Family law considers the role of each parent

Joyce Blond Frank B.A., B.C.L., LL.M.

June, 2010

Quebec law has always tried to protect its children. Under the 1866 Civil Code of Lower Canada, both parents, as a result of their marriage, had an obligation to nourish, maintain and raise their children.

Children remained subject to the authority of their parents until the age of majority but only the father exercised this authority during the marriage. A minor child could not leave his parental home without the father’s consent. It was the father who had the right to exercise moderate and reasonable correction upon the child and only where the father was not available was this right given to the mother.

The very wording of the law indicated a presumption that the parents were married. In those days the codified civil law of Quebec did not provide for divorce, but only for “separation from bed and board.” Upon separating, the provisional care of the children remained with the father, whether he was plaintiff or defendant, unless the court ordered otherwise.

The final decision on custody went in favour of the spouse who obtained the separation unless the court decided otherwise upon consultation with a family council. Both parents retained the right of surveillance over the maintenance and education of their children as well as the obligation to contribute financially according to their capacity.

As time went on, the “tender years” doctrine favouring maternal custody of young children came into vogue and those fathers who wanted custody were told that their chances of obtaining it was small.

As time passed, the courts started to look at what was in the best interest of the child. Then the 1980 revision of family law provided for equality between the spouses. Both parents had equal say when a minor child wanted to leave home or required some form of discipline. Provisional care of the children upon separation was no longer automatically given to the father; the court decided, and it decided in the best interest of the child. The same was true when the separation became final; the family council was no longer required.

Today, decisions concerning a child are made in his best interest, which includes stability and maximum contact with both parents. There is nothing in the law that favours exclusive custody over shared custody and current recommendations regarding changes to the divorce act have rejected favouring one over the other.

Sometimes one parent is granted exclusive custody while the other is accorded visiting rights, sometimes the parties are awarded joint custody and sometimes shared custody where the children go from one household to the other for specified time periods. Custody may even be awarded to a third party if the parents are deemed incapable of caring for them. The reasons for a separation may not constitute a sufficient motive for refusing to grant custody as long as parental capacity is established.

We can predict that in the near future the concept of “custody” will be replaced by “parental time.”

The law states that every decision concerning a child is to be made in the interest of the child and with respect of his rights. Some of the factors to be considered when awarding custody are the moral, intellectual, emotional and physical needs of the child as well as his age, health and personality, the parent’s behaviour towards that child, parental affection, the capacity to properly care for the child and the family environment. Using these criteria, the court will determine custody. Each case is decided on its own merits. Whichever parent is awarded custody, both parents retain parental authority over their children and in Quebec the law emphasizes the involvement of both parents in decisions concerning the well-being of their children.

We can predict that in the near future the concept of “custody” will be replaced by “parental time” during which period each parent will exercise his “parental responsibilities.” Similar changes have already occurred in other jurisdictions.

In France, the law no longer speaks of “the custodial parent’’ but rather of “the parent with whom the child will normally reside.” In Belgium, co-parenting has become the rule, which can only be set aside if a judge decides it is not in the best interest of the child. The emphasis is on the location of the child’s principal residence and the terms primary and secondary residence are used. Similar laws also exist in Germany and Holland.

Society has changed. Many women work outside the home and men have become more involved with their children’s upbringing and education. As a result, the concept of shared custody is gaining in popularity although there is disagreement among professionals in the mental health field as to its value.

In all cases, however, it is the best interest of the child that will be the determining factor and one of the criteria in deciding this issue is that the child have maximum contact with both parents. Even though it is still usually the mother who acts as the main caretaker of the children and obtains custody at separation or divorce, the courts recognize that the father plays an important role in the life of the child from birth and it is important that bonding be established between father and child as early as possible so that as long as parental capacity is established, shared custody is to be favoured in order that the child’s relationship with either parent is not restricted. There is definitely a trend toward a greater role for separated fathers in the lives of their children if they want it.