3. Being Your Parents’ Child
Your relationship with your parents is one of the most important you will ever have, but it is not always an easy relationship. Young people want love from their parents. They expect their parents to provide them with physical care and emotional support—to listen to them, to understand their needs, and to be proud of their accomplishments. Most parents try to take good care of their children and are happy when their children are happy. At the same time, while some are stricter than others, parents generally expect their children to obey them. Some insist that their children simply do what they say and not talk back or even ask questions, while others are more willing to listen to their children’s points of view and have discussions. But even though parents generally mean well, they don’t always know how best to act on their good intentions. Some parents may be overwhelmed with problems that leave them little energy for their children, while, sadly, others are simply uncaring. They may be immature and selfish—more interested in their own emotional needs than in those of their children.
Your relationship to your parents is a personal, private one, but it’s also a legal one, which largely falls under a branch of the law known as family law. As we mentioned at the start of this book, the law once gave parents, especially fathers, a great many rights over their children but very few responsibilities toward them. In essence, the law viewed children as the personal property of their parents, to do with what they wished. But the law no longer upholds this attitude. A good example is the Supreme Court decision in B. (R.) v. Children’s Aid Society of Metropolitan Toronto (1995 CanLII 115 [SCC]), a case that involved an infant, born prematurely with a number of medical problems, who had received a blood transfusion against her parents’ wishes. In deciding that the parents had no legal grounds for complaint, the justices explicitly stated in several places that children are not property. For example, the chief justice wrote that the freedom of parents to make decisions on behalf of their children “is not a parental right tantamount to a right of property in children” (372).1
But this case is important for another reason. In deciding against the parents, the Court argued that, in exercising their power to make decisions, parents must act in accordance with a child’s best interests. As the two justices just quoted went on to say: “The nature of the parent-child relationship is thus not to be determined by the personal desires of the parent, yet rather by the ‘best interests’ of the child.” Precisely what a child’s “best interests” are will vary depending on the situation, but the general idea is that parents or guardians should be attentive to a child’s physical, mental, and emotional needs and cannot make decisions that would in some way harm the child or undermine his or her chances of developing normally into an adult.
The Supreme Court had already explored the concept of a child’s “best interests” in Young v. Young (1993 CanLII 34 [SCC]), a case that involved a dispute over child custody. As one of the justices aptly put it, “The child has a right to a parent who will look after his or her best interests and the custodial parent a duty to ensure, protect and promote the child’s best interests” (5). The “best interests” principle is also spelled out in a number of provincial statutes. For example, section 20(2) of Ontario’s Children’s Law Reform Act says that someone entitled to the custody of a child has the rights and responsibilities of a parent and “must exercise those rights and responsibilities in the best interests of the child.” And Ontario’s Child, Youth and Family Services Act, 2017 opens by saying, in section 1(1): “The paramount purpose of this Act is to promote the best interests, protection and well-being of children.” Section 74(3) then describes the factors that should be considered when one is trying to determine a child’s best interests.
The “best interests” principle gives young people an important legal safeguard against parental abuse. All the same, how parents choose to raise their children has traditionally been seen as a private matter, one in which the law should not meddle—and the law is still reluctant to interfere in family matters, except when a specific issue is brought to court. At the same time, it does have quite a lot to say about the parent-child relationship in general. So let’s have a look at the rights and responsibilities that the law gives to parents and to children, as well as what things it makes rules about and what things it leaves to people to decide for themselves.
Historically, parents’ legal duty to support their children has included only the “necessaries of life”—adequate food, clothing, and shelter. By and large, this is still the law today. Although parents are required to provide for their children to the extent that they are able to do so, their duty is to supply your basic needs, not your wants. In other words, children are not entitled to luxuries, unless a court specifically decides otherwise. For example, in a divorce, the parent who is awarded custody of a child may be able to establish that it is in the best interests of the child (or children) to continue going to a private school, for instance, or to continue with elite gymnastics training, because that is what the children are used to. (This happened in one of Marvin’s cases as a family court judge.) In such a case, the judge may order the other parent to pay the amount of child support that will cover these things.
Do I have the right to live with my parents?
Suppose your parents want to send you away to live with relatives. Is there anything you can do about it? In general, the law leaves such decisions up to parents. As we have seen, it requires only that parents not place their child at a risk of harm and that they act in the child’s best interests. So, for example, if your parents felt confident that your grandparents would take good care of you and that living with them would actually be more to your advantage than staying at home, they could decide to send you to live with them. But this would probably be a hard choice for many parents to have to make, and it wouldn’t necessarily mean simply that they don’t love you.
It’s also possible for parents to place their children in the care of the state. The rules for doing so vary from one province to another, so it may be easier for parents to give their children over to the care of the state in some places and situations than in others. In Ontario, for example, people who are temporarily unable to take care of their child—as might happen if they face a medical or financial emergency, for instance—may make an agreement with a children’s aid society to take their child into its care (Child, Youth and Family Services Act, 2017, s. 75). If there is somewhere better for the child to live temporarily and the agency finds that there is no other solution that is less disruptive, such as care in the child’s own home, the agency may take the child into its care—although, from the age of 12, the child will normally be allowed to participate in the agreement (ss. 75 and 75). This is only in the case of temporary care, which should generally last no more than six months and is meant to end with the child returning to the parents. Sometimes, though, conditions in the family may be such that parents will be unfit to take care of their child for a long time, which in extreme cases can result in the child’s ending up in the permanent care of the state. This is actually an important topic on its own. We talk about what happens when parents are unable or unwilling to take care of their children in more detail in chapter 7, which is about child protection.
In some circumstances, parents may choose to end their relationship with a child by arranging for the child to be adopted by another person. This usually happens while the child is still a baby. Most often, parents choose adoption because they did not plan for the mother to get pregnant and don’t feel ready or able to raise a child. Adoption makes it possible for the baby to be raised in a family that wants a child and will give him or her love and good care. While it’s also possible for parents to give older children up for adoption, this is not common, and when it happens it’s usually because of some very serious issues in the family.
Giving your child up for adoption is not a simple matter of handing a child over to another person. Adoptions are typically approved by the courts and overseen either by a government agency or by a private adoption agency. In either case, the agency will try to have the child placed in a home that seems right for him or her—although, in the end, parents reserve the legal right to consent to the adoption. If a child is permanently in the care of the state, however, the parents’ consent is not necessary for an adoption: in that situation, the province or territory is the child’s legal guardian. Also, if the child has reached a certain age, his or her consent may be required before an adoption can be approved. In most of Canada that age is 12, but it can be as low as 7 (in Ontario) and as high as 14 (in Québec—where, however, a child aged 10 or more may refuse to consent, although a court can override his or her wishes). In some jurisdictions, the law allows for exceptions to the age rule if a court decides that allowing a child to give or refuse consent would not be in that child’s best interests. So, for example, a young person’s consent to adoption might not be required if, in the opinion of a judge, he or she is not mentally able to understand the situation.
