Young v. Young et al., (1993) 160 N.R. 1 (SCC)

• Judge: McLachlin and Iacobucci, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 21, 1993
• Jurisdiction: Canada (Federal)
• Citations: (1993), 160 N.R. 1 (SCC);[1993] 4 SCR 3;EYB 1993-67111 S;1993 CanLII 34 (SCC);108 DLR (4th) 193;[1993] 8 WWR 513;84 BCLR (2d) 1;49 RFL (3d) 117;160 NR 1;34 BCAC 161;[1993] CarswellBC 264;AZ-93111122;EYB 1993-67111;JE 93-1766;[1993] SCJ No 112 (QL);18 CRR (2d) 41;[1993] ACS no 112;[1993] RDF 703;43 ACWS (3d) 410;56 WAC 161

Young v. Young (1993), 160 N.R. 1 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Irene Helen Young (appellant) v. James Kam Chen Young, W. Glen How, Watch Tower Bible and Tract Society of of Canada (respondents) and the Attorney General of Canada, Attorney General for Ontario, Attorney General of Quebec, Attorney General of Manitoba, Attorney General of British Columbia, the Law Society of British Columbia and the Seventh-Day Adventist Church in Canada (interveners)

(22227)

Indexed As: Young v. Young et al.

Supreme Court of Canada

La Forest, L'Heureux-Dubé,

Sopinka, Gonthier, Cory,

McLachlin and Iacobucci, JJ.

October 21, 1993.

Summary:

A husband and wife separated in 1987 shortly after their third child was born. Their two older children were eight and six. The husband became involved with the Jehovah's Witness faith in 1985. In 1988 the wife petitioned for divorce and sought, inter alia, custody of the children and an order enjoin­ing the husband from involving the children in the Jehovah's Witness faith or involving them in any church activities. The husband applied for interim joint custody, with day to day care and control to the wife, and sought a declaration that the restrictions sought by the wife violated his and his children's rights under the Charter.

The British Columbia Supreme Court, in a judgment reported 24 R.F.L.(3d) 193, granted a divorce, spousal and child main­tenance, disposed of marital property and ordered that the husband not discuss the Jehovah's Witness religion with the children, not take them to any religious services, canvassings or meetings, and not expose them to religious discussions with third parties without the prior consent of the wife. The husband appealed.

The British Columbia Court of Appeal, Southin, J.A., dissenting in part, in a judg­ment reported 50 B.C.L.R.(2d) 1, set aside the limitations on religious discussion and attendance, on the ground that it was in the best interests of the child that they come to know their noncustodial parent fully, in­cluding his religious beliefs. The court held that there should be no access restrictions prohibiting the noncustodial parent from discussing religion with his children, or involving them in religious activities, unless the evidence established the existence of, or potential for, real harm to the children. The court also varied the property award and the costs order made by the trial judge. The husband appealed.

The Supreme Court of Canada, L'Heur­eux-Dubé, La Forest and Gonthier, JJ., dissenting in the result, dismissed the appeal. The court affirmed the order of the Court of Appeal, except with respect to the property award. The court held that ss. 16(8) and 17(5) of the Divorce Act (best interests of the child test in custody and access deci­sions) did not violate freedom or religion, freedom of expression, freedom of associ­ation or equality rights under ss. 2(1), 2(b), 2(d) and 15 of the Charter of Rights and Freedoms.

Barristers and Solicitors - Topic 851

Duty to court - Liability for costs - For conduct of trial - The primary issue in a divorce action was the husband's right as noncustodial parent to expose his children to the Jehovah's Witness faith - The trial judge awarded solicitor-client costs against the husband's counsel on the ground that counsel unnecessarily lengthened the pro­ceedings and had a forum and cause to pursue - The Supreme Court of Canada agreed that no costs order should have been made - There was no finding of contempt - The court stated that "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 they were involved, and that the lawyer acted in bad faith in encouraging this abuse and delay. ... courts 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." - See paragraphs 65 to 66.

Civil Rights - Topic 303

Freedom of religion - Scope of right - McLachlin, J., of the Supreme Court of Canada, stated that "the guarantee of free­dom of religion does not extend to reli­gious activity which harms other people. ... freedom of religion is not absolute. ... the guarantee of freedom of religion should not be understood to extend to protecting conduct which is not in the best interests of the child." - See paragraphs 29 to 31 - L'Heureux-Dubé, J., stated that "no in­fringement of religious freedoms would occur where such orders are made in the best interests of the child." - See para­graph 224.

