The official invisibility of the third parent
Quebec law, unlike the courts of Ontario and British Columbia, only recognizes two parents
on the birth certificate, reiterates a recent judgment of the Court of Appeal.
on the birth certificate, reiterates a recent judgment of the Court of Appeal.
Is it in the best interest of the child to limit parental love to only two people?
" No. The law must adjust to realities. The reality of the child, in this case, is three parents. To ignore that is absurd in terms of the best interests of the child. He calls the gentleman "daddy", and his mother of origin "mom", and he calls the co-mother, who has since become a man, "daddy", explains the professor of family law at the University of Montreal Alain Roy.
Author of several reports on family law, the notary is well known for his many requests for family law reforms in Quebec, and the last judgment of the Court of Appeal on tripartite issues has not nothing to make him let go of the torch.
In 2013, a couple of women started taking steps to have a child. The first attempts at insemination are unsuccessful, and they decide to turn to a website where they can find a sperm donor. The plan works: one of the two women becomes pregnant.
As the process progresses, the three people involved decide that they will all assume the role of parent for the child. They sign an agreement, by which the "donor" man is recognized as having parental powers. He will be present at the birth, will have systematic custody rights, in short, all the agreement aims to be recognized as "father". On the birth certificate of the child, however, only the two co-mothers are present.
The reason is simple: Quebec law, unlike the courts of Ontario and British Columbia, only recognizes two parents on the birth certificate.
Two parents of "filiation". Anyone else who plays a role in the child's life is a "significant third party".
The intention of this family was contrary to what is advocated in Quebec civil law. When trust reigns, everything can go well. However, the two mothers, hitherto married, separated. There will be legal proceedings to determine who, from the "donor" or the other mother on the birth certificate, is indeed the parent of that child, in the legal sense. The Court of Appeal has just rendered judgment : it is indeed the latter (now become a father following a gender transition) who will be confirmed as a parent. The "donor" is reduced to the same status as
the uncle who could play an important role in the child's life.
But that's not the reality of this man. He has assumed custody rights for five years, financial obligations to the child, will look at the day care. He even cut the umbilical cord at birth. He is a part of the parental project, in its own right, even if the law does not recognize him. For its part,
the child has three parents, and it is not more serious than that.
"One can be a third to filiation, but not to parenthood. The problem is that parenthood can not be
the subject of a contractual agreement, "continues Alain Roy.
This judgment raises enormous questions and places the legislator, for the umpteenth time in a short time,
in the face of his responsibilities for the reform of family law in Quebec.
"This is another judgment that adds to the pile, which reveals the shortcomings of Quebec law. The law does not stick to the reality of the child.
It's not more complicated than that, "says Alain Roy.
Effectively. The famous judgment Éric c. Lola , where the Supreme Court dismissed the Quebec government's duties rather than invalidating the matrimonial regime of common-law spouses as contrary to the right to equality with respect to marriage. And this, while dramatic situations of common-law partners, who thought they had acquired certain rights related to those of marriage through the effect of time, are repeated day by day in court.
The same argument could be made about surrogate mothers, where an urgent debate is needed to frame an increasingly common practice.
All, however, have in common to highlight the original flaw in Quebec family law: in many respects, there is little regard for the interest of the child. Everything, or almost everything, revolves around the marital status of the parents. Of their only choices.
This recent judgment of the Court of Appeal is in this sense eloquent, as Mr. Roy rightly recalls : "The result for the child is problematic. Overnight, the father is reduced in the sense of third, foreigner, who must claim, as an uncle, rights to the child, without the benefit of parental authority. "
The problem is that these are extremely complex realities to unravel in a political context. No election has ever won over family law.
However, it is the policy that brought about the reform of 1980, where, finally, it was recognized that the mother did indeed have parental authority, as well as the father, with respect to the child. A family with two equal leaders! It was perceived by some as "unrealistic, even a heresy," says Roy.
It is also the policy that recognized that a homosexual couple could have children in the same way as a heterosexual couple in 2002.
Through these reforms, we have extricated ourselves from the traditional and near-millennial vision of the family, but much remains to be done.
It is urgent to proceed with a broad reform of family law in Quebec to avoid such rifts within families who were only asking to bring up their child in their best interest, with all the love of people with a good intention, that only the vagaries of life - and the law - have moved away.
Justice Minister Sonia Lebel seems to have a real desire to move things forward, and her promise to introduce a bill quickly reflects that.
But it will come up against a deep and powerful social current to curb any reform that calls into question a traditionalist view of the family.
Mrs Lebel will certainly have to spend a lot of political capital to get there.
