Substitute decision-makers for children under the age of 16

For a child under the age of 16, the custodial parent, children’s aid society or other person authorized to give, withhold or withdraw consent on the parent’s behalf can act as the child’s substitute decision-maker.78 They can consent on behalf of the child for the collection, use or disclosure of the child’s information except where the information relates to:

A decision to give, withhold or withdraw consent by the capable child prevails over a conflicting decision by the custodial parent or children’s aid society.
  • counselling which the child consented to on their own under the CYFSA (or the previous Child and Family Services Act) or
  • treatment about which the child made a decision under the Health Care Consent Act

Subject to these exceptions, a custodial parent or children’s aid society can act as substitute decision-maker for a child under the age of 16, whether the child is capable or incapable. However, if the child is capable, then a decision to give, withhold or withdraw consent by the capable child prevails over a conflicting decision by the custodial parent or society.79

A mother phones a service provider to register her ten-year-old for a voluntary community program. She provides the intake worker with her son’s personal information, and consents on his behalf for its collection and use. If the mother is a custodial parent, the intake worker can rely on this consent, because a custodial parent may consent on behalf of a child younger than 16-years-old.

Later, the mother and son are visiting the service provider’s office together. The son informs the worker that he doesn’t want to be part of the program and doesn’t want the provider to have any of his information. The mother disagrees. At this point, the service provider must determine whether the son is capable. If so, his decision to withdraw consent prevails over his mother’s decision, and the provider can no longer collect or use his information.

 

78. CYFSA, s. 301(2-3)
79. CYFSA, s. 301(3)