Once you are adopted, you are now, in the eyes of the law, the child of your adoptive parents. All the parental rights and responsibilities of your biological parents end and pass to your adoptive parents, while any legal rights and obligations you might otherwise have had with your biological parents, such as rights to inheritance, end as well.
How long do my parents have to support me? Is it true that they can kick me out of the house when I turn 16?
There is a good deal of confusing, and often incomplete, information out there about this question. As we have said above, parents have a legal duty to support their children. This duty does not end at the age of 16: every single province and territory in Canada requires parents to support their children at least until the age of majority.
One possible source of confusion about how long young people are entitled to parental support has to do with paragraph 215(1)(a) of the Criminal Code, which, under the heading “Duties Tending to Preservation of Life,” says that a parent or other guardian must provide the “necessaries of life” for a child under the age of 16. This means that, up to the point at which a child turns 16, a parent or guardian who fails to provide such necessities is guilty of a crime and can be arrested and put in prison. The paragraph does not say that the duty of parents to support their children ends at the age of 16; it means only that, once a child has reached the age of 16, a parent who fails to provide support cannot be charged with a crime on that account.2
Under family law, however, which is mainly a provincial or territorial responsibility, parental support obligations ordinarily last at least until the local age of majority and can actually continue past that age, mainly if the child is still enrolled in a full-time educational program (high school, college, or university) or is too sick or disabled to leave his or her parents’ care (see table 1). Parents who refuse to perform these duties can be taken to court by their children and sued for support.
Table 1 Duration of the right to parental support
How long a parent is obliged to provide support
Relevant legal provision(s)
Alberta. Until 18; until 22 if the child is under the parent’s charge and studying full-time
Family Law Act, ss. 46(b) and 49(1)
British Columbia. Until 19; longer if the child is unable, because of illness, disability, or another reason, to obtain the necessaries of life or withdraw from the parent’s charge
Family Law Act, ss. 146 and 147(1)
Manitoba. Until 18; longer if the child is unable, by reason of illness, disability, or other cause, to withdraw from the parent’s charge or obtain the necessaries of life
Family Maintenance Act, ss. 35.1 and 36(1)
New Brunswick. Until 19; longer if the child is unable to withdraw from the parent’s charge or to obtain the necessaries of life by reason of illness, disability, pursuit of reasonable education, or other cause
Family Services Act, s. 113(1)
Newfoundland and Labrador. Until 19; longer if the child is under the parent’s charge and is unable, by reason of illness, disability, pursuit of reasonable education, or other cause, to withdraw from the parent’s charge or to obtain the necessities of life
Family Law Act, section 37
Northwest Territories. Until 19; longer if the child is unable, by reason of illness, disability, pursuit of reasonable education, or other cause, to withdraw from the parent’s charge
Children’s Law Act, sections 57 and 58
Nova Scotia. Until 19; court may order support for a child older than 19 who is unable, by reason of illness, disability, or other cause, to withdraw from the parent’s charge or obtain the necessaries of life
Parenting and Support Act (formerly the Maintenance and Custody Act), ss. 2(c), 8, and 9
Nunavut. Until 19; longer if the child is unable, by reason of illness, disability, pursuit of reasonable education, or other cause, to withdraw from the parent’s charge
Children’s Law Act, ss. 57 and 58
Ontario. Until 18; longer if the child is studying full-time or is unable, by reason of illness, disability, or other cause, to withdraw from the parent’s charge
Family Law Act, s. 31(1)
Prince Edward Island. Until 18; longer if the child is studying full-time or unable to withdraw from the parent’s charge or to obtain the necessaries of life
Family Law Act, s. 31(1)
Québec. Until 18; in addition, an adult child who is in need deserves basic forms of support from his or her immediate family
Civil Code of Québec, articles 585, 587, and 599, para. 2
Saskatchewan. Until 18; longer if the child is unable, by reason of illness, disability, pursuit of reasonable education, or other cause, to withdraw from the parent’s charge or obtain the necessaries of life
Family Maintenance Act, 1997, ss. 3 and 4
Yukon. Until 19; longer if the child is under the parent’s charge and is unable by reason of illness, disability, or other cause to withdraw from parent’s charge or obtain the necessaries of life
Family Property and Support Act, ss. 1 and 32
At the same time, the law generally places certain restrictions on the right of older children to parental support. By way of a fairly typical example, here is what section 31 of the Ontario Family Law Act says about parental support:
Obligation of parent to support child
31 (1) Every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried child who,
(a) is a minor;
(b) is enrolled in a full-time program of education; or
(c) is unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents.
(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.
According to the first subsection, a young person who is studying full-time or who cannot reasonably be expected to care for himself or herself is entitled to parental support even if he or she is no longer a minor.3 But this rule ceases to apply if the young person gets married. The second subsection then says that a young person also loses this entitlement if, at any point after turning 16, he or she is considered to have “withdrawn from parental control.” This basically means that the young person has left home of his or her own free will and/or has chosen to reject parental authority in order to live an independent life.
As we will see below, many provinces and territories allow young people to leave home before they reach the age of majority. Yet, except in Québec, no formal procedure exists for withdrawing from parental control, nor do statutes such as Ontario’s Family Law Act explicitly define the term. In cases where a question has arisen about whether parents still owe support to a child who has withdrawn from their control, judges have generally ruled in favour of the young person when he or she had little choice but to leave home—when he or she had been kicked out of the house, or had left home to avoid abuse, or had left because the parents were imposing unreasonable rules and restrictions (although it’s up to a judge to decide what qualifies as unreasonable). If leaving home was not a voluntary decision, then the child still has a right to parental support. In a case recently decided in Ontario, for example, a 17-year-old girl whose parents had divorced many years earlier succeeded in withdrawing from her father’s control against his wishes. Her father, with whom she had been living, had been behaving in a domineering manner and was trying to prevent her from seeing her mother and from enrolling at a university in Florida, where her mother (who had remarried) now lived. The girl argued that her father’s controlling nature and arbitrary rules made living in his home unbearable and that her withdrawal was therefore involuntary, in which case she was still entitled to support. The courts agreed: her request for an official declaration of withdrawal was granted, and she was able to get a court order for parental support during her studies.4
That said, judges may also choose to limit the amount of support you are entitled to receive, usually by factoring in your relative ability to earn money to support yourself, while perhaps also taking your family’s overall financial situation into consideration. For example, if you are attending a university or college, a judge might order your parents to pay you a certain amount each month but at the same time instruct you to contribute to your own support by finding a summer job.
