In family matters, we all aspire to the same ideal: two parents who live in harmony and are present at every stage of their child’s life.
For some, however, life is not always that simple. In some families, various situations that harm the child’s life can arise. One example is a parent who abandons their child and disappears from the child’s life completely. Another is an unreliable parent who puts their child in danger through various careless behaviours.
In either of these situations, it may become necessary to protect the child from their own parent. Deprivation of parental authority, which takes parental authority away from the parent at fault, can then be the appropriate remedy.
What is parental authority?
Parental authority is a set of rights and obligations that a parent has toward their child, from birth until age 18. A child’s parents exercise this parental authority together, by mutual agreement.
The rights that make up parental authority include:
- Choosing where the child lives;
- Choosing the child’s school and courses, as well as the daycare;
- Consenting to health care;
- Follow-up with various professionals – psychologist, social worker, doctor, etc.;
- Choosing the child’s activities – individual and team sports, music lessons, trips, etc.;
- Choosing the child’s religion and their participation in religious rites (baptism, communion, etc.).
In general, then, it is the right to make day-to-day decisions about your child’s life until they reach the age of majority.
In return for these rights, a parent has the following duties toward their child:
- Custody;
- Supervision;
- Education;
- Feeding the child;
- Maintaining the child;
- Ensuring the child’s safety;
- Ensuring the child’s health;
- And protecting the child physically and psychologically.
These duties are often called the “attributes” of parental authority.
Does separation affect the joint exercise of parental authority?
Parents continue to exercise parental authority together, whether they are a couple or separated.
This means the parent with custody must obtain the other parent’s authorization before making any important decision about the children (for example, about education, health, the choice of school or religion). If the parents cannot agree, they can apply to the court. The judge will then make the decision based on the child’s best interests.
Example: Juliette and Julien have a 4-year-old daughter who will soon start pre-kindergarten. Juliette wants their daughter to attend a neighbourhood school a few minutes’ walk from their home. Julien, however, would prefer that the child attend another school in the neighbourhood, since that one is a few metres from a high school. Julien cannot register the child at the school of his choice, because Juliette has told him she disagrees. After talking it over, the parents agree that the child will attend the school Juliette chose. Since they agree on the choice of school, either Juliette or Julien can register the child there.
If the child’s birth certificate shows the name of only one parent, parental authority is exercised by that parent alone. This means that parent does not need the other’s approval to make a decision that falls under parental authority.
Example: Sirine is the mother of a 5-year-old boy, Bastien. When Bastien was born, Sirine did not declare his father on the act of birth. Bastien’s biological father has never come forward. Sirine is therefore the only holder of parental authority over Bastien. She can register the child at the school of her choice, move with the child without asking the father’s permission, and sign the child up for piano lessons on her own.
Do you see yourself in one of these situations? Do you have questions about your situation?
Contact one of our family lawyers today.
What are the consequences for a parent who loses (or is deprived of) parental authority?
A parent can lose all of their parental authority, but they can also lose only part of it. This is called “total deprivation of parental authority” or “partial deprivation of parental authority.”
Total deprivation of parental authority
Total deprivation of parental authority takes away all of the parent’s attributes toward the child: custody, supervision, education, maintenance, etc.
The parent therefore no longer has any say in the decisions made about their child. However, this measure does not break the bond of filiation with the child. The deprived parent’s name therefore remains on the child’s birth certificate. However, the child can apply for a change of name if they no longer wish to bear the deprived parent’s surname.
Since deprivation of parental authority does not break the bond of filiation, the parent’s support obligation toward the child still exists. The court can therefore both deprive a parent of all or part of their parental authority and order them to pay child support for the child’s needs.
As mentioned above, the deprived parent loses their rights toward their child. This loss can have various practical effects. For example, the deprived parent cannot inherit from their deceased child, even though the law normally provides that a parent inherits from their child.
Conversely, deprivation does not cause the child to lose any rights. The child therefore keeps the right to inherit from the deprived parent when that parent dies.
Partial deprivation of parental authority
Partial deprivation of parental authority takes away one or more of the parent’s rights and obligations toward the child, but not all of them. For example, a parent could lose the right to give their opinion on the choice of the child’s school, but still have custody every other weekend.
Example: Rym is 10 years old. Her parents are Rachel and Éric. Last year, Éric filed an application for partial deprivation of Rachel’s parental authority in the Superior Court. Rachel lost one component of parental authority, namely “education.” Éric can now register Rym at the school of his choice, without taking Rachel’s preferences or opinion into account.
How do you obtain the withdrawal (deprivation) of parental authority?
Only the court can order that a parent be deprived of parental authority. You must therefore file an application with the court. To do so, do not hesitate to contact our family lawyers, who can draft the appropriate proceeding for you and support you throughout the court process.
It is important to note that the court does not grant deprivation of parental authority lightly. The Supreme Court of Canada recognizes that “deprivation is a drastic, though necessary, measure for controlling parental authority” (our translation).
For a judge to agree to take a parent’s parental authority away, two criteria must be met and proven:
- There is a serious reason that justifies taking away all or part of the parent’s parental authority;
- And taking away that parent’s parental authority is in the child’s interest.
What is a “serious reason” that justifies taking away parental authority?
The meaning of “serious reason” can be defined by analyzing case law. However, we know this is not easy for someone without legal training.
Our family lawyers have represented many parents in this type of application and can tell you whether there is a serious reason in your situation. Do not hesitate to contact them.
