T.V.-F.+and+D.F.+v.+G.C.

(SCC 1987, on appeal from QC C.A.)
 * __T.V.-F. and D.F. v. G.C.__**

Wife files for divorce, and takes custody of two children. Wife then discovers she has a terminal illness. She entrusts the care of the children to her sister and sister’s husband (the children’s aunt and uncle). Husband wants custody of children. Children don’t get along with him (he has an authoritarian personality). He is granted custody by trial judge, but children run away repeatedly (at least 5 times). Children want to stay with their aunt and uncle, and the aunt and uncle want to be granted custody.
 * Facts**

In order to grant custody to aunt and uncle, do the courts have to deprive father of his parental authority?
 * Issue**

No.
 * Holding**

Deprivation of parental authority (art. 606 CCQ) is a very serious matter. It entails a complete loss of authority and parental rights (although not a loss of parental obligations). Depriving a parent of authority is a value judgment on the parent’s conduct. In order to deprive a parent of his/her authority, you need a serious cause.
 * Reasoning**

Note that deprivation can be total or in part. However, in both cases you need a serious cause, and it needs to be in the interest of the child. In the case at bar, there was no serious cause. Even though father has an “affectional incapacity” (i.e. he’s too stern), he loves his children and worries about their welfare. Just because he’s not capable of caring for them doesn’t mean that his parental authority should be taken away.

Court brings up example of someone who has a physical disability, and as a result can’t care for their children. In this case, custody may be granted to a third person, but the parent is not deprived of parental authority. They shouldn’t suffer that stigma, and should enjoy the other rights associated with parental authority (e.g. custody could revert back to them if the third person dies). However, in the case at bar it is still not in the children’s interest to remain with their father. The third party must demonstrate on a balance of probabilities that the development of the children will be compromised if they stay with the parent, and that the third party can provide the needed care and affection. The aunt and uncle are able to demonstrate this.

Court points to art. 33 CCQ (decisions must be taken in the child’s interests) to justify granting custody to aunt and uncle without depriving father of parental authority. He’ll still get access rights, and can write and phone children, etc.

Based on art. 33 CCQ, third parties may be granted custody of children without depriving the parent of parental authority, if it’s in the child’s interest.
 * Ratio**