M.J.S. v. S.B.M., 2017 BCSC 313

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: M.J.S. v. S.B.M., 2017 BCSC 313 Date: 20170110 Docket: 16-3839 Registry: Victoria Between: M.J.S. Appellant And: S.B.M. Respondent Before: The Honourable Mr. Justice Bracken On appeal from: Provincial Court of British Columbia, August 8, 2016 ( S.B.M. v. M.J.S. Docket No. 20514) Oral Reasons for Judgment In Chambers Counsel for the Appellant appearing by teleconference: J. MacEwan Appearing on her own behalf: S.B.M. Place and Date of Trial/Hearing: Victoria, B.C. January 3, 2017 Place and Date of Judgment: Victoria, B.C.

January 10, 2017 [ 1 ] THE COURT: The appellant, Mr. S., appeals a decision of a Provincial Court judge respecting the parenting of the parties' child, C.B.S. He was born on December 21, 2011, and is now five years old. [ 2 ] The parties have created a shared parenting regime. The primary residence of C. is with Ms. M. and weekends and other parenting time is spent with Mr. S. The issue under appeal is set out at paragraph 24 of the reasons for judgment delivered on August 8, 2016.

That paragraph states: With respect to s. 41(e) [of the Family Law Act ] then, the order will be as follows, that neither parent will discuss religion with [C.], nor take him to church, or church-related activities or events. Neither parent will expose C. to discussions on religion or religious material. [ 3 ] In a discussion with counsel at the end of the decision, the issue of prayer was raised and the court stated that there would be no prayer which, as Mr.

MacEwan points out, precludes the saying of grace before meals or prayers before bedtime. [ 4 ] The learned trial judge found both parties to be excellent parents who are able to meet C.'s needs.

There was no concern about the ability of either party's ability to provide a loving and nurturing environment for C. [ 5 ] It is clear from the judge's reasons that the objective of the order respecting religion was to avoid exposing a young child such as C. to the conflicting views about religion that was held by the parents. [ 6 ] During their time living together, religion was not a problem for either of the parties, as neither of them followed any formal religious activity at that time. Mr.

S. had been a member of the Jehovah's Witness faith prior to the commencement of the relationship, but he had abandoned church attendance while the parties were together. However, following separation from Ms. M., Mr. S. renewed his faith and regular attendance at meetings of the Jehovah's Witnesses church and he is now deeply engaged in church activities. He wishes to have C. participate in church activities when he is spending time with Mr. S. [ 7 ] Ms. M. does not follow any organized religion and she does not want C. to be included in Mr. S.'s religious activities.

She has strong beliefs of honesty and kindness, and says that the principles embodied in Mr. S.'s religious faith can be taught to C. without exposing him to the tenets of the Jehovah's Witness faith. [ 8 ] The trial judge noted that religion was at the root of some of the conflict between the parents, but not all of it. Mr. MacEwan, on behalf of Mr. S., points out that there was no evidence presented at the trial of the action, which took place over three days from May

16, June 13, and August 8, 2016, to suggest that exposure to Mr. S.'s religious beliefs or his religious activities would in any way beharmful to C. Rather, the decision turned on the desire to avoid exposing C. to conflict between the parties about religion and confusionthat could result in his exposure to one set of beliefs when he is at Mr. S.'s home and a different set of beliefs at his mother's home. [9] The parties agree that the test to be applied is the best interests of the child. Reference is Family Law Act, S.B.C. 2011, c. 25,at s. 37(1). [10] Mr.

MacEwan referred to and relies upon the decision of Young v. Young, (SCC), [1993] 4 S.C.R. 3. In thatcase, Mr. Justice Sopinka said at paragraphs 82 and 85 of the decision: The long-term value to a child of a meaningful relationship with both parents is a policy that is affirmed in the Divorce Act. This meansallowing each to engage in those activities which contribute to identify the parent for what he or she really is. The access parent is notexpected to act out a part or assume a phony lifestyle during access periods.

The policy favouring activities that promote a meaningfulrelationship is not displaced unless there is a substantial risk of harm to the child. At paragraph 85, Mr.