Civil Rights - Topic 382

Freedom of religion - Infringement of - What constitutes - Sections 16(8) and 17(5) of the Divorce Act provided that, in making or varying orders respecting cus­tody and access to children, only the best interests of the children were to be con­sidered - The Supreme Court of Canada held that the "best interests" test did not violate freedom of religion, freedom of expression, freedom of association or equality rights under ss. 2(a), 2(b), 2(d) and 15 of the Charter of Rights and Free­doms.

Civil Rights - Topic 1863

Freedom of speech or expression - Denial of - What constitutes - [See Civil Rights - Topic 382 ].

Civil Rights - Topic 2204

Freedom of association - Denial of right to - What constitutes - [See Civil Rights - Topic 382 ].

Civil Rights - Topic 5679.4

Equality and protection of the law - Cus­tody and access - [See Civil Rights - Topic 382 ].

Civil Rights - Topic 8311

Canadian Charter of Rights and Freedoms - Application - Nongovernmental or private interference - [See Civil Rights - Topic 8350 ].

Civil Rights - Topic 8350

Canadian Charter of Rights and Freedoms - Application - Exceptions - Matters of a purely private nature - The Supreme Court of Canada discussed whether the Charter applied to custody and access decisions - L'Heureux-Dubé, J., stated that "the mere fact that the state plays a role in custody and access decisions in formalizing the circumstances of parent-child interaction does not transform the essentially private character of such interchange into activity which should be subject to Charter scru­tiny" - "The Charter is not meant to pro­vide a means to regulate the affairs of private citizens" - Custody and access were private matters and there was no state action to be impugned - McLachlin, J., assumed, for the purpose of the appeal, that the Charter applied - Sopinka, J., made no comment - La Forest and Gon­thier, JJ., agreed with L'Heureux-Dubé, J. - Cory and Iacobucci, JJ., chose to reserve their views on whether the Charter applied - See paragraphs 213 to 223.

Civil Rights - Topic 8626

Canadian Charter of Rights and Freedoms - Regulation of guaranteed rights - Vagueness rule - Sections 16(8) and 17(5) of the Divorce Act provided that in a­warding or varying custody and access the only test was the best interests of the child - An access father claimed "best interests of the children" provided such a broad judicial discretion as to be void for vague­ness - L'Heureux-Dubé, J., of the Supreme Court of Canada, stated that the test was not void for vagueness, because it was not so uncertain as to be incapable of guiding a consideration of the factors relevant to custody and access determina­tions - Flexibility and vagueness were not synonymous - L'Heureux-Dubé, J., stated that "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" - See paragraphs 169 to 185.

Family Law - Topic 868.2

Husband and wife - Marital property - Distribution orders - Debts - A husband and wife owned an incorporated business that owed $80,000 to the wife's mother - The Supreme Court of Canada stated that the debt was not personal to either the husband or the wife - The only entity liable for repayment was the corporation - A debt incurred by the wife to support herself and the children when the husband failed to pay maintenance was similarly not a debt personal to the husband, although it was a proper consideration in the division of family assets - According­ly, the trial judge's order making the hus­band liable for 50% of these debts was struck out - See paragraph 60.

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Unequal division - The Supreme Court of Canada stated that an unequal division of family assets in favour of the wife was justified under the Family Relations Act where the husband, for a considerable period, paid little or nothing in support of his wife and three children - Although debts incurred by the wife during this period were not debts attributable to the husband, the debts were a consideration supporting reduction of the husband's interest in the family property - See paragraph 58.

Family Law - Topic 1881

Custody and access - Considerations in awarding custody - Best interests of child - Sections 16(8) and 17(5) of the Divorce Act made the "best interests of the child" the only consideration in awarding or varying custody and access - The Supreme Court of Canada interpreted "best interests of the child" - McLachlin, J., stated that "the risk of harm to the child, while not the ultimate legal test, may also be a factor to be considered" - McLachlin, J., stated that "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" - L'Heureux-Dubé, J., stated "real and sig­nificant harm" was not part of the best interests test - The absence of harm did not support a finding that something was in a child's best interests - La Forest and Gonthier, JJ., agreed with L'Heureux-Dubé, J., on the issue of best interests of the child - Sopinka, J., generally agreed with McLachlin, J., but would require proof of risk of substantial harm before an access parent's rights, with respect to religion, could be limited - Cory and Iacobucci, JJ., agreed with L'Heureux-Dubé, J., that access should be determined on the basis of the best interests of the child.

Family Law - Topic 1991

Custody and access - Access - Consider­ations in awarding access - Best interests of child - [See Family Law - Topic 1881 ].

Family Law - Topic 1993

Custody and access - Access - Consider­ations in awarding access - Religious upbringing - McLachlin, J., of the Supreme Court of Canada, stated that "an order for custody vests the custodial parent with the power to determine the child's religious upbringing, to the extent that this parent can require the child to observe a faith until the age of discretion; this is in the child's best interest where the parents cannot agree. A custody order does not, however, give the custodial parent the 'right' to limit the access parent's ability to share his or her religious views with the child, unless that is shown on the evidence not to be in the child's best interests." - See paragraph 46 - L'Heureux-Dubé, J., cautioned that "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." - See paragraph 231.

