Chapter 2 BEING A MINOR

Age Restrictions in Day-to-Day Life

Most of the age restrictions that you encounter as a minor will probably involve relatively commonplace situations—although this doesn’t mean that these situations aren’t important. In fact, they are important simply because they affect your everyday life. So here are some of the areas in which age restrictions typically apply.

Contracts

Contracts are agreements between two (or occasionally more) people or groups of people in which each side promises to do something in exchange for something the other side promises to do. A contract spells out rights and responsibilities on both sides. If you get your own mobile phone, for example, you will sign a contract with your service provider. Similarly, if you rent an apartment, you will sign a contract—generally called a lease or a rental agreement—with your landlord. By signing a lease, you promise to give the landlord a sum of money, paid in full and on time, for the use of an apartment that belongs to your landlord—who, in turn, promises to make repairs to the property when needed and otherwise maintain it in decent shape. Contracts are legal obligations that can be enforced in court. In fact, an entire branch of the law—called, not surprisingly, contract law—deals with contractual agreements and with violations of them.

A contract is often a written agreement, which becomes valid—and hence enforceable in court—when both parties sign it. However, not every contract needs to be written out in order to be valid. Every time you buy something in a store, for example, you enter into an unwritten contract with the store: you agree to give the store money in exchange for the goods that the store gives you. If you fail in your legal duty to provide the money, the store does not have to give you the goods. But the contract also obliges the store to provide the goods in the state you expect them to be in (for example, they must not be broken). If the store doesn’t do so, then you have a legal right to a refund or to better goods. Such a contract is valid even though no paper was signed.

According to Canadian common law, minors may generally enter into contracts of their own free will, without requiring permission from an adult. However, in some circumstances, these contracts may not be considered valid. First, a court may void (cancel) a contract if it finds that a young person was not mature enough to enter into the contract. For example, a 10-year-old may be considered mature enough to purchase a bicycle but not to sign a contract for a mobile phone. Second, the court may void a contract if it finds that the contract is not in a minor’s best interests or that the other party is attempting to take advantage of a young person. If someone sells you something that isn’t worth the price you agree to pay for it, the court may decide that you have been taken advantage of and void the contract.

Moreover, since the law regards minors as not yet fully mature, it actually allows you to repudiate most contracts within a reasonable period of time—in other words, to refuse to fulfill your part of the bargain. For instance, if you bought a new phone and then decided you didn’t want it, you could reject the contract a day or two later and cancel the deal. As long as you returned the phone, the shop that sold it to you could not make you pay for it—whereas, if you were an adult, the shop could simply refuse to take the phone back (and could even take you to court if you refused to make good on the payment).

There is one exception to this rule, however: the law does not allow you to back out of an agreement (such as a lease) into which you have entered in order to procure the “necessaries of life”—that is, basic necessities such as enough food to eat, adequate clothing, and a place to live. In addition, provinces may have laws that extend a minor’s legal obligation to honour a contract to other situations. In British Columbia, for instance, according to section 19.1(2) of the Infants Act, if a minor enters into a student loan agreement, that agreement is as binding on him or her as it would be for an adult.

As we explained in the previous chapter, Québec does not follow the common law tradition. With regard to minors and contracts, however, the law in Québec is basically very similar to the law elsewhere in Canada. As a general rule, when it comes to legal matters, minors in Québec must be represented by their “tutor” (the term used in Québec law for a child’s parents or other guardians)—except in matters in which the law allows minors to act alone, as if they were adults (Civil Code, article 158). With respect to contracts, the Civil Code identifies two broad areas in which minors may act independently. First, as a minor, you may enter into contracts alone in order to meet your “ordinary and usual needs,” as long as you are old enough and have sufficient “power of discernment” (that is, good enough judgment) to do so (article 157). Second, once you reach the age of 14, you are considered to be an adult in matters relating to your employment or your practice of a craft or profession (article 156), and so you can also enter alone into contracts in these areas. Otherwise, you would need to have your parents (or other guardians) enter into a contract on your behalf, which means that the contract would need to meet with their approval (especially since they would be liable for the consequences).

