Read this:
http://www.cbc.ca/canada/montreal/story/2009/04/07/mtl-quebecgirl-sues-dad-0407.html
Now, obviously, there MAY be all kinds of issues here the story doesn’t go into.
Still… is denying a kid permission to take a class trip REALLY cruel and unusual punishment? And how are Canadian courts going to avoid being DELUGED with suits like this?
Most ridiculous story I have read today. How is he supposed to raise an almost teenage daughter if he isn’t allowed to enforce consequences for rule breaking? Guess that’s why she lives with her mother now. I hope they can repair their relationship in the future.
That whole mess is wrong on so many levels, I can’t begin to count them.
But the fact that a court even took the case in the first place is what I find scary. And the fact that they found in favor of the child is terrifying.
There was a previous thread on this that I can’t find now, but basically the father was probably using this as a tactic in an ongoing custody dispute. The school had permission from the mother for the girl to go on the trip but the father refused permission. The parents had joint custody and the school judged that the girl was qualified for the trip but didn’t want to get involved in taking sides in a custody issue, so it ended up in the courts. (If Quebec is like Ontario, any family law cases involving children automatically have a court-appointed lawyer assigned to specifically represent the child’s interests, which is probably where the court case started if this lawyer saw the girl as adversly affected by an apparent attempt by dad to strike at mom disguised as a disciplinary issue.)
The latest court decision is less of an affirmation of kids’ rights over parental disciplinary rights as it is a refusal to get involved any further (especially as the original school trip grounding is now moot).
[thread=472355]Here is the thread[/thread]. (This story began nearly a year ago, but this recent decision is the Court of Appeals’.) Yes, in my recollection the main legal problem here was that the parents had joint custody of the daughter, and the mother had agreed to send her on a school trip, but the father had refused. So the court had to decide who had the right to take this decision.
A Microsoft Word version of the recent court decision is actually available on the Quebec courts’ website’s main page. (Direct link if needed, .doc file.) I can only find it in French. Reading the facts of the case, it appears that the father was the main custodial parent (9 days out of 14) but had expelled the daughter from his home at the time he decided to forbid her from going on the trip. So the daughter was living with her mother full-time. What is odd is that the daughter contacted a lawyer on her own volition; the mother actually didn’t want to involve the courts at first. But I guess that given the amount of bad blood between her parents, she’s quite familiar with the concept of lawyers.
The Superior Court decided that both parents had custody, and that it therefore had to decide on the basis of the child’s best interests. It decided, first, that the trip was safe (one of the father’s objections), and second, that the child had been punished enough for her behaviour, having been forbidden from participating in another activity. It also decided that, given that she was now living with her mother only, the mother would be the only parent with the ability to take this kind of decision.
The father appealed on the grounds that the Superior Court was not abilitated to take this kind of decisions. The Court of Appeals disagreed, saying that this conflict of parental responsibility could not be resolved through conciliation. This is where we’re at now. The father is apparently now thinking about appealing the issue to the Supreme Court.
Yes, I think that’s correct. The court decision mentions the “avocate aux enfants” (children’s lawyer), which is probably what you’re describing. The daughter had apparently seen her many times since May of 2007.
Superb response, Hypnagogic Jerk. And it helps illuminate that the case isn’t as cut-and-dried as initially reported.
Sounds like the girl is a smart cookie, either way. Hopefully she’s wrangled everything to her own best wellbeing.
Does the dad get to call the daughter up and leave her an angry answering message saying she was a thoughtless little pig now?
Why thank you! 
There is one thing I want to add. Most people who think this judgment was a terrible thing appear to believe that it sets a precedent, and a bad one at that: children can now get courts to rule on whether their parents should punish them or not. The way I read the decision, no such thing happened. In family law cases where there is a conflict between the authority of both custodial parents, a court must base its decision on what it believes to be in the best interest of the child. Now there is room for honest debate on whether the Superior Court judge took the best decision or if this girl should have been punished further, but both these positions would be entirely in keeping with the above family law principle. And neither would have been precedent-setting. If a child’s custodial parent(s) give them an order, the child must still obey, within the limits of the law.
