A Quebec mother's fight to give baby her dead partner's last name

A Quebec mother was told her baby couldn't carry her father's last name because he died and they weren't married. She successfully fought the decision, but now wants the province's laws to change.

Isabelle Renaud was told her baby couldn't carry dead father's last name because couple wasn't married

Isabelle Renaud had to have a DNA test and go to court to be able to give her daughter her dead spouse's last name. (Radio-Canada)

Last October, David Sinclair woke up and told Isabelle Renaud, his common-law wife, that he was having trouble breathing. Renaud was pregnant with their second child at the time. 

They called an ambulance and Sinclair was taken to hospital. Renaud waited for her parents to come look after their then-two-year-old son, then left to join him.

An hour and a half after he woke up, Sinclair was dead, the result of a pulmonary embolism.

"He died like that, in such a cruel and brutal way," she said.

Renaud never would have suspected then that she wouldn't be allowed to give her daughter her father's name because the couple was not married.

If we remove the courts from the process, it would be more just, more humane and more respectful to grieving families.- Isabelle Renaud, mother

The presumption of paternity

Before he died, Sinclair picked out his daughter's first name. She was born in March and named Juliette Sinclair-Renaud. 

As is normal procedure, Renaud sent the declaration of birth to the government. That's where her problems started.

In the "other parent" box, she put Sinclair's name. Where the father would normally sign, she put "deceased."

She soon received a response saying there was a problem with her application.

Under Article 114 of Quebec's Civil Code, only the parent can acknowledge paternity or maternity of a child by signing the declaration of birth.

There is an exception — for married couples, where the filial bond is assumed. 

But since Sinclair and Renaud weren't married, the presumption of paternity doesn't apply. So the Quebec government withheld issuing the birth certificate. 

Juliette has an older brother who also has a hyphenated last name. (Radio-Canada)

The legal route

Without a birth certificate, Renaud lost her orphan's pension for her daughter and couldn't register her for daycare.

One easy way around the problem would have been to simply put "Unknown father" on the certificate. But that option didn't appeal to the family.     

"It was inconceivable to us that [Juliette would have] a birth certificate that said 'Unknown father.' I understand that the government needs proof, but it could have been a DNA test," said Sinclair's mother, Janine Sinclair-Barthos.

Renaud hired lawyer Geneviève Trépanier, who agreed to help pro-bono.

Trépanier advised Renaud to spend $671 on DNA tests for her and her children to prove Sinclair's paternity. Then they went to court.

​​A victory, a call for change

In July, four months after Juliette was born, a Superior Court judge in Laval accepted to hear the case, based on the urgency of the situation. It only took a few minutes for the judge to decide the girl will be allowed to keep the Sinclair-Renaud last name.

Despite this positive outcome, Renaud wants the law to be changed so other families don't have to go through the same onerous process.

"Couldn't we just require an investigation or a paternity test? If we remove the courts from the process, it would be more just, more humane and more respectful to grieving families," she said.

Last year, a group tasked with studying Quebec's family laws submitted to the government 82 recommendations on how they could be changed. The laws were last updated in 1980.

The group agreed the presumption of paternity shouldn't be different for married and un-married couples, but couldn't agree how the policy should be harmonized.

Based on a report by Radio-Canada's Pasquale Harrison-Julien