Young+v+Young


 * Young c. Young, [1993] 4 R.C.S. 3 (extraits)

Facts** The appellant (mother) was awarded custody of the three children. The respondent was granted access to the children, subject to certain conditions: he was not allowed to discuss his religion with the children (Jehovah’s Witness), take them to service, etc. The two older kids reported that their dad’s insistence on sharing his religion with them was damaging their relationship with him. The Court of Appeal set aside the trial judge’s order which prevented the father from exposing his kids to his religious practices. They claimed that it was in the best interest of the children to get to know their dad fully (including religious beliefs), unless there was evidence of real harm to the kids.

1) Are sections 16(8) and 17(5) of the Divorce Act (requiring that judicial decisions regarding custody access be made in the best interests of the child) in violation of Charter guarantees of freedom of religion, expression and association? 2) What is the test for “best interest of the child”?
 * Issues**

1) No 2) The judges have very different definitions for “best interest of the child.”
 * Holding**

__L’Heureux-Dubé J:__ · Her big thing is that the best interest of the child is not simply determined by what could be harmful to the child: “the best interest of the child cannot be equated with the mere absence of harm.” It is a much more //positive// right for the child. · She defines best interest of the child as “a positive right to the best possible arrangements in the circumstances of the parties.” · She believes in granting a lot more authority to the primary caregiver (the one awarded custody) to determine what is in the best interest of the kids. She sees a “custody award is a matter of **whose** decisions to prefer, as opposed to **which** decisions to prefer.” o So “the custodial parent need not show harm in order to restrict access to the children by the non-custodial parent.”
 * Reasoning**

__McLaughlin J:__ · Gives a greater weight to harm in determining best interest of child: “the risk of harm to the child, while not the ultimate legal test, may also be a factor to be considered.” · Like L’H-D, McLaughlin believes that this is a positive test, “encompassing a wide variety of factors, including the desirability of maximizing contact between the child and each parent...” · She seems to believe that the custodial parent should have less authority than L’Heureux-Dubé would like: “the custodial parent does not have the ‘right’ to determine limits on access.” · There is not Charter violation of freedom of religion because the father’s behaviour constitutes an “injury”: “Conduct not in the best interests of the child, even absent the risk of harm, amounts to an ‘injury’ or intrusion on the rights of others and is not protected by this Charter guarantee.” · She finds a prima facie case of protection under the guarantee of freedom of expression (the ambit of freedom of expression is broader than that of freedom of conscience and religion: even harmful expression may be protected). However, his claim is primarily religious in nature, and thus not protected.

__Sopinka J:__ · Like McLaughlin, seems to believe that custodial parents’ authority should be limited. · He thinks that, as affirmed in the Divorce Act, a meaningful relationship with both parents is very important to children, and should only be limited when there is a “substantial risk of harm to the child.” · On the Charter issue, he warns against expanding the definition of harm, disagreeing with McL: “the concept of harm should not be expanded to reach the conclusion that anything which is not in the best interests of the children is injurious within the meaning of s. 2(b) and thus not protected by the Charter.”