The fact that the law regards minors as too young to necessarily know what they’re doing when they sign a contract is something of a mixed blessing. Yes, under common law, you can refuse to honour a contract—you can back out of the deal—and in most cases you will not be held liable, which means that you cannot be forced to make good on your promise. However, precisely because you are not held responsible for many contracts, many people will refuse to conclude them with you as long as you are a minor. We have already explained that many banks will not let you open your own bank account. Some landlords may refuse to rent you an apartment until you turn 18—although this is one situation in which the law may give you some protection because renting a place to live involves a necessity of life, namely, shelter. In Ontario, for instance, according to section 4 of the Ontario Human Rights Code, if you are 16 or 17 and have withdrawn from parental control (something we’ll get into in the next chapter), a landlord may not discriminate against you because of your age. Such laws also mean, however, that once you’ve signed the rental contract, you can’t repudiate it either.

Owning Property and Making Wills

As long as you’re a minor, your rights to manage your own property, especially real estate (land and the buildings on it) and other items of high value, are severely restricted. Generally, if you inherit property from someone who has died, or if you buy or are given real estate, you cannot take control of that property yourself. So, for example, if your grandparents left you a valuable painting, you would not be able to sell it while you are still a minor. Instead, a guardian will manage your property for you until you come of age. In some situations and in some places, including Québec (see article 192 of the Civil Code), your parents can perform this role, but in other cases your guardian will be someone else, such as a government official called a public guardian or public trustee (depending on where you are). Similarly, Québec’s Civil Code (article 210) allows someone to leave you property on the condition that it be managed by a person other than your parents or other legal guardians.⁹

In some provinces, real estate can be registered in your name, even if an adult has to manage it for you; in others, public records will list that real estate under your guardian’s name until you become an adult and can take possession in your own name. A guardian’s exact powers vary from province to province, but they can include using income from your property to pay for the cost of maintaining it. Your guardian may even be able to sell your property if he or she thinks that this would be in your best interests, although doing so might require a court’s permission. Once you reach the age of majority, a guardian must generally hand your property over to you and may also have to provide you with an account of how he or she has managed that property for you.

Under Québec law, you are allowed to control money that you have earned from work or that has been given to you in the form of allowances for your everyday needs. If these revenues become “considerable,” however, your parents or guardians can ask a court to fix the amount that remains under your management. In determining this amount, the court will consider a number of factors, including your age and your ability to make good judgments (Civil Code, article 220).

As a general rule, you cannot make a valid last will and testament (a legal document in which you state who will get your property after you die) until you are a legal adult. There are small exceptions to this rule in some provinces. In Newfoundland and Labrador, for example, you can make a will once you turn 17 (Wills Act, s. 3). In Québec, article 708 of the Civil Code says that, while, in general, a minor cannot make a will, he or she can do so for objects of little value (such as clothes or toys). Also, if you are married, if you join the Canadian Forces, or if you are a sailor at sea, you may be able to make a will regardless of your age, depending on provincial legislation.

Taking Legal Action

If you want to take someone to court, the law normally requires that an adult—variously referred to as a litigation guardian, a guardian ad litem, or a next friend—act in your place. Generally speaking, any adult can serve as a litigation guardian. This person could be a relative (such as a parent or an older brother or sister), an adult friend, or a lawyer who has been granted power of attorney (that is, the legal authority to act on another person’s behalf). Even though a litigation guardian may actually be a lawyer, your litigation guardian is your stand-in, not your legal counsel. Instead, your litigation guardian will work with your lawyer, just as you would if you were old enough to act on your own behalf. If you’re unable to find a litigation guardian yourself, you may be able to request that the court find someone for you.

There are some exceptions to the rule that you need a litigation guardian. In Ontario, for example, you may sue in Small Claims Court for a sum of up to $500 as if you were of full age; that is, without needing a litigation guardian (Ontario Regulation 258/98: Rules of the Small Claims Court, section 4.01[2]). The rules about litigation guardians vary from province to province. Ontario sets these rules out pursuant to Regulation 194: Rules of Civil Procedure. Among other things, the regulation states that, while the litigation guardian can be any person “who is not under disability” (that is, any legally competent adult), that person must promise to fulfill certain duties, which include engaging a lawyer to represent the minor’s case. If no litigation guardian can be found, the court may appoint the Children’s Lawyer to serve in that role (in which case, unlike other litigation guardians, the Children’s Lawyer will not be obliged to engage a lawyer).

