At law, a child under the age of 18 is considered a party under disability (i.e. a “minor”).  As a result, a minor is treated somewhat differently by the courts.  For example, a minor must be represented by a court appointed litigation guardian in civil court proceedings.  In addition, limitation periods do not run against a minor’s interest until such time as a litigation guardian is appointed.  But not all minors are necessarily treated equally under the law, as was made evident by the recent Ontario Court of Appeal (C.A.) decision in R.G. v. K.G., 2017 ONCA 108. 

A minor child who is 16 or over is sometimes referred to colloquially as a “major” or “super” minor.  Designating a minor as a major minor can have all sorts of legal ramifications (including when it comes to the very topical issue of medically assisted death).

The case before the C.A. involved the fate of a 16 year old girl and the issue of shared custody (she was 17 at the time of the appeal).  The relationship between father and daughter became fraught when the daughter wanted to move to Florida to live with her mother (her mother had recently moved to the Sunshine State).  However, after several court skirmishes, it was agreed that the daughter would finish her schooling in Ontario.  The daughter was bright and capable, finished high school early, and was accepted at the University of Miami before her 18^th birthday with an entrance scholarship.  The father did not want his daughter to attend the University of Miami, but to complete another year of high school in Ontario.  However, the daughter balked and moved for a court declaration that she had withdrawn from her father’s parental control.

Justice Kiteley of the Superior Court of Justice ultimately granted the declaration that the daughter had withdrawn from parental control.  The father responded by launching court proceedings before different judges attacking or trying to set aside the declaration.  His actions were not successful and the dispute eventually found its way to the C.A.

The C.A. ably summed up the issue of child custody and parental control noting that a parent’s right to custody will not be enforced against a child’s will once the child reaches the “age of discretion”.  Historically, this meant that the child had the right to withdraw from parental control and the court would not force the child to return to a custodial parent, but would allow the child to live where he or she chose.  The age at which a child has the right to withdraw from parental control is codified in the Ontario Children’s Law Reform Act at the age of 16.  However, in Ontario (unlike Quebec), no process is required for withdrawing from parental control; the child simply has to take control “of the incidents of custody which include decision making regarding residence and education”.  Once a child has withdrawn from parental control, her independent may be recognized by the police and schools (to the dismay of parents).

Here, however, the daughter had applied to the court for a formal declaration that she had withdrawn from parental control.  By formalizing the process, various substantive and procedural safeguards were engaged, including the father’s right to oppose the declaration.  In considering the matter, including the father’s opposition and the mother’s support, the C.A. dismissed the father’s appeal and upheld the declaration that his daughter had withdrawn from his control.

This is a relatively important decision when it comes to the rights of a major minor, including in estate matters.  The appeal lends credence to “the emerging movement to incorporate the voice of the child in all matters concerning minors”.  That voice becomes even louder when a minor reaches the age of discretion or becomes a major or super minor. The degree to which the court will follow the wishes of the child will depend upon the age and level of maturity of the child and will still be subject to a judge’s discretion as he/she seeks to determine the child’s best interests.  The C.A. went on to note: “When, as here, the child is months away from her eighteenth birthday, a continuation of litigation involving her indicates more about the parent’s needs than the child’s.”

Happy Litigating.

Justin