Court Cases & Orders

Judge Erred in Criticizing Father’s Religious Views and “Mental Fitness”

Written by Russell Alexander ria@russellalexander.com / (905) 655-6335

Judge Erred in Criticizing Father’s Religious Views and “Mental Fitness”

In an interesting recent Family Law case from the Alberta Court of Appeal, the issue was whether a chambers judge had overstepped her judicial mandate when she took the initiative to criticize the religious views of a father, and to suggest he needed to address his own “fitness to parent and mental fitness”.

In Volkman v. Volkman the father of two children had applied to the chambers judge to vary the parenting arrangements between him and the mother, to give him increased parenting time.  As the Court of Appeal explained, that hearing before the chambers judge took an unexpected turn:

… Prior to hearing any oral argument, the chambers judge made a lengthy statement critical of the [father] … The chambers judge observed that when deciding parenting issues many cases assume as a starting point that “both parents are fit, capable and loving”, then stated:

…And my problem is I seriously question the premise that both parents are “fit, capable, and loving”. I have reviewed that premise as against the affidavit evidence, including [the father’s] own, which relates to his deeds and to his mental health. And in saying so, it is his own words and deeds I refer to.

The Court of Appeal continued:

The chambers judge then criticized the religious beliefs of the parties, which she said were the foundation of the [father’s] attitudes towards women and marriage. …

The chambers judge drew these conclusions even though – as the father’s lawyer pointed out – the parents had met at church, attended regularly, and raised their children in that religious institution. Plus, the father had repeatedly denied the actions and statements that apparently troubled the chambers judge.

Where the chambers judge went especially wrong, in the Appeal Court’s view, was that she took it upon herself to comment on the father’s mental or other unfitness to parent, even though there was nothing in the court record to suggest this was a valid concern.  The father was given no fair opportunity to respond, especially since the judge had effectively required proof on-the-spot that he was “fit, capable, and loving”. She did not provide particulars about what her concerns were, nor did she request that he be subjected to any psychiatric examination.  Importantly, the issues that underpinned her contentious comments had not been raised previously by the mother, or by the experts who had been involved in the case.

Finally, while the chambers judge was critical of his religious beliefs, there was no evidence that they amounted to a mental health issue.  The Appeal Court added:  “Further, different parents have different parenting styles, but a disagreement with a particular style does not necessarily make the parent mentally or otherwise unfit.”

In the end, the Court of Appeal allowed the father’s appeal, and ordered that all parenting time issues were to be returned to the trial level court for reconsideration.

For the full text of the decision, see:

Volkman v Volkman, 2021 ABCA 151

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About the author

Russell Alexander

Russell Alexander is the founder of Russell Alexander Collaborative Family Lawyers and is the firm’s senior partner. At Russell Alexander, our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues, including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. We have locations in Toronto, Markham, Whitby (Brooklin), Oshawa, Concord, Lindsay, and Peterborough.

For more information, visit our website, or you can call us at: 905-655-6335.