Tutorship to the property of a minor
The dative tutor is a person designated by the parents to look after their child and administer the latter’s patrimony, in the event of the parents’ death or incapacity.
Institution of a dative tutorship
A dative tutor may also be appointed by the court when one or both parents are stripped of their parental authority or neglect their responsibilities as legal tutor. The court may also appoint a dative tutor if the parents have not designated anyone in advance to perform this role.
There are two aspects to the dative tutorship:
- protection of the child’s person;
- administration of their property.
These separate aspects are respectively called a dative tutorship to the person and a dative tutorship to the property.
Usually, a minor has only one dative tutor to look after their person and their property. However, they could have multiple dative tutors, including:
- a tutor to the person to look after their well-being and ensure the exercise of their rights; and
- one or more tutors to the property to administer their patrimony and to represent them in the exercise of their rights regarding their patrimony.
The tutor to the person must be a physical person, whereas the tutors to the property can also be legal entities (e.g., a financial institution).
When a minor receives a gift (money or property) or an inheritance of more than $40,000, or any indemnity (regardless of value), the tutor must make sure that a Declaration of the remittance of property in favour of a minor (PDF 49 Kb) is sent to the Curateur public.
The role of a dative tutor to the person is not discussed in the following pages, because the protection of a minor’s person does not fall under the purview of the Curateur public.
Designation of a dative tutor by the parents
The parents may designate one or more dative tutors for their child in anticipation of their incapacity or death.
They may designate them:
- in their protection mandate;
- in their will (whether notarized, holographic (handwritten) or drawn up before witnesses);
- in a Declaration of Dative Tutorship (PDF 417 Kb) sent to the Curateur public.
The Declaration of Dative Tutorship filed with the Curateur public has official status and does not require further action by the court or a notary.
In all cases, the wishes of the last parent to die or to become incapable are always those that apply.
The dative tutors designated need not be Canadian citizens, but they must be capable of assuming their role and of exercising their civil rights. A fully emancipated minor may also be chosen as dative tutor. Quite often, the dative tutor will be a family member or someone close to the family.
The parents can even designate a substitute for the dative tutor in the three documents mentioned above. This person will take over if the designated person refuses the office, neglects their obligations during the tutorship, or dies.
The advantage of the parents designating the dative tutor is that the court does not need to step in if the parents die or become incapacitated. The same applies for the Director of Youth Protection (DYP) and the Curateur public. The court will only verify the deceased parent’s will, if it is not notarized, or the homologation of their protection mandate.
Taking office of the dative tutor
If the parents become incapable or die, the dative tutor has 30 days to accept or refuse the new role.
The designated tutor is presumed to have accepted the role, unless they refuse it within 30 days of learning of their appointment.
Whether the tutor accepts or refuses, they must communicate their decision:
- to the Curateur public;
- to the liquidator of the succession, in the event of the parents’ death;
- to the substitute dative tutor, if the parents designated one, in the case of a refusal.
If the designated tutor refuses, then the substitute designated by the parents may assume the role. If there is no substitute or if the latter refuses to take office, the court must be petitioned to appoint another dative tutor.
Designation of a dative tutor by the court
Any interested person may petition the court to designate a dative tutor:
- if no dative tutor was appointed by the parents (prior to their death or the declaration of their incapacity);
- if the child has been abandoned;
- if a tutor can no longer assume their role for various reasons, or if they do not fulfill their obligations and must be replaced;
- if both parents die or become incapable at the same time, and each one has designated a different tutor, who accepts the role.
The following may petition the court to designate a dative tutor:
- the minor child;
- the father, the mother, or someone close to the minor;
- the tutorship council;
- the Curateur public;
- the Director of youth protection;
- any interested person.
The steps can be taken by the person themselves or by a lawyer or a notary, on their behalf.
The institution of a dative tutorship entails costs (court and bailiff fees, notary’s or lawyer’s fees, etc.). These fees can be deducted from the patrimony of the minor. They may also be covered in whole or in part by legal aid .
