A sperm donor was granted access rights by the Quebec Court of Appeal after he was deemed as a “significant” third party whose presence “could probably benefit” the child in a decision that has perplexed some family law experts.
The Appeal Court decision has ostensibly watered down the notion of significant third parties, leaves open the question whether a similar finding would have been reached if the third party did not have a biological connection with the child, and serves as a timely reminder that parents involved in a “parental project,” or assisted procreation, should carefully consider whether they want to hand third parties access rights, according to family law experts.
“It’s an assisted reproduction project that deviated into something else, and this is a phenomenon that we are now seeing and will be seeing more often,” remarked Michel Tétrault, a leading family law expert and author of a series of tomes on Quebec family law. “From the time that these ladies allowed access to take place, a form of status quo was created. That’s a message that needs to be sent out: the moment you allow a third party who is supposed to be in no way involved in the parental project to become involved, it opens a door.”
Robert Leckey, dean at the Faculty of Law at McGill University, believes the decision was not “dressed up” in the kinds of findings and conclusions that might have been much more problematic in terms of changing the approach for future cases. “What was interesting to me was that the judgment was quite careful,” said Leckey, a family law expert. “It didn’t say that because this is a father, this is a significant factor in our decision making, and the Court was also quite careful to say that the mothers hadn’t bound themselves by the contract. It avoided a couple of things that might have made me quite concerned.”
According to Michaël Lessard, a course lecturer in family law at McGill University, the ruling does not change the state of law. In Quebec, pointed out Lessard, third parties who have no filiation with a child but who have a meaningful relationship with a child can obtain visitation rights or even custody as long as it is in the best interests of the child.
“In this case, the sperm donor applied for visitation rights not as a sperm donor but as a meaningful third party,” said Lessard. “Being a sperm donor or a surrogate mother does not imply that one has a meaningful relationship with the child. That being said, some jurists have questioned whether, in this case, the third party could really be said to have a meaningful relationship given how young the child is.”
The case involves a female couple who, after efforts to procreate at an assisted reproduction clinic failed, turned to a long-standing friend who agreed to contribute without payment to the parental project. Two months before the child was born in 2020, a notarized agreement was signed between the couple and the sperm donor that stipulated that the sperm donation does not give the donor any legal rights in relation to the unborn child. Under terms of the contract, the parties acknowledged that parental authority laid solely with the couple, and that the couple will be the legal guardians and thus have sole custody of the child. The agreement also specified that the donor would be granted visitation rights, whose duration would be at the discretion of the couple, for a maximum of 12 times a year at a time chosen by the couple.
Relations however between the couple and the donor turned sour. A few days after the accord was signed, he wanted to modify the agreement to be registered as the child’s biological father and to see the child more than 12 times a year. The COVID-19 pandemic heightened frictions. The child was born at a time when the pandemic was at its infancy, and health restrictions made it difficult for the parties to agree on the timing of the donor’s visits. More conflicts surfaced after the donor put the infant on a waiting list for swimming lessons without the parent’s authorization, and when he offered to purchase an education savings plan for the child as he hoped to have a say in the child’s education. After an argument broke out between the parties in January 2021, the parents refused to grant the donor access to the infant.
He turned to the courts, seeking access to the child every other weekend, and one week during the summer period. Before Justice Carl Lachance, the parents argued that the donor’s visits should be terminated and that access rights should not be established by judgment as it is not in the best interests of the child. The parents also maintained that he was intrusive and feared that he would interfere with the exercise of their parental authority, and that he would claim more access rights in the future. The parents argued that as sole holders of parental authority, they have the right to decide who can visit the child and when such visits can take place.
The donor countered that he is a significant third party to the infant, and that it is in the interests of the infant that the child has contact with the biological father. He also said that he was not asking for a change in the child’s filiation and was not seeking custody rights. Rather he is requesting that access to the child be clearly established by judgment to avoid any future negotiations at each visit.
In Droit de la famille — 222114, 2022 QCCS 4562, Justice Lachance granted the donor access rights of one three-hour visit per month – a decision upheld by the Quebec Appeal Court in Droit de la famille — 222087, 2022 QCCA 1616, a per curium decision by Justices Robert Mainville, Stephen Hamilton and Sophie Lavallée.
