Law in Quebec

Justice Garin struck down more than 40 articles of the Civil Code, but suspended the declaration of invalidity for 12 months to give the Quebec government time to change the law. Quebec could join the ranks of five provinces and territories, including British Columbia, Ontario, Newfoundland and Labrador, Saskatchewan, and Yukon, that currently recognize families with at least three parents if the decision is maintained.

Bernard Amyot, part of a team of lawyers who successfully pled the case, asserts the ruling marks a “decisive legal and social advance” as it recognizes the existence of this kind of a joint parental project must be legally recognized under the filiation provisions of the Civil Code. “Family structure has evolved over time, and continues to do so, and plural parenthood is part of that evolution,” said Amyot, Ad.E. a founding partner of Montreal-based LCM Avocats Inc. and former president of the Canadian Bar Association.

Sarah Woods, another lawyer who represented some of the plaintiffs, including La Coalition des familles LGBT+ (LGBT+ Family Coalition) believes the ruling sets an important precedent by having family status recognized as an analogous ground. “In terms of a novel development, that is certainly one,” remarked Woods, Co-Chair of the International Arbitration Group at McCarthy Tétrault LLP in Montreal. “This is going to impact the entire parentage legislation under the Civil Code, and so that obviously is a major reform. But also in terms of the social fabric, this is a recognition of something that is already happening. It’s the same type of social phenomena that we had with gay marriage at the time.”

But family law experts are far from convinced that the Superior Court ruling will stand up to the scrutiny of the Quebec Appeal Court if the matter is heard, as is widely expected. Michel Tétrault, Ad.E., author of several books on Quebec’s family law regime, said the ruling fails to address the practical considerations affecting the best interests of the child living in multi-parent families. Indeed, Tétrault notes that the best interests of the child are barely analyzed in the ruling.

“There’s a lot of discussion in this judgment about the rights of the parents, but not much about the interests of the child,” said Tétrault. “I don’t have a problem with having a third parent involved in the life of a child. It’s when it comes to parental authority that I have a bit more difficulty with it. If there’s a break-up, how do you divide the child’s parental time? It seems to me that assessing the child’s interests is one of the important considerations that should be examined.”

Marie Christine Kirouack, Ad.E., a family lawyer and a director of the Quebec Association of Family Lawyers, too believes that the ruling does not adequately examine the best interests of the child. “I’m not a prude, but I don’t see why because there are three persons living as a couple that you have to have more than two parents,” said Kirouack. “What are we going to do with parental authority? Will decisions be made by a simple majority? What are we going to do when they separate?”

The ruling combines two separate cases involving three families, with the LGBT+ Family Coalition helping to bring in one of the cases. In one case, a heterosexual couple who were already parents entered into a romantic relationship with another woman, who had a child with the man. All three are raising the child but only the biological mother is listed in the birth certificate. The second case deals with a lesbian couple who wanted to have a child, but wanted the biological father to be involved. The couple turned to a gay friend to have a child. The final case involves a couple whose wife, after chemotherapy, becomes a mother thanks to a surrogate mother.

Filiation

The voluminous 105-page ruling examines the concept of filiation, or the legal bond that unites a child with his parents, and whether the provisions of the Civil Code governing filiation permits the recognition of more than two ties of filiation. The plaintiffs argued that to the extent that the Civil Code limits filiation to two parents, it is discriminatory and infringes the fundamental rights of security of the person, integrity of the person, liberty, dignity and privacy under both the Canadian and Quebec Charters. The Attorney General of Quebec (AGQ) maintained that the Civil Code cannot be interpreted as authorizing the recognition of more than ties of filiation. That limit however does not affect the fundamental rights invoked by the plaintiffs, added the AGQ.

Justice Garin found that the Civil Code does in fact implicitly limit to two ties of filiation but that limitation “unjustifiably” infringes the right to equality guaranteed by s. 15(1) of the Canadian Charter. Justice Garin acknowledges that family status has not yet been recognized as an analogous ground of prohibited discrimination by case law binding on the court. But by accepting the definition of family status as proposed by one of the plaintiffs, that opened the door for Justice Garin to delve into the question of whether belonging to a particular family model constitutes a ground of discrimination analogous to those enumerated in s. 15(1) of the Charter. Justice Garin held that the concept of family status includes an individual’s membership in a particular family model, including a multi-parent family.

“Persons who form a three-parent project and adopt a multi-parent family model do so for intrinsically personal reasons,” said Justice Garin. “The State cannot legitimately expect them to give up the family model that corresponds to their reality in order for them to be recognized as parents in accordance with the law of filiation. In the final analysis, belonging to a family model is most certainly a personal characteristic that is either immutable or changeable at a price that is unacceptable from the point of view of personal identity, and must therefore be regarded as immutable.”

It is therefore “appropriate,” added Justice Garin, to recognize family status in the “sense of belonging” to a particular family model as an analogous ground of prohibited discrimination under s. 15(1) of the Canadian Charter. The limit of two ties of filiation causes psychological, identity-related harm and economic disadvantage to both the unrecognized parent and their child, added Justice Garin. A child in a multi-parent family that cannot establish a bond of filiation means that he cannot claim support from the recognized parent. Nor will the child be a successor in case that parent dies. “The two-link limit deprives the child of potential economic benefits from the unrecognized parent,” said Justice Garin.

“The important thing is that he concluded that filiation is a benefit provided for by law, and that the limit of two parents constituted a difference in treatment based on a prohibited ground of discrimination based on family status, and that children and parents were deprived of a benefit provided for by law under the chapter on filiation, which was based on immutable characteristics such as membership of a family, which is a profoundly identity-based concept, and that no discrimination could be made on the basis of membership of a family model,” explained Amyot.

When a child is born into a situation where they have three parents, the parents are entitled to rely on the legal system in order for their best interests to be preserved, noted Woods. And the same holds true for children, added Woods. “If you are a family with two parents, you can evolve in society and interact with the state, and you are treated one way, whereas if you are a family with three parents, one of which is not recognized, you will not evolve in society in the same way,” said Woods. “So that sort of family composition creates a distinction that imposes a burden or a disadvantage in a way that has the effect of reinforcing, perpetuating, or accentuating the disadvantage.”

Kirouack is unequivocal. She hopes the decision will be overturned by the Quebec Appeal Court. “Personally, I expect the Court of Appeal to overturn that judgment because if we go there, we will open the door to analogous grounds for many things,” said Kirouack.

But if the ruling is not appealed, there is no doubt it will carry “ some” weight, said Tétrault. But he doubts that it will lead other judges to rely on it. “It’s one thing to say, yes, there may be several parents, and in this case there are, but how does it work?” asked rhetorically Tétrault. “This is a first. Will it lead other judges to use it as a basis for saying well the door is open, we can go ahead. I’m not convinced.”

Woods is hoping that the Quebec government will not appeal the “very detailed, well-written and well-reasoned judgment.” Quebec, says Woods, is a modern, avant-garde society and to appeal the decision for “perhaps” political reasons, “would be a serious step back for Quebec society as a whole.”