DIVORCE REFORM AND THE JOINT EXERCISE OF PARENTAL AUTHORITY THE QUEBEC CIVIL LAW PERSPECTIVE

SUMMARY

This study was prepared in 1999 at the request of the Department of Justice and it describes the civil law notion of joint exercise of parental authority and provides a critical analysis of how it is applied and understood in Quebec.  The purpose of this study is to determine whether, in the event of divorce reform, Quebec law offers an alternative in terms of parental roles.

PART I—PARENTAL AUTHORITY IN THE UNITED FAMILY: CONCEPT AND PRINCIPLES

Before elaborating on the issue of parental authority, it is important to reiterate the basic principles related to this concept.  These principles apply to united and separated families alike.

In keeping with the law of other civil law jurisdictions, Quebec civil law uses the concept of parental authority.  This concept can be analysed as being a blend of rights and duties.  Certain duties include the responsibility of providing for all aspects of raising and nurturing children.

Though it originally was patterned largely on the Napoleonic Code of 1804, Quebec law has since evolved a great deal.  As such, it has changed from being a system predicated largely on a the concept of "paternal authority" which entailed that authority was vested in both parents but was exercised, so long as the couple lived together, by the father alone, to that of "parental authority," a system with more shared responsibility in which the authority is exercised by the father and mother equally.

During this period of transformation, not only did the Quebec legislature change the terminology used, it also introduced the notion of custody in 1969 and the concept of "legal tutorship of parents" in 1994.  Legal tutorship gives parents the right to joint exercise of administrative rights as well as joint legal representation of their children.  In this manner, one can say that legal tutorship completes the rights and duties entrusted to parents in the scope of their parental authority.

Parental authority is also comprised of certain general responsibilities mentioned at article 599 of the Civil Code of Quebec (C.C.Q.), including "custody, supervision and education," as well as more specific responsibilities set out in many Quebec statutes and other Civil Code articles.

Both parents jointly exercise parental authority and tutorship.  However, this shared responsibility is provided for in a practical manner, meaning that in reality, the physical participation of both parents is not required.  Instead, there exists a presumption with regard to third persons in good faith, that where a parent performs alone any act of authority concerning the child or an act related to the tutorship, it is presumed that they are acting with the consent of the other parent.  Like tutorship, simply being a parent to a child confers parental authority.  However, this authority is not absolute since a judge may deprive parents of one or all attributes of their authority.  It should be emphasized that deprivation of parental authority is not final and it is imposed in the interest of the child and where there are grave reasons for its justification.  To conclude, custody is only one element of the concept of parental authority.  It can be said that custody is in a sense the physical element of parental authority (home, presence of the child, physical control over the child), whereas child-raising is the moral element.

The distinction between custody and parental authority takes on greater importance in the context of divorce or separation.  The issue that arises is what effect the assignment of custody has on the exercise of parental authority.

PART II—THE EXERCISE OF PARENTAL AUTHORITY AFTER SEPARATION OR DIVORCE

The application of the Divorce Act concept of custody creates some uncertainty in Quebec that has been noted in academic articles and jurisprudence.  The issue is to know whether or not to apply the civil law notion of custody, or on the contrary, the notion used in other provinces.  Most Quebec authors opt for an interpretation confined within the civil law of Quebec.  However, there exists a diverging body of case law to the contrary.  This explains why practitioners, like those in other provinces, have started making distinctions which incorporate pointless notions (joint legal custody) or notions foreign to Quebec law (physical custody).  Foreign because in principle custody is always physical, and pointless because the exclusive assignment of custody does not call the principle of joint exercise of parental authority into question.

In the legal environment, there exists confusion and a difference of interpretation in relation to the rights of the non-custodial parent.  However, it can be said that Quebec civil law is undeniably based on a general philosophy of co-parenting in the event of separation and it clearly rejects the theory that parental authority is concentrated in the hands of the parent with sole custody.

A. CERTAINTIES

1. Power of the Courts to Set the Terms of the Exercise of Parental Authority

Jurisprudence and the Civil Code recognize that the courts can determine the manner in which parental authority is exercised by giving the notion of custody a specific meaning on a case by case basis.  This power comprises, for example, the possibility of specifically ordering the joint exercise of parental authority by both parents or restricting certain parental rights.  In practice, it is relatively unusual for Quebec courts to set such specific parameters in assigning parental roles. They are satisfied to award custody to one parent and access to the other, with no further specifications.  On the other hand, restrictions or adjustments to a particular parental right are often included in judgments.

With regard to the power a court possesses in determining the roles of parents, Quebec law is no different from the law in the other provinces.

2. The Effect of the Awarding of Custody on the Existence of Parental Authority and Tutorship

An order granting sole custody of a child to one parent does not strip the non-custodial parent of his or her parental authority.  That principle has been upheld in case law since the Supreme Court of Canada ruling in C. (G.) v. V. -F. (T) rendered in 1987.  The application of this principle is less clear with regard to certain aspects of the exercise of joint authority.  Secondly, the non-custodial parent retains the exercise of the right to tutorship (article 195).  He or she may legitimately continue to represent the child in the exercise of his or her civil rights and the administration of his or her property.

