Montreal

Quebec high court upholds ruling favouring dad over biological father

Quebec's highest court has ruled that a man listed as the father of a young Quebec boy will remain on his birth certificate over the objections of another man who later emerged as the child's biological father.

Man who cared for boy since birth should be legally recognized as father, court rules

The case stems from a complicated love triangle in small-town Quebec. (Getty Images)

Quebec's highest court has ruled that a man listed as the father of a young Quebec boy will remain on his birth certificate over the objections of another man who later emerged as the child's biological father.

In a split ruling, two Quebec Court of Appeal justices maintained a lower court ruling that the man who'd cared for the boy since his birth should be legally recognized as his father.

However, a third justice dissented, saying she would have recognized the blood ties of the biological dad and allowed his request to have his name put on the certificate.

The case stems from a complicated love triangle in small-town Quebec, although the region is not specified.

In order to protect the identity of the child, none of the parties are named in the judgment.

The boy's mother was in a relationship with the man legally recognized as his dad while carrying on an affair with the biological father while out of town for work. She became pregnant and gave birth in the spring of 2015.

The man established as the boy's dad at birth raised him from the get-go. The cheating came to light a few months after the birth and the couple split in August 2015, agreeing to joint custody of the boy.

The day after the birth, the biological dad was secretly summoned by the mother to visit the baby in hospital, but the lovers ceased contact until August 2015, when they renewed their relationship.

The preservation of the stability of the family environment and, above all, of children are at stake.- Justice Simon  Ruel  

Beginning to see a resemblance between her son and the biological father's other children, the mother asked him to undergo a DNA test. It was confirmed in September 2015 he was indeed the boy's biological father.

The man wanted the news kept under wraps and only some of his relatives knew. He began taking care of the boy while he was in his mother's care. The couple split in 2016.

Meanwhile, the man now listed legally as the father only discovered the deception and the DNA results in early 2017. Despite the results, he continued to consider the toddler his son.

Parent based on parenting, court rules

In the ruling last week, two of the three justices wrote that parentage must be based on those who behave as parents as opposed to a traditional definition.

"The preservation of the stability of the family environment and, above all, of children are at stake,'' Justice Simon Ruel wrote. "This model is obviously not without its flaws, but it provides a clear and objective basis for resolving conflicts of parentage.''

Ruel, writing for the majority, noted that the man listed as the dad on the birth certificate was known to everyone as such, with the child carrying his last name and there being an uninterrupted parental lineage for 22 months before legal proceedings began.

The high court found the biological father did not establish the same link.

"This is a case where the law does not offer a satisfactory solution to the very particular situation experienced by the parties, which may have repercussions on the child,'' Ruel wrote. "The law allows for the recognition of a legal father for the child, thus offering the child a stability in his filiation.''

However, Justice Julie Dutil didn't share her colleagues' view and said the biological link between father and son should take precedence.

"It must be stressed that this case presents a very delicate situation: two men acted as father of a young child and acquitted themselves of their responsibility,'' Dutil wrote. "The boy was fortunate to have benefited from their good care and that of his grandparents, as the mother was not in a position to take responsibilities.

"It is clear that the child is deeply loved by both families and this is a situation that causes many emotions, on both sides.''

The majority opinion noted it would be difficult to dismiss the appellant completely from the child's life, given the boy's established relationship with him and his family.

Ruel wrote the legally recognized dad, through his lawyer, told the court he is open to maintaining reasonable access to the biological father and doesn't want his son split from an important figure in his life.