In Québec, a minor who wants to start a lawsuit must generally be represented by a parent or other legal guardian, and the court action is brought in the guardian’s name. With the court’s permission, however, you may act alone in lawsuits concerning your legal status, the authority of your parents, and in certain other matters in which the law regards you as an adult (such as employment, as we mentioned above). In addition, if you believe that you have not been treated fairly because you lack adequate representation or because your status as a minor has placed you at a legal disadvantage, you may, in your own defence, bring this issue to the court’s attention on your own (Civil Code, articles 159 and 160).

It is possible that you will want to sue someone. (This may happen, for instance, if you have entered into a contract and you believe that the other party has not honoured their obligations.) In that case, you or your litigation guardian go to court to tell the judge the reasons why the person you are suing should pay you money or do what you want. That person or their lawyer can argue why they should not have to pay you and may ask you hard questions to test if you are telling the truth. Depending on the case, it might be necessary to call witnesses to confirm what happened. Suing someone is very serious business, and you need to have good reasons and evidence to support your case. If possible, even if the law does not require it in your province, you should have a lawyer to help you by representing you in court or at least by giving you advice. A lawyer can be expensive; sometimes, however, you can get free representation, or at least advice, from legal clinics that help youth or underprivileged groups. (We provide links to some of these in appendix C.) We should note that we are talking here about civil court, which is where you go to get your rights enforced or to sue someone for damage that they caused you. We will talk about criminal court, where trials of people accused of crimes take place, in chapter 8.

Medical Decisions

Interestingly, although the law tends to limit the capacity of young people to make even relatively inconsequential decisions for themselves, when it comes to medical care, Canadian lawmakers and courts have seen fit to give at least some decision-making power to minors. Although, in the case of a younger child, it will generally be his or her parents or guardians who consent to or refuse medical treatment on the child’s behalf, in most provinces and territories the child will have more power to make such decisions alone as he or she grows older and more mature. This is in large part thanks to Gillick v. West Norfolk and Wisbech Health Authority, a famous English case from 1985 which we will return to in chapter 3. It concerned the legal right of doctors to provide birth control to girls under 16 without parental consent, and the principles established in this case significantly influenced court decisions concerning medical consent of minors in other Commonwealth countries, including Canada.

In fact, you may not necessarily have to wait right up until the age of majority to have full power to make your own medical choices. In some provinces, the law allows everyone aged 16 or older to consent to medical treatment just as if they were adults, at least in most cases. In New Brunswick, for example, section 2 of the Medical Consent of Minors Act says that, once you turn 16, you have the same rights as an adult to consent to medical treatment. Section 3(1) then says that, if you are under 16, you may consent to medical treatment if, in the opinion of a medical practitioner, you are able to understand the nature and consequences of the treatment and it is in your best interests to receive such treatment.

In Québec, you may consent to treatment alone once you are 14 (Civil Code, article 14). If you are in need of medical care but are unable to give consent yourself and your parents refuse to do so, a court may order it. Similarly, if, once you are 14, you refuse medical care, you cannot be forced to have it without a court order—unless it is a serious emergency, in which case the consent of a parent or guardian is enough to override your will (Civil Code, article 16). However, until you turn 18 (the age of majority in Québec), you need your parents’ written permission to decide whether you’d prefer to be buried or cremated and what kind of funeral you want to have (Civil Code, article 42). In other words, 14-year-olds have some decision-making power about health issues while they’re still alive, but they need parental permission to have something done with their body once they are dead!

Rather than setting a minimum age of consent, some provinces instead use the rule that whether or not a young person can consent to his or her own medical care depends on his or her degree of maturity. In British Columbia, for instance, a doctor can give you medical care, including cosmetic treatments, without your parents’ consent, provided that he or she (a) has explained the nature and consequences, as well as the benefits and risks, of the care and is satisfied that you understand them and (b) has concluded that the care is in your best interests (Infants Act, s. 17). Ontario’s Health Care Consent Act, 1996 (s. 4) takes a similar approach. The idea that, as young people grow older and more mature, they should be given greater power to make their own decisions is often called the “mature minor” principle. (We will have more to say about this principle in the next chapter.)

When a province or territory allows minors to give legal consent to medical treatment, it normally also allows them to refuse it, provided the young person understands the consequences of the decision. However, if you refuse treatment, the courts can review your decision at your doctor’s request. If, in the medical opinion of your doctor, receiving the treatment is very important to your health, he or she will very probably ask the court to name a guardian (such as provincial social services) to consent to the treatment on your behalf. The judge can choose to let you refuse the treatment, but the more serious the consequences of not receiving the recommended care, the less likely it is that a judge will want to declare you mature enough to refuse it.