Here are some examples of situations that have been considered serious reasons that can lead to deprivation of parental authority:
- A parent’s voluntary and inexcusable abandonment;
- The abandonment must be prolonged and unequivocal. According to a 2019 decision of the Quebec Court of Appeal, a parent’s absence from their child’s life for more than four years supports a finding of abandonment;
- For abandonment to be considered “inexcusable,” it must not be justified by the parent or by some other circumstance. In the past, courts have found a parent’s absence due to incarceration to be “excusable”;
- When deciding whether deprivation of parental authority is justified, the courts take into account whether the parent paid support, even if the parent voluntarily and inexcusably abandoned the child;
- A threat to the child’s safety;
- For example, a parent who leaves the child alone with a dangerous person;
- For example, a parent with a serious substance abuse problem who becomes intoxicated while caring for the child and puts the child in serious danger;
- Violent behaviour toward the child;
- For example, hitting, yelling at or threatening the child;
- A serious act against the child;
- For example, one or more instances of sexual abuse.
Finally, if the court finds that there is no serious reason justifying total deprivation of parental authority, it can still intervene and order partial deprivation of parental authority. For example, the court can take away custody rights from a parent who has been absent for some time and remove the need to obtain that parent’s authorization for medical and school matters, consent to care, passport applications and travel authorizations. This allows the other parent to exercise parental authority alone on these specific matters, despite the other parent’s absence.
The child’s interest criterion
The second criterion the court will analyze before deciding whether to order total or partial deprivation of parental authority is the child’s interest.
In most situations, the existence of a serious reason means by default that deprivation is in the child’s interest. In some circumstances, however, deprivation of parental authority may not be in the child’s interest even though there is a serious reason. This could be the case, for example, when a parent has abandoned their child for more than 4 years but comes forward during the proceedings and testifies that they want to be part of the child’s life.
Why apply to take away parental authority?
Taking away parental authority can be a way to keep your child safe. It is not a “punishment” for a parent, but a measure to protect a child.
Example: Things are no longer working between Andréanne and Olivier. They separate, and Olivier has sole custody of their son, Antoine. While Andréanne was with the child, she hit him in the face because she was “sick of hearing him cry.” Olivier and some neighbours witnessed the incident. Olivier believes it would be in Antoine’s interest for Andréanne’s parental authority to be taken away. The child is in danger when he is with her. Andréanne is unable to give the child care and affection. Olivier therefore files an application with the court. At the hearing, Olivier testifies before the judge about the violent incident and describes other acts of violence that occurred in the past. He also testifies that deprivation would protect Antoine. In Olivier’s view, it is therefore in the child’s interest. In her testimony, Andréanne admits that she was violent toward the child. Once the hearing is over, the judge will have to decide whether Olivier has shown a serious reason justifying deprivation and whether such deprivation serves the child’s interest.
Caution! A parent cannot apply to take away the other parent’s parental authority solely so that their new spouse can adopt the child. Such an application must be made in the child’s interest.
Difficulties in exercising parental authority
As mentioned above, deprivation of parental authority is not a cure for every problem. It is an exceptional measure.
When a parent has difficulty exercising parental authority, particularly because of the other parent’s interference, other types of remedies can be pursued as needed.
For example, you can apply to the court for permission to travel with the child (when the other parent strongly objects), or for authorization to obtain medical care for the child without the other parent’s consent.
Our family lawyers can help you present this type of application to the court.
Who can apply for deprivation of parental authority?
Any “interested person” can apply for deprivation of parental authority of a child’s parents.
The courts consider that the term “interested person” must be interpreted broadly. This means that an interested person can be the child’s grandmother, even if she does not have custody of the child.
Can a parent claim to be an “interested person” and ask the court to deprive them of their own parental authority? The Superior Court has concluded that they cannot: “Even if the Court were to conclude that the father had ‘unjustifiably’ failed in his duty as a parent, and therefore committed a fault, the Court is of the view that the father could not rely on his own wrongdoing, as he claims to be able to do here.” (our translation) (Source: C. H. c. J.-F. L., 2004 CanLII 20702 (QC CS))
Can a deprived parent regain parental authority?
Deprivation of parental authority is not irreversible. In rare cases, a deprived parent can regain their parental authority.
It is up to the deprived parent to convince the court that they should regain their rights and that this is in the child’s interest. The court will take into account the serious reasons that led to the parent’s deprivation. The parent must show that there are new circumstances that justify restoring their parental authority. Finally, the parent must show that they are able to fully assume their parental responsibilities.
Example: The court restored the parental authority of a father who had been absent from his child’s life for several years. The father raised new circumstances related to his employment, namely his retirement from the Canadian Armed Forces and his move to the region where the child lived. In addition, the serious reason that had justified depriving the father was not a threat to the child’s safety, but rather abandonment of the child.
Source: Droit de la famille — 17467, 2017 QCCS 929 (CanLII), appeal allowed solely to reword the operative part of the judgment: Droit de la famille — 18454, 2018 QCCA 368 (CanLII)
Caution: A parent who has been deprived of parental authority cannot regain it if the child was adopted after the deprivation was ordered. The adopter becomes the holder of parental authority over the child they adopted.
Contact our family lawyers
An application for deprivation of parental authority is an exceptional, complex procedure subject to strict criteria.
To get sound advice, do not hesitate to contact our family lawyers.
In particular, our lawyers can:
- Answer your questions about deprivation of parental authority and its effects;
- Assess the chances, based on your situation, that your application for deprivation of parental authority (or the application against you) will be granted or dismissed;
- Draft your court proceeding applying for deprivation of parental authority (or your defence against such an application if it is unjustified);
- Represent you in court and assert your rights;
- Suggest alternatives to resolve the difficulties you are facing, if deprivation of parental authority is not the appropriate remedy.
Note: The information above is general in nature and does not constitute legal advice. For advice on your particular legal situation, feel free to contact one of our lawyers in Québec City or Lévis.
