Custody and Access: The Impact of Religion

How does religion impact custody and access decisions?

In previous posts, we have reviewed what “custody” and “access” mean, and also how custody is decided. A child’s religious and cultural background are relevant factors in deciding custody and access. Recent amendments to the Divorce Act specifically list “the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage” as a factor in determining a child’s best interests. In this post, Fresh Legal intern and University of Ottawa law student, Jordan Levy, discusses a case where this factor was considered.

Best Interests of the Child

In Ontario, child access and custody will be granted based on what is in the best interests of the child. This principle is enshrined in Ontarian legislation such as Section 1 of the Child, Youth and Family Services Act, 2017, and Section 24 of the Children’s Law Reform Act. The actions in the best of the interest of the child are the actions that will most likely secure the child’s current and future wellbeing.

The child’s religious and cultural background is considered when determining custody and access conditions. However, other important factors, like the child’s emotional attachment to their current caretakers and the caretaker’s ability to provide the necessities of life for the child are also considered. These important factors can override upholding a parent’s religious and cultural preferences.

For example, a child could live with a foster family for several years, without ever knowing their biological parent. If the child considers their foster parents to be their emotional caregivers, the child’s biological parent or biological family may receive access rights, but not sole custody over the child, even if the child’s biological parent or biological family requests custody of the child.

AAA v. GA, 2017 ONCJ 223

In the case of AAA v GA, a two-month-old girl was left by her biological mother with a caretaker for days, then weeks at a time. The child’s biological mother followed the Muslim faith. The child’s biological grandparents lived in Iraq and were also followers of the Muslim faith. The caretaker converted to the Muslim faith when she was in her forties.

After the biological mother did not return for her child, both the child’s biological mother and the Windsor-Essex Children’s Aid Society agreed that the caretaker could become the child’s foster mother. The child’s biological grandparents occasionally visited the child when she was under her foster mother’s care.

A few years later, the child’s biological grandparents went to court to gain full custody of the child over the child’s foster mother. The child’s biological mother did not make a request for custody over the child.

In deciding whether to grant the biological grandparents or the foster mother custody of the child, the court considered the child’s current emotional attachments to all parties, the parties’ abilities to care for the child and the parties’ religious preferences.

With respect to religion, the child’s foster mother was a newly converted Muslim and was learning the Arabic language. In contrast, the child’s biological grandfather held a PhD in Arabic Studies and was a University lecturer on Arabic Studies. Both the child’s grandparents were married in Iraq. The girl’s biological family had presumably practiced the Muslim faith over their entire lifetimes.

However, the court also considered the child’s strong emotional attachment to her foster mother. The child had been raised by her foster mother for four years, setting the routine of her young life. The child was happy in her foster mother’s care.

After weighing all the factors, the court ruled that the child should remain in the custody of her foster mother. However, since the child’s biological grandparents had more insight into the Muslim faith than the girl’s foster mother, the judge ordered specific access to with them over important Muslim holidays, in order to teach the child of her religion and culture.