This principle was illustrated in a well-known Supreme Court case, A.C. v. Manitoba (Director of Child and Family Services) (2009 SCC 30 [CanLII]). Section 25(8) of Manitoba’s Child and Family Services Act allows a court to authorize a medical treatment for a child under 16 when it considers the treatment to be in a child’s best interests. A Manitoba court had therefore forced life-saving blood transfusions on a 14-year-old Jehovah’s Witness who had refused them for religious reasons. Her parents appealed on the grounds that Manitoba’s law violated their daughter’s rights under the Charter of Rights and Freedoms, but the Supreme Court upheld the Manitoba court’s decision. The consensus was that, even though a team of hospital psychiatrists had judged the girl to be a mature minor, this didn’t automatically give her the right to make all her own medical decisions. In a joint opinion, several of the justices argued that a “sliding scale of scrutiny” exists, “with the adolescent’s views becoming increasingly determinative depending on his or her ability to exercise mature, independent judgment. The more serious the nature of the decision, and the more severe its potential impact on the life or health of the child, the greater the degree of scrutiny that will be required” (para. 22). In other words, despite the general rule that a young person’s views acquire greater weight as he or she grows older, a court has more leeway to override those wishes in a life-and-death situation such as this one. In a dissenting opinion, one judge argued that since the girl had been found capable of making her own decisions, her wishes should be respected even if doing so was not in her best interests. But most judges will not want the responsibility of allowing a person that young to choose to die, even if he or she is clearly mature enough to make that decision in the same way as an adult.

The recent COVID-19 pandemic has raised the question of who can consent to a child’s vaccination against this (and other) diseases. There are cases in which parents cannot agree on whether their children should be vaccinated as well as cases in which children want to be vaccinated but their parents don’t believe in vaccines. One recent court decision that dealt with this issue was the Ontario Superior Court of Justice case A.C. v. L.L., 2021 ONSC 6530 (CanLII). It involved a set of 14-year-old triplets; one of them was living with their mother and attending school in person, whereas the other two were living with their father and attending school virtually because of COVID-19. Both parents and the two children living with their father wished that the children would attend school in person, but the children needed to receive the COVID-19 vaccine as a condition of returning to school. The father and the two children agreed with this, but the mother was against it at first, and therefore the father took the case to court. The mother argued that she, not just the father, should have the authority to provide consent. The court recognized the children as competent to make the decision themselves, based partly upon the Ontario Ministry of Health’s policy of allowing competent 12–17-year-olds to make the decision to get vaccinated alone and partly on the Ontario Health Care Consent Act, 1996, which allows minor patients to provide consent independently where a doctor considers them to be capable of consenting. In the end, the mother changed her mind, agreeing that the children should be allowed to decide for themselves whether or not they wanted the vaccine. The child living with the mother did not want to be vaccinated, and the father was all right with that. The court’s final decision was that all three children would be entitled to receive the COVID-19 vaccine and that the children living with their father would start attending school in person after receiving their first vaccine in accordance with the advice of the family doctor.

Finally, in several situations, special rules apply:

• Doctor-patient confidentiality. In some provinces (Ontario, for example), you may be able to talk privately to a doctor about your health, and the doctor may be expected to keep the information you give him or her secret from your parents. Birth control is one example of a health concern that young people often want to keep private. However, the rules vary depending on where you live. We’ll have more to say about this in chapter 6.

• Being placed in a mental health facility. If there is reason to believe that someone is mentally ill and could seriously harm himself or herself or someone else, that person can be declared incompetent and treated in a mental institution. In general, this is true both for young people and adults, but the younger you are, the more difficult it may be to appeal decisions about whether you are mentally incompetent.

