UPDATED: Who Signs for a Child?

February 15, 2018 - Ron Kruzeniski, Information and Privacy Commissioner

When it comes to obtaining the personal information of a child under the age of 18 years, it is commonly accepted that a child cannot sign for himself or herself.  So who can sign for that child?

The Children’s Law Act, sections 3 and 4 provides:

  • The parents of a child are joint legal custodians with equal rights unless changed in a court order or an agreement;
  • Where parents have not lived together after the birth of a child, the parent with whom the child resides is the sole legal custodian;
  • If a parent dies, the surviving parent is the legal custodian of that child unless changed by a court order or an agreement.

The Freedom of Information and Protection of Privacy Act (FOIP), section 59 and The Local Authority Freedom of Information and Protection of Privacy Act (LA FOIP), section 49 both provide:

Any right or power conferred on an individual by this Act may be exercised:

(d) where the individual is less than 18 years of age, by the individual’s legal custodian in situations where, in the opinion of the head, the exercise of the right or power would not constitute an unreasonable invasion of the privacy of the individual; or

In effect then the legal custodian can sign on behalf of the child.  This means two parents, sometimes one parent, or as directed in a court order, or agreed to in an agreement.

The Health Information Protection Act (HIPA), has a similar provision, section 56 which provides as follows:

56 Any right or power conferred on an individual by this Act may be exercised:

(c) by an individual who is less than 18 years of age in situations where, in the opinion of the trustee, the individual understands the nature of the right or power and the consequences of exercising the right or power;

(d) where the individual is less than 18 years of age, by the individual’s legal custodian in situations where, in the opinion of the trustee, the exercise of the right or power would not constitute an unreasonable invasion of the privacy of the individual;

These provisions caused a number of questions to be asked.

Q.  What if the parents are separated?

A.  If parents are separated, they both are still joint legal custodians unless changed by a court order or an agreement.  In a court order, a judge can order that one parent is the sole legal custodian.  In an agreement, one parent can give up his or her rights to be the joint legal custodian.  In these instances, the head or a trustee should ask for a copy of the court order or agreement and identify the clause that deals with legal custodianship.

Q.  What if one of the separated parents has a girlfriend, boyfriend or new spouse?

A.  The girlfriend, boyfriend or new spouse has no rights unless it has been directed in a court order or dealt with in an agreement.

Q.  What if the child wants to exercise his or her rights?

A.  FOIP and LA FOIP do not have a specific section that answers this question. When children get to the age of what may be considered a mature minor, heads should use their discretion to provide the personal information if the child, “understands the nature of the right or power and the consequences of exercising the right or power.”  Heads should also look to their governing legislation to see if the Legislative Assembly has provided direction on the rights of the child.

HIPA does contemplate an individual under 18 years of age exercising a right under the Act such as requesting his or her personal information.  When such a request is made, it is up to the trustee to determine whether the individual understands the nature of the right or power and the consequences of exercising the right or power.  There is no specific age when one can say that is a mature minor.

The head has to in each circumstance determine whether the child understands the nature of the right or power and the consequences of exercising the right or power.  In circumstances of uncertainty, the head might decide to acquire the signature of the legal custodian and the child.

Q.  Can the legal custodian obtain all personal information or personal health information?

A.  All three statutes provide that legal custodians can have the information, unless in the opinion of the head or trustee, providing the information would be an unreasonable invasion of privacy of the individual.

Doctors, nurses, social workers, teachers and guidance counsellors can run into this problem.  Parents may want all the information but that information could include information on pregnancy, drug addiction, sexually transmitted disease, contemplated suicide, contemplated leaving home or commission of a crime.  In these instances, the professional involved, his or her supervisor, the head or the trustee must consider very carefully the words “unreasonable invasion of privacy”.

Q.  What if the child verbally or in writing tells the professional that he or she has shared the information in confidence and does not want his or her parents to know?

A.  This adds to the challenges faced by the professional. Such a request by the child is a clear indication that the child wishes privacy and does not want the information to be shared with others.  It is an important factor in determining whether there would be an “unreasonable invasion of privacy.”

Other helpful resources on this topic can be found at:

  1. Alberta FOIP bulletin “Consent and Authentication” http://www.servicealberta.ca/foip/documents/bulletin17.pdf
  2. Office of the Privacy Commissioner of Canada “Legal information related to PIPEDA” https://www.priv.gc.ca/leg_c/interpretations_07_consent_e.asp
  3. Office of the Privacy Commissioner of Canada “Guidelines for Online Consent” https://www.priv.gc.ca/information/guide/2014/gl_oc_201405_e.asp
  4. Best Practice for Gathering Informed Consent http://www.oipc.sk.ca/Resources_PublicBodies_General.htm
  5. Alberta IPC Order F2012-21 case on Unreasonable Invasion of Privacy https://www.canlii.org/en/ab/aboipc/doc/2012/2012canlii70631/2012canlii70631.pdf)

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