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Quebec Appellate Court Upholds Lower Court Decision Reversing Father's Grounding of 12-Year-Old:

I had blogged about the lower court decision here; the appellate decision is here, in French -- if anyone can translate whatever seem to be the key portions, I'd be much obliged. In the meantime, here's a CBC news account:

A Quebec father who was taken to court by his 12-year-old daughter after he grounded her in June 2008 has lost his appeal.

Quebec Superior Court rejected the Gatineau father's appeal of a lower court ruling that said his punishment was too severe for the wrongs he said his daughter committed....

In its ruling, issued Monday, the province's court of appeal declared the girl was caught up in a "very rare" set of circumstances, and her father didn't have sufficient grounds to contest the court's earlier decision....

[The daughter] had been living with her father after her parents split up when he grounded her in 2008 for defying his order to stay off the internet. The father caught her chatting on websites he had blocked, and alleged his daughter was posting "inappropriate pictures" of herself online.

Her punishment: she was banned from her Grade 6 graduation trip to Quebec City in June 2008, for which her mother had already granted permission.

The father — who had custody — withheld his written permission for the trip, prompting the school to refuse to let the girl go with her classmates.

That's when the girl asked for help from the lawyer who represented her in her parents' separation, and petitioned the court to intervene in her case....

The girl — who now lives with her mother — doesn't have much of a relationship with her dad now ....

Thanks to Ken at Popehat for the pointer.

Oren:

Her punishment: she was banned from her Grade 6 graduation trip to Quebec City in June 2008, for which her mother had already granted permission.

Well, he violated the most cardinal rule of parenting -- the more lenient parent always gets the final say.
4.9.2009 4:02pm
t-boy (mail):
My parents once grounded my from a long-anticipated trip because I didn't do the dishes on time. I was 9 years old. I learned my parents were serious and they were definitely in charge.
4.9.2009 4:13pm
ruuffles (mail) (www):

The father caught her chatting on websites he had blocked, and alleged his daughter was posting "inappropriate pictures" of herself online.

I imagine if this happened in the US, the appeal would be a criminal one by the girl for "sexting."
4.9.2009 4:16pm
alkali (mail):
[Translation via Google:]

Family Law - 09746 2009 QCCA 623
COURT OF APPEAL

CANADA
PROVINCE OF QUEBEC
REGISTRY
HOTEL
No: 500-09-018885-087
(550-12-020578-000)

DATE: 6 APRIL 2009


CORAM: THE HONORABLE PAUL ARTHUR Gendreau, JCA
André Brossard, J.C.A.
J. PIERRE Dalphond, J.C.A.


L. .. P. ..
CALLER - defendant
v.

X child
and
M. .. C. ..
Respondent - plaintiffs


OFF


[1] THE COURT - Acting on an appeal from a ruling of 13 June 2008 by the Superior Court, district of Hull (the Honorable Suzanne Tessier), which authorized the respondent to participate with X its class a trip to Quebec;
[2] After reviewing the record, heard the parties and deliberate;
[3] For reasons of Justice Dalphond endorsed judges Gendreau and Brossard:
[4] dismissing the appeal, without costs.


Paul-Arthur Gendreau, J.C.A.


André Brossard, J.C.A.


J. PIERRE Dalphond, J.C.A.

Me Kim Beaudoin
Counsel for the appellant

Lucie Fortin
Counsel for the respondent X

Jean-Pierre R. Lalonde, absent
Lalonde &Gagnon
Counsel for the respondent M. .. C. ..


Hearing date: 13 January 2009



MEMORANDUM OF COURT Dalphond


[5] The appellant appeals against a decision of the Superior Court that allowed her daughter, respondent X, age 12, to participate in a trip to end of primary school with the rest of his class when he s 's objection. The respondent Mr. .. C. .., mother, authorized participation and had even agreed to pay the costs (over $ 300) and accompany the group, but had been reluctant to initiate legal proceedings. That's when the girl contacted the lawyer who represented the past year in the changes to ancillary to divorce, which was addressed to the Superior Court by an application for safeguard measures. This request was granted, hence the appeal. In the meantime, the trip was made by X.

[6] This appeal does not address the merits of punishment that would impose a father to his daughter or the merits of the opposing position taken by the mother, but only the power of the Superior Court to intervene in such case.

CLAIMS OF THE PARTIES

[7] According to the appellant, who had been given interim custody of his daughter and his twin brother, he could only allow participation in extracurricular activities since it was a decision of the nature those of a custodial parent can take, without consulting the other parent. He added that the Superior Court has no jurisdiction to review at the request of a child a punishment imposed by the custodial parent.

[8] Counsel for the child replied that it was a clear case of conflict between parents on the exercise of parental authority and that, given the exceptional circumstances of the case, his client could turn to the Superior Court pursuant to Art. 159 of the Civil Code of Québec (C.c.Q.).

[9] The mother, who endorsed the position of his daughter in the Superior Court and filed a motion to dismiss appeal, she chose not to file memory and did not attend the hearing on the merits of the appeal.

IMPLEMENTATION CONTEXT

[10] X [...] was born on 1996 and has a twin brother. His parents were separated on 20 November 2000 and have since rebuilt their lives. The mother is remarried. As a father, he and his new partner are the parents of two young children.

[11] For some time, shared parenting is the subject of debate in court due to a lack of functional communication between both parents. This unfortunate situation has caused serious tensions reflecting on children's behavior. In May 2007, a lawyer is appointed to represent them.

[12] On 28 September 2007, ruling on the request for interim measures made in the divorce, the Superior Court awarded custody of children to the appellant at the rate of 9 to 14 days, approximately 64% of the time. It can not therefore speak of shared custody, but joint custody to the father with extended access rights for the mother (5 days out of 14).

[13] In September 2007, a psychosocial assessment is ordered. Despite the parents' consent to it, they are unable to agree on the choice of the expert, so much so that it is to be appointed by the Superior Court in January 2008. Thereafter, the expert meeting the children, their parents and some speakers, and then produces a report on June 9

[14] In the meantime, on 14 May 2008, a serious dispute broke out with X when she was in the caller. The appellant argues that it follows from punishment imposed on her daughter, while the latter said he was shown the door after a bitter exchange with the wife of his father.

[15] As is often the case, the outlook is different about the incident, but nobody questioned the severity of its consequences.

[16] First, the appellant believes that the behavior of her daughter had not been satisfactory and in line with what it had announced previously as punishment for failure, notify the School Board that it is no longer permitted to participate in the extracurricular activity to take place from 16 to 18 June in Quebec, leaving the classroom supervised by teachers and parents to celebrate the end of primary school and the 400th anniversary of Quebec City. It seeks reimbursement for the school fees paid ($ 319) and argues that it is the guardian of the child under the ruling of September 2007. Similarly, he refuses to give his daughter or his mother, despite a formal request of counsel for the mother, clothes for the dance year end [...], 6 and 7 June, in which event it may be involved.

[17] On the other hand, since then, X has no more contact with his father. She now resides permanently with his mother who asked the judicial recognition of this care (procedures not disputed by the appellant). After discussions with X, the mother gives permission for the participation of his daughter and shall pay the amount required by the School Board. The latter, before the formal refusal of the father who insists on his status as guardian of the child under a decision, refuses to settle and does not involve X-journey. I would add that the brother of X is permitted by both parents to participate and that the mother was chosen by the school as an accompanist of the group.

[18] Against this background, the daughter of his own initiative, addressed to counsel children with whom she had many contacts since May 2007. She asks him to get his clothes and dance to be permitted to travel. She refers to it that travel is very important to her that her father objects, his mother agrees that the School Board does not decide.

[19] After a few steps from the School Board to try to settle the matter, counsel for children finds that only a decision of the Superior Court could resolve the impasse seen the opposition's appeal, reaffirmed by the company's lawyer. On 10 June 2008, it served to parents and the school board a request for safeguard measures where the "plaintiff" is described as the mother, but the introductory paragraph and the conclusions sought indicates that the request is made by the Children X.

[20] This application is twofold: first, it requests permission for X to act directly in court under art. 159 al. 2 CCQ, then, she asked to declare that it can participate in the extracurricular activity.

[21] The same day, copies of the psychosocial assessment, just received by the lawyer for children, are given to parents. In its report, the expert points out in many places the lack of effective communication between parents and the degree of aggressiveness and resentment that feed to one another. He noted that the poor quality of relationships is reflected in the children and their development suffers. On several occasions in his report, the expert calls on the parties to participate in family therapy that would allow both parents to realize the negative consequences of their present attitude, the danger involved for the future development of children and the need to develop a minimum of communication and collaboration to achieve a better educational plan for children.