It remains to be seen if the father will appeal the decision to the Supreme Court and if the Supreme Court will agree to hear it. Our Canadian law experts may correct me if I’m wrong, but I don’t think they’re obligated to take the case. And I don’t see the Supreme Court striking down the principle that family courts must keep the best interest of the child in mind when handing down judgments. What I suppose they could do is rule that the original judge erred and that the kid should have been punished further (or that the trip was insufficiently safe). But what are they going to do about it? Wipe her memory? 
Since there was no precedent set in this decision, and the issue is now moot, the Supremes may not see it as very interesting.
You’re correct–the Supreme Court of Canada has no obligation to agree to hear the case, and I cannot think of any reason why they would. It seems pretty settled, and is, as you note, moot.
And I’ll add another “Great response, Hypnagogic Jerk!”
I agree wholeheartedly that Hypnagogic Jerk’s answer was a beautifully crafted and thorough explanation of why the case went ahead and was properly dealt with.
But let me bring something before you all: I think there’s general agreement that (A) A child has no valid cause for complaint if, in response to misbehavior, he or she is grounded for a weekend by the custodial parent(s), but (B) a child can and should bring the full measure of the law to bear if his/her parent whips his/her bare back and bpttom with a horsehide whip until it is lacerated and bleeding in a dozen places. Therefore there is a line somewhere between those two extremes defining the degree of punishment above which a child should speak up and demand intervention and below which he/she should not. You find that point by case law (or possibly by statute, if a legislature chooses to examine exhaustively the potential punishments and their degree of severity). A court would grant summary dismissal as frivolous of a suit in the first example and actively pursue child abuse charges against the parent(s) in the second example – and might choose to hear something in between, to better define that line.
It doesn’t surprise me that there was a bit more to the story than originally reported. Part of me figured this was LESS about a little girl using the courts to throw a tantrum, and MORE about a divorced couple playing petty “War of the Roses” games with each other.
But if that IS what’s at the heart of this, I’d expect any rational judge to tell the parents, “Figure this out and work out some kind of compromise like adults, and don’t drag US into something as stupid as this.”
I read the court decision (that Hypnagogic Jerk so nicely summarized) and was quite surprised about how much had been left out of the reporting I had heard/read. I know, I know, I am hopelessly naive.
When I first heard about the case, like most people I thought it was ridiculous and that the court had no business getting involved. But after reading the decision, that is no longer so obvious. It sounds like the father is a real hard-ass.
I found it interesting that she has a twin brother who is still living with the father. Also, the mother was a chaperone for the school trip, which was a big deal, occuring as it was during Quebec City’s 400th anniversary.
It is a pretty sad situation for all involved.
Mediation/conciliation between the parties is the suggested remedy in cases like this one, but when this cannot work, the court is enabled to render a judgment. In this case, the parents are barely speaking with each other; I also suspect that the fact that there was little time left before the trip when the conflict arose didn’t leave much time for compromise.
Now there is something unusual with this case, and I alluded to it earlier, but I didn’t insist on it: the daughter herself asked her lawyer to begin proceedings. The Court of Appeals’ decision spends a lot of time discussing the legality of this infrequent occurrence. Even if suits regarding parental authority are usually brought on the behalf of one of the parents, a child is permitted to sue in exceptional cases.
However, this must be authorized by the judge, and it is understood that it must remain rare. The appellate judge kind of splits the apple on this, writing that the Superior Court judge did not err by hearing the daughter’s request, but probably wouldn’t have erred either if she’d refused to hear it and asked the mother to bring suit instead. (The mother would have.) See paragraphs 61 and 27 of the decision.
In fact, this unusual circumstance is the main reason why the Court of Appeals agreed to hear the case. The daughter and mother attempted to block the appeal, given the issue’s mootness, but they were rejected because the case was considered to raise important questions of law. (Paragraph 32.) So this means it is not impossible that the Supreme Court choose to hear it (if the father asks), on the grounds that the right of a child to bring suit in a parental authority case did not apply in this particular instance. Of course, this is still a far cry from “children can now sue when they’re grounded”. This was a very exceptional case, and the appellate judge spends pages driving this point home.
