Michael Ford (post until Oct. 31/19)
ADR, Family

Religion not often part of family court discussions

A British Columbia judge’s determination that grandparents cannot talk about religion in front of their four-year-old granddaughter is unusual although not a surprise, says Toronto family lawyer Jennifer Samara Shuber.

“The result is not surprising when you look at the circumstances,” says Shuber, who is a family law specialist practising family law with Beard Winter LLP.

Judge Edna Ritchie’s decision in A.R. and B.R. v. M.W. and L.R., 2015 BCPC 285 (CanLII) emphasizes the will of the parent — the primary caregiver — outweighs the desires of the grandparents, who are one step removed, adds Shuber.

“There is no independent right for the grandparents to have access,” says Shuber. “They can only spend time with the child if it is deemed to be in her best interest.”

The grandparents, who are devout Jehovah’s Witnesses, asked the court to allow them unsupervised access to the girl after the mother had restricted them to supervised access in her home. Their son, the father of the child, had been ‘disfellowshipped’ or excommunicated by the church and wasn’t involved in the child’s rearing or paying child support.

That left the mother as the sole custodial parent and decision-maker for the child, observes Shuber.

The mother wanted the grandparents involved in the child’s life, but was upset that they regularly and “knowingly defied” the mother’s wishes on a variety of parenting issues. The mother repeatedly asked that they not have the girl address them as Poppa and Momma, for example, preferring instead Grandma and Grandpa. But the issue of religion became a dominant theme in the breakdown of the mother’s relationship with the grandparents, reads the ruling.

The grandparents insisted on exposing the girl to the tenets of the Jehovah’s Witness faith and taking her to worship, despite the mother’s insistence that the girl not go to the Kingdom Hall, says the decision. They also had her watch a Jehovah’s Witness video, claiming that the four-year-old had asked them to put it on.

The mother contends that the child will make her own decision on whether or not to practise a certain religion when she’s older, but she does not want the child exposed to any religion at the present time.

Ritchie denied the grandparents unsupervised access to the child and told them until they can comply with the mother’s requests, their access to the child will remain supervised.

“The applicants appear unwilling, and perhaps unable, to accept that they have no parenting responsibilities with respect to A.W. They lack insight into the consequences of their actions,” writes the judge.

While religion is a central theme in this case, Shuber points out that the main issue is not necessarily religion, but rather the custodial parent’s desire to raise her child without the interference with and undermining of her custodial decisions by the grandparents. 

The court found that religion was but one area in which the grandparents refused to accept the primacy of the mother’s decision-making authority.     

“From the vantage point of the court, if the grandparents are given unsupervised access, the child is going to be stuck right in the middle of the conflict between her mother and grandparents.  This is the precise situation a custody determination tries to avoid,” says Shuber. “The judge is charged with making a decision in the child’s best interest. Ongoing conflict about decision-making cannot be good for the child.”

Shuber says religion doesn’t often enter the discussion in family court.

The primary concern when it comes to children, she says, is their safety and well-being. The court only becomes involved where there is potential of harm.

“The court is very, very reluctant to wade in on religion unless it poses some kind of danger to the child,” says Shuber. “Family courts are not there to make a choice between religious practices.

“The judges are very careful to say: ‘We’re making a determination in the child’s best interest and not preferring on one religion over another.’”

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