Tutorship to a minor is a legal regime for the protection and representation of a child. Most of the time, a child’s tutors are his or her parents until he or she reaches the age of majority. However, in some cases, for example if the parents die at the same time, people other than the parents can be tutors.
There are 3 types of tutorships to a minor:
- Legal tutorship, exercised by the parents (father and mother) of the minor
- Suppletive tutorship, exercised by one or two people other than the parents
- Dative tutorship, exercised by one or several people other than the parents
Legal Tutorship
The parents of a minor child are responsible for his or her well-being, for the administration of his or her property and for representing him or her in exercising his or her civil rights (e.g., signing a contract). Pursuant to the Civil Code of Québec, they are automatically the child’s legal tutors.
The child’s parents exercise legal tutorship together, whether or not they are separated. In certain situations, one parent may exercise it alone, namely if the other parent:
- has died
- is declared incapacitated (see Definitions) by the court
- has been deprived of parental authority
Suppletive Tutorship
When it becomes impossible for a parent to fully exercise his or her tutorship and parental authority over his or her child (for example: the parent has serious health problems or is experiencing difficulties as a single parent), the parent has recourse to suppletive tutorship. A process that must be approved by a court, this measure allows a parent to either delegate or share his or her tutorship and parental authority over the child with a suppletive tutor without breaking the filial bond between child and parent. If neither of the 2 parents can fulfil their parental duties, 2 suppletive tutors may be designated.
Suppletive tutorship may be exercised:
- by a parent’s spouse, if the parents are separated
- by certain members of the child’s family (for example: grandfather, grandmother, uncle, aunt, brother, sister)
Since a child cannot have more than 2 parental figures, a parent can designate either:
- 1 suppletive tutor, if he or she wants to delegate or share certain parental responsibilities with the tutor, or
- 2 suppletive tutors, if he or she wants to delegate all parental duties to the tutors (his or her own duties, as well as those of the other parent)
Suppletive tutors exercise the same tutorship and parental authority over the child and have the same responsibilities toward the child as legal tutors, particularly with regard to healthcare and management of the child’s property. However, certain duties, such as child support obligations, inheritance and consent to adoption, continue to apply exclusively to the parents. The latter also retain the right to designate a dative tutor in the event of their death or incapacity.
When a parent asks that a suppletive tutor be named, the court first confirms that the situation merits such an action and that it would be in the child’s best interests. The choice of tutor(s) must also be approved by the court and, in general, by the child if he or she is at least 10 years old. If the child is at least 14 years old and does not agree with the choice of tutor, the tutorship will not be approved.
A suppletive tutorship ends when:
- the child turns 18 or becomes fully emancipated
- the child, tutor or last remaining parent dies
- the tutor is replaced
- the court withdraws the tutor’s responsibilities, or reinstates those of the parent
Note that suppletive tutorship in Aboriginal communities is also recognized in the Civil Code of Québec. The effects of this tutorship are the same as those described above; however, it is attested by a competent Aboriginal authority rather than a court (a register of these competent authorities is available on the website of the Directeur de l’état civil), and is done in accordance with the custom of the community in question.
Dative Tutorship
Dative tutorship must be instituted namely when both parents of a minor child die or are declared incapacitated following a court decision. The dative tutor then takes care of the child instead of his or her parents.
Dative tutorship may be exercised:
- by a dative tutor to the person and property, or
- by more than one tutor, such as a single dative tutor to the person and one or more dative tutors to the property
The dative tutor to the person must oversee the minor child’s well-being and represent him or her in the exercise of his or her civil rights. As for the dative tutor to the property, he or she must ensure that the child’s property is well managed and protected until the child reaches the age of majority or is emancipated.
The parents may designate one or more dative tutors for their minor child ahead of time in:
- their protection mandate
- their will
- a statement to the Curateur public du Québec
It is suggested that parents:
- provide a substitute for each designated dative tutor
- notify the persons they have designated
In the event that the parents die or become incapacitated, the dative tutor designated by the parents has 30 days from the time he or she is informed of the designation to accept or refuse to assume the dative tutorship.
In certain cases, the court may appoint a dative tutor. This can happen if, for example:
- both parents have died or become incapacitated at the same time and they have not designated dative tutors or have designated different ones
- the dative tutor designated by the parents has refused to exercise the dative tutorship and there is no replacement tutor
- the dative tutor does not fulfil his or her obligations once he or she takes up his or her duties
Monitoring the Administration of the Minor’s Property
The tutor has a duty to act in the minor’s best interests, for both the child’s person and property.
The Act provides for the Curateur public du Québec to monitor the administration of the minor’s property:
- if the value of the property to be managed exceeds $25,000, in the case of legal or suppletive tutorship
- regardless of the value of the property to be managed, in the case of dative tutorship
In these cases, the tutor is required to provide certain documents to the Curateur public, namely:
- an inventory of property, which consists of a list of the minor’s assets (e.g.: life insurance, indemnity, pension, donations, inheritance) and debts (e.g.: mortgage on a building)
- an annual report presenting the minor’s assets, debts, income and expenditures for the past year
- a copy of proof of security, that is, a guarantee of protection (e.g.: mortgage, insurance contract, held funds) for the minor’s property, if the value exceeds $25,000
a final administration report, after the management of the tutorship has ended
Tutorship Council
A tutorship council is set up as soon as:
- the value of the minor’s property exceeds $25,000, in the case of legal or suppletive tutorship, or
- a dative tutorship is established (except if a director of youth protection, a person he or she recommends or the Curateur public acts as the dative tutor)
Appointed by the court, the 3 members of the tutorship council are generally close relatives or friends of the minor. Their role is to:
- accompany the tutor in his or her duty so that he or she can adequately fulfil his or her responsibilities
- give the tutor advice and authorize certain decisions
- monitor the administration of the tutorship
Replacement of a Minor’s Tutor
A tutor who does not meet his or her obligations can be replaced, at the request of:
- the tutorship council
- a relative of the minor
- the Curateur public
- a director of youth protection
The court examines the request. If the tutor dies, the tutorship council can ask the court for his or her replacement.
Incapacitated
A person is incapacitated when they are unable to care for themselves or manage their affairs. Incapacity may be declared due to a mental or degenerative illness, a stroke, an intellectual disability, a head injury or a weakened state as a result of old age that alters the mental faculties or physical ability to express one's wishes.
Most of the provisions relating to suppletive tutorship went into effect on June 16, 2017, the date of assent to the Act to amend the Civil Code and other legislative provisions as regards adoption and the disclosure of information (the project of Bill 113). Those relating to suppletive tutorship in Aboriginal communities went into effect on June 16, 2018.
