When assessing the emotional harm to children caused by parents sharing the details of their conflict with children, particularly when parents claim their religious beliefs mandate full transparency, Children’s Aid Societies (CAS) must balance child protection considerations against parents’ Charter rights.
Case study
A CAS worker is investigating the emotional harm experienced by children aged 5 to 17 who had participated in lengthy religious gatherings, often lasting through the night until 6 a.m. or even for 24 hours. During these sessions, the children were told that their mother was not telling the truth, leading them to believe that she possessed a ‘bad spirit’. Moreover, the father disclosed to the children his criminal charges related to offenses against their mother.
Faced with such a case, the CAS worker would need to carefully consider whether the religious practice and the father’s disclosure of his charges caused emotional harm to the children.
1. Section 2(a) – Freedom of Religion
Parents may argue that their religion mandates truth-telling or transparency, and as such, they are bound by their faith to share all details of their conflict with their children. Under the Charter, individuals are guaranteed the freedom to practice their religion, including adherence to specific religious doctrines.
However, this right is not absolute and may be subject to reasonable limits under section 1 of the Charter. The key question is whether the full transparency in this context leads to harm that infringes on the best interests of the child. Courts generally prioritize the welfare and safety of children over parental rights, especially when religious practices conflict with child protection concerns.
2. Section 7 – Life, Liberty, and Security of the Person
A parent’s right to security of the person has been found to be engaged in child protection cases. In New Brunswick (Minister of Health & Community Services) v. G. (J.), [1999] 3 SCR 46 the Court found that the section 7 protection of a person's physical and psychological security extends beyond the sphere of criminal law, and can be engaged in child protection proceedings. In this case, the Court found that it was unreasonable for a person not to receive state funded legal representation after the Minister had brought an application to extend the custody order for her child. The Court found that the Minister had breached the mother’s section 7 right to security of the person in the circumstances, and that the appropriate remedy under section 24 would have been to order funding for counsel for mother.
Children also have rights under Section 7 of the Charter, which protects their security of the person, including emotional and psychological well-being. If oversharing parental conflict causes or contributes to emotional harm, CAS may argue that the parents’ actions infringe on the child’s section 7 rights.
The courts have consistently recognized that children’s best interests are paramount, and emotional harm caused by prolonged exposure to parental conflict can justify intervention. The analysis would involve assessing whether the parental practices pose a real risk to the child’s emotional security, and whether less harmful religious practices could be pursued without sacrificing the welfare of the child.
3. Section 1 – Reasonable Limits
Even though parents have religious freedoms, section 1 of the Charter allows the government to limit these rights if the limitation is demonstrably justified in a free and democratic society. The CAS would need to demonstrate that:
- The harm to the child is real and substantial. CAS must verify through their clinical assessments, reports, or expert testimony that the child’s exposure to parental conflict is causing emotional harm, serious anxiety, depression, withdrawal, self-destructive or aggressive behaviour, or delayed development.
- The limit is necessary to protect the child’s well-being. The proposed intervention must be the least restrictive means of achieving the protection of the child. If the CAS is considering intervention to bring the matter to court or a removal, the CAS would need to demonstrate that it considered or tried lesser intrusive methods of addressing the concern such as an agreement not to expose the children to this practice, family counselling or education.
- The balance of interests favors the child’s protection. The courts will assess the proportionality of the CAS’s intervention. If the emotional harm to the child outweighs the religious rights of the parents, the court would likely support the CAS’s position.
4. Best Interests of the Child
In Ontario, under the Child, Youth and Family Services Act, 2017, SO 2017, c 14, Sched 1, the paramount considerations are the best interests, protection and wellbeing of the children. These principles take precedence over parental religious freedoms when those freedoms result in harm to the child. The CAS has a duty to protect children from harm, including emotional and psychological harm, even if it stems from parental practices rooted in religious beliefs.
The CAS should demonstrate that the parents’ insistence on sharing all details of their conflict is inconsistent with the child’s emotional well-being. Expert assessments (e.g., from psychologists or psychiatrist) can support the position that children are particularly vulnerable to harm from parental conflict, regardless of the parents’ intentions.
Conclusion
The CAS can verify emotional harm and limit a person's right to religious freedom and security of the person if it can be showed that the emotional harm to children resulting from parental oversharing of conflict is real, substantial, and contrary to the best interests, protection and wellbeing of the child. While parents’ religious beliefs are protected under section 2(a) of the Charter, these rights can be limited under section 1 if they result in harm to the child’s emotional security under section 7. The key is to demonstrate a reasonable balance between religious freedoms and the need to protect children from emotional harm.
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