Family, Person and Successions
Between Filiation, Parentage and Parenthood, Could a Child Have Three Parents?
The Honourable Nicholas Kasirer decided that a child cannot have three parents, which decision was endorsed by the Honourable Jocelyn F. Rancourt and Stephen W. Hamilton (Family Law - 191677, 2019 QCCA 1386). This decision in matters of filiation reversed in part the Superior Court judgment rendered on April 23rd, 2018 by the Honourable Gary D. Morrison (Family Law - 18968, 2018 QCCS 1900).
In this case, the couple being Mrs. L. and Mrs. R. wish to have a child. To do so, they signed an "Agreement to Bring a Child into the World" with Mr. M., which agreement was notarized.
The child born as a result of a relationship between R., the biological mother, and M., the biological father. However, the birth certificate indicates that the child's parents are R. and L. It should be noted that L. undertook a process to change their gender following the birth of the child, which resulted in a change to the child's birth certificate.
The couple is having trouble and a petition for divorce is filed. An interim consent is then signed regarding the joint exercise of their parental authority, without any consideration toward the biological father. In response, M. files an application to institute proceedings for recognition of paternity. The issue in dispute therefore relates to the determination of the child's filiation, which is shared between L., R. and M.
Mr. Justice Morrison concluded a parental project between the three parties in accordance with a notarized agreement. As a matter of fact, the three parties developed a parental project and set out the roles of each party in the child's life. Consequently, this is not a case of filiation by assisted procreation and the rules of filiation by blood apply.
Since triparental (or multiparental) is not recognized in Quebec, the Superior Court granted the biological father's application and ordered the Civil Director to amend the birth certificate so that the names of both biological parents be indicated on it, considering that "biological truth must predominate". Moreover, following the separation, M. and R. shared custody of the child, while L. exercised rights of access.
But the story does not end there since L. applied to the Court of Appeal to overturn the Superior Court judgment. The Court of Appeal concluded that the judgment of the court of first instance should be reversed in part on the grounds that the judge erred in law in his statutory interpretation of the "parental project involving assisted procreation" provided for in Article 538 of the Civil Code of Québec. Specifically, the third rule identified by the case law was misinterpreted since the distinction required between "parentage" (based on the bond of filiation) and "parenthood" (based on the exercise of functions related to parental authority) for the purposes of determining the child's filiation was not made.
However, as the Court of Appeal points out, “the definition of the parental project, as the basis for filiation involving assisted procreation, is based on a willing relationship between the parties to the project and the child and, for the spawner, the awareness and acceptance of his limited role in this regard”. In this case, the biological father renounced his filiation at the birth of the child.
Consequently, rather than applying the rules of filiation by blood as proposed by the first instance judge, the Court of Appeal applied the rules of filiation involving assisted procreation, which had the effect of considering the biological father as a third party external to the parental project, having no rights with respect to the child as such.
Although the paths used by the Superior Court (filiation by blood) and the Court of Appeal (filiation involving assisted procreation) diverged in determining the filiation of the child in question, a principle of law brings these two judicial bodies together: the family of this child is biparental in both cases, considering that Quebec law does not recognize that a child could have three parents. Nevertheless, as the Court of Appeal pointed out, arrangements such as bi-parentage for filiation or tri-parenthood for the exercise of certain parental responsibilities could be made legally, since nothing in the law of assisted procreation prevents a third party in the sense of filiation from being the biological father of the child" as was the case in accordance with Article 539.1 of the Civil Code of Québec.