[22] In response to the request, the mother produced a sworn statement on 12 June 2008, where she claims to be in agreement with the approach of his daughter, the out-of-pocket expenses for travel and be a parent volunteer coach for this activity ; elle manifeste aussi son total désaccord avec la position du père.

[23] As to the appellant, it shall file a sworn statement where he explains that his daughter is becoming more rebellious and that participation in extracurricular activities at the end of the year is a privilege that no has not earned. He cites, among others, his early sexual behavior and insults allegedly made against him and his wife. He believed that his daughter takes advantage of the situation by manipulating his parents to his advantage. He also had doubts about the safety of travel in Quebec (inadequate supervision of her daughter).

[24] The school board does not act, if it is sent by his lawyer a letter confirming that X qualifies for the trip (good academic performance and good behavior) and that place has been reserved for it if the court to authorize his participation. The letter concludes by stressing that the school must be notified no later than 14 am on Friday, June 13

[25] The application for safeguard measures is presented on 13 June 2008. This point it is welcomed by the trial judge, hence the appeal.

[26] Before concluding this formal context, it should be noted that the appellant before us that he did not wish to resume contact with his daughter for as long as it will not recognize its authority d to impose sanctions and its obligation to comply. As for the twin brother, he continues to live with her father and her mother, 9 days with the first 5 days and the second cycle of two weeks.

JUDGMENT ATTACK

[27] After noting that the authorization provided for in art. 159 al. 2 C.c.Q. should be granted only in exceptional cases, as a general rule it is up to parents to enforce the rights of their child, the trial judge approves the submission of the request. In her view, the context is sufficiently exceptional to justify the approach to the child. It also stresses that the mother told her she would have made such a request if her daughter had not done so and accepted the request in court.

[28] Then, proceeding on the merits, it indicates that parental authority is for both parents and in case of conflict, it is the court to decide in accordance with Art. 604 CCQ, and in the best interest of the child. Depending on the evidence submitted, it concludes that the trip is safe, as organized by the School Board and supervised by teachers and parents, which rule the grounds of the objection of the father. As for another reason, namely that the child could not go there because of the punishment imposed by him and which the court had no jurisdiction, it rejects it. It concludes that the girl has been sufficiently punished by being prevented, a few days earlier to participate in another extracurricular activity at the end of the year (dance end of year) and that the refusal to allow participation Travel to isolate the girl from her peers as they prepare to take new paths. She also believes that the mother is now vested with the authority to make such decisions since X lies exclusively with her.

ANALYSIS

I. Remarks:

[29] First, it seems indisputable that we have a conflict with the exercise of parental authority. On the one hand, we have a father who opposes the involvement of his daughter to an extracurricular activity and has asked to be reimbursed the amount he had paid for this purpose and, second, a mother which not only agrees to the involvement of his daughter to this activity, but participates as an accompanist and has paid the school fees of the trip in place of the father.

[30] While it is true that the refusal of the father due to the imposition of punishment as a result of certain actions taken by his daughter, the fact remains that the Superior Court had before of what had become a conflict of parental authority between parents separated, one opposed to the participation of girls in extracurricular activities and other, on the contrary, very much in favor of participation.

[31] Furthermore, the position of a third party, the school board, which motivates judicial intervention. Indeed, aware of the disagreement between parents and anxious to avoid any legal problem or other, it does not allow the participation of the girl to travel despite the advance registration accepted, receiving payment and required the consent of the mother guardian de facto exclusive X.

[32] Secondly, we must stress that the two respondents, the daughter and mother have filed motions to dismiss that appeal to the Court, on September 2, rejected on the grounds that even if the appeal had become moot a matter of fact, the journey having taken place, it nevertheless raises questions of law which should be analyzed by a panel of the Court sitting at the bottom.

[33] These questions, two in number, are the jurisdiction of the Superior Court to act in such circumstances and the possibility for a minor to file an appeal if this court has jurisdiction.

[34] In sum, this appeal is not aimed at determining whether the punishment imposed was appropriate or not, but only if the Superior Court had jurisdiction to intervene, and on the initiative of the child. For reasons that follow, I would answer yes to both questions.

II. Relevant Legislation:

[35] The relevant articles of the Civil Code are:

33. Decisions concerning the child must be taken in its interests and the respect of his rights.

Are taken into account, besides the needs moral, intellectual, emotional and physical aspects of the child, his age, his health, his character, his family and other aspects of his situation.

34. The court shall, whenever it receives a request involving the interests of a child, giving him an opportunity to be heard if his age and power of discernment permit it.

159. The minor must be represented in court by his guardian, his actions are brought on behalf of the latter.

However, the minor may, with leave of the court, institute alone an action relating to his condition, the exercise of parental authority or an act for which he may act alone, in these cases it can act alone in defense.

192. In addition to the rights and duties related to parental authority, the father and mother, they are major or emancipated, are automatically guardians of their minor child, to ensure its representation in the exercise of his civil rights and to administer its assets.
They are their child conceived but not yet born, and they are responsible to act for him in all cases where his patrimonial interests require.

193. The father and mother exercise tutorship together, unless one is deceased or is unable to express his will or to do so in due course.

195. When the child is the subject of a sentence, the Trust continues to be exercised by the father and mother, unless the court, for grave reasons, decides otherwise.

196. In case of disagreement with the exercise of supervision between the father and mother, one or the other may enter the court of the dispute.

The court decides in the interest of the minor after fostering the conciliation of the parties and obtaining, if necessary, the opinion of the tutorship council.

598. The child remains under the authority of his father and mother until his majority or emancipation.

600. The father and mother exercise parental authority together.
(...)

604. In case of difficulties relating to the exercise of parental authority, parental authority may refer to the court which will decide in the interest of the child after fostering the conciliation of the parties.

605. That the child was entrusted to a parent or a third person, whatever the reasons, the father and mother retain the right to monitor the maintenance and education and are required to contribute to proportion of their faculties.
(emphasis added)

III. In Quebec, parental authority belongs to both parents:

[36] Under the Civil Code, parental authority, such as guardianship, is automatically to both parents (art. 192 and 598 CCQ). These responsibilities are joint and neither one nor the other parents do in this regard to the greater authority or right of veto, whether married or not, they live together or not ( art. 193 and 600 CCQ).

[37] In an ideal world, the legal equality between parents should be reflected in the joint development of an educational project designed in the best interest of their child and making decisions that align with this project.

[38] The mere fact that a trial entrust the custody of a child to a parent does not invest any parental authority, nor give him guardianship role (art. 195 and 605 CCQ). Parental responsibilities continue to be joint (co) (D. (W.) v. A. (G.), [2003] RJQ 1411 (CA)).

[39] The theory of single-parent to exercise parental authority, which supports the parent to whom the custody is vested with all the parental authority over the child and may decide any matter relating to the child has no place in Quebec (see, inter alia, analysis of Albert Mayrand, "La garde conjointe, readjustment of parental authority" (1988) 67 Can. 193 and Nicole Roy, "Parental authority and the support obligation of parents towards their child: two institutions offering a conception of the interests of the child and the family", 2001 R. du B. 51). It has also been set aside in France, Belgium, United Kingdom and Australia.

[40] The fact that shared parenting stems from a ruling under the Divorce Act rather than the Civil Code does not change anything (D. (W.) v. A. (G.) , supra).

[41] Admittedly, in fact, the parent with whom the child resides only performs various manifestations of this parental authority: for example, get the child to school, take him to the cinema, require that it a helmet for cycling or skiing, set meal times and bedtime, etc..

[42] In reality, the responsibility for decision making on issues routine follows the child.

[43] In this respect, the situation is not different from that where a parent is traveling abroad and children remain at home with the other parent.

[44] This does not mean that the parent who is not with the child is deprived of parental authority, legally, it remains invested. This status will enable him, if necessary, to apply to the Superior Court if it concludes that certain decisions of the other parent with respect to questions, even routine, endanger the security, development or health of the child under its right of supervision of the maintenance and education of her child (art. 605 CCQ).

[45] As regards the decisions of greater importance as medical treatments, the choice of schools, participation in a trip abroad, the inclusion in extracurricular activities that will continue for several weeks or who has significant risks etc. the parents who live together naturally consult.

[46] As noted earlier, when parents are separated and that custody is entrusted to one of them, the custodial parent is not invested suddenly all the authority now sufficient to take only such decision. The other parent continues to exercise his parental authority and, as such, has the right to participate in important decisions. In the absence of dialogue, the latter may challenge the validity under the law to monitor the maintenance and education of her child (art. 605 CCQ).

[47] The philosophy underlying the provisions of the Civil Code seems to be encouraging participation, rather than excluding the non-custodial parent, which could also lead to long term for his selflessness' child and its development and the loss to be found for the child to the presence of a parental figure.

