Separation and divorce
Health decisions regarding children: Who decides after a separation or divorce?
Even after a separation, parents must generally agree on important health care decisions concerning children. But just what is an important decision when it comes to a child's health? What are the factors to be considered, and what can be done when parents disagree? Here are some answers to these questions.
Is your child 14 or over?
If your child is 14 or over, he or she generally has the right to make decisions without your permission or that of your ex. In that case, the information in this article may not be relevant to your situation.
Separated parents must make important decisions together
Unless a court has ruled otherwise, you and your ex must agree on important health care decisions concerning your child. This is the case no matter what your custody arrangement. You must therefore discuss the decision to be made and decide together.
What is an "important decision"?
Decisions concerning care or treatments required by the child's health are generally considered important decisions. For example:
- taking prescription medication
- blood transfusions
- vaccination
- certain dental and orthodontic care
- psychotherapy
On the other hand, decisions regarding routine matters of daily care (for example, meals, bathing, non-prescription medication, dental hygiene and cleanings, etc.) are not considered "important decisions". In these situations, you and your ex do not have to arrive at a decision together.
Of course, it is always preferable to keep the other parent informed when something out of the ordinary happens during your parenting time with a child (for example, a cold, a problem sleeping). The other parent is then able to follow up on the situation properly when the child is with them.
Sometimes one parent can decide without the other’s agreement
There are some exceptions where one parent alone can decide what health care a child should receive, even if the decision is an important one.
If authorized by the court
The court can remove a parent’s right to make certain decisions about his or her child. This is referred to as “deprivation of parental authority or attributes thereof”. In such a case, the other parent can make decisions about the child alone.
If there is family violence
If one parent is responsible for family violence (e.g., conjugal or sexual violence), the other parent can obtain an attestation allowing him or her to request health care or social services (e.g., psychotherapy) for the child without the other parent’s agreement.
What do you have to consider?
When you and your ex face an important decision concerning your child, it must always be taken in the child's best interests. In other words, the decision must be the one that is best for the child. In arriving at your decision, you can take into account factors such as:
- Whether the treatment in question is beneficial to the child even if there is some risk of permanent and serious side-effects
- Whether the expected benefits outweigh the risks involved
- Whether the treatment in question is appropriate for the child's needs and situation
- The child's own wishes
Of course, consulting your child's doctor or other health care specialists can help you make these kinds of decisions.
Health care professionals and important decisions
Health care professionals generally operate on the principle that a parent is acting with the other parent's agreement when it comes to medical decisions about a child. Therefore, the professional does not have to obtain the consent of each parent directly before providing a treatment.
When your child's health is in danger, and the situation is urgent, medical professionals can decide to provide treatment to your child if they have not been able to obtain your consent or that of your ex in a timely manner.
Important
Medical professionals may also have a say. A medical professional can apply to the court for permission to provide treatment if you or your ex unjustifiably refuses care required by your child's state of health. For example, this might be the case if, for religious reasons, you refuse a blood transfusion that could save your child's life.
In arriving at a decision, the judge will evaluate what is in the best interests of the child, taking into account the type of factors mentioned above.
What if parents can’t agree?
If the situation permits, you and your ex can call upon a mediator to help you resolve your disagreement.
The mediator will guide the discussion and try to help you reach an agreement.
The Quebec government's family mediation program provides you with the right to a limited number of family mediation hours free of charge.
If an agreement is impossible, you can apply to a judge of the Superior Court of Quebec to rule on the matter. In deciding whether to order a treatment to be given, or a medication to be taken, the judge will evaluate what’s in the best interests of the child, taking into factors such as:
- Whether the treatment in question is beneficial to the child even if there is some risk of permanent and serious side-effects
- Whether the expected benefits outweigh the risks involved
- Whether the treatment in question is appropriate for the child's needs and situation
- The child's own wishes
Did you know?
Since March 2021, the Divorce Act uses the term "parenting time", instead of "custody" and "access rights", to describe the time a child spends with each parent. You may therefore find this new expression in your divorce proceedings and court judgements.
However, the terms "custody" and "access" will continue to be used for de facto partners.
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WARNING
The information presented on this page is not a legal opinion or legal advice. This page explains in a general way the law that applies in Quebec. To obtain a legal opinion or legal advice on your personal situation, consult a legal professional.
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