fougere v. Fougere (1987), 77 N.B.R. (2d) 381; Dipper v. Dipper, [1980] 2 All E.R. 722; Keyes v. Gordon (1985), 45 R.F.L. (2d) 177; Droit de la famille -‑ 316, [1986] R.D.F. 651; Moge v. Moge, [1992] 3 S.C.R. 813; Pierce v. Pierce, [1977] 5 W.W.R. 572; Gubody v. Gubody, [1955] O.W.N. 548; Sudeyko v. Sudeyko (1974), 18 R.F.L. 273; Frame v. Smith, [1987] 2 S.C.R. 99; Tocco v. Tocco (1977), 4 R.F.L. (2d) 174; Racine v. Woods, [1983] 2 S.C.R. 173; In re McGrath (Infants), [1893] 1 Ch. 143; King v. Low, [1985] 1 S.C.R. 87; Beson v. Director of Child Welfare (Nfld.), [1982] 2 S.C.R. 716; M. (B.P.) v. M. (B.L.D.E.), (1992), 97 D.L.R. (4th) 437; R. v. Swain, [1991] 1 S.C.R. 933; R. v. Beare, [1988] 2 S.C.R. 387; Baron v. Canada, [1993] 1 S.C.R. 416; R. v. Morales, [1992] 3 S.C.R. 711; 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; Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892; 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. LeBeau (1988), 41 C.C.C. (3d) 163; R. v. Khan, [1990] 2 S.C.R. 531; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Tremblay v. Daigle, [1989] 2 S.C.R. 530; B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; Re Bennett Infants, [1952] O.W.N. 621; Delvenne v. Nabbie (1977), 4 R.F.L. (2d) 21; Irmert v. Irmert (1984), 64 A.R. 342; Harvey v. Lapointe (1988), 13 R.F.L. (3d) 134; McQuillan v. McQuillan (1975), 21 R.F.L. 324; Struncova v. Guay (1984), 39 R.F.L. (2d) 298; Sullivan v. Fox (1984), 38 R.F.L. (2d) 293; Droit de la famille -‑ 955, [1991] R.J.Q. 599; Droit de la famille -‑ 353, [1987] R.J.Q. 545; Zummo v. Zummo, 574 A.2d 1130 (1990); Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455; Adams v. McLeod, [1978] 2 S.C.R. 621; Novic v. Novic, [1983] 1 S.C.R. 696.
By McLachlin J.
Considered: R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; referred to: R. v. De Manneville (1804), 5 East. 221, 102 E.R. 1054; In re Taylor (1876), 4 Ch. D. 157; In re Agar‑Ellis (1883), 24 Ch. D. 317; Talsky v. Talsky, [1976] 2 S.C.R. 292; Kades v. Kades (1961), 35 A.L.J.R. 251; J. v. C., [1970] A.C. 668; Re K. (minors), [1977] 1 All E.R. 647; King v. Low, [1985] 1 S.C.R. 87; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Keegstra, [1990] 3 S.C.R. 697; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; R. v. Sturmer and Town of Beaverton (1912), 25 O.L.R. 566; Goodman v. The King, [1939] S.C.R. 446; Newswander v. Giegerich (1907), 39 S.C.R. 354.
By Sopinka J.
Referred to: Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; R. v. Big M Dr