[48] In the case of conflict between parents on the exercise of parental authority, the parent who believes that the issue is so important for the best interests of the child should be a third address may ask the Superior Court (art. 604 CCQ). The latter, after fostering the conciliation of the parties, decide, and this always in the best interest of the child (art. 33 and 604 CCQ).

[49] In this case, if you can qualify to participate in extracurricular activities at the end of primary education as a decision on a routine question that follows the child, he returned to the mother to take, X with whom she resided permanently now, what she did. As against, if of the opinion that the permission to participate compromising security, development or health of X or is contrary to the educational project agreed with the mother, the father could under its right of supervision of maintenance and the education of his child (art. 605 CCQ) grasp the Superior Court (art. 604 CCQ) in the absence of parents to agree on a solution.

[50] The appellant has instead turned to the School Board that before a genuine conflict of parental authority on X, decided to refuse participation while reserving him a place. Given the stalemate between the two parents, only the Superior Court could intervene in accordance with Art. 604 C.c.Q. This answers the first question of law mentioned above.

[51] I turn to the second question, or referral to the Superior Court by the child.

[52] Art. 159 C.c.Q. recognizes the possibility for a child to apply himself to the court in case of dispute concerning the exercise of parental authority to her. When adopting the new Civil Code, the Minister of Justice commented:

This article reproduces the rule in section 304 CCBC, proving that the minor is legally represented by his guardian. However, it changes the previous law in two ways. First, it allows the minor to act alone in court with the permission of the court in an action relating to his condition, an act he can do alone or with the exercise of parental authority: on this last point, it covers both the conflicts related to the exercise of authority by the minor himself against his own child, that conflicts related to the exercise of the authority of his father and mother to him.

These changes are justified by the fact that these are matters which primarily relate to minors and the recognition of a degree of autonomy granted to them by sections 156 to 158.

(emphasis added)

[53] This new opportunity once again reflects the modern conception of the child subject of rights and not mere object of interest to parents. It must, however, remain outstanding for several reasons.

[54] First, the Civil Code sets out the requirement that the juvenile court is addressed only through a guardian (art. 159 CCQ). Second, conflicts with the exercise of parental authority are generally between the two parents, so that one of them will address the Superior Court to end the deadlock when the interests of the child required by the importance of the question on his health, safety or development (art. 604 CCQ).

[55] Proof of the exceptional nature of the action brought by the child itself, art. 159 C.c.Q. specifies that it must be authorized by a judge.

[56] This authority will, of course, be granted lightly, as pointed out rightly the trial judge. The Superior Court does not become a forum before which a child may come to challenge a punishment imposed by a parent or a mutual agreement. In fact, except in cases where there is injury or threat of physical, moral or psychological, a judge should exercise the utmost restraint when a minor seeks permission to challenge a decision from the exercise of 'parental rights of a parent the other parent does not.

[57] In other words, the Superior Court is not the place to solve the quarrels of a child unsatisfied with the decision of a parent, unless his health, safety or education is jeopardized.

[58] What was it in this instance? First, we have a girl over twelve years of its complete primary school and demonstrates an ability to make decisions, such as to contact the lawyer and to express its expectations. Then, parents who are competing for several months with regard to the sharing of parental responsibilities and the report of an expert who found that children living painfully stress caused by the serious tension between their parents. Finally, divergent positions of the parents regarding the involvement of X to travel to Quebec and the decision of the school board not to let participate despite the authorization of his mother with whom she now resided permanently for a month .

[59] In this very emotionally charged that X turns
spontaneously to advocate for children, on file in May 2007. It then attempts to resolve the problem through contacts with school authorities and the counsel for the appellant, but without success. The trip is imminent and actual receipt of a distress in X, the lawyer for children means the request for safeguard measures.

[60] It is also important to note that once the mother has accepted the position of his daughter and she testified that she was ready to continue the proceedings. Therefore, if the Superior Court had refused to allow the girl to carry through his lawyer, mother, itself assisted by a lawyer, would have endorsed the request and continue the company in Superior Court .

[61] In these very particular circumstances, I can not conclude that the trial judge abused his discretion by allowing X to act. I would add that I would not have been more inclined to conclude differently if the judge had not refused to allow the child to act and insisted that the mother carries s.. 604 C.c.Q.

[62] That the second rule of law.

[63] Before concluding, I will blame the judge is not
required to have proof sufficiently complete, including a sworn statement X. The court had before it a request for safeguard measures, the affidavits of the parents confirming unambiguously conflict of authority and a letter from the school showing the limited time available for a decision. It is not unusual for judges of the Superior Court, in such circumstances, to proceed without hearing or statement of the child.

[64] Under Art. 34 CCQ in the context of a decision concerning a child, the opportunity should be given to be heard. This does not mean a child require the production of a statement under oath or assign it as a witness, but that expectations should be communicated to the Court, if it is able to formulate . Usually this is done through the parents, by the testimony of an expert who met the child or in some cases through the attorney to bring the child, the consent of the parties, about his client. It also happens that the judge meets with the child himself, but this is not mandatory. The position of the child may be communicated to the court by or through persons who speak on its behalf.

[65] In summary, an issue related to everyday life took such an extent that it became the scene of a confrontation on the exercise of parental authority. Finally, in the presence of such a conflict, which unfortunately was not been resolved by the intervention of counsel to the child or by conciliation, he returned to the Superior Court to stop it.

DEVICE

[66] For these reasons, and without ruling on the merits of the position taken by each parent, I propose to dismiss the appeal without charge under the circumstances.

J. PIERRE Dalphond, J.C.A.
4.9.2009 4:22pm
Houston Lawyer:
I spoke with an Australian couple who informed me that if your child runs away from home after about age 14, the government will not tell the parents the whereabouts of the child without the child's consent. In addition, the government will provide food and shelter for the runaways.

If you are a man and you are divorced, you already know what heavy handed government interference with your rights looks like.
4.9.2009 4:25pm
sdfsdf (mail):
The list of places in the world a normal person can live without getting into legal trouble keeps diminishing. Of course, I'd have to have learned better French for Quebec anyway. Don't bother calling me for a job, McGill U.

But Australia is off the list too? Rats.
4.9.2009 4:36pm
Ex-Fed (mail) (www):
This is exactly why I make my kids sign an arbitration clause.
4.9.2009 4:36pm
GD:
"This is exactly why I make my kids sign an arbitration clause."

The problem here is that the family consisted of only 2 arbitrators (Mom and Dad). If only plural marriages were allowed (we should limit to an odd number of spouses/parents) we could avoid these decisionmaking deadlocks and better promote family harmony.
4.9.2009 4:43pm
LADenizen:
But don't worry, Harold Koh will only apply the good parts of international law.
4.9.2009 4:47pm
Harry Schell (mail):
Oh, boy, since Congress is now into semi-ex posto facto regulations, does this mean my 27-year old daughter can sue me for emotional distress when I made her ride a bike after she talked her mother out of making her learn? She was 8. And quite upset about it.

But she finally got the hang of it, did well and we went for burgers and ice cream after.

Somehow, I am less enthused about importing ideas from Canada than before.
4.9.2009 4:47pm
Oren:

But don't worry, Harold Koh will only apply the good parts of international law.

Yup, but I don't know why you would post such a comment in a thread about domestic Canadian law.
4.9.2009 4:58pm
ruuffles (mail) (www):

I spoke with an Australian couple who informed me that if your child runs away from home after about age 14, the government will not tell the parents the whereabouts of the child without the child's consent. In addition, the government will provide food and shelter for the runaways.

If 14 year old child can be tried in adult criminal court and sent away for life, its a little illogical to argue he can't be afforded the rights of self-determination (for lack of a better term).

At least they're consistent in Australia

http://www.aic.gov.au/research/jjustice/definition.html

Doli incapax, or the maximum age of presumption against criminal responsibility, is also uniform at under 14.
4.9.2009 5:06pm
Daryl Herbert (www):
International Law includes foreign legal norms. For example, opponents of the death penalty point to foreign domestic law.
4.9.2009 5:07pm
Fugle:
Finally, redress for the wrongful punishments imposed by parents. Oh happy day!
4.9.2009 5:16pm
epeeist:
Just from glancing at the translation, the only issue was over the lower court's power to intervene in exceptional cases, not whether it was right to do so here.

Courts already intervene (and justly so) in extreme cases of parental discipline - physical abuse, locking children in the basement, etc. What about some ridiculous hypothetical like "you were bad, so I'm denying permission for that transplant you need" and the non-custodial parent supports the child's application to overrule the custodial parent? I disagree with the court's intervention in this instance, but can understand the appeal court finding on the narrow issue that it had the power to do so.

