Respect for the Child's Rights

Overview

A child affected by a family dispute holds rights independently of either parent's position. Protecting those rights requires attention to the outcome, the child's opportunity to participate and the legal means of representation. A decision described as beneficial can still be defective if it bypasses a mandatory rule or denies a child a hearing to which the child is entitled.

Quebec law combines general protection of the person with rules adapted to minority (minorité). The Civil Code of Québec (Code civil du Québec), or CCQ, requires decisions concerning children to respect their interests and rights. Procedural legislation supplies ways to hear children, test their evidence and arrange independent representation. Special youth protection proceedings have their own rules.

The central distinctions are practical: the child's interest differs from an adult's preference; hearing the child differs from giving the child control of the result; and appointing a lawyer differs from appointing a legal representative. Fascicule 3 treats these questions successively in paras. 1–44, physical source PDF pp. 172–197.

Learning Objectives

• Apply the child's interests within the governing legal rules and the child's individual circumstances.
• Distinguish participation, witness competence and protective arrangements for receiving testimony.
• Identify when a child needs a lawyer, a tutor or a tutor ad hoc, and define their different functions.

Recognize the child as a holder of rights

The child has juridical personality (personnalité juridique) and holds the general protections of life, integrity, reputation and privacy. Article 3 CCQ applies to children as persons. The limitation of independent exercise during minority does not transfer ownership of their rights to their parents. The distinction between enjoyment and exercise is developed in Enjoyment and exercise of civil rights.

The Canadian Charter of Rights and Freedoms protects children in its field of application to governmental action. The Québec Charter of human rights and freedoms also operates in private relationships within its scope. These instruments therefore cannot be treated as interchangeable. Identify the challenged conduct, its author and the legal relationship before selecting the applicable protection.

Article 32 CCQ and s. 39 of the Québec Charter recognize the child's right to protection, security and attention from the parents or persons acting in their stead. The child holds that right. A parent's claim to authority must be examined in light of the corresponding responsibilities; biological connection alone does not resolve every question about the child's care.

The protective structure allows developing autonomy. Article 153 CCQ fixes majority at eighteen, while art. 155 CCQ permits independent exercise during minority to the extent provided by law. Article 157 CCQ allows contracts for ordinary and usual needs within the limits of age and discernment. These examples establish no universal age at which a child can make every decision alone. The particular act determines the conditions. Consult Minority and emancipation and Integrity of the person for contractual and health-care questions.

Article 34.1 CCQ separately specifies that legal recognition as conceived but not yet born requires pregnancy with the child. This provision concerns the situation to which that legal description applies. It should not be used to infer a general prenatal personality or to erase the conditions attaching to protection of a conceived child's interests. See fascicule 3, paras. 1–7, pp. 172–175.

Use international protection in its proper legal role

The Convention on the Rights of the Child brings civil, political, economic, social and cultural rights together. Its principles include non-discrimination, the child's best interests, life and development, and participation, under arts. 2, 3, 6 and 12 respectively. Article 12 addresses freely expressed views and their appropriate consideration; participation can occur directly or through representation in accordance with domestic procedure. Convention text, UNICEF.

The source describes the transition from international declarations concerned principally with adult duties toward children to a convention recognizing children as holders of personal rights. Protection and autonomy consequently have to be considered together. Receiving an adult's account of what would help a child does not necessarily satisfy the child's own interest in participation.

Ratification and domestic implementation are different legal steps. The Convention is not automatically a directly enforceable substitute for domestic legislation merely because Canada ratified it. The source uses Baker c. Canada (Ministre de la Citoyenneté et de l'Immigration), [1999] 2 R.C.S. 817, paras. 69–70, to explain that international human-rights values can inform contextual interpretation and judicial review despite the absence of direct incorporation. Supreme Court decision.

An argument should identify the domestic provision being interpreted and explain how the Convention illuminates its application. A reference to the Convention cannot dispense with the court's jurisdiction, the procedural conditions of the remedy or an unequivocal statutory requirement. The legal role claimed for the international instrument must match the relief requested. See fascicule 3, paras. 8–15, pp. 176–181.

Determine the interests of this particular child

General objectives and individual assessment

The best interests of the child (intérêt de l'enfant) operate at two levels in the source's analysis. Interest in the abstract (intérêt in abstracto) helps explain why a legal rule protects children as a group. Interest in the concrete (intérêt in concreto) concerns the circumstances of the individual child and guides application of rules that allow contextual assessment.

Article 33 CCQ requires decisions concerning a child to be taken in the child's interests and with respect for the child's rights. Its reach extends beyond custody litigation to public and private decisions, including those made by tutors and people responsible for the child's education or services. The nature of the decision determines which facts need attention.

The provision directs consideration of moral, intellectual, emotional and physical needs, age, health, personality, family environment and other aspects of the child's situation. It expressly includes family violence, including spousal violence, and sexual violence. Violence must therefore be examined as part of the child's actual circumstances. Describing a dispute as parental conflict cannot replace investigation of its nature and consequences.

