P. (D.) v. S. (C.)

P. (D.) v. S. (C.)
Collection
Supreme Court Judgments
Date
1993-10-21
Report
[1993] 4 SCR 141
Case number
22296
Judges
La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank
On appeal from
Quebec
Subjects
Constitutional law
Family law
Notes
SCC Case Information: 22296
Decision Content
P. (D.) v. S. (C.), [1993] 4 S.C.R. 141
D.P. Appellant
v.
C.S. Respondent
and
The Attorney General for Ontario,
the Attorney General of Quebec,
the Attorney General of Manitoba,
the Attorney General of British Columbia,
and the Seventh‑day Adventist Church in Canada Interveners
Indexed as: P. (D.) v. S. (C.)
File No.: 22296.
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 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 cus