Whether the parents are divorced or separated, Quebec civil law clearly establishes the principle of co-parenting in the exercise of the child's civil rights and the administration of the child's property.

3. Specific Acts Establishing Authority

The Civil Code, as well as many statutes, specifically grant the person having parental authority the right to act for a child in a certain number of situations, such as required consent, access to administrative records, and the right to receive information about the child.  In doing so, these statutes confirm that the non-custodial parent retains his or her right to take an active part in matters pertaining to the child and that a custody order does not deprive him or her of that right.  These statutes confirm that the principle of shared responsibility in the exercise of parental authority continues to be the rule.  The only exceptions to that principle are death, incapacity, and deprivation of parental authority.

The principle of joint exercise of parental authority, as a consequence, sets forth the presumption with regard to third persons in good faith, that a parent having authority who acts alone is presumed to act with the consent of the other.

4. Right of Supervision, Right of Challenge, and Right to Information

In civil law, the assignment of sole custody with no specification as to parental roles means that the non-custodial parent has an automatic right to supervision.  This right, foreseen by article 605 of the Civil Code includes the right to be informed of the child's situation and the right to challenge in court decisions made by the custodial parent.

Some courts rely on an ex contrario interpretation of this article to conclude that the non-custodial parent does not continue to have the right to participate a priori in major decisions concerning the child's upbringing.  Though this body of case law represents a minority view, it perpetuates the confusion over the sharing of parental responsibility in a family that has broken down.

B. UNCERTAINTY: PARTICIPATION OF THE NON-CUSTODIAL PARENT IN RAISING THE CHILD

The decision rendered in 1996 by the Supreme Court of Canada in W. (V.) v. S. (D.) confirmed the principle that without any indication to the contrary, it is the custodial parent who alone has the right to determine the residence of the child.  This practical solution fits logically into the concept of custody as it exists in Quebec and is generally supported by Quebec doctrine and case law.  However, if it is admitted that the physical presence of a child entails that the custodial parent make practical decisions regarding the child, what about the other more important decisions that affect the child's development and upbringing?

In our opinion, the approach taken by case law, which directs the child-raising authority into the hands of the custodial parent, is based on an error in law.  The non-custodial parent retains the right to participate in decisions that are not routine.  The Supreme Court of Canada unanimously established this principle in C. (G.) v. V. -F. (T.).  Article 605 C.C.Q. by no means limits, therefore, the exercise of the non-custodial parent's parental authority.  On the contrary, it adds a right, the right to determine the major choices affecting the direction of the child's life C. (G.) v. V. -F. (T.) to supervise and disagree with decisions made by the custodial parent, even if they are decisions which cannot be considered major.

There exists a fundamental distinction between the "assignment of custody" and the "exercise of parental authority." The assignment of custody does not deprive the non-custodial parent of the exercise of parental authority.  In Quebec, most of the case law and doctrine accepts the fact that the non-custodial parent retains the right to participate in major decisions about the child's upbringing as a consequence of the exercise of parental authority.

However, case law in Quebec is divided on the issue of assignment of parental roles following separation.  This division is largely due to recent Supreme Court of Canada decisions which give custodial parents most of the child-raising authority, in contrast with its unanimous decision in C. (G.) v. V. -F. (T.).  Despite the other Supreme Court of Canada decisions recently rendered, we think that the decision in C. (G.) v. V. -F. (T.) still represents the view of the Supreme Court of Canada on this issue.

C. THE VIEWPOINT OF FAMILY LAW PROFESSIONALS

Family law practitioners, as well as the general public, share the confusion that surrounds the issue of assignment of parental roles following separation.

This confusion has generated a concern for clarification among practitioners.  To remedy the confusion, practitioners have begun inserting very specific clauses in separation or divorce agreements that specify the terms and conditions under which parental authority is exercised. The clauses are often added for the sole purpose of expressly stating the principle of co-parenting.  Courts tend to render orders of joint custody or of joint parental exercise of authority.

D. TERMINOLOGY

Criticism of the terminology ("custody" and "access") reflects the desire to include both parents in the raising of their children.  However, the issue of terminology has not sparked a great deal of debate in Quebec.  The reason for this resides in the fact that Quebec law makes a distinction between the notion of custody and that of the exercise of parental authority.  Custody is only one element of parental authority and, therefore, does not affect the essence of that authority.

In reality, the problem is not so much the term used as the scope of its meaning.  The confusion surrounding the legal effects of the awarding of exclusive custody is the main cause of any dissatisfaction that may exist with the terminology itself.  The majority view in Quebec is that changing the legal terminology will not change the substance of the matter and that the real problem is parental awareness and the social perception of parental roles.