I could see situations - for instance, where with the custodial parent's permission for the child to go on a trip the non-custodial parent makes a non-refundable deposit on the trip and the custodial parent then later changes his/her mind and denies permission to go - where court intervention in parental discipline might be appropriate.
4.9.2009 5:22pm
Roger Schlafly (www):
The recent Hollywood movie Taken starts with the non-custodial father refusing to give permission for his daughter to go on an overseas trip. He caves in, and then the real trouble begins.
In its Monday ruling, the appeal court warned the case should not be seen as an open invitation for children to take legal action every time they're grounded.
Why not, if the court is willing to entertain such nonsense?
4.9.2009 5:25pm
KeithK (mail):

The girl — who now lives with her mother — doesn't have much of a relationship with her dad now ....


You reap what you sow. Someday this girl may regret damaging or destroying her relationship with her father over being grounded.
4.9.2009 5:30pm
Oren:

International Law includes foreign legal norms. For example, opponents of the death penalty point to foreign domestic law.

But they never claim that the US should abolish the DP because of international law. Their argument is that the prevailing western standards, as expressed in domestic law, are trending in that direction.


The recent Hollywood movie Taken starts with the non-custodial father refusing to give permission for his daughter to go on an overseas trip. He caves in, and then the real trouble begins.

And this other movie, Cloverfield, starts with a normal trip to Manhattan. And that's where the trouble begins.
4.9.2009 5:31pm
Somedude127 (mail):
Umm international law doesn't include foreign legal norms just by themselves. International law is made up of statutes- in this context treaties- and customary norms.

Customary norms require state practice and opinio juris. I highly doubt there's sufficient state practice for intervention into the grounding of little girls to rise to the level of custom or that those states that do intervene in the grounding of little girls do so out of some sense of legal obligation.
4.9.2009 5:32pm
vassil_petrov (mail):
Why is the decision written in "I-form"?
I thought that the tradition in Continantal Law is to have a single "opinion/decision of the court".
Yes, dissents are allowed (not in France, but everywhere else) and even concurences are allowed (not in my country Bulgaria, but in Germany). And the name of the judge-rapporteur is clear, so presumably the name of the judge who wrote the opinion of the court is known.
But for a decision of a collegiate court in Continental Law tradition to be written in "I-form" is very strange.
4.9.2009 5:34pm
Dunstan:
I don't understand why some commenters think this is so outrageous or nonsensical. There's a conflict between two divorced parents, and it's very black and white: she either goes on the trip or she doesn't. If the parents can't agree, how else could it be resolved other than court intervention?

I suppose you could have a rule that the custodial parent (she was living with the father at the time) always wins, but that may be unduly shutting the noncustodial parent out of the parenting process.
4.9.2009 5:37pm
Rohan (mail) (www):
You reap what you sow. Someday this girl may regret damaging or destroying her relationship with her father over being grounded.

And maybe the father will regret destroying his relationship with his daughter over his need to prove that his judgement is more important than his ex-wife's.
4.9.2009 5:38pm
TMac (mail):
We have built the fence on the wrong border.
4.9.2009 5:44pm
JRL:
And I am sure the daughter will someday regret being the pawn in her parents' battles.
4.9.2009 5:48pm
Roger Schlafly (www):
I could see situations - for instance, where with the custodial parent's permission for the child to go on a trip the non-custodial parent makes a non-refundable deposit on the trip and the custodial parent then later changes his/her mind and denies permission to go - where court intervention in parental discipline might be appropriate.
Even in that case, the loss is just money. Wouldn't it be better for the other parent to just sue for the amount of the lost deposit?
I suppose you could have a rule that the custodial parent (she was living with the father at the time) always wins, but that may be unduly shutting the noncustodial parent out of the parenting process.
The noncustodial parent has already been shut out. Maybe she should have some share in the decision-making here, but that is not what happened. Some stupid judge made the decision, on a recommendation from the child's lawyer.
4.9.2009 5:53pm
ShelbyC:

Someday this girl may regret damaging or destroying her relationship with her father over being grounded.


Why? She can have the judge order the Dad to do what ever she wants. Hell, in CT adult childern of parents who are divorced can have the court order a parent to pay for a college of their choice. Not for parents that are still married, though.
4.9.2009 5:57pm
ohwilleke:
The decision seems quite reasonable. It is not about whether the daughter should be grounded (and the decision says so), but about whether the father had the authority to cancel a status quo field trip participation without agreement of the mother in their custody arrangements.

Under Quebec law and the separation agreement, the father didn't have unilateral decision making power to upset the status quo by cancelling his daughter's participation in the field trip. This was a status quo that could only be changed by a joint parental decision. But, he did so anyway.

The parents are utterly incapable of cooperating on anything, and have put their daughter and the school board in a bind by failing to agree on an issue that must be resolved.

The father informed that court "that he did not wish to resume contact with his daughter for as long as it will not recognize its authority to impose sanctions and its obligation to comply." Instead, the father insists upon either having unilateral decision making power in this, or disowning his daughter. This is the way child custody law works in Japan for the most part, but not the way it works in Quebec.

The girl would be about 14 years old at the time of this decision, and doesn't want to have anything to do with her father either.

The decision is reviewed on an abuse of discretion appellate standard, and there is almost inherent wiggle room any time that the status quo is unclear, as was the case here.

It looks like this result was bound to happen sometime or other in any case, given the inability of the parents to cooperate. Forced to choose, it is hardly surprising that the preferences of an articulate child are given weight, because they go to the strength of the relationship between parent and child, as do the father's unreasonable insistance on absolute authority in the context of joint parenting.

If you want the state out of your child rearing, don't break up.

(Also, thanks for the translation despite its gender agreement issues.)
4.9.2009 5:57pm
RowerinVa (mail):
Oren, you write:


"But don't worry, Harold Koh will only apply the good parts of international law."

Yup, but I don't know why you would post such a comment in a thread about domestic Canadian law.


I don't know enough about Koh to comment on his nomination, but how is your post responsive to LADenizen? The debate about importing aspects of foreign law isn't limited to foreign law that's expressly international, such as treaty law. The debate is largely, and I believe primarily, about importing aspects that are expressly domestic Canadian (or European, or whatever else) law, such as the domestic laws on age of capital murder defendants. So it's quite obvious why the other poster , LADenizen, would bring up Koh in a thread about domestic Canadian law. Am I missing your point?

Or did you mean not "domestic Canadian law" but "Canadian domestic law?" I don't see a difference for this point, but I bring this up in case you do.
4.9.2009 5:58pm
einhverfr (mail) (www):
Dunstan:

Hmmm... I am having trouble making sense of the French or the Translation. Hence I am not at all clear on a number of points. However, it would seem to me that:

1) Any conflict of authority should turn on the specific agreements between the parents, and it is the parents in these cases who should be representing the children.

2) Allowing a system when a child of a divorced couple is allowed (or even encouraged!) to bring action to court pitting the parents together is fundamentally problematic to divorce situations.

3) Some of the reasoning didn't seem very clear to me.

The appellate decision addressed only the power of the district court to intervene. ISTM that the whole process is broken and is likely to make divorces more problematic than necessary. On well....
4.9.2009 5:59pm
Ken Arromdee:
The noncustodial parent has already been shut out.

The court decision seems to disagree with you:


The theory of single-parent to exercise parental authority, which supports the parent to whom the custody is vested with all the parental authority over the child and may decide any matter relating to the child has no place in Quebec
4.9.2009 6:00pm
Ken Arromdee:
Someday this girl may regret damaging or destroying her relationship with her father over being grounded.

"You made me do it" when it's something you choose to do yourself, is usually said by children, not used to excuse parents. The father's choice to sever the relationship was his own.
4.9.2009 6:06pm
DangerMouse:
But they never claim that the US should abolish the DP because of international law. Their argument is that the prevailing western standards, as expressed in domestic law, are trending in that direction.

Libs want American judges to overturn American domestic laws to conform to the domestic laws of other states dominated by the political left. The general public interprets this desire as transnationalism, or the application of foreign or "international" law to American law, even if it is not strictly international law in a specific sense.
4.9.2009 6:15pm
Jim Rhoads (mail):
I suspect that in most jurisdictions in the US, under the same circumstances, a trial judge's decision would be upheld no matter which way it was decided.