Assessment requires concrete evidence. Identify established caregiving relationships, continuity of care, the availability and abilities of proposed caregivers, and any needs arising from illness or disability. Explain how each fact bears on the available decision. Income, disability or a parent's lifestyle cannot function as an unexplained proxy for parental capacity. The relevant question is their demonstrated effect on the child's situation.

Biology also requires proper weight. The source invokes B.J.T. c. J.D., 2022 CSC 24, to caution against giving a biological relationship predominant weight in the assessment. The case arose under another province's child protection legislation; its use here is the source's caution about reasoning, rather than an assertion that it applied art. 33 CCQ. Supreme Court judgment.

Wishes, maturity and the limits of discretion

Discernment (discernement) and maturity affect the weight given to a child's views. A child may understand immediate preferences better than distant consequences. Another child may be capable of explaining a stable choice, its disadvantages and its practical effects. Investigate the reasons expressed, the child's understanding and any pressures influencing the position.

The child's wish is a relevant consideration without necessarily determining the result. Neither a fixed birthday nor an adult's disagreement establishes that the wish should control or be ignored. The source describes increasing weight with maturity while cautioning against confusing the child's expressed desire with the entire assessment of interests. There is no general birthday that gives every child a veto over all decisions.

The assessment also remains within the law. Interest in the concrete cannot displace mandatory conditions of filiation, adoption or deprivation of parental authority simply because another outcome appears preferable. First identify the applicable legal norm and the discretion it permits. Then assess the child's circumstances within that space. A general appeal to welfare cannot create an exception that the governing rule excludes. See fascicule 3, paras. 16–23, pp. 182–187.

Worked example: continuity of care and an unsupported preference

Factual Scenario

Facts. An eleven-year-old has established daily routines with a caregiver. A proposed change would offer more expensive housing but interrupt school and therapeutic support. The child explains a wish to remain, identifying particular relationships and routines. A party says the higher income alone proves that moving is better.

Give the child a meaningful opportunity to be heard

Article 34 CCQ requires the court to offer a child an opportunity to be heard whenever an application affects the child's interest and the child's age and power of discernment permit. The right to be heard (droit d'être entendu) can apply even when the child is not a party. The court examines the child's personal interest in the outcome and ability to participate; it does not possess an unrestricted choice to ignore a qualifying child's voice.

The Code sets no minimum age for this opportunity. Age informs the assessment alongside experience, maturity, understanding and the nature of the dispute. A child can understand the immediate consequences of a school or living arrangement without being able to formulate a legal argument. Participation must be adapted to the issue rather than conditioned on adult legal vocabulary.

Distinguish this opportunity from compulsory testimony. A child requesting to express views about a decision and a witness required to relate relevant facts occupy different procedural positions. Article 12 of the Convention concerns freely expressed participation. It does not itself decide every question concerning a witness compelled to testify under domestic evidence law.

The source also distinguishes protection of participation from the arrangements used to receive the child's account. Where art. 34 CCQ applies, a broad assertion that the dispute is stressful cannot simply erase the right after the conditions are recognized. Consider the lawful means of hearing the child, together with any specifically applicable exemption. Special youth protection legislation, for example, contains its own power to dispense a child from testimony in defined circumstances.

Record the assessment and proposed arrangements early. Repeated interviews, messages conveyed through a parent and last-minute requests for a hearing can make the child's position harder to ascertain. The legal file should identify who obtained the views, the context, the means proposed to receive them and how the parties can address relevant evidence. See fascicule 3, paras. 24–31, pp. 188–190.

Separate competence, corroboration and hearing arrangements

Witness competence (aptitude à témoigner) concerns the ability to relate facts known to the witness. Article 276 of the Code of Civil Procedure (Code de procédure civile), or CCP, presumes competence and recognizes the incapacity of persons unable to relate those facts because of young age or physical or mental condition. Childhood alone does not establish incapacity.

An oath (serment) raises a related but distinct question. Under art. 2844 CCQ, a child who does not understand its nature may nevertheless testify without that formality if sufficiently mature to relate known facts and if the child understands the duty to tell the truth. Questions used to assess this ability must test comprehension rather than merely elicit a rehearsed answer.

Corroboration (corroboration) matters for that specific unsworn civil testimony: judgment cannot rest on it alone. The rule does not require corroboration of every child's testimony in every proceeding. The ordinary rule permits proof through one witness, and special legislation may provide a different child-witness regime. Check the governing statute before importing the general civil requirement into youth protection proceedings. The witness testimony lesson develops the distinction between receiving testimony and assessing its force.

Article 290 CCP permits accompaniment by a person able to assist or reassure the child. Under art. 291 CCP, the judge may examine the child in the courtroom or in chambers, and outside the parties' presence when circumstances require, after advising them. Exclusion of the parties does not depend on their consent.