The Appeal Court held that the lower court judge correctly pointed out that the contract signed by the parties reflected their “common desire” to involve the donor in the child’s life. Justice Lachance was also right, added the Appeal Court, in holding that he was not bound by the access rights provided for in the agreement and that a third party who seeks access rights must demonstrate that access is in the child’s best interests — a test which considers the length of the relationship, the age of the child, the quality of the bond between the child and the third party, and the third party’s behaviour.
Sperm donor was intrusive
Justice Lachance found that the donor was intrusive, but his “behaviour is not such an insurmountable obstacle as to cut off access that has been established since birth,” and his presence “could probably benefit (the child) and help in its development.” Justice Lachance added that because of the child’s age, the toddler is unaware of the donor’s “insistence, demands and disputes over access.” The Appeal Court held that these conclusions are largely based on facts found by the judge, and the parents failed to establish a manifest and determining error in assessing the evidence.
“The Court of Appeal seems to only verify whether the first judge applied the right legal test,” noted Lessard. “But then, the Court does not verify whether the test was applied correctly per se. It says that the first judge must enjoy some discretion in his analysis of the evidence. So the Court does not say that the judge made no error, but only that he did not make a palpable and overriding error.”
According to Catherine Leblanc, a solo family lawyer practitioner who pled the case for the parents, the crucial element the Courts took into consideration was the fact that the donor benefited from some access to the child, with the consent of the parents. “The questions they asked were not whether he is a significant third party and whether he should have access to the child despite the mothers’ disagreement?,” said Leblanc. “Rather it was he already has access, and should this access be maintained or not in the child’s interest? It was under this analysis of the facts that a decision was reached.”
Family experts puzzled
Tétrault has a different take, and is puzzled by a number of the conclusions issued by the Appeal Court. Tétrault points out that it is “peculiar” that the Superior Court and the Appeal Court qualified the donor as intrusive because “normally” when a third party is found to be intrusive, those are grounds that foils a third party from obtaining access to a child.
Tétrault is equally perplexed by the conclusion that the 20-month toddler, because of his age, will likely be oblivious to the donor’s “insistence, demands and disputes over access.” Tétrault describes it as a weak conclusion “because if he won’t remember the intrusiveness, he won’t remember the gentleman.” Like Lessard, he has strong doubts that the donor could have established a meaningful relationship with the child, particularly since the visits were very short and spaced out because of the restrictive COVID-19 health measures.
Just as disturbingly, Tétrault believes that the Appeal Court ruling has weakened the standard for what will be deemed to be a significant relationship with a third party because of its finding that the donor’s presence “could probably” benefit the child. “Normally, access arrangements are granted to a third party, it is because a meaningful link has been created,” explained Tétrault. “The donor had to show that he was a significant third party. Not that he will become one, but that he is one. What this Court of Appeal decision does is to lower the standard, to level down what it takes to be a significant third party who has the right to have contact.”
Tétrault notes the Supreme Court of Canada in Young v. Young,  4 S.C.R. 3 held that only the best interests of the child should be considered in access orders. “I’m trying to understand how this child is going to benefit being caught by parties who are going to argue and who are going to be extremely suspicious of each other.” Tétrault also believes a “Pandora’s box has been opened” because following the decision nothing will prevent the third party from seeking yet more rights given that he will argue he has established a meaningful relationship with the child.
The “more I think about the case,” the more Lessard wonders whether the courts were trying to ensure the development of a relationship between the child and a person to whom the child is biologically connected. “The judges were careful not to say anything like this, but I am not sure the judgment would have been the same if the third party was a family friend with no biological connection,” said Lessard.
Leckey believes there are lessons to be learned from the decision. Parents turning to a sperm donor should think twice about having him involved in a child’s life, never mind formalizing an agreement. “They notarized an agreement, even though that wasn’t taken as determinative by the judge later, they formalized a role for the donor and the child’s life. If I were advising someone, I would certainly say don’t do that because that’s setting up expectations on the donor’s part and then you start allowing the donor to be involved in the child’s life.”
This story was originally published in The Lawyer’s Daily.