Subscribe[1] THE COURT - Acting on an appeal from a ruling of 13 June 2008 by the Superior Court, district of Hull (the Honorable Suzanne Tessier), which authorized the respondent to participate with X its class a trip to Quebec;
[2] After reviewing the record, heard the parties and deliberate;
[3] For reasons of Justice Dalphond endorsed judges Gendreau and Brossard:
[4] dismissing the appeal, without costs.
Paul-Arthur Gendreau, J.C.A.
André Brossard, J.C.A.
J. PIERRE Dalphond, J.C.A.
Me Kim Beaudoin
Counsel for the appellant
Lucie Fortin
Counsel for the respondent X
Jean-Pierre R. Lalonde & Gagnon absentLalonde
Counsel for the respondent M. .. C. ..
Hearing date: 13 January 2009
MEMORANDUM OF COURT Dalphond
[5] The appellant appeals against a decision of the Superior Court that allowed her daughter, respondent X, age 12, to participate in a trip to end of primary school with the rest of his class when he s 's objection. The respondent Mr. .. C. .., mother, authorized participation and had even agreed to pay the costs (over $ 300) and accompany the group, but had been reluctant to initiate legal proceedings. That's when the girl contacted the lawyer who represented the past year in the changes to ancillary to divorce, which was addressed to the Superior Court by an application for safeguard measures. This request was granted, hence the appeal. In the meantime, the trip was made by X.
[6] This appeal does not address the merits of punishment that would impose a father to his daughter or the merits of the opposing position taken by the mother, but only the power of the Superior Court to intervene in such case.
CLAIMS OF THE PARTIES
[7] According to the appellant, who had been given interim custody of his daughter and his twin brother, he could only allow participation in extracurricular activities since it was a decision of the nature those of a custodial parent can take, without consulting the other parent. He added that the Superior Court has no jurisdiction to review at the request of a child a punishment imposed by the custodial parent.
[8] Counsel for the child replied that it was a clear case of conflict between parents on the exercise of parental authority and that, given the exceptional circumstances of the case, his client could turn to the Superior Court pursuant to Art. 159 of the Civil Code of Québec (C.c.Q.).
[9] The mother, who endorsed the position of his daughter in the Superior Court and filed a motion to dismiss appeal, she chose not to file memory and did not attend the hearing on the merits of the appeal.
IMPLEMENTATION CONTEXT
[10] X [...] was born on 1996 and has a twin brother. His parents were separated on 20 November 2000 and have since rebuilt their lives. The mother is remarried. As a father, he and his new partner are the parents of two young children.
[11] For some time, shared parenting is the subject of debate in court due to a lack of functional communication between both parents. This unfortunate situation has caused serious tensions reflecting on children's behavior. In May 2007, a lawyer is appointed to represent them.
[12] On 28 September 2007, ruling on the request for interim measures made in the divorce, the Superior Court awarded custody of children to the appellant at the rate of 9 to 14 days, approximately 64% of the time. It can not therefore speak of shared custody, but joint custody to the father with extended access rights for the mother (5 days out of 14).
[13] In September 2007, a psychosocial assessment is ordered. Despite the parents' consent to it, they are unable to agree on the choice of the expert, so much so that it is to be appointed by the Superior Court in January 2008. Thereafter, the expert meeting the children, their parents and some speakers, and then produces a report on June 9
[14] In the meantime, on 14 May 2008, a serious dispute broke out with X when she was in the caller. The appellant argues that it follows from punishment imposed on her daughter, while the latter said he was shown the door after a bitter exchange with the wife of his father.
[15] As is often the case, the outlook is different about the incident, but nobody questioned the severity of its consequences.
[16] First, the appellant believes that the behavior of her daughter had not been satisfactory and in line with what it had announced previously as punishment for failure, notify the School Board that it is no longer permitted to participate in the extracurricular activity to take place from 16 to 18 June in Quebec, leaving the classroom supervised by teachers and parents to celebrate the end of primary school and the 400th anniversary of Quebec City. It seeks reimbursement for the school fees paid ($ 319) and argues that it is the guardian of the child under the ruling of September 2007. Similarly, he refuses to give his daughter or his mother, despite a formal request of counsel for the mother, clothes for the dance year end [...], 6 and 7 June, in which event it may be involved.