Do these support obligations mean that your parents can’t kick you out of the house until you finish your studies? You might think that as long as your parents still have the duty to support you, they should be obliged to allow you to live at home. However, the law does not say that supporting a child requires parents to allow that child to live in their own home. Perhaps because, once a child turns 16, it is no longer a federal crime to fail to provide support, parents may just decide that they can treat their child the same way as a trespasser on their property. According to standard laws about trespassing, if someone asks a person to leave their property and the trespasser refuses, the property owner can use reasonable force to remove the person or else call the police, who can come and remove the trespasser themselves. (In some jurisdictions, the trespasser can also be arrested and punished.) Ultimately, what will happen to a youth over 16 whose parents wish to kick him or her out will largely depend on provincial or territorial laws. In Saskatchewan child welfare agencies cannot legally take a young person who is 16 or older into their care, and the law may also restrict the range of services that are available after that age. (We’ll have more to say about these restrictions in chapter 7.) In addition, what will happen to such a youth may depend on how the police choose to enforce the existing laws. Provided that this is an option, the police may simply decide to take the young person to the local child welfare authorities. Or they might refuse to intervene in the situation without a court order—or they might just help the parents turn their child out of the house. In this last case, the young person has the right to remove his or her personal possessions from the home, and the police may be willing to take the youth to a homeless shelter or to the home of a friend or relative who has agreed to take him or her in. At that point, the youth can turn to the child welfare authorities for whatever help they are able to provide.
Regardless of exactly what happens, though, a youth who has been evicted from home should promptly file a claim for support in the local court. Assuming that the youth is eligible for support under provincial law, the judge will order the parents to provide that support and will determine its amount. If the parents remain unwilling to let their teenage child live with them, they will have to cover the cost of alternative accommodation (such as an apartment). Living on the streets, even temporarily, is extremely dangerous, as it leaves a young person vulnerable to all kinds of violence and exploitation. So a youth in this situation should go to court to request support and stay in a shelter or, if possible, with someone who can be trusted while waiting for the court to order the support.
A Case of Good Fortune
In a case tried in Alberta—R. v. R.D. (2005 ABPC 54 [CanLII])—a 16-year-old boy had been living on the streets after his father kicked him out. One day, a neighbour spotted him breaking into the family home through a window and leaving with a plastic bag, which turned out to contain grocery items. The boy was arrested and charged with breaking and entering and with theft, and he was also handed over to the child welfare authorities, who gave him shelter in a group home. At his trial, the judge, Danielle Dalton, examined the relevant laws, including several articles of the Convention on the Rights of the Child. As she pointed out, because the boy had not withdrawn voluntarily from the family home, his father still had a duty to support him, and yet his father had not found him another place to live or otherwise supplied his needs. She therefore concluded that the boy had a right to be in his father’s house and eat food from it, and so she found him not guilty.
This boy was fortunate to have a sympathetic judge, and her decision sets a useful precedent, one that judges in other provinces could draw on. All the same, a court in another province could well decide to convict a youth who did the same thing—and there are cases where such convictions have occurred. So, should you ever find yourself in this situation, we don’t recommend breaking and entering. Rather, you should try to get help through the child welfare authorities and ask a court to order your parents to support you.
To summarize, then: as a general rule, parents in Canada have the duty to support their children at least until they are of legal age, and in some circumstances even longer. However, once their child reaches the age of 16, parents may be able to avoid fulfilling this duty until a court, at the young person’s request, orders them to do so. A youth who is 16 or older may thus have to put up with being kicked out and will then have to go to court in order to obtain further support from his or her parents.
With all this in mind, we think that the law could do a better job of safeguarding your right to safety and shelter: under no circumstances should a young person be forced out into the street on short notice. A landlord cannot even legally do this to a tenant who fails to pay rent, so why should parents be able to do this to their own child? In our view, parents should not have the right to drive a teenage child out on a whim, even if the youth can subsequently apply to the court for financial support. Rather, parents should be legally obliged to provide their children with a safe place to live at least until they reach the age of majority. If, for some reason, parents would strongly prefer that an older child leave their home, then they should be required to rent an apartment or otherwise arrange for acceptable accommodation before the child moves out and to provide their child with a reasonable living allowance until he or she is in a position to be self-supporting. Leaving your parents’ home is a major turning point in your life, and, rather than abruptly evicting you, your parents should be obliged to help you prepare to take this step.
It should be clear by now that the law gives parents a great deal of power over their children. But just how much power? Must you always do what your parents tell you to do? Do you have any right to make your own decisions, or is it entirely up to your parents to decide whether to give you a voice? This is an important question, although not one that has a simple answer.
In practical terms, the extent of parents’ power over their children largely depends on how a court judge interprets the relevant laws in relation to a specific situation. These laws could include federal ones, such as the Divorce Act or even the Charter of Rights and Freedoms, but they are often provincial or territorial laws. In addition, other than in Québec, judges are also guided by common law precedents. Bear with us, then, while we provide a bit of background to this issue.
For a very long time, English common law assumed that parental authority over their children was virtually absolute. As we mentioned earlier, children were basically regarded as their parents’ possessions. Gradually, however, people began to question this view, which was challenged on several occasions in court. Finally, in 1985, a case came before the highest court of appeal in the land—which, at the time, was the British House of Lords.5 The case, Gillick v. West Norfolk and Wisbech Area Health Authority, involved the right of girls under the age of 16 to decide for themselves about the use of contraception. In a 3-to-2 majority in their favour, the judges ruled that parental authority was not absolute but gradually dwindled as the child became more mature. In the words of one of the judges, Lord Scarman, “parental right yields to the child’s right to make his [or her] own decisions when he [or she] reaches a sufficient understanding and intelligence to be capable of making up his [or her] own mind on the matter requiring decision” ( 3 All E.R. 402 [H.L.] at 422). As a result, the law of England no longer considers that parents have the right to require absolute obedience from their children. Instead, the courts will support the child’s right to make his or her own decisions if the child is judged to be mature enough to do so.
