Court of Appeal of Quebec

Droit de la famille — 181478

July 05, 2018

200-09-009629-178

Dutil, Bich, Ruel

Appeal from a Superior Court judgment dismissing an application for a declaration of paternity. Dismissed, with dissenting reasons.

The appellant and respondent both claim paternity of a three-year-old child. The child has a mother, and current Quebec law is such that a child may have only two parents. The respondent has cared for the child as a father since his birth and was publicly acknowledged as such for twenty-two months, in a situation of shared custody with the mother. Then, to his great surprise, he found out that he was not the biological father. He nevertheless still considered the child to be his son. 

The appellant learned that he was the biological father four months after the child was born. Gradually, he began to take on partial care of the child when the mother had custody, unbeknownst to the respondent. Except for a small circle of immediate family, he kept the situation a secret for eighteen months, after which time he filed an application contesting status and claiming paternity. The trial judge concluded that both men could claim that they possessed status with respect to the child, but that the child’s act of birth, which indicated that the respondent was the father, must take precedence.

According to art. 530 of the Civil Code of Québec (S.Q. 1991, c. 64), no one may contest the status of a person whose possession of status is consistent with his act of birth. When the act of birth and an uninterrupted possession of status (between sixteen and twenty-four months) coincide, it is no longer possible to contest filiation. Possession of status is observed by the existence of a converging set of facts establishing that a child is treated and raised as their child by the parents. Treatment and reputation are essential criteria. 

To be able to establish his own paternity through DNA evidence, the appellant had the burden of proving that the respondent could not claim possession of status of filiation with the child. He failed to discharge this burden. He let time go by, while the family environment and filiation between the child and the respondent were crystallized. 

The judge erred in concluding that the appellant could claim possession of status. Although the parties share the criteria of care, only the respondent meets the criteria of reputation. Publicly, for almost two years, the respondent was the child’s father. The element of reputation is essential, since possession of status is based on the facts and acts of those who conduct themselves, subjectively and verifiably, openly and publicly, as parents. The preservation of the stability of family environments, and of the children especially, is at stake.

*Summary by SOQUIJ
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