Family Law - Topic 2016

Custody and access - Access awards - Conduct limitations - Religious dis­cussions - A husband and wife separated in 1987 - The husband became a Jeho­vah's Witness in 1985, a contributing cause of the marriage breakdown - The wife had custody of their three young children - The husband had access subject to a court order prohibiting him from discussing religion with his children or involving him in the practice of his faith - The Supreme Court of Canada, L'Heureux-Dubé, La Forest and Gonthier, JJ., dissenting, agreed that the order should be struck - The access restrictions were not in the "best interests of the children" - The trial judge failed to consider the benefits of the children knowing their father as he was, undue emphasis was placed on the custo­dial parent's wishes and the trial judge failed to consider whether there was any evidence of a risk of harm to the children - There was evidence that the children were not adversely affected by their fa­ther's religious instruction - The order prohibiting religious discussion was not supported by the evidence - See para­graphs 38 to 52.

Family Law - Topic 2143

Custody and access - Evidence - Expert evidence - The Supreme Court of Canada stated that expert evidence should not be routinely required to establish the best interests of the child - L'Heureux-Dubé, J., stated that "the custodial parent nor­mally has the best vantage point from which to assess the interests of the child, and thus will often provide the most reli­able and complete source of information to the judge on the needs and interests of that child" - See paragraphs 48, 204.

Family Law - Topic 4011

Divorce - Corollary relief - Maintenance awards - Lump sum - The trial judge ordered that whatever the value of the husband's interest in the matrimonial home that remained after setting of costs and arrears of maintenance, should be absorbed by a lump sum maintenance order - The Supreme Court of Canada stated that lump sum maintenance could only be ordered with reference to the principles under s. 15(2) of the Divorce Act - "The trial judge did not express any jurisprudential or evidentiary basis for awarding the lump sum maintenance. The goal was no doubt to achieve the end of conveying the entire interest in the matrimonial home to the wife. But this justification does not support an award of lump sum maintenance; more is required." - However, the court affirmed the result on the ground that a fair alloca­tion of family assets under the Family Relations Act justified an unequal division in the wife's favour - See paragraphs 53 to 59.

Practice - Topic 7457

Costs - Solicitor and client costs - Enti­tlement to - Where claim or defence irrel­evant, scandalous or without merit - The Supreme Court of Canada stated that "so­licitor-client costs are generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties. Accordingly, the fact that an application has little merit is no basis for awarding solicitor-client costs; nor is the fact that part of the cost of the litigation may have been paid for by others." - The court affirmed an award of solicitor-client costs (divorce action) limited to four days of trial and four days of interlocutory proceedings concerned with financial matters, where the husband was guilty of nondisclosure of financial information - See paragraphs 61 to 64.

Torts - Topic 6280

Abuse of legal procedure - Maintenance and champerty - General - A trial judge awarded costs against a local unit of the Watch Tower Bible and Tract Society on the basis that it supported the litigation finan­cially (tort of maintenance) - The Supreme Court of Canada stated that "to be liable for maintenance, a person must intervene 'officiously or improperly' ... Provision of financial assistance to a liti­gant by a nonparty 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." - There was no maintenance where the Society did not induce the party to litigate to pursue its own interests, there was no evidence that funding was other than for charitable purposes and the Society did not direct or control the proceedings - The fact that the Society and litigant had a common interest was irrelevant - See paragraphs 68 to 72.

Words and Phrases

Best interests of the child - The Supreme Court of Canada interpreted the words "best interests of the child" as found in ss. 16(8) and 17(5) of the Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3.

Cases Noticed:

R. v. De Manneville (1804), 5 East. 221; 102 E.R. 1054, refd to. [para. 10].

Taylor, Re (1876), 4 Ch. D. 157, refd to. [para. 10].

Agar-Ellis, Re (1883), 24 Ch. D. 317, refd to. [para. 10].

Talsky v. Talsky, [1976] 2 S.C.R. 292; 7 N.R. 246, refd to. [para. 11].

Kades v. Kades (1961), 35 A.L.J.R. 251 (Aust. H.C.), refd to. [para. 11].

J. v. C., [1970] A.C. 668 (H.L.), refd to. [para. 12].

K. (Minors), Re, [1977] 1 All E.R. 647 (C.A.), refd to. [para. 12].

King v. Mr. and Mrs. B., [1985] 1 S.C.R. 87; 57 N.R. 17; 58 A.R. 275; 44 R.F.L.(2d) 113; [1985] 3 W.W.R. 1; 16 D.L.R.(4th) 576, refd to. [para. 20].