But that’s England. Can the same thing be said of Canadian law? As we saw in the previous chapter, the “mature minor” principle—that young people should be given greater capacity for independent decision making as they grow older and more mature—is not unknown in Canada, especially in relation to medical decisions. In fact, just a year after the Gillick case was decided, an Alberta Court of Appeal judge drew on that ruling in J.S.C. v. Wren (1986 ABCA 249 [CanLII]), a case that involved a 16-year-old girl’s decision to have an abortion. In dismissing her parents’ appeal, the judge wrote: “Parental rights (and obligations) clearly do exist, and they do not wholly disappear until the age of majority. The modern law, however, is that the courts will exercise increasing restraint in that regard as a child grows to and through adolescence. The law and the development of the law in this respect was analyzed in detail by Lord Scarman in the Gillick case” (para. 13). He went on to quote Lord Scarman’s conclusion that “the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed” (qtd. in para. 14).
In Alberta case law, then, there is some support for the principle laid out in the Gillick decision, at least with regard to medical matters. But what about our highest court—the Supreme Court of Canada? Let’s return to A.C. v. Manitoba (Director of Child and Family Services) (2009 SCC 30 [CanLII]), in which the Supreme Court examined the “mature minor” principle in relation to a 14-year-old girl’s right to refuse a medically necessary blood transfusion. In so doing, the Court carefully considered the Gillick decision, including its history of legal application (paras. 48–79). Yet, in the end, while acknowledging the importance of the principle, the justices chose to limit its scope by allowing courts to override a mature minor’s wishes in relatively serious medical circumstances, if the court feels that what the young person wants is not in his or her best interests. In a dissenting opinion, however, one judge argued that, because the girl had been found to be capable of making her own decisions, her wishes should have been respected even if the result was not in her best interests.6
By now, you’re probably wondering what all this has to do with parental authority. In England, the Gillick decision established a general principle by which parents should be guided in raising their children—namely, that parents must give their child greater power to make independent decisions as that child’s understanding and ability to exercise judgment increases with age. This view emphasizes a young person’s growing capacity. In Canada, this principle has been upheld only in specific contexts (notably in connection with medical care)—and, as the decision in A.C. v. Manitoba indicates, when it comes to very serious matters, such as life-and-death situations, the “best interests” principle trumps not only parental views and preferences but also those of an otherwise mature minor. This perspective places greater emphasis on a young person’s need for protection and helps to explain why, in Canada, how much power parents have to deny their children the right to make independent decisions is generally left up to judges who are considering specific situations. Except in Québec (which relies on its Civil Code in family matters), the scope of parental authority is largely determined by the common law tradition. So far, only three provinces—one of them Québec—have, to any extent, attempted to spell out in their statutes the powers that parents have over their children. Here’s what these three provinces have to say on the subject:
Section 21(6) of the Family Law Act lists the powers that guardians (including parents) may exercise over a child. The list (which contains thirteen items in all) begins:
(a) to make day-to-day decisions affecting the child, including having the day-to-day care and control of the child and supervising the child’s daily activities;
(b) to decide the child’s place of residence and to change the child’s place of residence;
(c) to make decisions about the child’s education, including the nature, extent and place of education and any participation in extracurricular school activities;
(d) to make decisions regarding the child’s cultural, linguistic, religious and spiritual upbringing and heritage;
(e) to decide with whom the child is to live and with whom the child is to associate;
(f) to decide whether the child should work and, if so, the nature and extent of the work, for whom the work is to be done and related matters;
(g) to consent to medical, dental and other health-related treatment for the child.
As you can see even from this partial list, section 21(6) gives considerable powers to parents or other guardians—although these powers are limited in three important ways. First, section 21(1) of the same act states that parents and other guardians must “exercise the powers, responsibilities and entitlements of guardianship in the best interests of the child.” (What counts as a child’s “best interests” is described in section 18.) Second, section 21(6) itself opens with the words, “Except where otherwise limited by law.” This means that, in exercising their powers over a child, parents or guardians must abide by other laws. With regard to school, for example, a parent could not make decisions that violate the rules about school attendance laid out in Alberta’s School Act. Similarly, in deciding whether a child should work, a parent must respect the provincial Employment Standards Code, which contains rules about child labour.
Finally, subsection (7) goes on to say: “A guardian who exercises any of the powers referred to in subsection (6) shall do so in a manner consistent with the evolving capacity of the child.” This is, in essence, the Gillick principle—that as children grow more mature (that is, as their capacity evolves), their parents’ authority over them should diminish accordingly. The Alberta Court of Appeal applied this rule in MacKinnon v. Harrison (2011 ABCA 283 [CanLII]). The case involved a 16-year-old girl whose divorced parents—one of whom had moved to British Columbia—disagreed about where she should live and where she should go to school. In ruling in favour of the girl’s own wishes, the judge referred to the principle established in Britain in the Gillick case and concluded that the girl was mature enough to make her own decisions about where to live and go to school.
Section 41 of the BC Family Law Act has a list of “parental responsibilities,” which are similar to the powers listed in Alberta’s Family Law Act. However, the BC act does not include all the same three limits: there is only the requirement, stated in section 43(1), that parents should exercise their responsibilities in the child’s best interests. On the subject of whether, in exercising their responsibilities, parents should gradually allow their children more room for independence, the BC act says nothing, one way or another.7 Note, however, that the act also bans “family violence”; this is defined in section 1 to include, among other things, “unreasonable restrictions on, or prevention of, a family member’s financial or personal autonomy.”8
As we’ve explained, when it comes to civil matters, Québec doesn’t rely on common law but instead on its Civil Code—so it would make sense that Québec might have statutes that relate to parental authority. The Civil Code does indeed address the topic, although it doesn’t say anything very specific. According to article 597, “Every child, regardless of age, owes respect to his father and mother.” Articles 598 and 599 go on to say that “a child remains subject to the authority of his father and mother until his majority or emancipation” and that “the father and mother have the rights and duties of custody, supervision and education of their children.”
While the Civil Code clearly affirms that parents have authority over their children, it doesn’t explicitly state that this authority is absolute. In fact, article 159 allows a minor to bring a court action “relating to his status, to the exercise of parental authority or to an act that he may perform alone.” In other words, Québec law recognizes that young people may have reason to challenge their parents’ right to make decisions on their behalf—but, as is the case elsewhere in Canada, the final decision rests in the hands of a judge.
From a purely practical point of view, there is nothing to stop parents, at a given moment in time, from enforcing whatever rules they see fit—although the authorities can intervene if they break the law or do anything that qualifies as child abuse or neglect. Short of leaving home, however, the only way in which a young person might successfully challenge a parent’s rules is to take the parent to court over some issue, in hopes that the court will order the parent to respect his or her wishes in the matter. While it is certainly not impossible to take your own parents to court, it’s a pretty extreme step, and not a particularly easy one. As we explained in chapter 2, you would possibly need an adult, such as a lawyer, a grown family member, or some other person (a “litigation guardian”) who would be willing to represent you in court, depending on your province’s rules for minors bringing a family case to court.
