S.M.O. v M.J.O., 2022 ONSC 5084

COURT FILE NO.: FS-19-00096696-0000

DATE: 2022 09 09

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: S.M.O.

AND:

M.J.O.

BEFORE: Justice Ranjan Agarwal

COUNSEL: Gary A. Beaulne, Counsel, for S.M.O.

Todd C. Hein, Counsel for M.J.O.

HEARD: August 30, 2022

ENDORSEMENT

1This issue in this case is about religious and spiritual decision-making for children: how do you reconcile one parent’s desire to raise their children in their faith with the other parent’s concerns about the faith and its administration? As the law teaches us, the guiding principle, always, is the children’s best interests—it’s the children’s rights at issue, not the parents.

2Here, I believe it’s in the children’s best interest that they continue full participation in their faith. As a result, the applicant SMO, their mother, should have temporary sole decision-making for the children’s “culture, language, religion and spirituality”.

3To maintain the privacy of the children, the parties are be referred to by their initials.

The Motion

4SMO and the respondent MJO, the children’s father, were married in August 2011. They separated eight years later. There are two twin children of the marriage, both 8 years old.

5SMO moved for various temporary orders related to decision-making, counselling, non-disparagement, parenting time, child support, financial disclosure, and questioning.

6On the day of the motion hearing, the parties settled almost all the issues in dispute between them. They provided me a draft order that they approved as to its form and content.

7Under the consent order, the parties will have joint decision-making responsibility for “the children’s health, including major non-emergency health care, as well as emergency health care and significant extra-curricular activities….”

8The remaining issue in dispute is whether SMO should have sole decision-making responsibility for the children’s “culture, language, religion and spirituality”. This motion has manifested itself in specific requests regarding the children’s participation in religious activities, such as “their first communion, mass, and school assemblies with most of their classmates”. MJO argues for joint decision-making responsibility.

Facts and Evidence

9The children attend a Catholic public school.

10In SMO’s affidavits, sworn August 2, 2022, and August 22, 2022, she deposes that:

• she’s Catholic

• she works in the Catholic school system

• the children were baptized with the intention of them being raised as Catholics

• MJO’s family is Catholic and attends church

• MJO’s sister’s children attend Catholic school

• she and MJO were married in the Catholic church

• she could not attend church with the children because of COVID—she attends virtual mass but does not take the children because of MJO’s objection to “attending church or practicing their faith”

11SMO identifies two recent incidents involving assemblies at school:

• MJO refused consent for the children to watch a performance of Station Of The Cross (a Passion Play) in-person at a school assembly because he didn’t want them to get COVID (they watched it virtually in their classroom)

• MJO refused consent for the children to listen to a guest speaker in-person in a multi-class group—SMO’s affidavit does not disclose MJO’s grounds for refusing consent

12MJO refuses to allow the children to prepare for or take their First Communion. In a text message put into evidence by SMO, MJO writes: “They will not be going to confession without my consent or first communion.” SMO also relies on another text message from MJO: “Speaking of consent, I wonder if my consent is needed for the kids to receive their first communion. Do you know? I will check with […]. I’m starting to like this consent thing.” SMO has filed several other text messages from MJO.

13I wasn’t provided any evidence on First Communion or its importance to Catholics. I understand that communion is a Catholic rite and one of several holy sacraments, including baptism, confession, and confirmation. A child’s First Communion is often celebrated as a special event.

14I understand that the children in this case are at an age when they would usually celebrate their First Communion (which follows their first confession, another sacrament—MJO references confession and communion together in his text message, quoted in paragraph 12 above). SMO’s evidence is that most of the children’s classmates have received communion. She also deposes that the children “ask regularly when they will receive their First Communion”. MJO doesn’t challenge this evidence.

15I wasn’t provided any evidence that a First Communion cannot be celebrated later in life. That said, I understand that though the First Communion is a special event, Catholics receive the sacrament regularly. As a result, MJO is effectively refusing to consent to the children participating in the sacraments of confession and communion generally (and not just the ceremony of their First Communion).

16In MJO’s affidavit, sworn August 19, 2022, he deposes that:

• SMO unilaterally enrolled the children in a Catholic school—he suspects she did so because she teaches in a Catholic school

• neither SMO nor her family go to church, and the children didn’t go to church

• he doesn’t object to the children attending a Catholic school but he doesn’t agree that they “pursue that religion”

• he has “concerns about the Catholic faith and its administration”—MJO does not particularize these “concerns”

• he believes the children are too young to decide on things such as attending Communion—they can decide whether they want to become Catholic when they are older

17MJO doesn’t testify about the two incidents involving religious assemblies at school.

18MJO says that attending communion or confirmation is not a requirement for the children to attend their school. SMO doesn’t dispute this assertion.

19MJO’s text messages, including one quoted above in paragraph 12, are rude and sarcastic. MJO’s response? “Unfortunately my frustration manifested poorly in some of the texts that I have sent, which I regret.” MJO’s explanation, given the tone and content of the messages, is unsatisfactory. In SJO’s affidavit, she describes several incidents where MJO disparaged her and her family. Though MJO says he didn’t make any racist or homophobic comments, he doesn’t deny making the other comments. I’m left with the strong impression that MJO’s refusal to allow the children to participate in communion or confession is out of spite.

20That said, I can’t ignore MJO’s evidence that he has concerns about the Catholic faith. I wasn’t provided any evidence that a Catholic is barred from being concerned about the Catholic faith and its administration if they participate in communion, confession, Mass, or religious assemblies.

21Neither party led evidence about Mass. I understand Mass is an act of worship of Catholicism. I understand communion is performed at Mass. SMO’s motion suggests MJO is refusing to allow the children to attend Mass. MJO didn’t concede that the children could attend Mass in his materials or oral submissions.