In practice, lawyers try to eliminate the problem of terminology by attempting to clarify the term "custody" or by simply trying to avoid using the word.  Therefore, they use expressions such as "joint legal custody" or "joint exercise of parental authority" not only to clarify the division of responsibilities but also to eliminate any ambiguity in each parent's dealings with third parties.  Thus, the term "custody" is often replaced with phrases such as "the child's schedule," "sharing of the child's place of residence," "the child is with the father from this date to that date and with the mother from this date to that date" and "custody time," etc.  Agreements are generally very detailed in this regard.

E. ADVANTAGES AND DISADVANTAGES OF THE QUEBEC SOLUTION

For the purpose of this analysis, it is assumed that where sole custody of a child is awarded to one parent, other aspects of parental authority are not affected.

The disadvantage of the solution afforded by Quebec law is that it is not sufficiently clear in the minds of the public or within the legal community.  I myself have already suggested that the Quebec law should be amended to eliminate any of this uncertainty.

By assuming that the principle of post-separation or post-divorce co-parenting is for the most part socially desirable, how can we assess the advantages of the solution afforded by Quebec law?

The most obvious advantage is that where sole custody is awarded to one parent, the non-custodial parent continues to share the responsibility of raising the child.  This does not mean (and this is another advantage) that the parents are equal, but simply that the parents have to cooperate in making major decisions concerning the children.  However, choice of residence and other day-to-day decisions related to the physical presence of the child are made by the custodial parent.  The non-custodial parent has a right to be informed about such decisions and a right of supervision once the decisions have been made.  The presumption relative to third parties applies as well.  Thus, the Quebec solution is fair and practical.

The solution afforded by Quebec law could in fact be an interesting option in the event of changes to the Divorce Act.  All it would take would be to:

  • introduce into the Divorce Act a distinction between the notion of custody and the notion of parental authority;

  • affirm the principle of joint exercise of parental authority after divorce, except where the interests of the child warranted a different solution;

  • establish the presumption whereby each parent acts with the consent of the other with respect to third persons in good faith.

The distinction between "custody" and "authority" is similar to the distinction made in some Canadian provinces concerning the terms "custody"and "guardianship." The latter in some ways is more akin to the civil law notion of parental authority.

F. COMPARATIVE LAW: IS THERE A "CIVIL LAW" APPROACH TO THE SHARING OF PARENTAL ROLES?

The traditional law of other civil law jurisdictions shows that the principle of co-parenting has not always been the rule.  Still, many civil law jurisdictions have in recent years made significant changes and there now exists a strong trend towards a rebalancing of parental responsibilities.  As such, France, Belgium, Germany and the Netherlands have recently modified their legislation to introduce the principle of shared responsibility.

In France, the 1987 and 1993 reforms modified article 287 of the French Civil Code to introduce the rule of joint exercise of parental authority.  In Belgium, Germany, and the Netherlands, the laws also underwent a similar evolution.  In these four countries, the legislation provides certain exceptions to the principle of joint exercise of parental authority.  Thus, when the interests of the child dictates, the judge may award the exercise of authority to only one of the two parents.

The reforms also extended to the terminology used in these countries.  In France, the word "custody" has been dropped in favour of the more neutral phrase "the parent with whom the child will normally reside." In Belgium, the statute of April 13, 1995, modified the Civil Code which uses the word "accommodation" instead of "custody." It is interesting to note, however, that the new terminology has not been embraced by all Belgian jurists.

The German Civil Code was modified July 1, 1998 by the Parentage Law Reform Act, and Dutch Civil Code was modified on January 1, 1998.

To conclude, the evolution of law in civil law countries restores the non-custodial parent's status as having shared responsibility for the upbringing of children while affirming that the interests of the child must take precedence in decisions concerning the child.

FOREWORD

This study was prepared over the summer of 1999 at the request of the Family, Child and Youth Section of the Department of Justice of Canada.  It comes in the wake of the Report of the Special Joint Committee on Child Custody and Access entitled For the Sake of the Children[1] and the Government of Canada's response, Strategy for Reform.[2]

In its response, the federal government supports "a child‑centred policy that will encourage parents to share the responsibilities of child rearing in a way that will allow both parents to have the opportunity to guide and nurture their children." The response also indicates that the government "will review the concepts, terminology and language used in family law with a view to identifying the most appropriate way to emphasize the continuing responsibilities of parents to their children and the ongoing parental status of both mothers and fathers post‑divorce."

In its report, the Special Joint Committee made several references to the specific situation of Quebec law, which, in keeping with civil law tradition, draws on the notion of "joint exercise of parental authority." The purpose of this study is to describe that civil law concept and the manner in which it is applied and understood in Quebec in order to assess the advantages and disadvantages." Reference to the solutions used in other civil law jurisdictions will serve to highlight the unique character of this concept.  The aim of my presentation is ultimately to answer the following question:  in the context of divorce reform, does Quebec law offer an interesting prospect in terms of parental roles?

I would like to thank Josée Lalancette for her invaluable contribution as research assistant.  I also wish to convey my gratitude to Pierre Daigneault, Roger Garneau, Carole Hallée, Suzanne Pilon, Sylvie Schirm and Pierre Valin, all experts in family law, who generously agreed to provide me with their views on specific aspects of the issue.

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