There are several steps in the process:
- Filing of an application for the appointment of a dative tutor or an application to replace a tutor, depending on the situation
An application is filed with the court of the district where the minor resides . It can also be filed with a notary. A copy of the application is then sent to:
- the minor, if they are 14 years and over;
- the Curateur public;
- the people close to the minor.
- Court hearing to consider the opinion of the tutorship council (if already formed, e.g., in the case of replacement of a tutor)
- Invitation to a meeting of relatives of the minor and persons connected to him by marriage or a civil union, and his friends (if the tutorship council is not yet formed)
The meeting of relatives is a meeting of immediate family members and people close to the minor concerned by the application. It is held at a notary’s office or at the court where the application to institute the dative tutorship was filed.
Called by the special clerk, the meeting aims to inform the people close to the minor of the application to institute a tutorship. This is an opportunity for them to express their opinion on the choice of dative tutor(s) and to designate the members of the tutorship council.
The application for appointment of a dative tutor ends with the judgment by the court, appointing the dative tutor and the members of the tutorship council, if they have not already been appointed. The following are then informed of the judgment: the appointed dative tutor, the minor’s living parents, and the Curateur public.
When the application is submitted to a notary and is not contested within 10 days prior to the filing of the notary’s minutes with the court, the appointment of the dative tutor takes effect on the date of the filing of the notary’s minutes. If it is contested, only the judge can make a decision.
The role of dative tutor is generally not paid. However, the court may grant you compensation upon your appointment. In doing so, it will consider the expenses related to the tutorship and the income from the property to be managed. The tutorship expenses are any expenses directly related to the administration, protection and preservation of the child’s patrimony. Examples include an accountant’s fees for preparing the annual management reports, legal fees, and property insurance premiums.
The court may also determine the conditions under which the tutorship council may continue to pay you.
Moreover, if no compensation was specified at the time of your appointment, you may petition to the court for compensation at a later date. The court will ask for the opinion of the tutorship council.
The court will set an amount to be taken from the patrimony of the minor. Your personal financial situation has no bearing on the amount of the payments you receive. In general, an hourly rate will be determined.
Responsibilities of the dative tutor
A dative tutor has an obligation to preserve the value of the minor’s patrimony, as does the legal tutor and the suppletive tutor. However, the dative tutor has no obligation of support toward the minor. As such, they can use the minor’s property to meet their basic needs when the living parents’ income is not enough to meet their obligation of support or when the parents are deceased.
If they are still alive and their income does not prevent them from meeting their obligation of support, one or both parents must use their own money to pay for the minor’s expenses.
Unlike the legal tutors, the dative tutor to the property must always report on their administration, regardless of the value of the minor’s patrimony. Furthermore, the law imposes other legal obligations, including the obligation to form a tutorship council.
To learn more about your specific responsibilities as dative tutor, download the document Administering the property of a minor - Guide for the dative tutor and the tutorship council (for dative and suppletive tutors) (PDF 2.65 Mb).
Replacement of the dative tutor
A dative tutor may petition to the court to be replaced as tutor, for serious reasons. They must inform the tutorship council of their intention to do so. If the dative tutor fails to fulfill their obligations to administer the minor’s patrimony or is unable to perform their duties, the tutorship council must petition the court for their replacement. Any interested person, including the Curateur public, may also petition the court for their replacement.
Pending the decision, the dative tutor continues to exercise their role, unless the court orders otherwise.
Contact the general information service of the Curateur public
Monday, Tuesday, Thursday and Friday: from 8:30 a.m. to 12:00 noon and from 1:00 p.m. to 4:30 p.m.
Wednesday: from 10:30 a.m. to 12:00 noon and from 1:00 p.m. to 4:30 p.m.
General mailing address (Head office and territorial branches)
Curateur public du Québec
500, rue Sherbrooke Ouest, bureau 1832
Montréal (Québec) H3A 0J2
Last update: July 27, 2023