[17] On the other hand, since then, X has no more contact with his father. She now resides permanently with his mother who asked the judicial recognition of this care (procedures not disputed by the appellant). After discussions with X, the mother gives permission for the participation of his daughter and shall pay the amount required by the School Board. The latter, before the formal refusal of the father who insists on his status as guardian of the child under a decision, refuses to settle and does not involve X-journey. I would add that the brother of X is permitted by both parents to participate and that the mother was chosen by the school as an accompanist of the group.
[18] Against this background, the daughter of his own initiative, addressed to counsel children with whom she had many contacts since May 2007. She asks him to get his clothes and dance to be permitted to travel. She refers to it that travel is very important to her that her father objects, his mother agrees that the School Board does not decide.
[19] After a few steps from the School Board to try to settle the matter, counsel for children finds that only a decision of the Superior Court could resolve the impasse seen the opposition's appeal, reaffirmed by the company's lawyer. On 10 June 2008, it served to parents and the school board a request for safeguard measures where the "plaintiff" is described as the mother, but the introductory paragraph and the conclusions sought indicates that the request is made by the Children X.
[20] This application is twofold: first, it requests permission for X to act directly in court under art. 159 al. 2 CCQ, then, she asked to declare that it can participate in the extracurricular activity.
[21] The same day, copies of the psychosocial assessment, just received by the lawyer for children, are given to parents. In its report, the expert points out in many places the lack of effective communication between parents and the degree of aggressiveness and resentment that feed to one another. He noted that the poor quality of relationships is reflected in the children and their development suffers. On several occasions in his report, the expert calls on the parties to participate in family therapy that would allow both parents to realize the negative consequences of their present attitude, the danger involved for the future development of children and the need to develop a minimum of communication and collaboration to achieve a better educational plan for children.
[22] In response to the request, the mother produced a sworn statement on 12 June 2008, where she claims to be in agreement with the approach of his daughter, the out-of-pocket expenses for travel and be a parent volunteer coach for this activity it also demonstrated his total disagreement with the position of the father.
[23] As to the appellant, it shall file a sworn statement where he explains that his daughter is becoming more rebellious and that participation in extracurricular activities at the end of the year is a privilege that no has not earned. He cites, among others, his early sexual behavior and insults allegedly made against him and his wife. He believed that his daughter takes advantage of the situation by manipulating his parents to his advantage. He also had doubts about the safety of travel in Quebec (inadequate supervision of her daughter).
[24] The school board does not act, if it is sent by his lawyer a letter confirming that X qualifies for the trip (good academic performance and good behavior) and that place has been reserved for it if the court to authorize his participation. The letter concludes by stressing that the school must be notified no later than 14 am on Friday, June 13
[25] The application for safeguard measures is presented on 13 June 2008. This point it is welcomed by the trial judge, hence the appeal.
[26] Before concluding this formal context, it should be noted that the appellant before us that he did not wish to resume contact with his daughter for as long as it will not recognize its authority d to impose sanctions and its obligation to comply. As for the twin brother, he continues to live with her father and her mother, 9 days with the first 5 days and the second cycle of two weeks.
JUDGMENT ATTACK
[27] After noting that the authorization provided for in art. 159 al. 2 C.c.Q. should be granted only in exceptional cases, as a general rule it is up to parents to enforce the rights of their child, the trial judge approves the submission of the request. In her view, the context is sufficiently exceptional to justify the approach to the child. It also stresses that the mother told her she would have made such a request if her daughter had not done so and accepted the request in court.
[28] Then, proceeding on the merits, it indicates that parental authority is for both parents and in case of conflict, it is the court to decide in accordance with Art. 604 CCQ, and in the best interest of the child. Depending on the evidence submitted, it concludes that the trip is safe, as organized by the School Board and supervised by teachers and parents, which rule the grounds of the objection of the father. As for another reason, namely that the child could not go there because of the punishment imposed by him and which the court had no jurisdiction, it rejects it. It concludes that the girl has been sufficiently punished by being prevented, a few days earlier to participate in another extracurricular activity at the end of the year (dance end of year) and that the refusal to allow participation Travel to isolate the girl from her peers as they prepare to take new paths. She also believes that the mother is now vested with the authority to make such decisions since X lies exclusively with her.
