Court of Appeal of Quebec

Droit de la famille – 171644

July 11, 2017


Hilton, Bouchard, Vauclair

Appeal from a judgment of the Superior Court dismissing a motion for revocation of judgment in recognition of paternity on the merits. Dismissed.

The parents were married in the Democratic Republic of Congo and later moved to Quebec. Because they were unable to start a family naturally, they used the services of specialized clinic. A first insemination took place in October 2011 but was not successful. The father died a few months before the second attempt and 493 days before the birth of the child at issue. The registrar of civil status refused to enter the father’s name on the declaration of birth, but the Superior Court granted a motion for recognition of paternity presented by the mother in October 2013. In July 2014, the appellants, who are the father’s heirs, learned of the existence of the judgment granting the motion for recognition of paternity and filed a motion for revocation of judgment. The trial judge dismissed the grounds raised by the appellants on the merits of that motion.

The Civil Code of Québec (C.C.Q.) is silent on the specific issue of post-mortem insemination. In the present case, the only genetic materials at issue are those that were part of the parental project. The biological father did not become a third party to this project as a result of his death, as this result would have been expressly provided for by the legislator. Also, the Court cannot accept that filiation may not be established when the biological father is unable to exercise his parental role other than by giving his name. First, such reasoning would place a mother and her child in an undesirable situation in the face of a fugitive father. Second, it does not take into account the fact that death is not an obstacle to filiation. In addition, this argument was dismissed in Droit de la famille – 111729 (C.A., 2011-06-22), 2011 QCCA 1180, SOQUIJ AZ-50762994, 2011EXP-2071, J.E. 2011-1128, in which the Court stated that filiation is established by law and does not result from the parent’s intention to assume the ensuing consequences or their ability to do so. The rules set out in articles 532 and 533 C.C.Q. thus allow a child to claim his or her filiation before the court by any mode of proof when it is not established by an act and by possession of status consistent therewith. As for the father’s consent, the judge took into account the signed documents as well as the efforts made by the couple, evidenced by numerous visits to the specialized clinic over a continuous period. Finally, while there are ethical and social issues arising from post-mortem insemination, there is no legal obstacle to recognizing the filiation of a child born in such circumstances.

*Summary by SOQUIJ
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