I suspect the same is true here. It is difficult for an appellate court to reverse a trial judge for abuse of discretion in what is inherently an equity case.
4.9.2009 6:15pm
wfjag:
Now, if Alex Baldwin's daughter lived in Quebec, just think of all the fun the Tabloids and what passes for "news" on a lot of TV shows could have had. Maybe Dr. Phil could have done an intervention, or, Jerry Springer could have done a confrontation? Maybe they still can when sweeps week comes? But, who needs them when you've got the courts?
4.9.2009 6:19pm
Roger Schlafly (www):
It looks like this result was bound to happen sometime or other in any case, given the inability of the parents to cooperate.
The root of this problem is not any inability of the parents; it is the fact that the School Board and the child's lawyer have intervened. They are the ones who got their way in the case.
Forced to choose, it is hardly surprising that the preferences of an articulate child are given weight, ...
Maybe the child just wants the more permissive parent.
4.9.2009 6:22pm
Oren:

So it's quite obvious why the other poster , LADenizen, would bring up Koh in a thread about domestic Canadian law. Am I missing your point?

Perhaps you should read the paper in question, (On American Exceptionalism, 55 Stan. L. Rev. 1479 (2003)), before ascribed to Koh strange views.

Under this view, the key to understanding whether nations will obey international law, I have argued, is transnational legal process: the process by which public and private actors -- namely, nation states, corporations, international organizations, and nongovernmental organizations -- interact in a variety of fora to make, interpret, enforce, and ultimately internalize rules of international law.
4.9.2009 6:22pm
Oren:

Libs want American judges to overturn American domestic laws to conform to the domestic laws of other states dominated by the political left. The general public interprets this desire as transnationalism, or the application of foreign or "international" law to American law, even if it is not strictly international law in a specific sense.

Somehow, when the Dean of Yale Law writes and academic paper about the Law, I presume that he carefully chooses his words. YMMV.
4.9.2009 6:25pm
Oren:

The root of this problem is not any inability of the parents; it is the fact that the School Board and the child's lawyer have intervened. They are the ones who got their way in the case.

But either way one of the parents had to get his/her way too.

The school board has a reasonable demand that they not be caught in the center of childish disputes between parents.
4.9.2009 6:26pm
Lucius Cornelius:
I can just see it now:

"Your grounded!"

"I'm appealing!"
4.9.2009 6:36pm
Tony Tutins (mail):
Once a lawyer has been appointed to look after the children's interests, where should the children draw the line? Your elementary school graduation trip is important, especially when your twin brother gets to go and you don't. Plus your mom is one of the chaperones. It's not the girl's fault her dad's live-in is a b*tch.
4.9.2009 6:38pm
ohwilleke:
**It looks like this result was bound to happen sometime or other in any case, given the inability of the parents to cooperate.

The root of this problem is not any inability of the parents; it is the fact that the School Board and the child's lawyer have intervened. They are the ones who got their way in the case.**

The court expressly found (at para. 11) that there was "a lack of functional communication between both parents."

The School Board did not intervene. But, the trial court appropriately noted that it might have to if it failed to act on the child's petition, because on parent told the School Board in writing that a trip was O.K., while the other denied permission, and the School Board isn't charged with deciding whose permission is required.

The child has an interest in knowing which conflicting communication of her disfunctional parents to the school board count, and which do not. Also, mother said she would have intervened if her child was not allowed to do so:

"[60] It is also important to note that once the mother has accepted the position of his daughter and she testified that she was ready to continue the proceedings. Therefore, if the Superior Court had refused to allow the girl to carry through his lawyer, mother, itself assisted by a lawyer, would have endorsed the request and continue the company in Superior Court."

**Forced to choose, it is hardly surprising that the preferences of an articulate child are given weight, ...
Maybe the child just wants the more permissive parent.**

The Court found that the child was articulate and screwed up by the parental deadlock.

"What was it in this instance? First, <b>we have a girl over twelve years of its complete primary school and demonstrates an ability to make decisions, such as to contact the lawyer and to express its expectations.</b> Then, parents who are competing for several months with regard to the sharing of parental responsibilities and the report of <b>an expert who found that children living painfully stress caused by the serious tension between their parents.</b> Finally, divergent positions of the parents regarding the involvement of X to travel to Quebec and the decision of the school board not to let participate despite the authorization of his mother with whom she now resided permanently for a month.

[59] In this very emotionally charged that X turns
spontaneously to advocate for children, on file in May 2007. It then attempts to resolve the problem through contacts with school authorities and the counsel for the appellant, but without success. The trip is imminent and actual receipt of a distress in X, the lawyer for children means the request for safeguard measures."

If the less permissive parent prefers to disown his child to submitting to joint parenting, then maybe the less permissive parent is the wrong choice.

Appellate courts in Quebec aren't quite as contrained at American appellate courts by trial court fact finding, but trial court fact finding is still highly relevant.
4.9.2009 6:41pm
Lucius Cornelius:
ohwilleke, the father may be overreacting. And certainly it is awful for a parent to choose to distance themself from a child.

However, I can sympathize with the father. His authority as a parent has been compromised. This child may proof to be uncontrollable now, at least with respect to his orders.

I blame the court. Grounding a child for disobedience is a standard parental response and I think a family court should do everything possible to support reasonable exercises of parental authority.

However, it seems that this family has been in front of this court for a while because of the breakdown of communication between the parents. There may be other factors not described in the opinion that motivated the trial court to take the actions that it did (though if there was a continuing problem with the father's behavior, I would wonder why he was the parent with more custody time).
4.9.2009 7:01pm
ChrisTS (mail):
The root of this problem is not any inability of the parents; it is the fact that the School Board and the child's lawyer have intervened. They are the ones who got their way in the case.

As has been pointed out, the School was put in an untenable position, the mother had already paid a non-refundable fee, and the mother told the court she would have brought the suit herself if her daughter had not asked to do so on her own.

I cannot decide if these people make a better case for licensing would-be parents or for easy divorce.
4.9.2009 7:02pm
darrenm:

And maybe the father will regret destroying his relationship with his daughter over his need to prove that his judgement is more important than his ex-wife's.

Gee. Or maybe the ex-wife will regret destroying the relationship between her daughter and ex-husband over the need to prove that her judgment is more important that his.
4.9.2009 7:25pm
Bill Poser (mail) (www):
Several points emerge from the original French text. First, the court makes clear that under the law of Quebec the decision lies with both parents in spite of the fact that the father had exclusive custody. Second, the court considers it relevant that since the father's imposition of this punishment, the girl had ceased to live with him and was living exclusively with her mother. Third, although it was the girl who initiated legal action, her mother adopted her cause and notified the court that she supported her daughter's position and would have taken legal action had her daughter not done so. This means that the dispute was, both in fact and in law, one between the two parents, not simply one between the daughter and her father.

A fourth point is that, although the court avoids entering into an evaluation of what a suitable punishment would be, the girl had already been punished fairly severely by not being permitted to take part in her end-of-year dance performance (this by her father's refusal to give her her dance outfit) and that further punishing her by forbidding her to take part in the class trip to Quebec City would isolate her from her peers at a crucial time in their lives.
(Although the court doesn't explicit cite this as a reason, I note also that the court mentions that the school reported that the girl was qualified to make the trip due to her good grades and behaviour - the court may also have been thinking that taking away this reward would discourage her from continuing to get good grades and behaving well in school.)
4.9.2009 7:28pm
kentuckyliz (mail):
If a 14 year old was posting naughty pix of herself, she should be charged with distributing child pornography and put on the sex offender registry.

I can see why the dad was being so firm with the little slut. If she was hellbent on being a slut and conned the court into supporting her sluttitude, I can understand why he'd give up on her. Who wants a slut for a daughter.
4.9.2009 7:30pm
Tony Tutins (mail):
To expand on what Bill P. said: The father would have kept the girl from going on her primary school graduation trip to Quebec, which was celebrating its 400th anniversary. While grounding a child for misbehavior is normal, preventing a child from going on what would doubly be a trip of a lifetime is not.

The kid sassed the dad and his live-in, and was "sexually precocious" whatever that means for a 12 year old girl nowadays. The punishment didn't fit the crime even though neither "the court of the first instance" nor the appelate court wanted to rule on that.
4.9.2009 7:40pm
http://volokh.com/?exclude=davidb :

I can see why the dad was being so firm with the little slut. If she was hellbent on being a slut and conned the court into supporting her sluttitude, I can understand why he'd give up on her. Who wants a slut for a daughter.

I was wondering if you could sneak the word "slut" into your post a few more times.
4.9.2009 8:12pm
RowerinVa (mail):
Oren, you write,


Perhaps you should read the paper in question ... before ascribed to Koh strange views.


Ah yes, the favorite non-response to a question: the ad hominem attack, here claiming that I attributed views of some sort to Koh. But I didn't -- I stated "I don't know enough about Koh to comment on his nomination" and proceeded not to mention Koh, but to ask you a question about your statement as to domestic law of other nations. I'm not interested in Mr. Koh.