King v. Low - see King v. Mr. and Mrs. B.

K.K v. G.L. - see King v. Mr. and Mrs. B.

R. v. Big M Drug Mart, [1985] 1 S.C.R. 295; [1985] 3 W.W.R. 481; 58 N.R. 81; 60 A.R. 161; 18 C.C.C.(3d) 385; 18 D.L.R.(4th) 321; 37 Alta. L.R.(2d) 97; 85 C.L.L.C. 14,203; 13 C.R.R. 64, consd. [para. 29].

Irwin Toy Ltd. v. Québec (Procureur gén­éral), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2; 58 D.L.R.(4th) 577; 25 C.P.R.(3d) 417, refd to. [paras. 32, 173].

R. v. Keegstra, [1990] 3 S.C.R. 697; 117 N.R. 1; 114 A.R. 81; 1 C.R.(4th) 129; 77 Alta. L.R.(2d) 193; [1991] 2 W.W.R. 1; 61 C.C.C.(3d) 1; 3 C.R.R.(2d) 193, refd to. [para. 32].

Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123; 109 N.R. 81; 68 Man.R.(2d) 1; 56 C.C.C.(3d) 65; 77 C.R.(3d) 1; [1990] 4 W.W.R. 481, refd to. [paras. 32, 173].

Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580, Peterson and Alexander, [1986] 2 S.C.R. 573; 71 N.R. 83; 33 D.L.R.(4th) 174; 38 C.C.L.T. 184; 25 C.R.R. 321; [1987] 1 W.W.R. 577; 87 C.L.L.C. 14,002, refd to. [para. 32].

Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; 102 N.R. 321; 103 A.R. 321 refd to. [para. 35].

Sturmer and Town of Beaverton, Re (1912), 2 D.L.R. 501 (Div. Ct.), refd to. [para. 68].

Goodman v. R., [1939] S.C.R. 446, refd to. [para. 68].

Newsander v. Giegerich (1907), 39 S.C.R. 354, refd to. [para. 68].

Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183; 59 D.L.R.(4th) 416; 26 C.C.E.L. 85; 89 C.L.L.C. 14,031; 40 C.R.R. 100, refd to. [para. 78].

Hockey v. Hockey (1989), 35 O.A.C. 257; 21 R.F.L.(3d) 105 (Div. Ct.), refd to. [para. 96].

Anson v. Anson (1987), 10 B.C.L.R.(2d) 357 (Co. Ct.), refd to. [para. 96].

Brown v. Brown (1983), 29 Sask.R. 265; 39 R.F.L.(2d) 396 (C.A.), refd to. [para. 96].

DeLaurier v. Jackson, [1934] S.C.R. 149, refd to. [para. 96].

Orr, Re, [1933] O.R. 212 (C.A.), refd to. [para. 107].

Moores v. Feldstein, [1973] 3 O.R. 921 (C.A.), refd to. [para. 110].

Kruger v. Kruger (1979), 25 O.R.(2d) 673 (C.A.), refd to. [para. 111].

Baker v. Baker (1979), 8 R.F.L.(2d) 236 (Ont. C.A.), refd to. [para. 111].

C. v. F. and F., [1987] 2 S.C.R. 244; 78 N.R. 241, refd to. [para. 112].

D.L. v. L.D. (1987), 10 Q.A.C. 23; 14 R.F.L.(3d) 185 (C.A.), refd to. [para. 113].

Gunn v. Gunn (1975), 10 Nfld. & P.E.I.R. 159; 17 A.P.R. 159; 24 R.F.L. 182 (Fam. Ct.), refd to. [para. 113].

Benoit v. Benoit (1972), 6 R.F.L. 180 (Ont. Prov. Ct.), affd. 10 R.F.L. 282 (C.A.), refd to. [para. 113].

Charlton v. Charlton (1980), 15 R.F.L.(2d) 220; 19 B.C.L.R. 42 (S.C.), refd to. [para. 113].

Hewer v. Bryant, [1970] 1 Q.B. 357 (C.A.), refd to. [para. 114].

Clarke v. Clarke (1987), 7 R.F.L.(3d) 176 (B.C.S.C.), refd to. [para. 114].

McCahill v. Robertson (1974), 17 R.F.L. 23 (Ont. H.C.), refd to. [para. 118].

Fougère v. Fougère (1987), 77 N.B.R.(2d) 381; 195 A.P.R. 381; 6 R.F.L.(3d) 314 (C.A.), refd to. [para. 118].

Dipper v. Dipper, [1980] 2 All E.R. 722, refd to. [para. 123].