ANALYSIS
I. Remarks:
[29] First, it seems indisputable that we have a conflict with the exercise of parental authority. On the one hand, we have a father who opposes the involvement of his daughter to an extracurricular activity and has asked to be reimbursed the amount he had paid for this purpose and, second, a mother which not only agrees to the involvement of his daughter to this activity, but participates as an accompanist and has paid the school fees of the trip in place of the father.
[30] While it is true that the refusal of the father due to the imposition of punishment as a result of certain actions taken by his daughter, the fact remains that the Superior Court had before of what had become a conflict of parental authority between parents separated, one opposed to the participation of girls in extracurricular activities and other, on the contrary, very much in favor of participation.
[31] Furthermore, the position of a third party, the school board, which motivates judicial intervention. Indeed, aware of the disagreement between parents and anxious to avoid any legal problem or other, it does not allow the participation of the girl to travel despite the advance registration accepted, receiving payment and required the consent of the mother guardian de facto exclusive X.
[32] Secondly, we must stress that the two respondents, the daughter and mother have filed motions to dismiss that appeal to the Court, on September 2, rejected on the grounds that even if the appeal had become moot a matter of fact, the journey having taken place, it nevertheless raises questions of law which should be analyzed by a panel of the Court sitting at the bottom.
[33] These questions, two in number, are the jurisdiction of the Superior Court to act in such circumstances and the possibility for a minor to file an appeal if this court has jurisdiction.
[34] In sum, this appeal is not aimed at determining whether the punishment imposed was appropriate or not, but only if the Superior Court had jurisdiction to intervene, and on the initiative of the child. For reasons that follow, I would answer yes to both questions.
II. Relevant Legislation:
[35] The relevant articles of the Civil Code are:
33. Decisions concerning the child must be taken in its interests and the respect of his rights.
Are taken into account, besides the needs moral, intellectual, emotional and physical aspects of the child, his age, his health, his character, his family and other aspects of his situation.
34. The court shall, whenever it receives a request involving the interests of a child, giving him an opportunity to be heard if his age and power of discernment permit it.
159. The minor must be represented in court by his guardian, his actions are brought on behalf of the latter.
However, the minor may, with leave of the court, institute alone an action relating to his condition, the exercise of parental authority or an act for which he may act alone, in these cases it can act alone in defense.
192. In addition to the rights and duties related to parental authority, the father and mother, they are major or emancipated, are automatically guardians of their minor child, to ensure its representation in the exercise of his civil rights and to administer its assets.
They are their child conceived but not yet born, and they are responsible to act for him in all cases where his patrimonial interests require.
193. The father and mother exercise tutorship together, unless one is deceased or is unable to express his will or to do so in due course.
195. When the child is the subject of a sentence, the Trust continues to be exercised by the father and mother, unless the court, for grave reasons, decides otherwise.
196. In case of disagreement with the exercise of supervision between the father and mother, one or the other may enter the court of the dispute.
The court decides in the interest of the minor after fostering the conciliation of the parties and obtaining, if necessary, the opinion of the tutorship council.
598. The child remains under the authority of his father and mother until his majority or emancipation.
600. The father and mother exercise parental authority together.
(...)
604. In case of difficulties relating to the exercise of parental authority, parental authority may refer to the court which will decide in the interest of the child after fostering the conciliation of the parties.
605. That the child was entrusted to a parent or a third person, whatever the reasons, the father and mother retain the right to monitor the maintenance and education and are required to contribute to proportion of their faculties.
(emphasis added)
III. In Quebec, parental authority belongs to both parents:
[36] Under the Civil Code, parental authority, such as guardianship, is automatically to both parents (art. 192 and 598 CCQ). These responsibilities are joint and neither one nor the other parents do in this regard to the greater authority or right of veto, whether married or not, they live together or not ( art. 193 and 600 CCQ).
