Three’s not company / Modern family problems
The recent decision of the Quebec Court of Appeal in C.L. v. J.M., 2019 QCCA 1386 arises because, under Quebec law, a child cannot have three parents.
C.L. and G.R. lived together as a lesbian couple and married in 2011. Beginning in 2008 and 2009, they began planning to have a child. In 2013, they met Mr. M. who provided sperm samples to both women and apparently and allegedly also had sexual relations with Madame R. In December 2013, they found out that Madame R. was pregnant. In January 2014, they prepared an agreement entitled “entente pour mettre un enfant au monde” which essentially provided that:
- the three parties would provide the emotional, physical and financial support for the future child;
- the mothers would have custody of the child;
- the “father” could have the custody of the child half time when the child was not in school “if he wishes”;
- the parties would take the decisions regarding the health and education of the child by consensus;
- the names of the mothers were to appear on the birth certificate and the father would obtain the status of legal guardian after the birth of the child.
The child was born in 2014. The three parties were thrilled, and they all began to collaborate in the raising of the child. Everything was great.
Until it wasn’t…
A year later, the couple began the process of having another child with another donor. However, this time C.L. was to be the carrying mother. She gave birth to another child in 2016.
Then things really fell apart.
In July 2016, C.L. began a sex change process. In October 2016, the parties were no longer living together and divorce proceedings were undertaken by Mr. L.
The issue in this case, however, is not a result of the divorce proceedings. It is an application by Mr. M. (the biological father) to be recognized on the register of civil status as the father of X. The problem is that under Quebec law, there can only be two parents.
The case turns on the application of the articles in the Civil Code of Quebec dealing with “filiation of children born of assisted procreation” and articles 538 and 538.2 in particular. These articles provide:
“538. A parental project involving assisted procreation exists from the moment a person alone decides or spouses by mutual consent decide, in order to have a child, to resort to the genetic material of a person who is not party to the parental project.
538.2. The contribution of genetic material to the parental project of another cannot be the basis for any bond of filiation between the contributor and the child consequently born.”
The trial judge found that Mr. M. was not a third party to the parental project within the meaning of article 538 and therefore, the rules of filiation by blood applied such that Mr. M. should be shown as the father on the register of civil status. However, because Quebec law only permits two parents, he concluded reluctantly, that he had to remove now Mr. L. as a parent from the register of civil status.
Mr. L. appealed.
The judgment of the Court of Appeal was written by Mr. Justice Kasirer and he was joined by Mr. Justice Rancourt and Mr. Justice Hamilton.
He begins by pointing out that none of the parties was claiming that there is a right to have three parents in spite of the “cri du coeur” from the trial judge to this effect. He also notes, quite explicitly, that it is not the Court’s role to make legislative decisions and substitute its view for that of the legislator, particularly in a case where the only issue was an issue of filiation and none of the parties claimed that there could be three parents on the birth certificate. The fact that other provinces permits this is irrelevant.
Mr. Justice Kasirer ultimately finds that Mr. M. is in fact a third party to the parental project within the meaning of article 538 and cannot be shown on the birth certificate on the register of civil status as the father, even though he is the biological father.
To do so, Mr. Justice Kasirer distinguishes the notions of “parenté” and “parentalité” in the following manner:
“[100] La parenté se rattache à la filiation. Construction du droit positif, la « filiation » du Code civil – par le sang, par procréation assistée, ou par adoption – est le lien de droit qui unit un enfant à ses mères et pères[32]. Elle inscrit l’enfant dans un ensemble ordonné de relations familiales (parfois qualifié, de manière quelque peu trompeuse, d’« ordre généalogique »[33]), qui consacre divers liens de parenté[34], en ligne directe et collatérale, fondés sur le lien juridique de filiation dans ce qu’on pourrait appeler sa famille élargie.
[101] La parentalité, elle, renvoie à une idée plus large que la parenté et la filiation, touchant plus généralement la fonction parentale ou la « situation d’une personne qui tient le rôle de parent pour un enfant »[35].”
In other words, filiation is a legal construct that is independent of the actual role or implication of the party acting as the parent or in this case the actual biological father. Mr. M.’s role and participation in the agreement do not confer to him the status of party to the parental project.
In this light, Mr. Justice Kasirer found it highly relevant that Mr. M. had agreed that now Mr. L. and Madame R. would be shown as parents on the birth certificate.
So, the end result is that Mr. M. is in fact the biological father of X, is actively involved in providing support and is in the life of his biological child, but cannot be shown as a matter of law to be the father.
Perhaps the legislator will examine this decision in the promised upcoming family law reform.