Chamberland, Savard, Healy
Appeal from a judgment of the Superior Court that granted an application to contest status, to claim paternity and to change a name. Allowed.
X was born in 2015. The appellant is the mother’s husband and the father declared on the act of birth, whereas the respondent, who had an extra-conjugal relationship with the mother, is the biological father. Fifteen months and twenty-three days after X’s birth, the respondent served an application to contest status and claim paternity and to request that the child’s name be changed. Although the appellant was told during the pregnancy about the extra-conjugal relationship and, given his fertility issues, the possibility that he was not X’s biological father, he nevertheless always treated the child as his own, even after he stopped living with the mother. The trial judge found that the appellant had not established uninterrupted possession of status, that evidence of the treatment of the child was precarious, and that evidence of common knowledge was the result of the falsehoods told by the appellant and the mother. In the judge’s view, the biological truth should prevail and, in the circumstances, it corresponded to the best interests of the child.
The judge committed an overriding error in his analysis of the components of possession of status by examining its primary components – treatment and common knowledge – through the prism of the appellant and the mother’s [translation] “false representations”. On the contrary, his analysis should have concerned the appellant’s actions in respect of X to determine whether they expressed a parental relationship. It should also have touched on the family and social circle’s perception of the paternal filiation. The appellant’s consistency in the expression of his willingness to accept the child and the child’s emotional experience is what should be relied on to further the objective of the stability of the bonds of filiation under article 530 of the Civil Code of Québec (S.Q. 1991, c. 64) (C.C.Q.). Given this error on the judge’s part, each of the components of possession of status should be reviewed.
In this case, the criterion of the child’s name is relevant, since X bears the appellant’s family name. Regarding treatment, the judge found that the appellant cared for and raised the child as though he were the child’s father. The limited role the respondent plays in X’s life does not justify a finding that the appellant’s treatment of the child is precarious or ambiguous. As for common knowledge, not only does the child’s circle believe that she is indeed the appellant’s daughter, the relationship between the mother and the respondent had been kept secret. Regarding possession of status, it is true that the time elapsed since X’s birth and the filing of the respondent’s proceedings exceeded the 16-month limit established in the case law, but only by a few days. However, in light of the circumstances, this time period is sufficient to establish that the possession of status may not be contested. The parental relationship between the appellant and X is well known, unequivocal, public and uninterrupted. Incontestable filiation under article 530 C.C.Q. therefore applies.
*Summary by SOQUIJ
Text of the decision: Http://citoyens.soquij.qc.ca