The court clerk and the child's lawyer, where the child has one, attend an examination in chambers or elsewhere outside the courtroom. The parties' lawyers also attend unless the judge excludes them by a decision giving reasons. The deposition is recorded and provided to the parties on request. An interview outside the parents' presence must therefore not be presented to the child as a promise that no parent will ever learn its content. See fascicule 3, paras. 25–36, pp. 188–192.

Match representation to the child's legal position

The lawyer and the child's instructions

Independent counsel (avocat indépendant) can protect a child's rights where the adults' positions fail to present them adequately. Article 90 CCP permits the court, even on its own initiative, to order representation when necessary to safeguard a minor's rights and interests in contentious or non-contentious proceedings. Article 160 CCP addresses appointment and, where necessary, fees payable by the child's parents. Appointment does not itself determine eligibility for legal aid.

The source makes maturity the central consideration in the capacity to instruct counsel (capacité de mandater). A sufficiently mature child controls the lawyer's mandate whether the lawyer was retained directly or appointed by the court. The lawyer advises on the realism and consequences of the child's position while respecting the instructions. Disagreement with the child's preference does not authorize the lawyer to replace it with a personal view.

Where the child cannot give instructions, the source records disagreement about the proper mechanism and the lawyer's exact role. This uncertainty should not be hidden behind a universal claim that every lawyer is a substitute decision maker. The court determines the child's interests on the evidence. Counsel can help place relevant evidence before it, seek expert assistance when appropriate and test competing accounts, without becoming a witness or presenting personal belief as proof.

No fixed age conclusively establishes the capacity to instruct. The child's communication, cognitive development and understanding of the actual issues require assessment. Doubt about the mandate should be brought before the court. An order appointing counsel should clarify the function needed in the proceeding rather than leave everyone to assume that counsel also possesses the powers of a tutor. See fascicule 3, paras. 37–42, pp. 193–197.

Tutorship and conflicts of interest

Tutorship (tutelle) concerns representation in exercising civil rights and administration of property. Parental authority (autorité parentale) concerns another set of rights and duties, even though the same parent commonly exercises both. Article 192 CCQ provides legal tutorship for parents who are adults or emancipated. The tutorship lesson explains its scope and supervision.

Under art. 158 CCQ, the tutor ordinarily represents the minor except where independent action is allowed. Article 159 CCQ requires judicial representation but permits the child, with court authorization, to institute certain proceedings concerning status, parental authority or an act the child may perform alone. In those cases, the child may also defend alone. Read the exception's conditions before treating a child's capacity to explain a preference as permission to commence any proceeding.

A conflict of interest (conflit d'intérêts) between the child and the tutor raises the need for a tutor ad hoc (tuteur ad hoc). Article 160 CCP gives the court power to appoint one where interests are adverse. Article 190 CCQ uses mandatory language where the minor has interests to discuss judicially with the tutor. The source stresses that the procedural power must be read with this substantive requirement; the word “may” cannot justify ignoring the latter situation.

Article 92 CCP allows an irregularity resulting from lack of representation to be remedied retroactively at any stage, including appeal. That possibility supports correction of the proceeding; it does not make proper representation unnecessary. See fascicule 3, paras. 43–44, pp. 195–197.

Worked example: the representative is the opposing debtor

Factual Scenario

Facts. A child's claim concerns money allegedly retained by the parent who ordinarily acts as tutor. That parent proposes to represent the child in proceedings about the same money. A lawyer has been consulted.

Recognize the special youth protection framework

The Youth Protection Act (Loi sur la protection de la jeunesse), or YPA, addresses children whose security or development is or may be considered endangered. Sections 2, 3 and 4 connect intervention to protection, the child's interests, continuity of care and stable relationships. Remaining in the family environment is favoured only where consistent with the child's interest. If it is unsuitable, the statute establishes priorities that must themselves be applied in that interest.

The child is a party under s. 81 YPA. Section 78 YPA requires the tribunal to ensure that counsel is specifically assigned to represent and advise the child, independently of the parents. This protection is not conditional on first proving a conflict with the parents. It differs from the general civil power to order representation when necessary.

Section 85.2 YPA permits exceptional dispensation from testimony where testifying could prejudice the child's mental or emotional development. Section 85.4 YPA provides a specific framework for hearing the child outside a party's presence, preserving counsel's participation and access to the testimony with appropriate confidentiality protections. These provisions must be read within the special statute. A civil family dispute and a youth protection proceeding do not acquire identical procedural rules simply because both concern a child. See fascicule 3, para. 7 and paras. 25–36, pp. 175 and 188–192.

Practice Checklist

• Identify the child as a holder of rights and establish the applicable civil or special regime.
• State the decision required and the discretion permitted by its governing rule.
• Connect the child's needs, relationships, safety and views to evidence.
• Assess age and discernment without inventing a universal participation threshold.
• Separate voluntary participation, witness competence, oath and any corroboration requirement.
• Arrange accompaniment, counsel's attendance, recording and access before the hearing.
• Determine the child's capacity to instruct counsel and the distinct need for legal representation.
• Investigate any opposition between the child's interests and those of the tutor.
• Apply youth protection rules specifically when the proceeding falls under that Act.