[37] In an ideal world, the legal equality between parents should be reflected in the joint development of an educational project designed in the best interest of their child and making decisions that align with this project.
[38] The mere fact that a trial entrust the custody of a child to a parent does not invest any parental authority, nor give him guardianship role (art. 195 and 605 CCQ). Parental responsibilities continue to be joint (co) (D. (W.) v. A. (G.), [2003] RJQ 1411 (CA)).
[39] The theory of single-parent to exercise parental authority, which supports the parent to whom the custody is vested with all the parental authority over the child and may decide any matter relating to the child has no place in Quebec (see, inter alia, analysis of Albert Mayrand, "La garde conjointe, readjustment of parental authority" (1988) 67 Can. 193 and Nicole Roy, "Parental authority and the support obligation of parents towards their child: two institutions offering a conception of the interests of the child and the family", 2001 R. du B. 51). It has also been set aside in France, Belgium, United Kingdom and Australia.
[40] The fact that shared parenting stems from a ruling under the Divorce Act rather than the Civil Code does not change anything (D. (W.) v. A. (G.) , supra).
[41] Admittedly, in fact, the parent with whom the child resides only performs various manifestations of this parental authority: for example, get the child to school, take him to the cinema, require that it a helmet for cycling or skiing, set meal times and bedtime, etc..
[42] In reality, the responsibility for decision making on issues routine follows the child.
[43] In this respect, the situation is not different from that where a parent is traveling abroad and children remain at home with the other parent.
[44] This does not mean that the parent who is not with the child is deprived of parental authority, legally, it remains invested. This status will enable him, if necessary, to apply to the Superior Court if it concludes that certain decisions of the other parent with respect to questions, even routine, endanger the security, development or health of the child under its right of supervision of the maintenance and education of her child (art. 605 CCQ).
[45] As regards the decisions of greater importance as medical treatments, the choice of schools, participation in a trip abroad, the inclusion in extracurricular activities that will continue for several weeks or who has significant risks etc. the parents who live together naturally consult.
[46] As noted earlier, when parents are separated and that custody is entrusted to one of them, the custodial parent is not invested suddenly all the authority now sufficient to take only such decision. The other parent continues to exercise his parental authority and, as such, has the right to participate in important decisions. In the absence of dialogue, the latter may challenge the validity under the law to monitor the maintenance and education of her child (art. 605 CCQ).
[47] The philosophy underlying the provisions of the Civil Code seems to be encouraging participation, rather than excluding the non-custodial parent, which could also lead to long term for his selflessness' child and its development and the loss to be found for the child to the presence of a parental figure.
[48] In the case of conflict between parents on the exercise of parental authority, the parent who believes that the issue is so important for the best interests of the child should be a third address may ask the Superior Court (art. 604 CCQ). The latter, after fostering the conciliation of the parties, decide, and this always in the best interest of the child (art. 33 and 604 CCQ).
[49] In this case, if you can qualify to participate in extracurricular activities at the end of primary education as a decision on a routine question that follows the child, he returned to the mother to take, X with whom she resided permanently now, what she did. As against, if of the opinion that the permission to participate compromising security, development or health of X or is contrary to the educational project agreed with the mother, the father could under its right of supervision of maintenance and the education of his child (art. 605 CCQ) grasp the Superior Court (art. 604 CCQ) in the absence of parents to agree on a solution.
[50] The appellant has instead turned to the School Board that before a genuine conflict of parental authority on X, decided to refuse participation while reserving him a place. Given the stalemate between the two parents, only the Superior Court could intervene in accordance with Art. 604 C.c.Q. This answers the first question of law mentioned above.
[51] I turn to the second question, or referral to the Superior Court by the child.
[52] Art. 159 C.c.Q. recognizes the possibility for a child to apply himself to the court in case of dispute concerning the exercise of parental authority to her. When adopting the new Civil Code, the Minister of Justice commented:
This article reproduces the rule in section 304 CCBC, proving that the minor is legally represented by his guardian. However, it changes the previous law in two ways. First, it allows the minor to act alone in court with the permission of the court in an action relating to his condition, an act he can do alone or with the exercise of parental authority: on this last point, it covers both the conflicts related to the exercise of authority by the minor himself against his own child, that conflicts related to the exercise of the authority of his father and mother to him.