It's certainly your right to ignore my question, as you did, but don't try to put words in my mouth text box, please.
4.9.2009 8:18pm
R Gould-Saltman (mail):
As one of the few "in the trenches" family law lawyers who pokes his head in here, I think Chris TS has it about right on all counts.
The inherent problem with "joint-decision-making"/"Joint legal custody" orders is that they permit, in the absence of a tie-breaking mechanism, the exercise of "asshole's veto" (for lack of a better more polite term) particularly wherever some affirmative manifestation of parents' consent is required by some third party, as here.

Whether the issue is whether young "Respondent X" goes on a school field-trip (or is punished for what Dad perceives as her march towards "slutitude" )(thank you kyliz)or whether (for another example) Dad disagrees with X's sudden desire to take up karate, or motocross riding, or to convert to, let's say, Orthodox Judaism and to begin attending an extremely strict Orthodox day school,

in the face of a "joint decision" order and ongoing lack of cooperation/communication between the parents, the court basically has the following alternatives to allow X to get on with her life:

1. appoint a tie-breaker
2. act as tie-breaker
3. revoke the "joint decisionmaking" order, and say that one parent gets to make the judgment calls.

If I could only figure out a way to make that "licensing parenting" business work, I could solve a lot of this stuff. I've long since thought it was a good idea to make getting married a lot harder, and getting divorced easier, but the MECHANICS of that "parent licensing" has eluded me.

r. gould-saltman
4.9.2009 8:45pm
ChrisTS (mail):
davidbI was wondering if you could sneak the word "slut" into your post a few more times.

Well, she only used 'slut' twice and then 'sluttitude' once.

Of course, the latter is clearly an intellectual-wannabe effort to Latinize a perfectly good Anglo-Saxon slur, which is objectionable in itself.

On the other hand, it is difficult to fathom how an adult could be impelled to such rancor towards a 12 year old stranger.
4.9.2009 8:50pm
I Callahan (mail):

The inherent problem with "joint-decision-making"/"Joint legal custody" orders is that they permit, in the absence of a tie-breaking mechanism, the exercise of "asshole's veto" (for lack of a better more polite term) particularly wherever some affirmative manifestation of parents' consent is required by some third party, as here.


"Asshole's Veto" is an EXCELLENT term. LOL.

As to the heart of the matter - I hearken back to my youth, and remember these words:

"You live in my house, you live by my rules"

The question is, why on earth doesn't Quebec law recognize this simple rule?

Harry
4.9.2009 10:39pm
Tony Tutins (mail):

"You live in my house, you live by my rules"

The question is, why on earth doesn't Quebec law recognize this simple rule?

The daughter lived in Dad's house 64% of the time. So by this rule of thumb, she only had to follow 64% of Dad's rules.
4.9.2009 11:19pm
DangerMouse:
The question is, why on earth doesn't Quebec law recognize this simple rule?

Probably because the person giving those rules is a father. Fathers have no rights.
4.9.2009 11:28pm
Bob from Ohio (mail):
I think the father is better off not having custody or contact with this child.

Beats the inevitable arrest based on phony sexual abuse allegations later.
4.10.2009 12:13am
Roger Schlafly (www):
As has been pointed out, the School was put in an untenable position
The school has the easiest position of all. It decided to require the permission of both parents. It didn't get it. End of story. I am sure that Quebec can celebrate its 400th anniversary without this girl.

The court made a complete wreck of the situation. It allowed a court-appointed lawyer to overturn a routine punishment. It seriously damaged this girl for a long time to come. Only a family court lawyer would see any merit in this disaster.

A much better solution would have been, "You live in my house, you live by my rules". That would have made the court action unnecessary, and not created the destructive make-work for the family court lawyers.

But Bob from Ohio might be right. The same kind of family court folks who created this mess might be bring false sex abuse charges in a couple of years.
4.10.2009 2:16am
Richard Aubrey (mail):
Most adolescents think they know better than everybody and double for their parents.
This kids' punishment will stem from the decision, based on the majesty of the law, that it really is true. And she'll believe it.
Who's going to bail her out when she encounters a sharp corner everybody told her was there?
4.10.2009 7:12am
DennisN (mail):


"You live in my house, you live by my rules"

The question is, why on earth doesn't Quebec law recognize this simple rule?


The daughter lived in Dad's house 64% of the time. So by this rule of thumb, she only had to follow 64% of Dad's rules.


The 64% of the rules that follow from living under his roof.

While I have a lot of respect for R Gould-Saltman's analysis, there is something troubling about overturning a less than life-or-death decision by the parent with physical custody. Based on that, it is probably a good thing she is living with her mother.

I'm looking at the same sort of situation with a f(r)iend, who has custody of her extremely unruly daughter, and her ex husband who is encouraging her unruliness. Outside interference in a custodial relationship, especially from the non-custodial parent, can cause real problems. I expect my f(r)iend's daughter to wind up pregnant and in jail.
4.10.2009 9:51am
George Smith:
Village - 1, Dad - 0
4.10.2009 10:28am
John Carter:
Doubly sad that love seems to have completely failed to the point that neither parent is capable of doing what is best for the child, for one another or for themselves. I note that it certainly appears that many of the comments here appear to be reacting emotionally to circumstances beyond this particular case.
4.10.2009 11:46am
Daniel M. Roche (mail):

"You made me do it" when it's something you choose to do yourself, is usually said by children, not used to excuse parents. The father's choice to sever the relationship was his own.


Yeah, as a father the first thing I think when I decide to discipline my children is my intention to sever our relationship. Do you even have kids?

Divorced couples' unwillingness to parent together is screwing up children all over the planet. I see it in court everyday. This is just another example of two adults acting like children and in the process ruining any chance their child has at a normal upbringing.

Bottom line: the courts were only involved because the parents couldn't manage to agree on this.
4.10.2009 11:55am
Oren:

It's certainly your right to ignore my question, as you did, but don't try to put words in my mouth text box, please.

My apologies. You interjected yourself in an earlier conversation that was explicitly about Koh and I failed to see that you didn't incorporate by reference what had been said before.
4.10.2009 12:14pm
Oren:


"You live in my house, you live by my rules"


So, if she really wanted to go on the trip, she'd just have to take the bus to her mother's house first, thus relieving herself of her father's rules? This is silly.

By your logic, no one can be grounded because as soon as they get out of the house they are done
4.10.2009 12:17pm
Ken Arromdee:
Yeah, as a father the first thing I think when I decide to discipline my children is my intention to sever our relationship. Do you even have kids?

Divorced couples' unwillingness to parent together is screwing up children all over the planet. I see it in court everyday. This is just another example of two adults acting like children and in the process ruining any chance their child has at a normal upbringing.


I'm trying to figure out if you're agreeing or disagreeing. Your first comment seems to say that you think it's stupid to insist that the father was the one responsible for cutting off the relationship. (One normally doesn't ask "Do you even have kids?" about a statement about a kid one believes to be correct.)

Your second comment seems to indicate that you agree that the parents are behaving poorly (and thus that you agree the father cut off the relationship). Which is it?
4.10.2009 12:32pm
Roger Schlafly (www):
Doubly sad that love seems to have completely failed to the point that neither parent is capable of doing what is best for the child
The dad is not permitted to. The child has her own lawyer, and if she doesn't like what the dad does, she can just just run to the court. This appeal decision says that the judge is the one with the authority to decide whether the punishment is appropriate.
Bottom line: the courts were only involved because the parents couldn't manage to agree on this.
No, that is not correct. The mom was not even a party to the case. The case was a disagreement between the dad and the child's lawyer. The court was only involved because the judge decided that the dad did not have the authority to make the decision.
So, if she really wanted to go on the trip, she'd just have to take the bus to her mother's house first, thus relieving herself of her father's rules?
No, a 12-year-old girl does not have choice about where to live.
4.10.2009 1:23pm
Tony Tutins (mail):

This appeal decision says that the judge is the one with the authority to decide whether the punishment is appropriate.

Quite the opposite [Par 56 and 57]. In other words, the Superior Court is not the place to resolve a parent-child dispute, unless her health, safety, or education is in jeopardy.

The legal issues: In Quebec, both parents share parental authority. In case of dispute between the parents over what is in the best interests of the child, or whether her health, safety, or education is in jeopardy, only the court can resolve the dispute.

The second issue is whether a child can approach the court herself, or whether she needs a guardian ad litem to do so. It really doesn't matter here, because her mother took her side.
4.10.2009 1:49pm
Ken Arromdee:
No, that is not correct. The mom was not even a party to the case. The case was a disagreement between the dad and the child's lawyer.

According to the decision quoted above, the only reason the mother wasn't a party was that she didn't have to be, and she would have done so if it had been necessary: the court


stresses that the mother told her she would have made such a request if her daughter had not done so and accepted the request in court.



No, a 12-year-old girl does not have choice about where to live.