• Donating blood, organs, or tissue. For health reasons, Canadian Blood Services require you to be at least 17 to donate blood. The age at which you can consent to donate a living kidney for transplant is 18 in Alberta, Manitoba, Ontario, Québec, and Saskatchewan and 19 everywhere else. There may be more specific rules about living organ and tissue donation as well as rules about donating organs after death. In Alberta, for instance, you can donate an organ before you are 18 if your parents agree and if certain strict conditions are met: that no one has coerced you into donating the organ, that there are no adult members of the receiver’s immediate family who can be donors, and (until you are 16) that the tissue that you are donating will replace itself. (For example, your body can produce more blood or bone marrow, but it can’t regrow a kidney.) Manitoba has similar rules. In Québec, until you are 18, you may donate only a part of your body that can be removed safely and regrow itself, and only with the consent of your parents or guardians and the authorization of the court; however, once you are 14, you may sign consent for your organs to be donated after your death or for your body to be donated to science, without parental permission.

Applying for Social Assistance (Welfare)

Social assistance (often called “welfare” or “income assistance”) is money given by the provincial government to people who are temporarily or permanently unable to work and who do not have enough money from any other source (such as savings, property, or employment insurance) to support themselves. Parents who don’t have enough money to support their family can usually apply for social assistance; if their application is approved, they will receive more money if they have children than they otherwise would. Parents raising children on a limited income are sometimes also given an income supplement such as the Canada child benefit, which is paid for partly by the federal government.

Social assistance is primarily given to adults, rather than to minors, as most minors are supported by their parents. However, depending on the province, you may be eligible for social assistance yourself at the age of 16 or 17—possibly even before that under some conditions, typically if you are living apart from your parents. But the conditions for receiving assistance as a minor may be very strict. For example, consider Ontario’s rules for allowing minors to participate in Ontario Works, that province’s social assistance program. Before you are given social assistance, your parents have to be asked to provide support to you. If they refuse, you may be required to go to court and sue your parents for support under section 31 of Ontario’s Family Law Act, unless there are good reasons not to do so. If all of this fails, you may get assistance—if a number of other conditions are also met. Here are some of the main ones:

• You are 16 or older (a person under 16 who has to support someone else may qualify).

• You are attending school when obliged to do so by the administrator of the assistance.

• There are special circumstances that justify the assistance. Typically, this means that you cannot live with your parents because they have died, have abandoned you, or are unable to provide adequate care or support or because abuse, neglect, or serious disagreements or ongoing problems exist between you that make it impossible for you to live together.

• The money will not be given to you directly but to a responsible adult who will manage it for your benefit.

Remember that social assistance is meant to cover only your very basic needs, and it is meant to end as soon as you are able to support yourself. The idea is that people who are able to support themselves should not be using public money, and so there are rules that can make it difficult to get social assistance. This makes sense to some extent, but it may also significantly limit the options of youth who find themselves in a crisis situation.

Are Age Restrictions Fair?

Perhaps some of the above age restrictions seem to you unjust. Indeed, section 15(1) of the Charter states:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

In other words, the law should apply equally to everybody and shouldn’t discriminate against certain people just because of their age.

The rights and freedoms laid out in the Charter are not unlimited, however. According to section 1, these rights and freedoms are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” This means that the law can place limits on these rights and freedoms, provided most people agree that these limits make good sense—that they are “demonstrably justified.” For example, most adults still believe that banning people under the age of 18 from voting puts a reasonable limit on their rights. So, while you may think that many of the laws restricting your rights because of your age are unreasonable and undemocratic, the problem is that no one has yet convinced the courts of this. Moreover, as you’ve probably noticed, laws are made by adults.

As this chapter illustrates, although the law allows you to make decisions about some things even while you are still a minor, when all is said and done, these things are somewhat limited. In fact, even the situations in which adults must ask for your opinion and take it into consideration before making a decision about you are rather limited. Yet article 12 of the Convention on the Rights of the Child says that a child who is old enough to form his or her own views has “the right to express those views freely in all matters affecting the child” and that these views should be “given due weight in accordance with the age and maturity of the child.”

As it stands, except perhaps in relation to medical decisions, Canadian law still does relatively little to uphold this right. Of course, age restrictions are often meant for your own protection. But young people obviously mature at different rates, and nothing magical happens the moment you turn 18 or 19. In many cases, though, the law doesn’t even give you a chance to try to prove that you are mature enough to do something that someone of your age is normally not allowed to do. In practical terms, it makes sense to set age limits that are the same for all young people. But is it fair to do so? We can’t help wondering what alternative approaches could be found. Where firm age restrictions are found to be necessary, perhaps the law could do more to encourage (or even oblige) parents and other adults to consult with children before making decisions on their behalf.