As we saw just above, in Québec, article 159 of the Civil Code allows you, with the permission of the court, to start a court action without an adult guardian in which you challenge your parents’ exercise of their authority over you. This happened in a well-known case, Droit de la famille 081485 (2008 QCCS 2709 [CanLII]), when the father of a 12-year-old girl, whose parents were separated, punished her by forbidding her to go on a school trip to Québec City. The girl’s mother wanted to let her go on the trip, but she needed to have the permission of both her parents. So the girl took the case to court. After considering the circumstances, the judge concluded that the girl had already been punished once, by not being allowed to participate in a school show, and that the trip was educational and in her best interests. Therefore, the judge ordered that she be allowed to go on the trip.
Taking your parents to court to get more freedom may be possible, but we recommend that you do so only for a very good reason and that you think hard about the possible consequences. The father of the girl mentioned above was, for example, very angry that the court had ruled in favour of his daughter, who was now living with her mother, and said afterward that he would not speak with her until she was willing to accept his authority. So, before you take such a drastic action, it would be best to consult with a lawyer—preferably one who has experience helping young people cope with family issues.
Can I leave home or otherwise end my parents’ control over me before I reach the age of majority?
Yes, although this depends on your age and on where you live. If living at home becomes intolerable for you, it may be possible for another person to get a custody or guardianship order from a court that will allow you to live with them instead. You can also leave home voluntarily by withdrawing from parental control or, in Québec, by a process known as emancipation. So let’s have a closer look at these options.
Custody and Guardianship Orders
It is generally possible for other people to ask a court to give them full custody or guardianship of a child or else to give them the power to make certain decisions about the child. As you might guess, the rules about who is eligible to apply for custody or guardianship vary from one province or territory to another—as does the use of these two terms.9 In Ontario, for example, section 21(1) of the Children’s Law Reform Act says that any person—an aunt or uncle, for example, or an adult whom the child trusts—may apply in court for custody of a child or for the power to make decisions for the child about certain matters (what the law calls “incidents of custody”). Although, in some jurisdictions, this person must be a legal adult, the Ontario law does not, in principle, rule out the possibility that an older minor could apply for custody. In practice, however, a court would probably want the minor to be a close relative of the child (such as an older brother or sister) and would think long and hard before taking such a step. As a general rule, in deciding whether to grant custody to a person other than the child’s parents, a court will be guided by its assessment of the child’s best interests.
If you are frequently in conflict with your parents because of their rules, and you know of someone who would be willing to apply for your custody or guardianship, this could be an option. However, courts are generally reluctant to separate children from their parents unless no reasonable alternative can be found. So, for the person’s application to be successful, a court would probably need to be convinced that these conflicts are serious and unlikely to be resolved and that the living situation at home genuinely is unhealthy for you. In cases of abuse or neglect, it might be social services who apply to take the young person into their care (see chapter 7).
Leaving Home Voluntarily
In most provinces and territories, the law allows an older minor to leave home voluntarily and thus to withdraw from parental control, whether or not his or her parents agree with this decision—although, to do this, a minor must generally be at least 16. In a few provinces, however, as well as in Yukon, the law requires youth to stay at home until they are legally adults, and those who leave before that are considered runaways. A runaway can be apprehended by the police and brought back home (or perhaps handed over to child welfare authorities)—although, in the case of older teenagers, the police may choose not to make a great effort to enforce this law. And, in some provinces, the authorities may intervene only if there is reason to believe that the runaway is in danger of coming to harm or if the parents get a court order. In table 2, we summarize what provincial and territorial laws have to say about the age at which you can legally leave home.
Table 2 Minimum age for legally leaving home
Age at which a minor may leave home
Relevant legal provision(s)
Alberta. At 16 to 18, depending on the circumstances
Possibility to leave before 18 implied by Family Law Act, s. 49(2)(b) and (at least for 16-year-olds) by s. 57.2(1)(a) of the Child, Youth and Family Enhancement Act; somewhat restricted by the same act, as in section 19(12)
British Columbia. At 19, with possible exceptions
Child, Family and Community Service Act, sections 26 and 27 (note the exception given by section 26); s. 147(1)(b) of the Family Law Act seems to suggest that children may sometimes leave parents’ care at an earlier age; other legal provisions may also apply
Manitoba. Generally at 18
Child and Family Services Act, ss. 1(1), 17(2)(a) and (d), and 21(1) and 21(3)
New Brunswick. Generally at 16
Family Services Act, ss. 29.2 and 31(5) and 31(6)
Newfoundland and Labrador. At 16
Children’s Law Act, s. 73
Northwest Territories. At 16
Children’s Law Act, s. 56
Nova Scotia. At 16 (may be extended to 19 if child is in care)
Children and Family Services Act, s. 29(4)
Nunavut. At 16
Children’s Law Act, s. 56
Ontario. At 16
Child, Youth and Family Services Act, 2017, s. 85(1); Children’s Law Reform Act, s. 65
Prince Edward Island. At 16 to 18, depending on the circumstances
Family Law Act, s. 31(2); Child Protection Act, ss. 13(2) and 13(6)
Québec. At 18 or when emancipated
Civil Code, article 602
Saskatchewan. Generally at 16; until 18, may be apprehended if in need of protection
Child and Family Services Act, ss. 2(1)(d), 7(2), and 18
Yukon. At 19
Child and Family Services Act, ss. 1 and 31
If you are under 16, and especially if you are under 14, you need to be aware that a person who helps you leave home—for example, by giving you another place to live—could be in serious trouble. If you leave home when you are under 14 and another person lets you stay with him or her, intending to keep your parents from having you with them, he or she can be charged with abduction under the Criminal Code of Canada (s. 281). This also applies if you are staying with a parent who is keeping you from being with another parent or guardian who has the right to have you with him or her (Criminal Code, ss. 282 and 283). If you are under 16 and unmarried, and someone helps you to leave home by taking you away from your parents against their will, they can be charged with abduction under section 280 of the Criminal Code. (But if you are over 14 and they just let you stay with them, they will not be charged).
Article 602 of the Québec Civil Code explicitly says, “No unemancipated minor may leave his domicile without the consent of the person having parental authority.” Emancipation is a legal status, recognized in the province of Québec, that allows a minor to acquire many of the rights of an adult. There are two ways in which you can become emancipated:
- By asking your parents to emancipate you (article 167). When you reach the age of 16, your tutor (a parent or other legal guardian) can submit a “declaration of emancipation” to an official called the “Public Curator.” The declaration must include your written consent, the consent of your tutor, and the consent of a “tutorship council,” which is usually made up of three people who are from your family or who know your family and who act in an advisory role to your tutor.