Gordon v. Keyes (1985), 67 N.S.R.(2d) 216; 155 A.P.R. 216; 45 R.F.L.(2d) 177 (C.A.), refd to. [para. 130].

Droit de la famille - 316, [1986] R.D.F. 651 (C.A.), refd to. [para. 130].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161, refd to. [para. 135].

Pierce v. Pierce, [1977] 5 W.W.R. 572 (B.C.S.C.), refd to. [para. 142].

Gubody v. Gubody, [1955] O.W.N. 548 (H.C.), refd to. [para. 142].

Sudeyko v. Sudeyko (1974), 18 R.F.L. 273 (B.C.S.C.), refd to. [para. 142].

Frame v. Smith, [1987] 2 S.C.R. 99; 78 N.R. 40; 23 O.A.C. 84, refd to. [para. 143].

Tocco v. Tocco (1977), 4 R.F.L.(2d) 174 (Ont. C.A.), refd to. [para. 145].

Woods v. Racine and Racine, [1983] 2 S.C.R. 173; 48 N.R. 362; 24 Man.R.(2d) 314, refd to. [para. 145].

McGrath (Infants), Re, [1893] 1 Ch. 143 (C.A.), refd to. [para. 155].

Beson et al. v. Director of Child Welfare (Nfld.), [1982] 2 S.C.R. 716; 44 N.R. 602; 39 Nfld. & P.E.I.R. 246; 111 A.P.R. 246, refd to. [para. 157].

B.P.M. v. B.L.D.E.M. (1992), 59 O.A.C. 19 (C.A.), refd to. [para. 166].

R. v. Swain, [1991] 1 S.C.R. 933; 125 N.R. 1; 47 O.A.C. 81; 63 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 171].

R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; 88 N.R. 205; 71 Sask.R. 1; 45 C.C.C.(3d) 57; [1989] 1 W.W.R. 97; 66 C.R.(3d) 97, refd to. [para. 171].

Baron et al. v. Minister of National Rev­enue et al., [1993] 1 S.C.R. 416; 146 N.R. 270, refd to. [para. 171].

R. v. Morales (M.), [1992] 3 S.C.R. 711; 144 N.R. 176; 147 N.R. 335 (adden­dum); 51 Q.A.C. 161, refd to. [para. 172].

R. v. Morgentaler, Smoling and Scott, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1; 44 D.L.R.(4th) 385; 31 C.R.R. 1; 37 C.C.C.(3d) 449; 62 C.R.(3d) 1, refd to. [para. 173].

Taylor and Western Guard Party v. Cana­dian Human Rights Commission, [1990] 3 S.C.R. 892; 117 N.R. 191, refd to. [para. 173].

Committee for the Commonwealth of Canada et al. v. Canada, [1991] 1 S.C.R. 139; 120 N.R. 241, refd to. [para. 173].

Osborne, Millar and Barnhart et al. v. Canada (Treasury Board) et al., [1991] 2 S.C.R. 69; 125 N.R. 241, refd to. [para. 173].

R. v. Butler and McCord, [1992] 1 S.C.R. 452; 134 N.R. 81; 78 Man.R.(2d) 1; 16 W.A.C. 1, refd to. [para. 173].

R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91, refd to. [para. 173].

R. v. Le Beau (1988), 21 O.A.C. 1; 41 C.C.C.(3d) 163, refd to. [para. 179].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92; 79 C.R.(3d) 1, refd to. [para. 205].

Daigle v. Tremblay, [1989] 2 S.C.R. 530; 102 N.R. 81; 27 Q.A.C. 81, refd to. [para. 217].

British Columbia Government Employees' Union v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; 87 N.R. 241, refd to. [para. 218].

Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513; 84 N.R. 86, refd to. [para. 220].

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1, refd to. [para. 220].

Bennett Infants, Re, [1952] O.W.N. 621 (Ont. C.A.), refd to. [para. 221].

Delvenne v. Nabbie (1977), 4 R.F.L.(2d) 21 (Man. C.A.), refd to. [para. 221].

Irmert v. Irmert (1984), 64 A.R. 342 (C.A.), refd to. [para. 221].

Harvey v. Lapointe (1988), 13 R.F.L.(3d) 134 (Que. S.C.), refd to. [para. 221].

McQuillan v. McQuillan (1975), 21 R.F.L. 324 (Ont. H.C.), refd to. [para. 221].

Struncova v. Guay (1984), 39 R.F.L.(2d) 298 (Que. S.C.), refd to. [para. 222].

Sullivan v. Fox (1984), 38 R.F.L.(2d) 293 (P.E.I.S.C.), refd to. [para. 222].

Droit de la famille - 955, [1991] R.J.Q. 599 (C.A.), refd to. [para. 225].

