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April 2009
My mom says yes, my dad says no!
Do you remember that child in Gatineau who was punished by her father? She wasn’t allowed to go on her school’s year-end class trip. The girl asked the Court’s permission to go anyways. The Court agreed to let her go after examining the tense relationship between her divorced parents.
Although the girl has long since returned from her class trip, the Court of Appeal agreed to examine this unusual case. The highest Quebec court’s decision allows everyone to understand when and why a judge should accept this type of request.
You are still a parent even if you must parent from afar
The Court reminds parents of the state of the law: both parents have the right to make decisions concerning their child. This is true even if they are separated, divorced, never lived together, or if the Court gave only one of them custody.
In practice, the parent with whom the child lives must make all of the immediate day-to-day decisions. This doesn’t mean that the other parent doesn’t have a say.
It’s a bit like when a married couple is separated because the mother had to travel to another country. She doesn’t cease being the mother of her children even if in her absence, the father has to make decisions, on his own, about the children’s daily concerns. When the mother calls, she may very well insist that the youngest be enrolled in soccer, or that the children be in bed before 9:00 p.m.
A parent who does not have custody has the right to participate in important decisions. He also has a say in minor ones that could hinder his child’s development, or negatively impact his child’s health or safety.
For example, the parent who has custody usually prepares his child’s lunches. If the other parent realizes that his child never has enough to eat, he can call the custodial parent and ask that the situation be corrected. Should it persist and if it may harm the child’s health, he could take it to Court.
Your child also has a say in the matter
The law allows a child to ask the Court to make a decision when his parents can’t agree and neither of them wants to take it to Court.
Be careful! This is not an absolute right! First, the Court must accept to hear the child’s request. The Court will only do so if the issue can compromise the child’s health, safety or education. A child can’t go before a judge to say that he doesn’t like eating broccoli!
Going back to the Gatineau case, there was a disagreement between father and daughter leading to the father’s decision of forbidding her from going on the class trip. The daughter decided to go live with her mother who agreed to let her go. The parents were at odds and it was certainly not up to the school board to decide what should be done.
Based on what she knew, the judge ruled that it was better to let the daughter go on the trip so as not to perturb her. Was this decision right or wrong? The Court of Appeal doesn’t say; it simply acknowledges that the judge applied the right rules and that her decision was founded. That's why it had to be respected.
