Right to privacy trumps parental authority, rules court

A father who demanded that his 16-year old son hand in a copy of his passport as well as other personal documents learned the hard way that Charter-protected rights can trump parental authority.

Parents still remain gatekeepers. They still have the rights and duties of custody, supervision and education of their children. Parental authority still gives parents the right to make all decisions necessary to their children’s well-being.

But there are limits.

In a singular case that examines the reach of parental authority and the right to privacy of children under the Quebec Charter of Human Rights and Freedoms, Quebec Superior Court Justice Claude Dallaire held that in the absence of reasonable grounds parental authority must give way to a child’s right to privacy.

“The simple fact that the applicant is the father of the teenager and is one of the parental authorities is insufficient to override the privacy of the teenager, protected by the (Quebec) Charter, as the Court has the duty to protect the fundamental rights and freedoms of the teenager,” said Justice Dallaire in Droit de la famille – 192767, 2019 QCCS 5769, a decision that was published in mid-February 2020.

The teenager’s parents were in the middle of divorce proceedings during the trial. The mother had obtained legal custody of the teenager, and the father visitation rights though the teen rarely chose to take advantage.

In August 2019 the mother sought the father’s authorization to obtain a passport for the child and to travel with her. The father refused. They ended up in court a couple of days after the request as the trip was scheduled for mid-August. At the hearing the father had a change of heart and granted the mother’s request but demanded to know where they were going to and for how long. During the hearing the father also demanded that his son furnish him with a copy of his passport and other documents. Given the nature of the request, the mom sought an adjournment so that the teenager could be represented by a lawyer.

In October 2019, at another hearing, the father changed his mind and stated that he no longer opposed the mother’s request to travel with her son without his authorization. The father also announced that his son could travel by himself, without the authorization of his parents. The only issue then that remained before the courts was whether the father could demand his son provide him with a copy of his passport and other information.

In essence the father asked the court to order the child to respect the father’s parental authority. The teenager in turn argued that under section 5 of the Quebec Charter he has a right to privacy, a right also conferred by s. 3 and 35 of the Civil Code of Quebec. He also pointed out that under s.34 of the Civil Code a court “shall,” in every application brought before it affecting the interest of a child, give a child an opportunity to be heard if his age and “power of discernment” permit it.

Case law clearly holds that children who want a passport and who want to travel have to obtain the permission of their parents as it is something that falls within the scope of parental authority, noted Justice Dallaire. So if a 16 year old wants to travel and one of the parents oppose it, then the other parent has to go to court to obtain the necessary authorization.

But, in this case, since the father granted his son permission to travel by himself without parental permission, that increases the teenager’s expectation of privacy, said Justice Dallaire. “Indeed, if he can go anywhere he wants to without the permission of his parents, why should he be forced to hand a copy of his passport to his father when it (the passports) can reveal the places he went to and the time he travelled?” asked rhetorically Justice Dallaire.

Besides, federal and provincial legislators give much more leeway to children than is commonly thought. Under s. 2 of the Canadian Passport Order, a person who applies for a passport must be at least 16 years old. The same holds true for a kid who wants to apply for a social insurance number, only difference being he must be 12 and over.

In Quebec parental authority can be limited in health care matters when it deals with children over the age of 14. Teenagers over the age of 14 can have piercings and tattoos without parental permission. They can change their name and sex, and have a say in matters dealing with filiation and adoption.

There are nuances however. A minor 14 years of age or over may give his consent alone to health care – but if his state requires that he remain in a health or social services establishment for over 12 hours, the person having parental authority or tutor shall be informed of that fact.

“The Quebec legislator confers a rather impressive degree of autonomy to adolescents,” noted Justice Dallaire. “In the court’s opinion, this autonomy that the legislator hands to children in these areas of their lives increases the expectation of privacy because an obligation of confidentiality is then imposed on health professionals and other people who interact with these adolescents…when personal information of a private nature is communicated to them.”

On top of that, added Justice Dallaire, the Quebec Charter and the Civil Code clearly recognizes that children have a right to privacy.

A family lawyer described the ruling as interesting but surprising. “Parental authority effectively becomes moral authority when the child turns 14,” he remarked.

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