These changes are justified by the fact that these are matters which primarily relate to minors and the recognition of a degree of autonomy granted to them by sections 156 to 158.
(emphasis added)
[53] This new opportunity once again reflects the modern conception of the child subject of rights and not mere object of interest to parents. It must, however, remain outstanding for several reasons.
[54] First, the Civil Code sets out the requirement that the juvenile court is addressed only through a guardian (art. 159 CCQ). Second, conflicts with the exercise of parental authority are generally between the two parents, so that one of them will address the Superior Court to end the deadlock when the interests of the child required by the importance of the question on his health, safety or development (art. 604 CCQ).
[55] Proof of the exceptional nature of the action brought by the child itself, art. 159 C.c.Q. specifies that it must be authorized by a judge.
[56] This authority will, of course, be granted lightly, as pointed out rightly the trial judge. The Superior Court does not become a forum before which a child may come to challenge a punishment imposed by a parent or a mutual agreement. In fact, except in cases where there is injury or threat of physical, moral or psychological, a judge should exercise the utmost restraint when a minor seeks permission to challenge a decision from the exercise of 'parental rights of a parent the other parent does not.
[57] In other words, the Superior Court is not the place to solve the quarrels of a child unsatisfied with the decision of a parent, unless his health, safety or education is jeopardized.
[58] What was it in this instance? First, we have a girl over twelve years of its complete primary school and demonstrates an ability to make decisions, such as to contact the lawyer and to express its expectations. Then, parents who are competing for several months with regard to the sharing of parental responsibilities and the report of an expert who found that children living painfully stress caused by the serious tension between their parents. Finally, divergent positions of the parents regarding the involvement of X to travel to Quebec and the decision of the school board not to let participate despite the authorization of his mother with whom she now resided permanently for a month .
[59] In this very emotionally charged that X turns spontaneously to advocate for children, on file in May 2007. It then attempts to resolve the problem through contacts with school authorities and the counsel for the appellant, but without success. The trip is imminent and actual receipt of a distress in X, the lawyer for children means the request for safeguard measures.
[60] It is also important to note that once the mother has accepted the position of his daughter and she testified that she was ready to continue the proceedings. Therefore, if the Superior Court had refused to allow the girl to carry through his lawyer, mother, itself assisted by a lawyer, would have endorsed the request and continue the company in Superior Court .
[61] In these very particular circumstances, I can not conclude that the trial judge abused his discretion by allowing X to act. I would add that I would not have been more inclined to conclude differently if the judge had not refused to allow the child to act and insisted that the mother carries s.. 604 C.c.Q.
[62] That the second rule of law.
[63] Before concluding, I will blame the judge is not required to have proof sufficiently complete, including a sworn statement X. The court had before it a request for safeguard measures, the affidavits of the parents confirming unambiguously conflict of authority and a letter from the school showing the limited time available for a decision. It is not unusual for judges of the Superior Court, in such circumstances, to proceed without hearing or statement of the child.
[64] Under Art. 34 CCQ in the context of a decision concerning a child, the opportunity should be given to be heard. This does not mean a child require the production of a statement under oath or assign it as a witness, but that expectations should be communicated to the Court, if it is able to formulate . Usually this is done through the parents, by the testimony of an expert who met the child or in some cases through the attorney to bring the child, the consent of the parties, about his client. It also happens that the judge meets with the child himself, but this is not mandatory. The position of the child may be communicated to the court by or through persons who speak on its behalf.
[65] In summary, an issue related to everyday life took such an extent that it became the scene of a confrontation on the exercise of parental authority. In the presence of such a conflict, which unfortunately was not been resolved by the intervention of counsel to the child or by conciliation, he returned to the Superior Court to stop it.
DEVICE
[66] For these reasons, and without ruling on the merits of the position taken by each parent, I propose to dismiss the appeal without charge under the circumstances.
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