My French is as rusty as Google’s, so I apologize in advance if I’ve misunderstood anything, but I’m going to quibble a little bit with Hypnagogic Jerk and suggest that the implications here may indeed be quite broad.
I read the court’s opinion to say that it was disputed whether the father expelled her or she moved permanently to her mother’s on her own.
As I read it, the court is saying that authority over decisions about a child’s day-to-day activities ordinarily is vested in the parent with whom the child is residing, unless the activity poses an unusual risk to the child’s safety. Here, the court found no such risk, and therefore, because the daughter had moved in with her, the mother’s decision was controlling.
The implication of this decision, it seems to me, is that a twelve-year-old child is empowered to change the terms of parental authority, by changing who she lives with. In other words, whenever there’s a conflict between the parents over something that the child wants or doesn’t want to do (unless it’s a serious safety threat), the child gets to decide which parent wins.
I don’t practice family law, so maybe I am misunderstanding something, and maybe this decision is less unusual than I’m portraying it. But on its face it seems surprising.
Sorry for getting back here so late; I had work to do.
From paragraph 14, the girl being thrown out of her father’s house is her word only. I can’t find what the father’s word on the subject is. But from paragraph 17 he didn’t contest the mother’s having undertaken procedures to have her sole guardianship of the girl being recognized. I do note that whether he expelled his daughter or she left on her own, he didn’t seem interested in her coming back, but he still wanted to “punish” her. (From his word, she can come back is she recognizes his authority.)
That’s not my reading. Paragraphs 41 to 43 describe a few routine situations in which the parent with whom the child is residing has total authority, but then paragraph 44 mentions that “[c]ela ne signifie pas que le parent qui n’est pas avec l’enfant est dépouillé de l’autorité parentale; juridiquement, il en demeure toujours investi.” (The parent who is not with the child is still by law invested with parental authority.)
Your understanding of the decision probably comes from your reading of paragraph 49. To be honest I don’t find it completely clear. As far as I can tell, what the judge probably meant is, the mother must take day-to-day decisions regarding the child’s life, seeing how they live together. However, the father is imbued with parental authority and can indicate his opposition to these decisions if he believes they are not in his daughter’s best interest or compromise her health, safety, development, etc. (I don’t see anything here about it having to be an unusual risk, it can just be some mundane risk.) If this happens, he should try to strike a compromise with the mother; if this doesn’t work, he can bring the dispute to the Superior Court.
Of course, this isn’t what he did: he called to school board to express opposition to his daughter’s participation to the trip. With this deadlock caused by a conflict of parental authority, the Superior Court could intervene if summoned by one of the parties. But the point is the Superior Court based its decision not on the child living with her mother, and therefore the mother being the parent empowered to take decisions, but rather on a clear conflict of parental authority allowing the judge to take the decision based on her own beliefs regarding what is best for the child. Or in other words, if I understand the decision correctly, the mother could have sued to get her daughter on the trip even if the daughter had still been living with her father. From paragraph 48, “[e]n cas de conflit entre les deux parents relatifs à l’exercice de l’autorité parentale, le parent qui estime que la question en litige est si importante pour le meilleur intérêt de l’enfant qu’un tiers doive s’y pencher peut s’adresser à la Cour supérieure (art. 604 C.c.Q.).” The mother could argue that her daughter not being on this trip wouldn’t have been in her best interest.
And in my understanding, the child doesn’t change the terms of parental authority by changing who she lives with. She changes who takes the proximate decisions, but the other parent remains with complete authority and can express opposition (or even bring suit) against these decisions if he does not believe they are in the best interest of the child. It doesn’t require any “serious safety threat”.
But that’s an interesting debate over this decision we’re having. Now I see why we have lawyers!
Thanks for your reply. I had missed the part where there had been a proceeding to recognize a change in the guardianship, and I think this addresses one of my main concerns. It thus was not just the child’s own actions that effected the change, which was was seemed so odd to me.
I think I’ll stick to practicing in my own language.