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Filiation: the status of legal parent vs. biological parent

Categories:

Family law

Context

Maude, from Duvernay, writes:

"I lived with my common-law spouse, Paul, for a period of two years. Eva, who is presently 8 months old, was born during our union. However, we separated when she was 2 months old. Paul has always acted as her father treating her with the utmost care. Paul was also present during the delivery. His name also appears on Eva’s birth certificate.

However, I have been living a lie and I have failed to disclose information to Paul and my entire family. In truth, I am almost certain that Paul is not Eva’s biological father. In fact, during the conception period, I had an affair with a colleague of mine. So, I would like Paul's name to be removed from Eva’s birth certificate so that it can be replaced by the name of her biological father’s name. How do I proceed? "

Discerning Biological Parentage and Legal Parentage

Dear Maude,

In the legal sense, filiation – legal parentage - does not always reflect the biological truth, since, in certain cases, it is in the best interests of the child, specifically, in terms of the child's stability.

In fact when the birth is consistent with the apparent status, filiation becomes unassailable, although it does not necessarily represent a biological truth. Specifically, Article 530 of the Civil Code of Quebec states that: "No one may contest the status of a person whose possession of status is consistent with his act of birth." The legislation is intended to focus on the stability of filiation. In fact, when these conditions are met, it is impossible to attack the paternity, even with a negative DNA paternity test.

The phrase “possession of status” is a legal presumption to establish the parentage of a person on the basis of environmental facts, rather than biological reality. The Court of Appeal has ruled that, for a possession of status to be established, a period varying between 16 to 24 months needs to have elapsed, to meet the legal requirements and to satisfy the stability of a relationship.

However, in your case, although Paul has always acted as Eva’s father, and your extended family probably believes him to be so, it would seem that the “possession of status” is not consistent with Eva’s birth certificate, as she is only 8 months old. Therefore, you may file a motion to obtain a court order to oblige Paul to submit to DNA testing. In the event that the result is negative, the court could then order the Director of Civil Status to modify Eva’s birth certificate, so that it can represent the biological truth.

Simultaneously, Eva’s biological father could also file a motion with the court to have his paternity recognized and established.

Me Sonia Rotondo, Attorney-at-law
Alepin Gauthier avocats inc.

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