According to the decision, she's now living with her mother. By the "as long as you live here reasoning", you should now favor her decision, since the parent she's living with approves.

By the way, I find it a little suspicious that the father has vaguely referred to the daughter's "early sexual behavior", and the article talks about "inappropriate pictures" without any indication of what they are. Surely if they had been nude photos or involved any attempts at sexual intercourse that would have been mentioned, and I can imagine quite a few innocuous things that the father could describe that way.

It's also a little suspicious that the father tries to claim that he had doubts about how safe going on the trip was. If not letting her on the trip is punishment, safety had no effect on his decision.
4.10.2009 2:37pm
Roger Schlafly (www):
In Quebec, both parents share parental authority. In case of dispute between the parents over what is in the best interests of the child, or whether her health, safety, or education is in jeopardy, only the court can resolve the dispute.
If Quebec law really says that the court has authority to make decisions like this, then the parents do not have the authority at all. Some silly judge has the authority.
the only reason the mother wasn't a party was that she didn't have to be
That's right, she didn't have to be. The court was willing to nullify the punished based on the 12-year-old getting a lawyer to file a lawsuit.
According to the decision, she's now living with her mother.
The appeal court should have been reviewing what the lower court actually decided. Subsequent events should be irrelevant.
By the way, I find it a little suspicious that the father has vaguely ...
Suspicious? You mean you are not completely persuaded that you would have made the same decision as the father? That is not the issue. The issue is whether the father had authority to make the decision, or whether some silly Quebec judge should intervene.
4.10.2009 3:37pm
Ken Arromdee:
If Quebec law really says that the court has authority to make decisions like this, then the parents do not have the authority at all.

The parents have the authority. They just have to make a decision and it'll be done. The court only gets "authority" because the parents, as a group, are incapable of expressing one.

The court was willing to nullify the punished based on the 12-year-old getting a lawyer to file a lawsuit.

The fact that the mother wasn't the one who filed the lawsuit is purely a technicality. She was willing to do so, would have if the court had demanded it, and her willingness to do so was considered by the court in coming to a decision.

You mean you are not completely persuaded that you would have made the same decision as the father? That is not the issue.

I don't believe for a moment that that's not the issue. It wasn't an issue for the court, but it seems to be an issue for most of the posters here. We all know very well that if the father had, say, been a Christian Scientist who didn't let the girl get an operation, the discussion would be very different.
4.10.2009 4:25pm
dmv (mail):
It's so odd to me that all the chest-pounding, the courts are stupid, fathers know best always posters is that they have all utterly ignored the fact that the man here said that he wanted no further contact with his child so long as the court would not recognize his authority over her.

Perhaps you may say, "Yeah, because if his authority wasn't recognized, it would be an impossible situation, and she would be hell to live with, etc." I'd ask you to reflect more deeply on what it means to be a parent. If you still conclude that recognition of authority over the child is more important than contact with the child, well, then, we'll have to agree to disagree. Completely.
4.10.2009 7:51pm
Andrew J. Lazarus (mail):
dmv hits a home run.

I find it amazing that a legal blog has so many commenters with such contempt for the legal process—whenever it rules against a white male. Matt Yglesias writes on this apropos of the hysterical militia movements:

[T]he underlying issue seems to be that rule by conservatives is integral to the right’s conception of the United States of America. This is part of the rhetoric of the “heartland” and “real America”—a period of political victory by a coalition grounded in the coasts and Greater Chicago is a period in which America has ceased to be herself.
Divorced parents have been known to ignore the best interests of the children to deal with their own wounded psyches, and when it is too outrageous—and it may have or may not have been here, and the trial court (unlike all of us) had an opportunity to investigate the matter a corrective is in order.

I was taking entries for a children's chess tournament over 20 years ago when a father (newly divorced) brought in his two sons. I explained that on top of the entry fee the boys would need membership in the US Chess Federation. "Oh," the father said to the kids, "I'll pay the entry fee, because that's a one-time thing for my weekend with you, but a full-year membership should be paid for by your mother since you now live with her." The boys, who were in about first grade, didn't even seem to understand what was happening and a local school board member took Father aside and put a little sense into him, just as we on the directing staff had decided to pay the memberships out of our own receipts and call the Custody Master afterwards.
4.10.2009 8:45pm
DennisN (mail):
@Ken Arromdee

According to the decision, she's now living with her mother. By the "as long as you live here reasoning", you should now favor her decision, since the parent she's living with approves.


Not favoring her decision, nor yet disagreeing with it. But as the custodial parent, she has the authority over the child as long as she has custody. That authority should be respected, as should have the fathers', as long as the child is not being endangered. The child does not have to like it. Hell, we all grew up, to some extent in spite of our parents, as our children grow up despite our stupidity. It's part of the process.

@Daniel M. Roche

Divorced couples' unwillingness to parent together is screwing up children all over the planet.


I'll drink to that.

Parents don't realize that, as long as they have minor children, the ex is still a major part of their life, and there is nothing they can do to change that fact.
4.10.2009 8:46pm
Roger Schlafly (www):
The court only gets "authority" because the parents, as a group, are incapable of expressing one.
No, there is no evidence of that. We only know that one parent was willing to support the child's lawsuit against the other parent.

It is not that the father is necessarily so smart. He may make mistakes. But he is exercising his judgment based on a 12-year relationship with the child, and nobody has figured out a better way to rear kids. It is just crazy to think that some silly Quebec judge and child lawyer can make a decision like that one, and do better than the parents.
4.10.2009 8:51pm
Oren:

If Quebec law really says that the court has authority to make decisions like this, then the parents do not have the authority at all.

They have authority insofar as they can stop arguing with each other for long enough to agree on what they want. Plenty of bodies have power only insofar as they collectively agree.

What you are trying to say is, because the court can intervene, the father does not have that authority. Which is true.


It is just crazy to think that some silly Quebec judge and child lawyer can make a decision like that one, and do better than the parents.

It is also just crazy that the father thinks, contrary to black-letter law, that he is the sole decider of matters pertaining to his daughter.

For future reference, if you want sole authority over your kids (and you are Quebecois), get a clone. Otherwise, be very sure that your partner in conception is someone with whom you can reason.
4.10.2009 10:55pm
Tony Tutins (mail):

It is also just crazy that the father thinks, contrary to black-letter law, that he is the sole decider of matters pertaining to his daughter.

Not just black letter law -- family law in Quebec is in the civil code part of Quebec's combination of common law and civil law (a relic of New France).

Note that only one court case was cited (as I recall) in the decision.
4.10.2009 11:25pm
dfenstrate (mail):

Andrew J. Lazarus:

I find it amazing that a legal blog has so many commenters with such contempt for the legal process—whenever it rules against a white male.


That's a cheap shot. The 'racist' card is so over used nowadays that it might as well mean nothing. It's a base and obvious attempt to shut down or control a discussion without having said anything meaningful.

As for everyone else here talking about how the courts should help decide 'what's best for the child'- well, that's a lot of rubbish.

Plenty of folks- myself, and many on this board I fathom- had much greater problems as children than NOT going on some school trip. The pettiness of this issue compared to what many of us survived and prospered after is incredible.

That attendance on a school trip would be seen as an overriding concern compared to the preservation of fundamental parental authority is evidence of the decay of Canada's society.

Now, alright, the problem has arisen because this family is already broken, no one is playing straight, and a conflict has arisen with respect to earlier agreement. To get divorced, likely both the mother and father have been ignorant of their duties or unwilling to put the interests of their family ahead of, or at least equal to, their own.

Further decay of the family structure by court fiat may send this little girl on her school trip, but it will only retard the social development of this girl, as she will be unable to face consequences for her actions or disappointments without running to the court for remedy.

And really, who the hell here wants to deal with someone like that? I know this is a blog of lawyers and that's how you folks make your money, but really- a little twit running to the courts over every upset in her life? Keep her away from me.

(The father understandably doesn't want any contact with his juvenile daughter. If he has any sort of custody, he will have responsibility for her without any authority over here. No one can manage any sort of responsibility without commiserate authority, wether it be a child, a business, a university department, or a law firm. The father's choice is the only sane choice in this set of circumstances.)
4.11.2009 10:07am
DennisN (mail):

The father understandably doesn't want any contact with his juvenile daughter. If he has any sort of custody, he will have responsibility for her without any authority over here. No one can manage any sort of responsibility without commiserate authority, wether it be a child, a business, a university department, or a law firm. The father's choice is the only sane choice in this set of circumstances.


I actually considered this, back when my children were young. I had tentatively decided that, if it came to divorce, I'd allow the mother sole custody of the children (God Help Them.) This was because I judged that the chaos they would be put through by the inevitable conflict their mother would instigate would be more detrimental to them than losing contact with their father and being maliciously poisoned against him. I believe in unity of authority that strongly.

