In Québec, a minor is a person under 18 years of age.
Rights of minors
Article 157 of the Civil Code of Québec states: “A minor may, within the limits imposed by his age and power of discernment, enter into contracts alone to meet his ordinary and usual needs.”
Generally speaking, a minor cannot act alone and, in many situations, must be assisted or even represented. It should be noted that the minor’s incapacity evolves according to age, maturity, discernment and the nature of the acts involved, and does not constitute total incapacity.
Although minors cannot enter into certain contracts on their own, they can do so through a person who has the legal capacity to enter into a contract and who is considered by law to be their representative, i.e. their tutor.
Representative of a minor
Article 158 of the Civil Code of Québec states: “Except where he may act alone, a minor is represented by his tutor for the exercise of his civil rights. […]” The tutor is, among other things, an administrator of the property of others; he manages the property that is part of another person’s patrimony.
Legal or dative tutorship
Tutorship is established in the interest of the minor. It is intended to ensure the protection of his person, the administration of his patrimony and, in general, the exercise of his civil rights. Tutorship of a minor is legal or dative.
Legal tutorship arises from the law. The mother and father or the parents of a child are the legal tutors of their child without further formality, for as long as one parent is alive. The parents exercise the tutorship together, unless one of them has given the other a mandate to represent him or her. Consequently, the names and signatures of parents, as representatives of their minor child, must appear on the broker’s forms.
A dative tutorship is decreed by the father or mother or parents or one of them, or by the court. Parents may appoint a tutor for their minor child by will, by a mandate given in anticipation of their incapacity, or by a declaration to that effect sent to the Public Curator. The dative tutor acts as the holder of parental authority, unless the court decides otherwise.
As part of his work, the broker must, when the minor is represented by a dative tutor, verify the information in the Public register of representation measures. This register, which is maintained by the Public Curator, is accessible to all free of charge. The broker can consult it online.
► WHAT REFLEXES SHOULD THE BROKER HAVE TOWARD THE SELLER?
If the immovable is owned by an unemancipated minor
How to identify the seller?
The name of the minor will be identified as the seller, followed by “represented by” [name of tutor(s)]. Enter the name and contact information of the minor “represented by” the name and contact information of the tutor(s).
In section 1.1 of the Exclusive brokerage contract – Sale (BCS), establish the identity of the tutor using one of the forms of identification listed, and enter the relevant information (reference number, place of issue, and expiration date).
Also fill out section 1.2 by first identifying the representative as the seller’s tutor, then by entering the name and date of birth of the minor seller.
Who must sign?
Only the tutor(s) sign(s). It is not necessary to specify in what capacity since this has already been established in section 1.2 of the form.
What documents must be obtained and kept in the record?
The minor’s ownership documents such as the declaration of transmission, deed of gift, etc. Obtain a copy of the act confirming the minor’s ownership, which can be found in the Land Register.
As mentioned above, the majority of minors are represented by a tutor. However, in certain cases, the law provides the possibility for a minor to represent himself, thus recognizing the minor’s total or partial legal capacity, as the case may be. This is called emancipation.
Emancipation is the exception to the general rule stated above. It allows the minor to perform certain acts without being represented by a tutor. Emancipation does not put an end to minority, nor does it confer all the rights resulting from majority.
The Civil Code of Québec provides for two types of emancipation: simple emancipation and full emancipation.
Minor with simple emancipation
Simple emancipation can be seen as granting an intermediate status to the minor. Although the minor acquires a certain degree of autonomy that he would not otherwise have with respect to the management of his property, the tutor remains involved, but his role changes. The tutor’s role becomes more of an advisory one, as he no longer has a duty of care, supervision and education towards the minor. However, the tutor retains his supervisory role when the proposed actions could have a significant impact on the minor’s finances. Since this situation is not frequent, the Civil Code of Québec provides the mechanisms for obtaining simple emancipation.
HOW IS SIMPLE EMANCIPATION OBTAINED?
Simple emancipation can be obtained in one of two ways:
- By filing a declaration with the Public Curator.1 Emancipation is effective from the filing of the declaration. A minor aged 16 or over can, with the agreement of his tutor, file a declaration of emancipation with the Public Curator. This declaration must be accompanied by the agreement of the tutorship council;
- By an application to the court (Superior Court) submitted by the minor himself. After obtaining the opinion of the tutor and the tutorship council, if applicable, the judge can emancipate the minor if the application stems from serious reasons sand is in the best interest of the minor.2
Powers conferred upon the minor who has been granted simple emancipation
A minor who has been granted simple emancipation may establish his own domicile, and ceases to be under the authority of his father and mother or his parents.3
1 Art. 167 C.C.Q.
2 Art. 168 C.C.Q.
3 Art. 171 C.C.Q.
He may perform all acts of simple administration. Thus, he may, as a lessee, enter into leases for terms (residential or commercial) not exceeding three years. The emancipated minor can make investments presumed sound and perform all actions necessary for the conservation of his patrimony, such as taking out an insurance policy on an immovable he owns, hiring a contractor to do repair work, etc. He can even sue for damages. To do so, he does not need to be represented or assisted by his tutor. A minor who has been granted simple emancipation must be assisted by his tutor for every act beyond simple administration, in particular to enter into a lease as lessor, regardless of the duration of the lease, to accept a gift encumbered with a charge, or to renounce a succession.
Article 173 of the Civil Code of Québec provides for consequences where a minor who as been granted simple emancipation is not assisted by his tutor where required. Notwithstanding the above, the legislator has provided the need for the minor to obtain the authorization of the court, on the advice of the tutor. This includes selling an immovable or enterprise owned by the minor, or obtaining a large loan, whether or not guaranteed by immovable hypothec.
Minor with full emancipation
A fully emancipated minor may exercise all his civil rights. He may, among other things, sign a lease, buy, sell and mortgage property, enter into a contract, make a will and make donations, even substantial ones.
The emancipated minor also takes on all the obligations of majority.
For more information: Full emancipation
SUMMARY OF THE CAPACITY OF EMANCIPATED MINORS
|Legal acts||Simply emancipated minor||Fully emancipated minor|
|Lease a residence or commercial premises||
May act alone, as long as the term of the lease does not exceed 3 years
|May act alone regardless of the duration or term of the lease|
|Lend of borrow substantial amounts||
Must be authorized by the court, with the tutor’s advice
May act alone, regardless of the amount
|Sell or mortgage an immovable or enterprise||
Must be authorized by the court, with the tutor’s advice
|May act alone, regardless of the amount|
|Make a will||
Only for low-value property
May act alone, regardless of the value of the property
|Form a company or be a company director||
Not before the age of 18
Not before the age of 18