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Court battle over birth certificate ends with father’s name left off

Quebec Justice Minister Sonia LeBel said last November that she intends to reform family law in the province.
Quebec Justice Minister Sonia LeBel said last November that she intends to reform family law in the province. THE CANADIAN PRESS / Lee Brown

Quebec’s highest court has weighed in on a legal battle surrounding the birth certificate of a young girl, overturning a lower court ruling that had seen the girl’s biological father recognized on the document over her non-biological mother.

The Aug. 16 ruling stated that the girl’s non-biological mother — who has since transitioned to a man — should remain on the birth paperwork, as was agreed to before the child was born.

One legal expert says the case reflects the fact that laws in the province may not have followed in step with changes to family dynamics — including same-sex couples, transgender parents and a sperm donor willing to play a role in a child’s life.

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In other parts of the country, it is possible for a child to have three parents listed. But in Quebec, the law has typically been interpreted to recognize only two parents for a child — and only their names are recorded on the birth certificate.

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In this case, a lesbian couple wanting a child met through a website a man who was willing to be a sperm donor but also wanted to be an active participant in the child’s life.

One of the women became pregnant and gave birth to a girl, and according to a written agreement between the three adults, the two women were to be declared as the girl’s parents on the birth certificate while the man — the biological father — would carry the status of legal guardian.

But then the couple divorced, and the woman who didn’t carry the child began transitioning and wanted the child to call her “Daddy.” The Court of Appeal ruling noted the biological father was hurt by this and felt the role of father was his alone.

That is what prompted him to petition Quebec Superior Court to have the non-biological mother’s name removed from the birth certificate and replaced with his. He also applied to have his paternity recognized.

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Last year, Superior Court ruled in his favour. But the Quebec Court of Appeal has overturned the decision, stating the two mothers originally on the document could remain as agreed without detracting from the role that the father could play in the youngster’s life.

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That means the court didn’t have to determine whether a child could have three parents listed, said Robert Leckey, dean of the Faculty of Law at McGill University,

The case was ultimately a legal battle over who would be the second parent, Leckey said. The ruling is one that’s in line with the current laws, he said, noting the Quebec Civil Code provides that a man can be a sperm donor without becoming a parent.

In order to make its determination, the appellate court examined the provisions contained in the “parental project” for assisted procreation and came to the conclusion that the women had made their agreement before meeting with the biological father. It also noted the man waived, in the written agreement, the right to be one of the two legal parents.

The judgment also noted that while the gender transition of the partner who didn’t carry the child had an impact on the dynamics between the three adults, it did nothing to change the parentage of the child.

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In Ontario and British Columbia, it is possible for a child to have three parents listed on a birth certificate, but a clear intention by the three adults wanting to be parents must be expressed in writing before the child’s conception, Leckey said.

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The judgment can be viewed as an appeal to legislators to act more creatively in the future, he said

“The ruling is a reminder to legislators that they may not have followed all the societal changes,” Leckey said. “There are really situations where three adults decide together, from the beginning, to become the parents of a child, and Quebec law is not adapted to recognize their situation.”

Quebec Justice Minister Sonia LeBel said last November that she intends to reform family law in the province.

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