Droit de la famille - 353, [1987] R.J.Q. 545 (C.A.), refd to. [para. 225].

Zummo v. Zummo (1990), 574 A.2d 1130 (Pa.), refd to. [para. 229].

Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; 102 N.R. 321; 103 A.R. 321; [1990] 1 W.W.R. 577; 64 D.L.R.(4th) 577; 71 Alta. L.R.(2d) 273; 45 C.R.R. 1, refd to. [para. 234].

Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455; 63 N.R. 161, refd to. [para. 234].

Adams and Adams v. McLeod and Ram­stead, [1978] 2 S.C.R. 621; 20 N.R. 203; 9 A.R. 1, refd to. [para. 246].

Novic v. Novic, [1983] 1 S.C.R. 696; 47 N.R. 394, refd to. [para. 246].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1, sect. 2(a), sect. 2(b), sect. 2(d), sect. 15(1) [para. 8].

Civil Code of Lower Canada, art. 30 [para. 158].

Civil Code of Quebec, art. 560, art. 569 [para. 112]; art. 570 [para. 144]; art. 647 [para. 112].

Custody of Infants, Act to Amend the Law relating to, S. Prov. Can. 1855, c. 126, sect. 1 [para. 11].

Custody of Infants (Talford's Act), Act to Amend the Law relating to (U.K.), 2 & 3 Vict., c. 54, generally [para. 105].

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 15(2) [para. 56]; sect. 16(1), sect. 16(4), sect. 16(5), sect. 16(6) [para. 102]; sect. 16(8) [paras. 7, 102]; sect. 16(9) [para. 102]; sect. 16(1), sect. 17(5) [paras. 7, 102].

Family Relations Act, R.S.B.C. 1979, c. 121, sect. 51, sect. 52 [para. 57].

Guardianship of Infants Act (1886), 49 & 50 Vict., c. 27, generally [para. 106].

Guardianship of Infants Act (1925), 15 & 16 Geo. 5, c. 45, sect. 1 [para. 106].

Guardianship of Minors Act, 1971 (U.K.), c. 3, generally [para. 12].

Supreme Court of Judicature Act (1873), 36 & 37 Vict., c. 54, generally [para. 106].

United Nations, Convention on the Rights of the Child, UNGA Doc. A/RES/44/25, Corr. 1, (1989), 28 I.L.M. 1459, art. 3(1) [para. 178].

Authors and Works Noticed:

Abella, Rosalie Silberman, Family Law in Ontario: Changing Assumptions (1981), 13 Ottawa L.R. 1, p. 13 [para. 107].

Bala, Nicholas, Assessing the Assessor: Legal Issues (1990), 6 C.F.L.Q. 179, p. 224 [para. 207].

Baxter, Ian F.G. and Mary A. Eberts, The Child and the Courts (1978), generally [para. 12].

Benians, Preserving Parental Contact, in Fostering Parental Contact: Arguments in Favour of Preserving Contact between Children in Care and Parents (1982), generally [para. 17].

Boyd, Susan B., Potentialities and Perils of the Primary Caregiver Presumption (1990), 7 C.F.L.Q. 1, p. 6 [para. 165].

Boyd, Susan B., Women, Men and Rela­tionships with Children: Is Equality Possible?, in Karen Busby, Lisa Fainstain and Holly Penner, eds. Equality Issues in Family Law: Considerations for Test Case Litigation (1991), pp. 72, 76 [para. 131].

Burrett, Jill F., Child Access and Modern Family Law (1988), generally [para. 195].

Canada, Department of Justice, The Eval­uation of the Divorce Act, Phase II: Monitoring and Evaluation (1990), pp. 99 [para. 131]; 111 [para. 149].

Canada, Department of Justice, Public Discussion Paper, Custody and Access (1993), generally [para. 161].

Canada, Law Reform Commission, Children of Divorcing Spouses: Propo­sals for Reform (1985), generally [para. 116].

Canada, Law Reform Commission, Report on Family Law (1976), p. 63 [para. 198].

Caplan, Paula J. and Jeffery Wilson, As­sessing the Child Custody Assessors (1990), 27 R.F.L.(3d) 121, generally [para. 206].

Chambers, David L., Rethinking the Sub­stantive Rules for Custody Disputes in Divorce (1984), 83 Mich. L. Rev. 477, generally [para. 13].

Child Custody Law and the Invisibility of Women's Work (1989), 96 Queen's Quarterly 831, generally [para. 131].

Deech, Ruth, The Unmarried Father and Human Rights (1992), 4 J. Child Law 3, generally [para. 145].

Delorey, Anne Marie, Joint Legal Custody: A Reversion to Patriarchal Power (1989), 3 C.J.W.L. 33, p. 43 [para. 150].

