Young v. Young, [1993] 4 S.C.R. 3 (1993)

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...

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