- By asking the court yourself (article 168). At any age, you can file a request for emancipation with the Superior Court of Québec. The court will consider your reasons for wanting emancipation, as well as the opinions of your tutor (and of the tutorship council, if one exists). It will also consider whether the emancipation is in your best interests. A court will usually emancipate you only for serious reasons and only once you are well into your teens and seem mature enough to take care of yourself. So, before filing for emancipation, it might be wise to consult with a lawyer about your reasons for doing so and about your chances of succeeding.
Once you are emancipated, you are free from your parents’ authority and can establish your own household (Civil Code, article 171). In addition, you no longer have to be represented by your tutor in order to exercise your civil rights and can now perform “all acts of simple administration,” such as signing a lease or other contract, in your own name (articles 170 and 172). This is called simple emancipation. However, when it comes to legal actions that could have serious consequences, especially for your financial situation—accepting a gift that places you under certain obligations, for example, or borrowing large amounts of money—you still need the help of your tutor or the permission of the court (articles 173 and 174).
If you get married, you are automatically granted full emancipation, which allows you to exercise all your civil rights as if you were of full age. But you may also apply to the court for full emancipation, provided you have a very serious reason for making this request. In deciding whether to grant it, the court will again seek the advice of your tutor and of the tutorship council, if there is one (articles 175 and 176). If you are emancipated, you can—and should—ask the clerk of the court to issue you a certificate of emancipation, so that you can prove that you are emancipated; the certificate will state whether the emancipation is simple or full (article 176.1).
If you disobey your parents, they have a right (though not an obligation) to punish you—within reason. This punishment could take the form of depriving you of something you want, like not letting you go to a party that you were really looking forward to, or it might consist of ordering you to do something that isn’t especially fun to do, such as doing extra chores for the next month. (Most parents remember such punishments from when they were growing up.) But are parents allowed to punish their children physically? That is, do they have a right to hit you?
Corporal punishment, as it’s called, is one of the oldest and most debated ways of disciplining young people. It includes spanking, slapping, and any other punishment that’s meant to hurt you or cause you physical discomfort. Ordinarily, hitting someone makes you guilty of “assault,” which is a crime. Yet, even though assault is against the law, section 43 of the Criminal Code still allows the use of “force” as a way of disciplining a child:
Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.
In the past, judges trying criminal cases in which a parent or other adult had been accused of assaulting a child held widely differing opinions about what “reasonable force” was. Some parents were convicted for using too much physical force, while others were acquitted even after inflicting very serious beatings. Eventually, in a case titled Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General) (2004 SCC 4 [CanLII]), the Supreme Court was asked to determine whether section 43 of the Criminal Code violated children’s constitutional rights. The majority of the justices refused to declare the law unconstitutional, but they did put important limits on it. In the judgment of the Court, in order for corporal punishment to be “reasonable,” it must follow these rules:
- Only parents and guardians may use it, not teachers or temporary caregivers.
- Corporal punishment can be legally used only on children aged 2 to 12, when the young person can (supposedly) learn from it.
- The force used must be light and must not cause major or long-lasting pain or harm. It must not be inflicted in a degrading or inhuman way.
- It must not be inflicted with an object (such as a wooden spoon, belt, strap, or cane).
- It must not include “blows or slaps to the head.” (This is generally taken to mean that parents may not slap your face, although it’s not completely clear whether, by “head,” the court meant anywhere from the neck up or just the top of the head—the cranium.)
- Its purpose should be to improve behaviour; parents should not spank simply because they are angry, frustrated, or simply abusive.
So, provided it follows these rules, spanking a child is considered legal. Otherwise, it is criminal assault and can be prosecuted.
In 1994, when Québec revised its Civil Code, it eliminated an article that allowed parents to use “reasonable and moderate” punishment on their children. Today, many people in Canada (including the Truth and Reconciliation Commission) feel that section 43 of the Criminal Code should be repealed. In fact, Bill S-206, which is currently in the Senate, would do just that. Physical punishment allows parents to hurt a child in a way that they cannot hurt another adult, and many experts question whether such punishment is actually effective (or whether punishment of any sort is a good way to teach children how to behave). In 2006, the United Nations Committee on the Rights of the Child issued a statement that aimed to underscore “the obligation of all States parties to move quickly to prohibit and eliminate all corporal punishment,” as such punishment violates several articles of the Convention on the Rights of the Child.10 Many countries now forbid spanking, as well as other physically and emotionally harmful forms of discipline. If section 43 is repealed, as we hope it will be, Canada will join the growing list of places that have given young people the same protection against violence that adults have.
Some marriages end with the couple deciding to go their separate ways, and some couples who divorce have children. In addition to the federal Divorce Act, several provincial family laws deal with divorce. To get divorced, a couple has to go to court to have a judge end the marriage, to divide their property between them, and to decide what part each parent will play in their children’s lives. Some divorce cases are very simple because the couple has already considered these issues and come to an agreement. But when two people each want something different, and neither one is willing to let go beyond a certain point, divorce can be a slow and very difficult process.
When parents divorce, two big decisions must be made about their children. The first concerns custody. Which parent will the children live with—and who will have the right to make major decisions about them? There are several possible arrangements:
- sole custody, where the children live with only one parent and that parent has the main responsibility for them.
- joint custody, where both parents share responsibility for the children. In some cases, the children will spend more or less equal time with both parents (this is also called shared custody); in other cases, they will live mainly with one parent, but the other parent will still be equally responsible for their care and for making decisions about them.
- split custody, a less common arrangement where one parent has custody of one or more of the children and the other has custody of the other(s).
Custody arrangements lead to the second big decision. Especially in cases of sole custody, the judge must decide how much access to give the other parent. Access means the right to see and spend time with the children, as well as the right to be given important information about them by the other parent. Access arrangements differ from one case to another. Sometimes children spend a lot of time with both parents; sometimes they see one parent only on certain weekends. There are even cases—although these are extremely rare—where a judge has ordered parents to take turns living with their children in the same house.
Some lawmakers argue that talking in terms of “custody” and “access” places too much emphasis on children as some sort of object and encourages parents to focus on their rights over their children rather than on their parental obligations. So, in place of these terms, some provincial laws now adopt expressions such as “parental responsibilities” and “parenting time” and, more generally, try to ensure that both parents will continue to play an active part in their children’s lives in the event of separation or divorce.