22Under the draft order settling the other issues on this motion, the children can attend baptisms or communions if the other parent has notice. I understand this to mean a friend’s or a family member’s baptism or communion.

Legal Framework

23This court may make an order providing for the exercise of parenting time or decision-making responsibility for any child of the marriage (Divorce Act, RSC 1985, c 3 (2nd Supp), s 16.1). Decision-making responsibility for a child, or any aspect of that responsibility, may be allocated to either spouse or to both spouses (Divorce Act, s 16.3).

24The order may be for a definite or indefinite period, and the court may impose any terms, conditions, and restrictions it considers appropriate (Divorce Act, s 16.1(5)).

25The court shall take into consideration only the best interests of the child of the marriage in making a parenting order (Divorce Act, s 16(1)). Section 16(3) lists several factors, including the child’s age and stage of development; the child’s cultural, linguistic, religious, and spiritual upbringing and heritage; and the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child.

26On motions for temporary parenting orders, generally the status quo will be maintained absent compelling reasons requiring change to meet the child’s best interests. See Grant v Turgeon, 2000 22565 (Sup Ct) at para 15. The court’s responsibility is to focus on the short-term needs of the child and minimize possible disruptions. The court must try to provide the child with certainty and stability in an environment that is safe and secure for them. See MPDS v JMS, 2022 ONSC 1212 at para 38; Rashid v Avanesov, 2022 ONSC 3401 at para 23.

27A temporary motion is meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will be fully canvassed at later conferences or resolved at a trial. The status quo should be maintained until trial unless there is material evidence that the child’s best interests require an immediate change. See Coe v Tope, 2014 ONSC 4002 at para 25; Costello v McLean, 2014 ONSC 7332 at para 11.

28The status quo means “that which existed just prior to the parties' separation, except in circumstances where there is clear and unequivocal evidence that the parties agreed to a different decision-making and residence arrangement following the separation.” See Batsinda v Batsinda, 2013 ONSC 7869 at para 28; Downs v Downs, 2022 ONSC 3382 at para 20.

Disposition

29I endorse a temporary order that SMO shall have sole decision-making responsibility for the children on all matters of culture, language, religion, and spirituality. The children may participate in confession, communion (including their First Communion), Mass, and school assemblies involving religion and spirituality, as SMO decides.

30I agree with MJO that the children are too young to decide on things such as attending communion—that is why parents make decisions about religion for young children, given the children’s best interests. The children didn’t decide to be baptized—that was a decision made by their parents.

31On confessions, communion (including First Communion), and Mass, I acknowledge that MJO has a concern about Catholicism. But that is his concern. I must decide what is in the children’s best interests. They have been baptized as Catholics. They attend a Catholic school. Their mother is Catholic. She and her family attend church. Catholicism is the children’s religious and spiritual upbringing and heritage. That is their status quo.

32As a result, I believe it’s in the children’s best interest that they continue fully participating in their faith. MJO has a right to question Catholicism. But the children have a right to practice the faith they were baptized in and the faith they are being educated in. I believe that it will be prejudicial to their development and upbringing if they are excluded from significant rites of passage at age-appropriate stages. That the children want to know when they can have their First Communion is, presumably, in part, because their classmates have taken communion. I don’t believe it’s in their best interest to be left out only because MJO has unparticularized “concerns” about Catholicism.

33Though the children could take communion when they are older, I don’t believe it’s in their best interest to do so. I haven’t been provided any evidence that participating in the sacraments or attending Mass bars them from questioning their faith as they get older. To the point that the children come to share MJO’s concerns about Catholicism, I have not been provided any evidence that they cannot do so only because they have taken communion or attended Mass. Further, MJO’s position effectively makes going to church meaningless if the children can’t attend Mass or participate in the sacraments. At some point, the children will be mature enough to make their own decisions about their faith. But, until then, under SJO’s direction, they should be allowed to continue the spiritual path they started with their baptism.

34On the school religious assemblies, I don’t believe MJO’s objections, if they are on religious grounds, are valid. He appears to be using COVID as an excuse to disallow the children attending in-person religious assemblies because of his concerns about the faith. Given the children watched a Passion Play virtually and MJO didn’t object, he doesn’t appear to have an objection to religious programming. His objection seems to be to them doing so in-person (though, again, he didn’t provide any evidence on this issue). In my view, the children should be allowed to participate fully in the student life at their school. Given that Ontario’s Catholic schools provide a religious education and teach from a perspective of faith, it doesn’t make any sense to exclude the children from religious assemblies, such as school plays or guest speakers, even if the assemblies or in-person attendance are not mandatory.

35The parties have agreed to joint decision-making over “the children’s health”. There may be a valid health reason in the future to object to in-person assemblies or church attendance, but that issue is not before me.

Costs

36SMO’s costs for this motion are $20,539.45 on a full indemnity basis. MJO’s costs, on a substantial indemnity basis, were $6963.63. I decline to award costs for the matters that were settled. The parties resolved their disputes on those issues by compromising on the terms of the order. MJO didn’t concede all the requests made by SMO, meaning that neither party was successful or unsuccessful.

37On the issue that was litigated, SMO is the successful party. Based on the factors in rule 24(12) of the Family Law Rules and the parties’ reasonable expectations (see Serra v Serra, 2009 ONCA 395), I endorse an order that SMO is entitled to costs for this motion and set the amount of costs as $5000 inclusive of fees, disbursements, and taxes. I endorse an order that the costs shall be paid within 30 days of this order.

38I am not seized.

Agarwal J.