C. Parental Rights

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

Page 141

Freedom of religion has been an issue in a number of cases involving the family and parental rights. For example, in B(R),27parents of the Jehovah’s Witness religion refused to allow their infant child to undergo a blood transfusion thought by doctors to be required to save the child’s life. When the Children’s Aid Society brought an application to take the child into care to ensure that she could be given necessary treatment, the parents argued that this application violated their freedom of religion. The Supreme Court of Canada upheld the order placing the child

Page 142

under the protection of the Society. Five of the judges agreed that the parents’ right to freedom of religion was violated, concluding that the guarantee protected religious beliefs even if those beliefs could harm another. However, the limitation on the parents’ rights was justified under section 1 in order to protect the child. In contrast, four judges argued that the guarantee of freedom of religion should not extend to conduct endangering the life or seriously endangering the health of the child.

Similarly, in AC v Manitoba (Director of Child and Family Services),28 the Court upheld legislation authorizing a court to order treatment of a child under sixteen years old where the treatment was in the young person’s best interests. Properly interpreted, the "best interests" standard reflected the adolescent’s maturity and developing autonomy interest and, where the court is satisfied that the adolescent is capable of making a mature and independent decision, greater weight must be given to the adolescent’s views when deciding whether or not to order treatment.

This case followed an earlier pair of decisions dealing with restrictions on parents’ rights to discuss religion with their children as a condition of access to their children following marriage breakdown. In Young v Young,29the trial judge had given custody of the children to the mother and permitted access to the father. However, the order had forbidden the father, a Jehovah’s Witness, from taking his children to religious services or on his proselytizing activities or from commenting unfavourably on the mother’s religion. This restriction was overturned by the British Columbia Court of Appeal as violating section 2(a). The Supreme Court of Canada, by a narrow majority, agreed that the father should not be forbidden from discussing his religion with his children. By this time, he had promised not to...

To continue reading