Dickens, Bernard M., The Modern Func­tion and Limits of Parental Rights (1981), 97 L.Q.R. 462, p. 473 [para. 117].

Drakich, Janice, In Search of the Better Parent: The Social Construction of Ideologies of Fatherhood (1989), 3 C.J.W.L. 69, generally [para. 131].

Drakich, Janice, In Whose Best Interests?: The Politics of Joint Custody in Family Bonds and Gender Divisions: Readings in the Sociology of Family (1988), p. 477 [para. 195].

Ehrcke, Ann, Limiting Judicial Discretion in Custody Proceedings on Divorce (1986), 6 Can. J. Fam. L. 211, generally [para. 161].

Elster, Jon, Solomonic Judgments: Against the Best Interests of the Child (1987), 54 U. Chicago L.R. 1, generally [para. 12].

Emery, R.E. Interparental Conflict and the Children of Discord and Divorce (1982), 92 Psych. Bull. 310, generally [para. 195].

Fineman, Martha, Dominant Discourse, Professional Language and Legal Change in Child Custody Decision Making (1988), 101 Harv. L. Rev. 727, generally [para. 131].

Fineman, Martha Albertson, The Illusion of Equality (1991), pp. 84 [para. 164]; 118 [para. 191]; 164 [para. 196].

Finnbogason, Eve and Monica Townson, The Benefits and Cost Effectiveness of a Central Registry of Maintenance and Custody Orders (1985), generally [para. 150].

Folberg, Jay, Joint Custody in Rosalie S. Abella and Claire L'Heureux-Dubé, Family Law: Dimensions of Justice (1983), p. 185 [para. 128].

Furstenberg, Frank F., Jr., and Andrew J. Cherlin, Divided Families: What Hap­pens to Children When Parents Part (1991), p. 74 [para. 131].

Gélinas, Louis and Bartha Maria Knop­pers, Le rôle des experts en droit qué­bécois en matière de garde, d'accès et de protection (1993), 53 R. du B. 3, p. 17 [para. 206].

Goldstein, Joseph, Anna Freud and Albert J. Solnit, Beyond the Best Interests of the Child (1973), p. 53 [para. 163].

Goldstein, Joseph, In Whose Best Interest? in Rosalie S. Abella and Claire L'Heur­eux-Dubé, eds. Family Law: Dimensions of Justice (1983), p. 124 [para. 117].

Grassby, Miriam, Women in Their Forties: The Extent of Their Rights to Alimen­tary Support (1991), 30 R.F.L.(3d) 369, generally [para. 133].

Hetherington, Cox and Cox, Effects of Divorce on Parents and Children in M.E. Lambs, Non-Traditional Families: Par­enting and Child Development (1982), generally [para. 195].

Holmes, S.M., Imposed Joint Legal Cus­tody: Children's Interests or Parental Rights? (1987), 45 Faculty of Law Review 300, generally [para. 130].

Johnston, J.R., M. Kline and J.M. Tschann, Ongoing Postdivorce Conflict: Effects on Children of Joint Custody and Frequent Access (1989), 59 Am. Journal of Orthopsychiatry 576, generally [para. 195].

L'Heureux-Dubé, Claire, La garde con­jointe, concept acceptable ou non? (1979), 39 R. du B. 835, generally [para. 129].

LaFave, LeAnn Larson, Origins and Evol­ution of the Best Interests of the Child Standard (1989), 34 S. Dakota L.R. 459, generally [para. 157].

Maidment, Susan, Custody and Divorce (1984), pp. 5, 6 [para. 104]; 34 [para. 116]; 68 [para. 148]; 161 [para. 162].

Mnookin, Robert H., Child Custody Adju­dication: Judicial Functions in the Face of Indeterminacy (1975), 39 Law & Contemporary Problems 226, generally [para. 11].

Munro, Karen M., The Inapplicability of Rights Analysis in Post-Divorce Child Custody Decision Making (1992), 30 Alta. L. Rev. 852 [para. 161].

Payne, Julien D. and Brenda Edwards, Co-operative Parenting After Divorce: A Canadian Perspective (1990), 11 Advo­cates' Q. 1, pp. 8 [para. 131]; 13 to 15 [para. 130].

Payne on Divorce (2nd Ed. 1988), pp. 144 [para. 114]; 145, 146 [para. 126].

Perry, Debra, Access to Children Fol­low­ing Parental Relationship Break­down in Alberta (1992), generally [para. 149].

Richardson, C. James, Court-based Divorce Mediation in Four Canadian Cities: Overview of Research Results (1988), generally [para. 148].

Roth, The Tender Years Presumption in Child Custody Disputes (1976-77), 15 J. Fam. L. 423, generally [para. 11].

Rutter, Michael, Maternal Deprivation Reassessed (1981), generally [para. 17].