We must put the interest of the child back at the center of our family law. If a political decision deserves all the efforts of our elected representatives without partisan or prejudiced consideration, it is this one.
" No. The law must adjust to realities. The reality of the child, in this case, is three parents. To ignore that is absurd in terms of the best interests of the child. He calls the gentleman "daddy", and his mother of origin "mom", and he calls the co-mother, who has since become a man, "daddy", explains the professor of family law at the University of Montreal Alain Roy.
Author of several reports on family law, the notary is well known for his many requests for family law reforms in Quebec, and the last judgment of the Court of Appeal on tripartite issues has not nothing to make him let go of the torch.
In 2013, a couple of women started taking steps to have a child. The first attempts at insemination are unsuccessful, and they decide to turn to a website where they can find a sperm donor. The plan works: one of the two women becomes pregnant.
As the process progresses, the three people involved decide that they will all assume the role of parent for the child. They sign an agreement, by which the "donor" man is recognized as having parental powers. He will be present at the birth, will have systematic custody rights, in short, all the agreement aims to be recognized as "father". On the birth certificate of the child, however, only the two co-mothers are present.
The reason is simple: Quebec law, unlike the courts of Ontario and British Columbia, only recognizes two parents on the birth certificate.
Two parents of "filiation". Anyone else who plays a role in the child's life is a "significant third party".
The intention of this family was contrary to what is advocated in Quebec civil law. When trust reigns, everything can go well. However, the two mothers, hitherto married, separated. There will be legal proceedings to determine who, from the "donor" or the other mother on the birth certificate, is indeed the parent of that child, in the legal sense. The Court of Appeal has just rendered judgment : it is indeed the latter (now become a father following a gender transition) who will be confirmed as a parent. The "donor" is reduced to the same status as
the uncle who could play an important role in the child's life.
But that's not the reality of this man. He has assumed custody rights for five years, financial obligations to the child, will look at the day care. He even cut the umbilical cord at birth. He is a part of the parental project, in its own right, even if the law does not recognize him. For its part,
the child has three parents, and it is not more serious than that.
"One can be a third to filiation, but not to parenthood. The problem is that parenthood can not be
the subject of a contractual agreement, "continues Alain Roy.
This judgment raises enormous questions and places the legislator, for the umpteenth time in a short time,
in the face of his responsibilities for the reform of family law in Quebec.
"This is another judgment that adds to the pile, which reveals the shortcomings of Quebec law. The law does not stick to the reality of the child.
It's not more complicated than that, "says Alain Roy.
Effectively. The famous judgment Éric c. Lola , where the Supreme Court dismissed the Quebec government's duties rather than invalidating the matrimonial regime of common-law spouses as contrary to the right to equality with respect to marriage. And this, while dramatic situations of common-law partners, who thought they had acquired certain rights related to those of marriage through the effect of time, are repeated day by day in court.
The same argument could be made about surrogate mothers, where an urgent debate is needed to frame an increasingly common practice.
All, however, have in common to highlight the original flaw in Quebec family law: in many respects, there is little regard for the interest of the child. Everything, or almost everything, revolves around the marital status of the parents. Of their only choices.
This recent judgment of the Court of Appeal is in this sense eloquent, as Mr. Roy rightly recalls : "The result for the child is problematic. Overnight, the father is reduced in the sense of third, foreigner, who must claim, as an uncle, rights to the child, without the benefit of parental authority. "
The problem is that these are extremely complex realities to unravel in a political context. No election has ever won over family law.
However, it is the policy that brought about the reform of 1980, where, finally, it was recognized that the mother did indeed have parental authority, as well as the father, with respect to the child. A family with two equal leaders! It was perceived by some as "unrealistic, even a heresy," says Roy.
It is also the policy that recognized that a homosexual couple could have children in the same way as a heterosexual couple in 2002.
Through these reforms, we have extricated ourselves from the traditional and near-millennial vision of the family, but much remains to be done.
It is urgent to proceed with a broad reform of family law in Quebec to avoid such rifts within families who were only asking to bring up their child in their best interest, with all the love of people with a good intention, that only the vagaries of life - and the law - have moved away.
Justice Minister Sonia Lebel seems to have a real desire to move things forward, and her promise to introduce a bill quickly reflects that.
But it will come up against a deep and powerful social current to curb any reform that calls into question a traditionalist view of the family.
Mrs Lebel will certainly have to spend a lot of political capital to get there.
We must put the interest of the child back at the center of our family law. If a political decision deserves all the efforts of our elected representatives without partisan or prejudiced consideration, it is this one.
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