Édith+Deleury+&+Dominique+Goubau,+Le+droit+des+personnes+physiques

para. 630: L'enfant était, historiquement, __objet de droit__ (soumis à la puissance parentale, et sans les droits des adultes). L'enfant est maintenant __sujet de droit__, tout comme les adultes. 33 CCQ states that a child's rights must be respected. This might seem funny because all rights must be respected, but this is here to emphasize that children do have rights.

para. 631: - Children have all the same liberties and fundamental rights as adults, as enumerated in the Canadian Charter, the Quebec Charter and the CCQ.

para. 632: - Simply recognizing that a child is a "sujet de droit" like an adult does not afford adequate protection. - The juridical status of "minor" is a delicate balance between autonomy and the need for protection. - Examples of protection of children: civil incapacity, "tutelle", juvenile delinquent protections (ex: kid's name not published), Quebec's loi sur la protection de la jeunesse.

para. 633: - The CCQ has two general provisions on child protection: Art. 32: "Every child has a right to the protection, security and attention that his parents or the persons acting in their stead are able to give to him." Art. 33: "Every decision concerning a child shall be taken in light of the child's interests and the respect of his rights." Art. 34: "The court shall, in every application brought before it affecting the interest of a child, give the child an opportunity to be heard if his age and power of discernment permit it."

para. 634: - The right of a child to be protected by parents is new to the CCQ but it not new generally: it existed in the Quebec Charter.

para. 635: - Best interests of the child arises in the following situations: custody, access, adoption and protection of youth. - Art. 33 concerns "every decision concerning a child" so applies to a judge ruling on a child's name change, and can even be extended to "private" decisions, ie between parents.

para. 636: - The notion of best interest of the child was first legislated in 1980, though it existed in jurisprudence long before then. - Using //habeas corpus// arguments, courts had in the past argued best interests of the child against excessive paternal power. - Courts were split on defining best interests of the child: some argued it coincided with paternal power; others emphasized the needs of the child herself. - In the 1980's, the SCC confirmed that it's the child herself's interests over all other considerations. Beetz J. wrote: the child's interests are the corner stone of decisions taken regarding a child. - In 1993, the SCC established that the best interests of the child conform with Charter principles.

para. 637: - The law doesn't define "child's best interests". Jurisprudence indicates that it considers needs that are moral, intellectual, affective and physical and that it accounts for age, health, character and family environment (art. 33, para. 2 CCQ). - The list is not exhaustive, invited unspecified other aspects of the child's situation to be taken into account. - Must be appreciated //in concreto// and no one factor outweighs the others. - The reform of the Divorce Act hoped to enumerate a detailed list of considerations for the child's best interest, but that was not adopted. This allows 'best interest' to adapt over time. 'Best interest' should remain flexible, and not be legislatively defined. - Non-juridical factors are taken into account and courts use the testimony of experts (doctors, educators, psychiatrists, etc). This should reduce the arbitrariness of 'best interests'. - "Even with what appear to be relatively simple facts, different schools of thought in the behavioural professions can lead to different conclusions. Like many concepts in the sciences, and particularly the behavioural sciences, "best interests" is subject to fads and fashions" [quoting Andrews & Gelsomino, CB p. 181]

para. 638: - Taking into considerations the child's interests implies that either (1) the child can give her opinion or (2) a lawyer or tutor represents the child.

para. 639: - Art. 5 CCP says that if a child is party to the trial, he must be heard by the judge. - Jurisprudence is increasingly accepting a child's intervention when the case involves her interests. - Even when the child isn't party to the case, she can be heard by the court if her interests are involved (art. 34 CCQ). - The CCLC allowed the judge to decide if a child would be heard. The CCQ forces a judge to hear a child unless she is too young or undiscerning. - Judicial discretion was lessened to judging aptitude of the child to testify, and no longer opportunity to testify.

para. 640: - In certain cases, it may be harmful to have a child testify (ex: on debates on custody between two parents). Art. 34 CCQ forces a court to hear the child if his age and discernment permit it. - A court cannot refuse to hear a child claiming its against her interests. We cannot interpret "discernment" to mean: being able to discern if testifying would be in her best interests. - Does this force children to be premature adolescents? We should not forget that the right to speak of a child comprises the right to silence. - When applied to kids, certain rules on testimony (oaths, requirement of corroboration, prohibition of hear-say) are modified.

para. 641: - The legislator wanted to minimize the trauma for a child of testifying in court. Normally the testimony is in the courtroom. If the best interest of the child require it, on consent of all parties, the meeting between judge and child can occur outside the formal courtroom (ie in the child's house, etc). - If in the child's best interests, she can be heard without the other parties listening if their presence would have an inhibiting effect. The parties then have access to a transcript of the testimony. - The child's testimony could also be a written submission.

para. 642: - Added protections include the general rule of hearings not being open to the public ("huis clos"); and the rule of confidentiality of the parties' and child's identities.

para. 643: - A child can always be accompanied by a person able to assist or reassure her (art. 394 CCP). This person is not a party to the case. - If the court hears the child outside the courtroom, the accompanier can still be present.

para. 644: - In order to protect best interests, a child has a right to a lawyer. - A court can adjourn for a child to find a lawyer if the judge decides its in the child's best interests to be represented. - A court can rule on how much the child's lawyer will be paid, and on who will pay the cost. - A court can order anything to assure adequate representation for the child.

para. 645: - A court must assign a tutor //ad hoc// to a child in all cases where the child's interests go against that of her parents or tutors.

para. 646: - Historically, it has been unclear how much discretion judges have to appoint a tutor //ad hoc//. Now, in the CCP: - If the child is represented by a lawyer, no tutor //ad hoc// will be appointed. - It is only if the child's parents are his legal representatives that an //ad hoc// tutor will be appointed.

para. 647: - Internationally, these rights are protected in the //UN Convention on the rights of the child//, 1989. Canada signed this in 1990. - The convention enshrines civil, political, economic, social and cultural rights and is based on the premise that (1) a child, as a human being, has the same rights and liberties as an adult and (2) as a vulnerable person, a child merits extra protections. - This reflects the dichotomy between a child's (1) autonomy (2) need for protection.

para. 648: - The UN Convention recognizes the best interests of the child as fundamental in all decisions about her. Specific child's rights are recognized (ex: the right to play, the right to identity, etc)

para. 649: - The Convention creates the UN Committee on the Rights of Children. - The right to life and to physical integrity are formally recognized in the Convention while economic, social and cultural rights are dependent on the limits of the state's resources. The Convention is more of a declaration of principles and intentions than a true charter of rights.