Rutter M., Protective Factors in Children's Responses to Stress and Disadvantage in M.W. Kent and J.E. Rolf, eds., Primary Prevention of Psycho pathology: Social Competence in Children, vol. 3, gen­erally [para. 195].

Ryan, Judith P., Joint Custody in Canada: Time for a Second Look (1986), 49 R.F.L.(2d) 119, generally [para. 161].

Schneider, Carl E., Religion and Child Custody (1992), 25 U. Mich. J. L. Ref. 879, generally [para. 222].

Smart, Carol and Selma Sevenhuijsen, Child Custody and the Politics of Gender (1989), generally [para. 119].

Smith and Lodrup, The Child in the Divorce Situation - Factors Determining the Custody Question and the Use of Experts in Custody Cases in Norway, in Baxter and Eberts, the Child and the Courts (1978), generally [para. 12].

Smythe, E.S., Issues Concerning Parental Harmony and Children's Psychosocial Adjustment (1983), 53 Am. J. of Orthopsychiatry 73, generally [para. 195].

Syrtash, John Tibor, Religion and Culture in Canadian Family Law (1992), p. 90 [para. 232].

Toope, Stephen J., Riding the Fences: Courts, Charter Rights and Family Law (1991), 9 Can. J. Fam. L. 55, p. 67 [para. 161].

Wallerstein, Judith S. and Sandra Blakes­lee, Second Chances: Men, Women and Children a Decade After Divorce (1989), generally [para. 193].

Wallerstein, Judith S. and Joan Berlin Kelly, Surviving the Breakup: How Children and Parents Cope with Divorce (1980), generally [para. 191].

Weisman, Norris, On Access After Par­ental Separation (1992), 36 R.F.L.(3d) 35, pp. 36 [para. 167]; 47 [para. 159]; 48 [para. 192]; 114, 115 [para. 149].

Weiss, Martin and Robert Abramof, The Enforceability of Religious Upbringing Agreements (1991), 25 John Marshall Law Rev. 655, pp. 714, 715 [para. 231].

Weitzman, Lenore J., The Divorce Revol­ution (1985), pp. 230 [para. 145]; 248 [para. 195]; 253, 254 [para. 194].

Zarowny, Steven M., The Religious Upbringing of Children After Divorce (1980), 56 Notre Dame L.R. 160, p. 173 [para. 232].

Counse l:

Lorne N. MacLean and Fred C. Lowther, for the appellant;

W. Glen How, Q.C., and Sarah E. Mott-Trille, for the respondent, James K.C. Young;

Gordon Turriff, for the respondent, W. Glen How;

John M. Burns and Linda How, for the respondent, Watch Tower Bible and Tract Society;

Gerald D. Chipeur and Karnick Doukmet­zian, for the intervener, Seventh-Day Adventist Church.

Brian Evernden, for the intervener, Attor­ney General of Canada;

Michel Y. Hélie, for the intervener, Attor­ney General for Ontario;

Monique Rousseau and Isabelle Harnois, for the intervener, Attorney General of Quebec;

Shawn Greenberg, for the intervener, At­torney General of Manitoba;

Written submission only for the Attorney General of British Columbia;

Solicitors of Record:

MacLean, Nicol & Wong, Vancouver, British Columbia, for the appellant;

W. Glen How & Associates, Halton Hills (Georgetown), Ontario, for the respon­dent, James K.C. Young;

Douglas, Symes and Brissenden, Vancouver, British Columbia, for the respondent, W. Glen How;

W. Glen How & Associates, Halton Hills (Georgetown), Ontario, for the respon­dent, Watch Tower Bible and Tract Society;

Brian Evernden, for the intervener, Attor­ney General of Canada;

Michel Y. Hélie, for the intervener, Attor­ney General for Ontario;

Monique Rousseau and Isabelle Harnois, for the intervener, Attorney General of Quebec;

Shawn Greenberg, for the intervener, At­torney General of Manitoba;

Written submission only for the Attorney General of British Columbia;

Blake, Cassels & Graydon, Vancouver, British Columbia, for the intervener, Law Society of British Columbia.

Milner, Fenerty, Edmonton, Alberta, for the intervener, Seventh-Day Adventist Church.

This appeal was heard on January 25-26, 1993, before La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci, JJ., of the Supreme Court of Canada.

On October 21, 1993, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

McLachlin, J. - see paragraphs 1 to 74;

La Forest, J. (Gonthier, J., concurring), dissenting - see paragraphs 75 to 77;

Sopinka, J. - see paragraphs 78 to 84;

Cory and Iacobucci, JJ. - see paragraphs 85 to 88;

L'Heureux-Dubé, J., dissenting - see paragraphs 89 to 263.