Justice Sopinka stated: I would, therefore, go a step further than my colleague McLachlin J. and conclude that what is in the best interests of the child is thegenerally applicable test, but in its application to restrict religious expression, risk of substantial harm is not only an important factor butalso must be shown. [11] A similar point was made by Justices Cory and Iacobucci in a separate concurring judgment, who said at paragraph 90: We find it difficult to accept that any genuine and otherwise proper discussion between a parent and his or her child should be curtailedby court orders.

Indeed, curtailment of explanatory or discursive conversations or exchanges between a parent and child should be rarelyordered in our view. To take an example, suppose custodial Parent A is a member of a fundamentalist religion and access Parent B is ascientist who espouses the pure Darwinian theory of evolution.

We find it unacceptable that Parent B should be ordered, under the rubricof the best interests of the child test, not to discuss or explain his views to his child as opposed to being forbidden from indoctrinating orotherwise undermining the religious choice made by the custodial parent for the child or children involved.

Surely the best interests ofthe child test embraces genuine discussion of religious belief as opposed to indoctrination, enlistment or harassment having the aim oreffect of undermining the religious decision made by the custodial parent. [12] Similar conclusions were reached by Justice Joyce in Jedynakiewicz v. Jedynakiewicz (1994), 49 A.C.W.S. (3d) 743, and by Mr.Justice Rogers in S.T.D. v. S.M.D., 2013 BCSC 2276. [13] In S.(L.) v. S.(C.), (SCC), [1997] 3 S.C.R. 1003, the Court removed a restriction on the exposing of the childto the mother's religious practices. [14] Ms.

M. has said in her evidence at trial that C. had made certain comments to her that suggested he had been told her beliefswere wrong. Without making any finding or reaching any conclusion on that evidence, which was not referred to by the trial judge, Iwill say it is not appropriate for either parent to criticize the beliefs or lack of beliefs of the other. The principle established byauthorities, in particular Young v. Young, is that there should be no limit to a parent's right to share his or her religious views with thechild, unless it is shown to be contrary to the best interests of the child.

There is no such evidence in this case. [15] Therefore, paragraph 6 of the order of August 8, 2016, is removed and is replaced with the following paragraph: Under ss. 40(3) and 41(

e) of the Family Law Act, the parental responsibility of making decisions respecting the cultural, linguistic,religious, and spiritual upbringing and heritage of the child, C.B.S., ("the child"), who was born on December 21, 2011, is allocated tothe child's guardians, the appellant, M.J.S., and the respondent, S.B.M., acting separately during each guardian's respective parentingtime with the child. [16] I find that wording respects the parenting rights of both parents to expose and discuss with C. what each of them believes, andwill allow each of them to engage in activities that contribute to identify the parent for what he or she really is. [17] That concludes my decision and unless there are any further questions, that concludes my judgment. [18] Mr.

MacEwan, anything arising? [19] MR. MacEWAN: Thank you, My Lord. Just two requests we would have on behalf of Mr. S., if written reasons are to bepublished, the appellant would request the judgment only refer to the parties and the child by their initials. [20] THE COURT: Yes, I am content with that. [21] MR. MacEWAN: To protect the child's privacy, and secondly, we'd request, as was done in this case previously, request thatthe requirement for Ms. M. to sign the order be waived -- [22] THE COURT: All right. Ms. M., what that -- [23] MR.

MacEWAN: -- to avoid delay. [24] THE COURT: What that means is the order will be drafted by Mr. MacEwan, be sent to the court, and be vetted against myreasons and the court's notes without you having to sign and approve it. It is not that you approve the outcome, it is that you approvethat the order records the outcome accurately. [25] So I would approve that order, Mr. MacEwan, upon your assurance that you will send a copy of the draft order to Ms. M. at the

same time as it is forwarded to the registry. [ 26 ] MR. MacEWAN: Certainly, My Lord. [ 27 ] THE COURT: All right, thank you both. Thank you. “J.K. Bracken, J.” The Honourable Mr. Justice J.K. Bracken