Do I have any say about which parent I will live with?
The final decision on this one belongs to your parents and the court—but you may be able to state your opinion and have some influence on what happens to you. If your parents have already agreed on who will have custody of you, the judge will normally respect their decision. If they don’t agree, the judge will make the decision, and, according to the federal Divorce Act, this decision must be made in your best interests. In this case, you may have a say. The laws of some provinces require—or at least encourage—judges to take into account the children’s wishes when making decisions about custody and access. Some judges will even talk directly with children about this, but more often the judge will have another adult speak to the children and then report their wishes to the court. One way or another, according to article 12 of the Convention on the Rights of the Child, you should be given an opportunity to be heard.
The chances that your wishes will be taken seriously are greater in the following circumstances:
- The judge is convinced that you are really sure of what you want.
- The judge believes that your choice is really your own and that you haven’t been influenced by your parents. For example, it won’t look good if the parent you choose happens to have been buying you lots of presents.
- You seem to have thought about which of your parents is likely to take better care of you.
- You are a teenager. Not only does it make sense that an older child will know better what he or she wants, but judges are often reluctant to make decisions that go against the wishes of teenagers, who might be more likely to run away or otherwise refuse to respect a custody order and who are getting close to the age when they can leave home anyway.
If your parents are fighting for custody of you, and no one seems interested in your own wishes, you might try to get help from a social worker or even a lawyer (see the list of resources in appendix C). Such a person may be willing to bring your views before the court and at least make sure they are heard.
Once the judgment is made, you have to live with the parent who gets custody of you. However, that parent must cooperate with access orders and not do anything to stop the other parent from seeing you during access time. In fact, as we saw above, in connection with abduction, there are laws against withholding access to a child.11 A parent might be able to go to court in the future and ask for a new custody or access order; however, there would probably have to be strong reasons for changing the original arrangement.
When you reach the age at which you can leave home in your province, you can generally move in with the parent who does not have custody of you if that is your preference. However, in some provinces, parents may request to have a custody order enforced until you reach the age of majority, even if you can legally leave home at an earlier age. In a recent Ontario court case, for example, L. (N.) v. M. (R.R.) (2016 ONSC 809 [CanLII]), two brothers were caught in the middle of a bitter custody battle between their parents, in which they firmly sided with their mother. The original custody order, issued when the younger son was not quite 16 and the older one well over 17, gave full custody to their father—much against the sons’ wishes. Their mother filed a motion to have the order changed so that she would have custody, and, in response, the father filed a motion to have the original order enforced. The sons asked instead that no custody order be made, declaring that they had withdrawn from parental control, as allowed by section 65 of the Children’s Law Reform Act. In the end, the judge cancelled the original custody order (including a condition that allowed the police to enforce it) and ruled that “no person has custody or access rights over either of the sons” (para. 150).
The Case of Clayton Giles
The story of Clayton Giles of Alberta is a good example both of the challenges that a child of divorce can face and the influence that a young person can have if he or she is persistent. When Clayton was 4, his parents divorced. His mother would not accept sharing custody with his father and ended up winning sole custody. Clayton was unhappy with this situation as he had a better relationship with his father than with his mother and would have wanted to have equal time with both of them. But his mother’s efforts to keep him away from his father were so persistent that, at one point, he did not see him for three years. Eventually, Clayton had enough of it. When he was 13, he ran away to his father several times. On his second attempt, the police were called. They asked him whom he wanted to be with, and when he said he would prefer to stay with his father, they left him alone.
Clayton then decided to become politically active and protest the injustice he saw in judges not giving enough consideration to the views of children of divorcing parents. In 2001, when he was 14, he held a nineteen-day hunger strike in front of a Calgary courtroom, and he also set up a website to promote his cause. Soon after, a judge granted sole custody to his father. Even though his own battle had been won, Clayton then travelled on foot and by bicycle across Canada and the United States, collecting signatures for a petition to give more of a voice to children whose parents divorce—another battle, one that is still going on.
Courts generally want to see both parents involved in their children’s lives. Sometimes, though, a divorcing parent will try to turn children against the other parent. That is, the parent will try to alienate the children from the other parent. For example, one parent might repeatedly criticize the other parent or tell the children stories about that parent that may not be entirely true—to the point that the children come to dislike that parent. A parent may also try to win the children over by buying them a lot of presents or being unusually kind to them. The “alienating” parent may get very angry or even abusive if the children want to see the other parent or otherwise display affection for him or her. Such a parent might also try to stop the other parent from having access to the children, despite what the court ordered.
How courts deal with such a parent will vary from case to case, but if the judge thinks that one parent is not being honest about the other parent, the judge may order mediation. In this case, a mediator—a professional trained to help people resolve differences—will work with the family to try to mend relationships and establish some sort of peace. Sometimes the judge may take more decisive steps. There have been cases where a judge granted custody or access to the parent who had been alienated, even when the child was stubbornly against it. This is indeed what had happened in the Ontario case we just described: the boys’ mother had succeeded in alienating them from their father, and, by originally giving him custody, the court was hoping to undo the damage (although this effort obviously failed). In one case—Bruni v. Bruni (2010 ONSC 6568 [CanLII])—a judge decided to punish a mother who had effectively destroyed the relationship between her estranged husband and their daughter by reducing the spousal support payments he owed her to one dollar a month. The judge also found that the mother had so thoroughly alienated the daughter from her father that enforcing access would not be in the daughter’s best interests.
Youth and families who are in such painful situations would do well to get counselling in order to try to sort things out. Depending on the circumstances, it could also be advisable to find a lawyer to represent a child’s interests. In Ontario, the Office of the Children’s Lawyer might agree to take the case for free.12
As this chapter illustrates, the law still gives parents extensive power over the lives of their children. Of course, parents also have legal responsibilities toward their children, but these duties are described in fairly broad terms and may be difficult to enforce at times. This raises the question of whether our laws should be changed to make it clearer that parental authority is not absolute and that youth have the right to make some of their own decisions, especially as they get older. We believe that you are your own person and that it’s not fair for parents to expect blind obedience from you. As we saw, Alberta’s Family Law Act already requires parents to exercise their powers “in a manner consistent with the evolving capacity of the child.” So does the Convention on the Rights of the Child. Perhaps it’s time for the rest of Canada to do likewise. At a bare minimum, laws throughout Canada could be changed to incorporate the principle that parental authority dwindles as a child becomes more mature. Doing so would give young people the legal right to exercise at least some degree of influence over decisions that affect them.
