It is generally the parents who hold parental authority and, as such, they are responsible for making important decisions regarding their child. Parents therefore have the power to decide which individuals can have access to their child. However, this parental authority is not absolute and the Civil Code of Quebec provides for exceptions, for example when third persons, like a former spouse who is not the biological parent, requests access rights to a child.
According to the new Article 611 of the Civil Code of Quebec, which came into effect on June 8, 2022[1], a former spouse of a parent can file an application at court to request access rights to a child if the parent denies them access. However, the former spouse’s request is not automatically granted. In fact, the onus is on the former spouse to prove that they are a significant figure in the child’s life and that maintaining the relationship is in the child’s best interest.
The best interest of the child, as defined in Article 33 of the Civil Code of Quebec, is the fundamental criterion in decisions made by the court. It even takes precedence over the wishes of the parents. In the case of a request for access from a former spouse, several factors are considered in evaluating the child’s best interest, including:
- The duration of the relationship;
- The age of the child;
- The quality of the relationship established between the child and the former spouse;
- The behavior of the former spouse[2];
However, a child aged 10 to 13 must consent to the former spouse’s access, but the court may override their refusal. On the other hand, the refusal of a child aged 14 and older prevents access without exception.
If you wish to obtain access rights to your former spouse’s child, do not hesitate to contact us.
[1] Droit de la famille — 231196, 2023 QCCS 2730, par. 10.
[2] Droit de la famille — 231196, 2023 QCCS 2730, par. 14.
Text written by Me Lauren Saad
