Court of Appeal of Quebec

Droit de la famille — 211290

500-09-028977-205, 500-09-029017-209

Chamberland, Marcotte, Cournoyer

Application for leave to appeal and appeal from a judgment granting an application for revocation of judgment. Leave to appeal is granted and the appeal is allowed in part. Appeal from a judgment granting a declinatory exception. Allowed.

The appellant and the mother had an intimate relationship while the mother was married and living separately from her husband. X was born of one of these two relationships. The mother ended her relationship with the appellant in early 2017, a few months after the child’s birth, and left to join her husband in Ontario.

In September, the appellant obtained a default judgment ordering the mother to submit X to a DNA test, among other things. The mother and her husband applied for the revocation of the judgment. The mother’s application was held to be late and it was dismissed, while the husband’s application was granted. A declinatory exception was subsequently raised by the husband before the Superior Court, which concluded that the appellant was not “one of his parents”, i.e., one of X’s parents, within the meaning of article 3147 of the Civil Code of Québec (S.Q. 1991, c. 64) (C.C.Q.) and, accordingly, the Quebec courts did not have jurisdiction to decide the matter.

The Superior Court has jurisdiction to decide the action in filiation and recognition of paternity of X. The connecting factor grounding jurisdiction in matters of filiation is the domicile of the child or of one of his or her parents. Articles 532 and 3091 C.C.Q. do not appear to exclude from the definition of the terms “the father or the mother” or “one of his parents” a person claiming to be the biological parent of the child. Article 532 C.C.Q. allows this person to claim his or her filiation and article 3091 C.C.Q. allows Quebec law to be applied if it is more beneficial to the child, when this person is the only one domiciled in Quebec. It is logical and desirable that the terms “one of his parents” found in article 3147 C.C.Q., receive the same interpretation thereby including a person who, like the appellant, claims to be the child’s biological father.

The judgment rendered by default should not have been revoked in its entirety. First, the husband has no interest to oppose the collection of this DNA evidence in the context of the action with respect to filiation instituted by the appellant. The analysis is not directed at him; it is directed at X and the appellant. Second, regarding the DNA analysis, the judgment does not prejudice the husband’s rights within the meaning of article 349 of the Code of Civil Procedure (CQLR, c. C-25.01). His name does not appear on the child’s Quebec birth certificate as the father and the mother did not state therein that she was married. The numerous efforts undertaken by the appellant must also be taken into consideration, as well as the fact that, in this case, DNA evidence is essential to establishing the biological filiation of X, as quickly as possible. In either case, the orders do not prejudice the rights of the husband, whereas any delay in obtaining this evidence, by the sole passage of time, causes great prejudice to both the appellant and X.

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