Legal Status of Child Rights in Canada


Every decision concerning a child in Quebec is required to respect the child’s rights:


  • 32. Every child has a right to the protection, security and attention that his parents or the persons acting in their stead are able to give to him.
    1991, c. 64, a. 32.    
  • 33. Every decision concerning a child shall be taken in light of the child's interests and the respect of his rights.
    Consideration is given, in addition to the moral, intellectual, emotional and physical needs of the child, to the child's age, health, personality and family environment, and to the other aspects of his situation.
    1991, c. 64, a. 33; 2002, c. 19, s. 15.
  • 34. The court shall, in every application brought before it affecting the interest of a child, give the child an opportunity to be heard if his age and power of discernment permit it.
    1991, c. 64, a. 34.

Civil Code of Québec, C.c.Q, CHAPTER II, ss. 32-34

The Supreme Court of Canada and other Canadian courts frequently refer to the Convention on the Rights of the Child (CRC) and its significance (e.g. A.C. v. Manitoba (Director of Child and Family Services), paragraphs 92-93; A.M.R.I. v. K.E.R. 2011 ONCA 417, paragraph 82). Courts also recognize that the CRC is not incorporated into domestic law because Canada’s position is that its laws, policies and practices comply with the CRC (B.J.G. v. D.L.G. 2010 YKSC 44, paragraphs 33 – 36, adopted in N.J.K. v. R.W.F. 2011 BCSC 1666, paragraph 199; Baker v. Canada (Minister of Citizenship and Immigration) 1999 Canlii 699 (SCC)).

Canada’s Charter applies to children. Assume that it provides protection at least as great as that afforded by comparable protections in the CRC and other international instruments when laws, policies, practices and procedures are made and interpreted. The CRC in this respect is not just persuasive in interpreting Charter rights, but is binding (Divito v. Canada (Public Safety and Emergency Preparedness 2013 SCC 47, paras 23-25; See also Slaight Communications Inc. v. Davidson, [1989] 1 SCR 1038, p. 1056 citing earlier comments in Reference Re Public Service Employee Relations Act (Alta); Health Services and Support – Facilities Subsector Bargaining Association v. British Columbia, 2007 SCC 27, para 70; R. v. Hape, 2007 SCC 26, para 55).

An interpretive principle of domestic law is the rebuttable presumption that Canadian law, including provincial and territorial law, conforms to the Charter, CRC and other international law. It may be difficult to rebut this presumption. If a statute is unambiguous, its provisions must be followed even if contrary to the CRC or other international law, provided they can withstand a Charter challenge (R. v. Hape, 2007 SCC 26, paragraphs 53-54; Canadian Foundations for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, paragraphs 31-32; Ordon Estate v. Grail, [1998] 3 SCR 437, paragraph 137).

Canada, as a State party, is bound to perform the obligations contained in the CRC in good faith as a matter of international law and cannot invoke its internal law to justify a failure to uphold treaty obligations (Articles 26 and 27, Vienna Convention on the Law of Treaty).