As it turned out, I was able to dodge that bullet until they were out of college, and the damage greatly mitigated.

My point in all of this, is that I can sympathize with the father's decision, however badly it was phrased or however badly it was misreported. There is absolutely no way to win one of these fights. There is certainly not, if you are the kid.
4.11.2009 11:32am
Roger Schlafly (www):
This is yet another example where any court intervention is harmful. At best, the court can order what might be a fun trip for the girl, but there will be longlasting damage. The lawyers who argue that the court has no choice but to intervene in such disputes are just wrong. The court could have refused to hear the case.
4.11.2009 2:42pm
Oren:

That attendance on a school trip would be seen as an overriding concern compared to the preservation of fundamental parental authority is evidence of the decay of Canada's society.

What part of the story where Quebec vast vests in both parents have equal parental authority is hard to understand? What does preserving the father's parental authority at the expense of the mother's accomplish?

Waving around "parental authority" in such a case where two divorced parents with equal authority disagree doesn't make any sense.
4.11.2009 8:53pm
dfenstrate (mail):

Waving around "parental authority" in such a case where two divorced parents with equal authority disagree doesn't make any sense.


That a court intervention was the only way to 'resolve' this is damning of the parents; that the courts saw fit to intervene is damning of Canada.

So as a matter of law, you may be right, as a matter of sense and decency, you are wrong.

This was clearly a degraded, poisonous situation even before this school trip came up. There is no other way for it to decay to the insane state where a court has ruled on wether or not a child goes to a field trip.

If you cannot see how terrible it is for the courts to trespass into the petty private matters of the family, even a shattered family, I honestly do not have the words to start explaining it to you.

Rather, I can only say that your view is common, as the state no longer sees any boundaries to its authority, nor sees the harm in its participation in such petty family matters.

Boundaries, duty, respect, and humility are entirely absent in the case at hand. A boundless narcissism has been officially affirmed in the daughter, and no good will come of it.

The ruin of the carefully structured society that antiquity left to us is well underway. It is a testament to their efforts that we have not entirely collapsed in the decades since the decline began in seriousness.

The imperfect but workable family structures given to us by tradition will not be replaced by some Utopia with a mass perfection of the human soul, but by barbarity and a decline into madness.

This case is a marker in western decline, symptomatic on many levels of the loss of our way.
4.11.2009 11:30pm
DennisN (mail):
@Oren


What part of the story where Quebec vast vests in both parents have equal parental authority is hard to understand? What does preserving the father's parental authority at the expense of the mother's accomplish?


Shared authority is not effective. In practice, it is disastrous. Unity of Command is a basic principle of military life, and the same principle applies in civilian life. You cannot march to two drummers. I can't think of any more cliches at the moment, but the principle is sound.

Since we cannot achieve unity of command in the family situation in question, the custodial parent must have overriding authority. The Courts is a fool to intervene here, unless the custodial parent's decision is perilous to the child in some way. No argument has been offered to suggest that is the case.

IMnsHO, the proper response from the Court would have been to dismiss any argument that did not involve the child's actual welfare.

I ran into a similar issue several times, both as a parent and as a young Platoon leader. Private Snuffy would approach me with the question, "Sir, can I ..." My answer inevitably was "What did your Squad Leader say?" In the case of my kids, it was "What did your Mother say?" The court should have asked the same question.
4.12.2009 1:17am
Oren:

Shared authority is not effective. In practice, it is disastrous. Unity of Command is a basic principle of military life, and the same principle applies in civilian life. You cannot march to two drummers. I can't think of any more cliches at the moment, but the principle is sound.

That's an appropriate complaint to take up with the legislature not the court. The former wrote the rules, the latter applied them.


Since we cannot achieve unity of command in the family situation in question, the custodial parent must have overriding authority. The Courts is a fool to intervene here ... IMnsHO, the proper response from the Court would have been to dismiss any argument that did not involve the child's actual welfare.

So it is your position that, when a law is deficient, a court should simply make up a new law to apply that will produce a better result?

Quebecois law simply does not vest in the custodial overriding authority, for the court to rule in the way you suggest, would be to show total contempt for the legislatures plain language and arrogate to itself unheard-of powers.
4.12.2009 12:47pm
Oren:

That a court intervention was the only way to 'resolve' this is damning of the parents; that the courts saw fit to intervene is damning of Canada.

So as a matter of law, you may be right, as a matter of sense and decency, you are wrong.

See my first comment above, if the law is wrong that is the fault of the legislature and not of the court.

There are bad laws and there are good laws that occasionally produce bad results. As a general rule, however, I believe that society is better served by enforcing the law in all cases (and petitioning the legislature, as appropriate) rather than cutting holes in the statutes to fit the needs of each individual case. Doing so, even where the result in the instant case is more sensible or decent, will only serve in the long run to bring the entire edifice of the law into disrepute.


If you cannot see how terrible it is for the courts to trespass into the petty private matters of the family, even a shattered family, I honestly do not have the words to start explaining it to you.

Of course it's terrible, but still inevitable unless you have a magic balm that will un-shatter the family.
4.12.2009 12:52pm
Oren:

Rather, I can only say that your view is common, as the state no longer sees any boundaries to its authority, nor sees the harm in its participation in such petty family matters.

The State sees quite a bit of harm and only intervenes in extraordinary cases. In the rest of the dog-bites-man cases where the parents exercise their joint authority in harmony, there is no State intervention.
4.12.2009 12:54pm
Roger Schlafly (www):
This is not an extraordinary case. It involves a routine parental decision to ground a 12-year-old girl.

The judge did not follow the legislature. The legislature said that the parents will share authority. It did not say the judge gets to make the decision whenever the parents disagree. That would mean that the judge has the authority. But whether it did or not, it is extremely foolish for a silly judge to make a routine parental decision regarding a 12-year-old girl. The judge was just pouring gasoline on the fire.
4.12.2009 2:03pm
Oren:

This is not an extraordinary case. It involves a routine parental decision to ground a 12-year-old girl.

No, a routine parental decision to ground a 12 year old consists of the father and mother agreeing that she should be grounded. That fact pattern accounts for all but a small handful of groundings.


The judge did not follow the legislature. The legislature said that the parents will share authority. It did not say the judge gets to make the decision whenever the parents disagree.

If the parents disagree and there is no natural tie-breaker, how does this get resolved? The mother insisted that she has the authority to send the girl off, the father insists that he has the authority to ground her. Only one of those two things can happen.
4.13.2009 10:51am
Roger Schlafly (www):
Oren, are you under the impression that most parents agree on everything? Most parents do have occasional disagreements, and yet they manage somehow without the school persuading their daughter to get her own lawyer and to ask the court to intervene. Using a some stupid judge as a tie-breaker has never worked anywhere, as far as I know.
4.13.2009 2:15pm
Menoitios:
Having read the decision. It seems to me the key points were:

[6] Ce pourvoi ne traite ni du bien-fondé de la punition que voulait imposer un père à sa fille ni du bien-fondé de la position opposée adoptée par la mère, mais uniquement du pouvoir de la Cour supérieure d'intervenir en pareil cas.


More or less, that the court would not address the merits of the punishment that the father or the mother would impose, rather only whether the superior court had the right to intervene.

The part of the earlier judgment which was questioned was that the circumstances were exceptional enough to hear the case. The superior court judge determined it was partially it seems because the mother stated she would have brought the case if the daughter had not:
la mère a déclaré devant elle qu’elle aurait présenté une telle requête si sa fille ne l’avait pas fait et qu'elle adhérait à la requête devant le tribunal.


The original judge's decision was that since the child was now primarily in the mother's custody the mother's was now the authority:
Elle est aussi d'avis que c’est la mère qui est désormais investie de l’autorité pour prendre ce genre de décisions puisque X réside en exclusivité avec elle.


The court decides that the superior court had the right to intervene. The relevant articles of the Civil Code cited are: 33. 34. 159. 192. 193. 195. 196. 598. 600. 604. 605. if anyone wants to look them up here they are.
4.14.2009 6:57am
Oren:

Oren, are you under the impression that most parents agree on everything? Most parents do have occasional disagreements, and yet they manage somehow without the school persuading their daughter to get her own lawyer and to ask the court to intervene.

No, they don't agree on everything at first, but from experience on both sides of the aisle, as it were, they invariably come to an agreement and present it to the kid as a single controlling opinion. Only when the parents act like children and cannot come to sensible terms does a court have to intervene.

Perhaps the court should have ordered the parents to come up with a mutually acceptable solution on pain of contempt for the both of them. That would work for me and would not force the court to decide in their stead. On the other hand, sending one spouse to jail because the other one refuses to compromise seems unfair.
4.14.2009 2:10pm

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