But, as we see it, there is a deeper issue here. As we mentioned earlier, in our society the relationship between a parent and a child is considered to be a private matter, in which the law has no business interfering, except in cases of serious abuse or neglect. In other words, the law treats the parent-child relationship much like any other personal relationship between two human beings. And yet there is an important difference. People generally choose their friends and their marriage partners—but children do not choose their parents. Instead, when a man and woman have a child, the assumption is that the child “belongs” to the parents, who are automatically entitled to raise the child in whatever way they please (as long as they do not fail to provide the child with the “necessaries of life”). It is therefore up to them to decide how much kindness and attention to give their children, as well as what values to instill in them. Aside from the principle that parents should strive to make decisions in their child’s best interests, parents are not expected to answer to any specific standards. Raising a child is not understood to be a job, which parents can perform well or badly. Within certain broad limits, parents are free to come up with their own definition of what raising a child should look like.
Suppose that, instead of viewing child rearing as a personal entitlement and allowing parents more or less free rein in how to do it, the law took a different approach. What if the law laid down some ideal standards for parental behaviour, on the understanding that it is the duty of parents to raise healthy, happy, well-balanced children who will grow up to be responsible and considerate adults? Many people would probably argue that parents have a “right” to decide how to raise their children and that setting out standards would be too “controlling.” But the law already sets certain standards of behaviour that people must meet. Quite apart from laws about crimes, people who are doing a job are routinely expected to turn in a satisfactory performance. Others might argue that enforcing such laws would be impossible. Yet they would be no more unenforceable than many other laws on the books. For the most part, laws are enforced not because the police watch over everybody, in hopes of catching someone in the act of committing an offence, but because a person whose rights have been violated files a complaint.
In short, as it presently stands, the law in Canada goes a long way toward letting parents off the hook. Parents are given the lion’s share of the rights and liberties, and the law generally leaves them alone unless they do something truly awful. What if we shifted the focus to the rights and liberties of children? What if parents were held accountable for how well they do their job?
1 He added, in parentheses: “Fortunately, we have distanced ourselves from the ancient juridical conception of children as chattels of their parents” (372). (A “chattel” is a personal possession.) Two of the other justices likewise stated: “The suggestion that parents have the ability to refuse their children medical procedures such as blood transfusions in situations where such a transfusion is necessary to sustain that child’s health is consistent with the view, now long gone, that parents have some sort of ‘property interest’ in their children” (432–433, our emphasis).
2 In fact, in certain circumstances, such a parent could be charged with a crime. The same subsection of the Criminal Code goes on to say, in paragraph (c), that all people have a legal duty to provide the necessaries of life to a person under their charge “if that person (i) is unable, by reason of detention, age, illness, mental disorder, or other cause, to withdraw himself [or herself] from that charge, and (ii) is unable to provide himself [or herself] with necessaries of life.” So, for example, a parent could be charged with a crime for failing to provide support to an older child who is too badly disabled to manage on his or her own.
3 In a case that recently came before the Ontario Court of Justice, the judge ruled that the obligation to provide continued support extends to both parents if the two have divorced. In this decision, the father of a 24-year-old disabled man, who was now living with his mother, was ordered to keep paying child support. See Coates v. Watson (2017 ONCJ 454 [CanLII]) and Coates v. Watson (2018 ONCJ 605 [CanLII]).
4 See R.G. v. K.G. (2017 ONCA 108 [CanLII]), regarding the declaration of withdrawal, and O.G. v. R.G. (2017 ONCJ 153 [CanLII]), for the decision about support.
5 Until fairly recently, the House of Lords retained a judicial function, in addition to its more familiar legislative one. In 2009, this judicial function was transferred to the newly created Supreme Court of the United Kingdom.
6 Interestingly, six years earlier, in Starson v. Swayze (2003 SCC 32 [CanLII]), the Supreme Court had considered the case of an adult male who had been diagnosed with mental illness and whose capacity for decision making had been called into question. In this case, the Court upheld the right of the man to refuse treatment, even though doing so was arguably not in his best interests. But it proved unwilling to apply the same principle in the case of a mature minor whose refusal put her at risk of death.
7 In a 1986 ruling by the BC Superior Court—Gareau v. B.C. (Supt. of Fam. & Child Services) (1986 CanLII 1046 [BCSC])—the judge referred to the Gillick decision (made in Britain the previous year): “As to the question of when a person under the age of majority can decide things for himself or herself: see Gillick v. West Norfolk & Wisbech Area Health Authority,  3 All E.R. 402 (H.L.).” However, this comment, which was enclosed in parentheses, was in the nature of an aside. The judge was arguing that a family advocate isn’t obliged to take instructions from children “even if they are of an age of sufficient maturity to give instructions.” This statement does recognize that, at some point, children are mature enough to make their own choices, even though the judge felt that this principle didn’t apply in the present situation.
8 In 2019, the BC Supreme Court released a judgment where a 14-year-old transgender boy, “A.B.,” was judged capable of consenting to hormone therapy in order to transition to his preferred gender, despite his father’s objections. The judge also permitted A.B. to apply to legally change his name and gender without parental consent and ruled that attempting to persuade A.B. to abandon treatment for gender dysphoria would be considered family violence under s. 38 of the BC Family Law Act, as would addressing A.B. by his birth name and referring to him as a girl or with female pronouns. See A.B. v. C.D. and E.F., 2019 BCSC 254.
9 The terms custody and guardianship are often used to mean basically the same thing, although some laws make a distinction between the two in terms of the kind of rights over a child that someone has. We tend to think of “custody” as something that a parent has, whereas we tend to think of a “guardian” as someone other than one of a child’s biological parents. But this isn’t necessarily accurate. A parent may or may not be a child’s legal guardian, while, depending on the terminology used in a specific law, someone who is not one of the child’s parents may be granted custody of the child.
10 This is from the UN committee’s “General Comment No. 8 (2006): The Right of the Child to Protection from Corporal Punishment and Other Cruel or Degrading Forms of Punishment,” https://resourcecentre.savethechildren.net/sites/default/files/documents/gc8.pdf, para. 2. In particular, article 19, paragraph (1), of the Convention instructs governments to “take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.”
11 Provinces also have laws about withholding access. For example, in Ontario, if a parent refuses to allow a child to visit the other parent, section 36 of the Children’s Law Reform Act makes it possible for the parent who has been granted access to obtain a court order directing the police “to locate, apprehend and deliver the child to the person named in the order.”
12 Either the parents or their child can contact the Office of the Children’s Lawyer, but it exists to represent the interests of the child, not the parents. However, representing someone’s interests—that is, making sure the person’s views get a fair hearing—isn’t necessarily the same thing as agreeing with those views.