K. Religious Upbringing of Child

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 557-560

Page 557

Although an order for sole custody under section 16 of the Divorce Act em-powers the custodial parent to determine the religious upbringing of the child, such an order does not necessarily entitle the custodial parent to prevent the noncustodial parent from sharing religious views and practices with

Page 558

the child.²⁴²Religion will not be a critical factor in custody proceedings where the parents are not practising their religion and the child is of a young age.²⁴³In custody and access disputes, a court should not seek to determine whether one religion is better than the other. The religious upbringing of children concerns the court only insofar as it affects their well-being and their relationships with both the custodial and non-custodial parent.²⁴⁴A court will only encroach upon the personal domain of religious freedom where the failure to do so is shown to place a child at substantial risk of harm.²⁴⁵A court will not usually object to or interfere with the religious instruction of a child by the parents;²⁴⁶indeed, exposure to different religious beliefs will often be of value to the child.²⁴⁷The court may have to strike a compromise between the parties and their wish to provide a child with a religious education. The court may direct the parents to tolerate and respect each other’s religion.²⁴⁸In ASK v MABK, Baird J, of the New Brunswick Court of Queen’s Bench, stated:

[122] The child’s religious heritage, like racial or cultural heritage, is one factor in his or her personal identity. In making a best interest[s] decision, a court must consider that factor but it is not determinative . . . . What is more important is the child’s right to make his or her own decision on religious affiliation . . . The best way to preserve that right is by not foreclosing any future options and allowing both parents to share their religious heritage with the child . . . .

Page 559

[123] The freedom to provide religious instruction to their children, however, cannot be used as an opportunity to undermine the children’s love and respect for the other parent. In other words, there is no right or wrong religion and the children should not be taught that the other parent is somehow evil or bad because they are not practicing Christians or for some other reason.

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[125] The age at which a court will deem a child mature enough to have established religious convictions will depend on the individual child and the facts of each case.²⁴⁹And in Langille v Dossa, Wilson JFC, of the Nova Scotia Family Court, held that:

Where there is conflict between the rights of a custodial parent to share her life with the child and the [tenets] of any particular religion, I must hold that the rights of the child to know their parent must take precedence . . . . To allow one party . . . to attack the morality of the other parent cannot be in the best interests of the child.²⁵⁰A court may stipulate that a non-custodial parent is not entitled to object to the religious practices of the custodial parent,²⁵¹and a custodial parent’s objection to the non-custodial parent’s...