Law in Quebec

“There is plenty of scope in Quebec law for a known donor, chosen by a person or couple who are having a child through assisted procreation, to be active in a child’s life but at the end of the day it’s going to be the two original parents on the birth certificate,” noted Robert Leckey, a family law expert and dean of the Faculty of Law at McGill University.

Elsewhere in Canada, it is possible for a child to have three legally recognized parents. In 2007, the Ontario Court of Appeal set a precedent in A.A. v. B.B., 2007 ONCA 2 when it held that three or more parents could be listed on a birth certificate. In 2013, British Columbia amended the Family Law Act to allow for more than two parents while a court in Newfoundland and Labrador in C.C. (Re) 2018 NLSC 71 recognized two men in a relationship with the mother of a child parents as well.

“The decision confirms that there can only be two parents in Quebec,” said Danielle Gervais, president of the Quebec Association of Family Lawyers. “If we want to have more than two parents in Quebec recognized in a birth certificate, the law will have to be amended. But that comes down to a choice made by society.”

In this case, a lesbian couple who wanted to have a child for years met a man through a website who was willing to be a sperm donor but who also wanted to play an active role in the child’s life. A written agreement was signed between the three adults that stipulated the two women would be declared as the parents in the child’s birth certificate while the biological father would carry the status of legal guardian.

The situation became complicated after the couple divorced. The non-biological mother transitioned into a man, which prompted the sperm donor to contest the filiation established by the couple’s relationship. He also wanted to have his paternity legally recognized, and replace the non-biological’s mother name in the child’s birth certificate with his.

The trial judge noted that Quebec law does not allow for triple filiation to be established. Quebec Superior Court Justice Gary Morrison added that the Quebec government should review its law to recognize families with more than two parents to safeguard the best interests of children.

Justice Morrison also held that the sperm donor was not a third party to the parental project within the meaning of article 538 of the Civil Code of Quebec, and therefore the rules of filiation by blood applied. He then ordered, albeit reluctantly, the name of the non-biological parent from the birth certificate to be replaced with the sperm donor. Under article 538, a parental project involving assisted procreation exists from the moment a person alone or a couple decide by mutual consent to have a child and to resort to the “genetic material of a person” who is not party to the parental project. The article adds that contribution of the genetic material to the parental project cannot be the “basis for any bond of filiation” between the donor and the child.

The Quebec Court of Appeal overturned the decision, and ordered that the non-biological mother’s name be reinstated in the birth certificate as was agreed by the parties before the birth of the child. Unlike the trial judge who deemed that it was in the best interests of the child to have the sperm donor be recognized the parent of the child, Justice Nicholas Kasirer had a different take on the case, pointed out Alain Roy, a Université de Montréal law professor who presided over a provincial government committee that looked into family law reform. The 2015 report was shelved by the provincial government.

In one of his last decisions as an appeal court judge, now Supreme Court of Canada Justice Kasirer points out in Droit de la famille — 191677, 2019 QCCA 1386 that none of the parties claimed there was a right to have three parents in spite of the trial judge’s remarks. And contrary to the trial judge’s findings, Justice Kasirer found that the sperm donor was in fact a third party to the parental project within the meaning of article 538. Heeding guidance from a previous Quebec Court of Appeal decision in Droit de la famille – 111729, 2011 QCCA 1180 that extensively analyzed the elements that make up a parental project, Justice Kasirer concluded that the women made their agreement before meeting with the biological father. Further, the man waived in the written agreement the right to be one of the two legal parents. His name therefore could not be written into the birth certificate on the Registrar of Civil Status as the father even though he was in fact the biological father, held the appeal court.

“Justice Kasirer held that it was a case that did not hinge on filiation but rather parenthood, and that took away any room to maneuver to decide what is best for the child,” observed Roy, who acted as a consultant for the sperm donor. “All he had to decide was who are the parents of the child, and the parents of the child are the two mothers as the legislation indicates. It’s almost as if the Court of Appeal washed their hands.”

Justice Kasirer made the distinction between parenthood and kinship. Parenthood relates to filiation, explained Justice Kasirer in reasons Justices Jocelyn Rancourt and Stephen Hamilton concurred with. A construct of positive law, filiation under the Civil Code – by blood, assisted procreation or adoption — is the legal relationship that binds a child to his mother and father. Filiation therefore is a legal construct independent of the actual role or implication of the person acting as the parent. Kinship is a broader concept than parenthood and filiation, and it generally denotes parenting, added Justice Kasirer in the decision issued on August 16^th.

In spite of the agreement signed by all three parties, the accord does not grant the biological father status of party to the parental project. The sperm donor, concludes the appeal court, is the biological father, is active in the life of the child as a parent but does not have legal status of father and nor is he conferred with any parental authority that is granted to legal parents.

Kasirer takes great pain, say family law experts, not to diminish the role that parenting has.  Without being a legal parent, a person may be invested through various means and in various circumstances with the different attributes of parental authority, including financial responsibility towards the child. “Such arrangements may be implemented without impairing the principle of the inalienability of the parental authority and without depriving the parents of the rights and responsibilities incumbent upon them,” said Justice Kasirer.

But Quebec courts are loathe to grant a person who acts as a parent but who is not a legal parent any parental authority, according to Michel Tétrault, a Sherbrooke legal aid lawyer who wrote a book on Quebec family law. He believes society should tread carefully before recognizing more than two parents.

“Perhaps our society is not there yet,” remarked Tétrault. “A debate must be had. But one must be prudent before recognizing more than two parents for a child. The interests of the child must be primordial.”

Roy believes that the Quebec government should forge ahead and be more flexible in the way it views parenthood. There are different options it can implement, he said. It can follow in the footsteps of the three provinces that now legally recognize a child can have more than two parents, or it can recognize a plurality in filiation, or finally it can give legal force to parenthood agreements.