Parental Authority and Children’s Rights
Parental authority over a minor child serves to protect them, ensure their safety, and guarantee that they receive the care and attention of their parents.
Parental authority can be summed up as the right and duty of parents to care for, supervise, and educate their minor child.
The sole criterion when making decisions regarding a minor child is the child’s best interest.
In addition to the child’s moral, intellectual, emotional, and physical needs, factors such as the child’s age, health, character, family environment, and other aspects of their situation are considered.
This criterion applies to every court decision, for example, regarding medical treatment, school choice, or child custody (or parenting time).
A child has the right to be heard by the court in any matter that concerns them, if their age and maturity allow it.
Whether parenting time is primarily exercised by one parent or by a third party, for whatever reason, both parents retain the right to oversee the child’s care and education and must contribute to it in proportion to their means.
These principles are found in the Civil Code of Québec.
http://legisquebec.gouv.qc.ca/fr/showdoc/cs/ccq-1991
Custody and Parenting Time
The time a child resides with either parent used to be referred to as custody, up until the recent reform of the Divorce Act. Now, when parents are divorcing, the law uses the term parenting time. However, in cases of legal separation or unmarried parents, the term custody is still used. In the following text, for clarity, we will continue to use the term custody.
Custody arrangements are generally settled amicably.
It is now well established that the sole criterion for determining custody arrangements is the child’s best interest.
The child’s best interest is assessed case by case, objectively. Since parents hold parental authority, it is first up to them to try to reach an agreement. If they cannot, the court will decide.
The court will consider the parents’ parenting capacity.
In some cases, a parent’s capacity may be compromised due to substance abuse issues, criminal activity, or illness. This is not about judging the parents, but about assessing their ability to meet their children’s needs.
Parents must also have the availability to care for their children.
The court will take into account a parent’s willingness to facilitate contact with the other parent.
Situations of high conflict between parents will also be considered.
Since each case is unique, the child’s age should not, in itself, be a deciding factor in custody determinations.
If the child is sufficiently mature, their expressed wishes are taken into consideration. Generally, the preference of a child aged 9 can be relevant. From age 12 onward, their choice can become decisive—provided they are mature enough.
The status quo in custody arrangements, if it has been in place for a significant time, will also be considered.
Finally, any factors specific to the child’s situation and needs will be taken into account.
Shared Custody
In principle, a child should have the maximum possible access to both parents.
Thus, when sole custody is granted to one parent, the other parent’s access should be generous, in order to foster a strong relationship—for example, extended access during the summer holidays.
Shared custody, which is no longer considered an exceptional measure, may be implemented, taking into account the following criteria:
- the child’s best interest;
- stability;
- the parents’ ability to communicate;
- the proximity of the parents’ residences;
- the absence of significant conflict (a parent cannot create conflict and then claim that shared custody is impossible);
- the child’s wishes.
Resolving Custody Disputes
Parents may hire an expert to conduct an evaluation and provide an opinion on the appropriate custody arrangement.
The Superior Court offers parents access to psychosocial evaluation services.
A lawyer can also be appointed to represent a minor child. The lawyer will represent the child with loyalty, as with any client. When a child’s choice is decisive, appointing a lawyer for the child becomes essential.
Parents may also attempt to reach an agreement through negotiations with their lawyers or via free mediation services.
Conclusion
When it comes to parental authority, many rules must be applied. In most cases, these rules are simply a matter of common sense. In more difficult situations, hiring an experienced lawyer is the best way to protect children’s rights.
This article is not legal advice and should not be used as the sole basis for making decisions. It may not apply to your specific situation or that of the child concerned. We recommend calling us at 514-482-0887 to speak with an experienced lawyer about your parental authority matter.
You may now wish to read our article on the grounds for divorce.