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

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

An important step before expanding on the subject of parental authority in the context of the breakup of a couple is to reiterate the basic principles related to the civil law concept of parental authority.  This section gives a brief overview of the exercise of authority in the united family.

Quebec civil law, like the law of all other civil law jurisdictions, uses the concept of "parental authority," which encompasses most of the attributes needed to raise children.  Parental authority can be analysed as a blend of rights and duties:  while it does entail rights, it is first and foremost a responsibility, namely the responsibility of overseeing all aspects of the raising and nurturing of children.

Patterned largely after the Napoleonic Code of 1804, the Civil Code of Lower Canada of 1866 used the term "puissance paternelle" [patria potestas]:  authority was vested in both parents but was exercised, so long as the couple were together, by the father alone.  The notion of "custody" did not exist in the old Civil Code, not even in the chapter on judicial separation, article 214 of which simply stated that children were entrusted to the spouse who obtained the judicial separation (emphasis added).  It was not until 1969 that the term "custody" first appeared in the Civil Code.[3]

In 1977, the Quebec legislature followed the lead of French law by replacing the phrase "puissance paternelle" with "autorité parentale" [parental authority] and, more importantly, by introducing the principle of joint exercise of that authority by the father and the mother equally.  The concept of joint exercise of parental authority has not changed since 1977.  However, in 1994 (the year the new Civil Code of Québec came into force), the National Assembly complemented the notion by introducing the principle of "legal tutorship of parents." This right of tutorship means that in addition to exercising authority over the person of their children, the parents also jointly represent their minor children in exercising their civil rights and jointly administer their patrimony.[4]  Parental authority and legal tutorship are automatic effects of filiation and exist irrespective of the parents' marital status.  The moment filiation is legally established, whether or not the parents are married, parental authority and tutorship are exercised by the two jointly.

In keeping with civil law tradition, Quebec law stipulates that parental authority includes "the rights and duties of custody, supervision and education of their children" and the obligation to maintain their children.[5]  Beyond this general principle, parental authority also implies more specific responsibilities which are set out in many Quebec statutes as well as the Civil Code.

Examples include the right to consent to care required by the state of health of a minor[6] and the right to consent to the marriage of a minor.[7]  Shared responsibility in the exercise of parental authority and legal tutorship is provided for in a practical manner:  where the father or the mother performs alone any act of authority concerning the child or an act related to the exercise of tutorship, he or she is, with regard to third persons in good faith (daycare, school, hospital, financial institution, etc.), presumed to be acting with the consent of the other parent.[8]  Joint exercise of parental authority therefore does not actually require the physical participation of both parents.  This is a common-sense rule that applies to united families and separated families alike.

In civil law, parents can lose parental authority under a declaration of deprivation.[9]  Deprivation may be complete or may apply to only one attribute of the authority.  Complete deprivation leads not only to loss of parental authority, but also and automatically to loss of tutorship.  Where an attribute is withdrawn, the court may decide whether or not tutorship is also lost.[10]  Deprivation or withdrawal of an attribute may not be imposed unless it is in the interest of the child and where there is a grave reason.  The case law is consistent in stating that deprivation of parental authority entails a value judgment on the parents' basic failings in exercising their authority (violence, abandonment, gross neglect, etc.).[11]  A declaration of deprivation or withdrawal is not necessarily final because a parent may, on producing evidence of new circumstances, have his or her authority restored.[12]  Restoration of parental authority is somewhat theoretical, however.  In reality, deprivation of parental authority is usually a step toward the child being adopted.  It is therefore important to note that the deprivation of parental authority and the eventual assignment of parental authority under a custody order are two entirely different things.  We will not address the deprivation of parental authority in this presentation, as deprivation is an extraordinary measure not taken in ordinary cases of divorce or separation.

To conclude this brief overview of the principles governing the exercise of parental authority in a united family, we underscore a point that takes on its full meaning in a situation of separation or divorce:  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),[13] whereas child-raising is the moral element.

In the context of a united family, this distinction is of course never an issue.  However, when custody is granted to one of the parents following a separation or divorce, the question that arises is what effects that assignment has on the exercise of parental authority, which as we just saw is a far broader concept than custody.

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