You may be asked to prove that your children are in fact yours, for example at customs at airport or crossing the border. Or if a child is born out of a relationship, the paternity may be uncertain. So the question we are going to answer is how do you establish and prove paternity?
In Quebec, filiation is the term used to describe the family relationship between a child and their parents.
The types of filiation are: filiation by blood, filiation by assisted procreation and filiation by adoption. A child’s filiation is recorded on the declaration of birth and entered in the Québec register of civil status (https://www.justice.gouv.qc.ca/en/couples-and-families/parenthood/filiation/).
FILIATION BY BLOOD (BIOLOGICAL FILIATION)
Filiation by blood is based on the biological link between you and your child. When a child is born, the person who delivers the baby completes an attestation of birth for the registrar of civil status. The attestation states the place, date and time of the child’s birth, the child’s sex, the name and domicile of the child’s mother. A copy is also given to the people who are required to file a declaration of birth.
FILIATION BY ASSISTED PROCREATION
The filiation of a child born through assisted procreation is established in the same way as filiation by blood, that is with the child’s birth certificate. If the birth was planned by one person alone, that one person will be the only person registered as the child’s parent.
No filiation exists between the child and the sperm donor or egg donor: they cannot claim paternity or maternity. Filiation by assisted procreation gives you the same rights and obligations as filiation by blood.
For example, if two women use assisted procreation to have a child, they will share parental authority with respect to the child. The spouse who does birth the child will have the same rights and obligations of the other parent.
SURROGATE MOTHER CONTRACTS
A surrogate mother contract is any agreement in which a woman agrees to conceive or carry a child for another individual or a couple, either free of charge or for a consideration. All such agreements are null and against public order in Quebec.
If the pregnancy by assisted procreation results from sexual intercourse, the sperm or egg donor has one year to apply to the court to have his or her paternity or maternity recognized. During this period, the mother’s spouse (of either sex) cannot oppose the application on the ground of possession of status consistent with the act of birth.
Also Read: I am a Father: What Are My Rights?
FILIATION BY ADOPTION
When you adopt a child, you create a family relationship between you and the child on the basis of a legal act. This relationship replaces the bond between the child and his or her biological parents, except if the child is adopted by the spouse of the child’s mother or father. In other words, the child no longer belongs to his or her birth family. Filiation by adoption gives you the same rights and obligations as filiation by blood.
Adoption by the spouse of one of the child’s parents: You can adopt your spouse’s minor child, provided your spouse has been recognized as the child’s sole parent or the other parent has been deprived of parental authority. Your spouse must also consent to the adoption. If you are de facto spouses, you must have been living together for at least three years.
Same-sex parents: A same-sex couple can adopt a child. You will be described, in the register of civil status, as the child’s mothers, if you are both women or the child’s fathers, if you are both men.
In Quebec, there are 4 ways to prove filiation between you and your child (https://www.justice.gouv.qc.ca/en/couples-and-families/parenthood/filiation/how-is-filiation-proved/) :
1) Act of birth;
2) Uninterrupted possession of status;
3) Legal presumption;
4) Voluntary acknowledgment.
1) Act of Birth
Whatever the circumstances of your child’s birth, you can prove filiation by presenting the child’s act of birth. The act of birth is an official document that records a child’s birth and establishes the child’s filiation. It is drawn up by the registrar of civil status using the attestation of birth completed by the person who delivered the baby and the declaration of birth completed by the parents within 30 days of the birth.
2) Uninterrupted possession of status
In some situations, the registrar of civil status cannot issue a copy of a child’s act of birth, for example when the child’s birth was not declared as required or the child’s father recognized the filiation at a later date.
To prove your child’s filiation with you, you must be able to show that the child has uninterrupted possession of status. To do this, you must present all the facts that demonstrate your child’s relationship with you, such as the fact that you brought up the child, the fact that you recognized the child as your own, and the fact that the child is recognized by others as being your child.
After the register of civil status has been corrected, you or you child will be able to obtain a copy of the child’s act of birth or apply for a passport.
3) Legal Presumption of Paternity
You are presumed to be the father of a child born during your marriage or civil union to the child’s mother, less than 300 days after the annulment or dissolution of your marriage or civil union with the child’s mother, or more than 300 days after that date, if you have resumed living with the child’s mother. This is known as a legal presumption of paternity.
You will no longer be presumed to be the father if the child concerned was born after the mother married or formed a civil union with another person. The mother’s new spouse will be presumed to be the child’s father.
The presumptions of paternity and parenthood do not apply to de facto spouses in a same-sex or opposite-sex union, and the presumption of paternity does not apply to same-sex spouses in a civil union.
A similar presumption, known as the presumption of parenthood, exists for a child born through assisted procreation. Under this presumption, the mother’s spouse is the child’s father, or other mother in the case of a same-sex couple.
4) Voluntary Acknowledgement
You can establish filiation by voluntary acknowledgement. As the child’s mother or father, you can make a written declaration, made before a notary or not, voluntarily acknowledging the child and attesting to paternity or maternity.
You can acknowledge filiation in this way only if it cannot be proved by an act of birth, uninterrupted possession of status or presumption of paternity.
Your voluntary acknowledgement is binding only on you, and cannot disprove a filiation already established by an act of birth, except if it is contested before the courts.
WHAT STEPS CAN I TAKE WHEN A PATERNITY TEST IS DENIED?
If one person applies to the court for a paternity test and the test is denied, that person can try to appeal the decision.
WHAT ARE MY RIGHTS AFTER FILIATION IS ESTABLISHED?
Filiation means that you have the rights and obligations towards your child, in particular concerning parental authority. Parental authority covers all the rights and duties parents have towards their children, for example with respect to the child’s custody, education, health, religion, child’s needs, and decisions needed to ensure the child’s well-being.
Do not hesitate to contact us with any questions or concerns!