Quebec family law is out of step with the times
Reform is long overdue amid issues such as use of surrogacy, three-parent situations
A judge in Joliette recently suggested that Quebec should allow more than two people to have their names inscribed on a child’s birth certificate after being forced to decide which of three parents in a little girl’s life deserved legal status.
The 3-year-old, who was born of an arrangement between a lesbian couple and a sperm donor, initially had her moms’ names on the document. But after the women broke up and the nonbiological mother transitioned to male, the sperm-donor father, who had always had partial custody of the girl, petitioned to have his name added instead.
Quebec Superior Court Justice Gary Morrison ruled in favour of the biological mom and dad, but acknowledged he had no choice but to exclude the third parent, even if it was unfair.
“The best interest of the minor child … requires the law to recognize her reality, that on an emotional and socio-economic level, she has always had three parents,” Morrison said in his decision.
Sixteen years after Quebec made history by recognizing the rights of same-sex parents, the law is once again out of step with the evolving realities of mod- ern families. And it’s not just a matter failing to keep pace with shifting social conventions or cutting-edge reproductive technologies. The province’s family laws, which govern everything from the custody of children to the division of assets in the case of a separation, do not reflect the needs of millions of Quebecers.
“We’re way out of date. The last big reform, comprehensive reform, was in 1980. That’s when we eliminated (the concept of ) illegitimate children,” said Sylvie Schirm, a prominent family lawyer in Montreal, noting there have been piecemeal changes along the way.
Those in the legal community, from judges to lawyers, experience this quandary on a daily basis and have been calling for a major overhaul for years.
But in the absence of government action, the Chambre des notaires du Québec is now taking matters into its own hands. It has created a roving Commission citoyen sur le droit de la famille, which held two days of hearings in Montreal this week.
Schirm is among the eminent legal minds sitting on the sevenmember panel that also includes Alain Roy, a Université de Montréal law professor, and Sophie Gagnon, the director of Juripop.
“It’s an election year, what we’re hoping is to be able to force the politicians to look at this, to realize that we really need a reform and to get things going,” said Schirm. “The alternative is that the courts are going to start to intervene. We’re going to have to keep going to the Court of Appeal, we’re going to have to keep going to the Supreme Court to force them to change the legislation. I don’t think that’s how we want to do things.”
A document to spark discussion at the hearings touches on three major themes: couples, parents and “new social and familial realities.” This latter category includes such hot-button topics as the use of surrogacy to start a family, the role of important figures like step-parents and grandparents, and yes, whether three or more parents should be permitted to register on the birth certificate of a child they intend to raise together.
“A family is not just mom, dad, two kids and a dog,” said Schirm.
“There are all sorts of families and that’s what we have to look at.”
There might be a consensus that Quebec’s family laws should make the rights and interests of children a priority. But what this means in practice can be highly divisive.
The Catholic Church predictably rushed to the defence of the traditional two-parent family after the Joliette decision.
And even as Quebec Liberal MP Anthony Housefather has tabled a private member’s bill in the House of Commons to overturn the Canadian prohibition on paying surrogates in order to help same-sex and infertile couples, opponents are lining up in the name of women’s rights.
“We heard people (Monday): one group was completely against surrogacy of any kind, saying it was total exploitation of a woman’s body,” said Schirm. “And another group was saying, not only should we permit it, we should pay the woman who’s doing it because they’re rendering this unbelievable service and it’s paternalistic not to pay them.”
Quebec courts are having to grapple with such controversial files, anyhow. In one recent case, a non-biological parent sought to adopt the twins conceived with the genetic material of his partner and a surrogate in India. The Quebec government opposed the move on the grounds the couple was trying to legitimize paid surrogacy through the back door. The judge in the case didn’t disagree, but allowed the adoption — for the sake of the child.
“Maybe it’s time to see how we can set up a legal framework that will protect everybody, that will prevent the victimization,” said Schirm.
But no less urgent are the rights of Quebec children born of unmarried parents. In 2013, the Supreme Court of Canada ruled in the case of Eric and Lola that common law couples don’t have the same rights and obligations as married ones. The decision left millions of Quebec families potentially in limbo and prompted calls for an update to the laws. A 616-page report making 92 recommendations was delivered to the Liberal government in 2015, authored by Roy, who is now on the Chambre des notaires panel. But it has only gathered dust.
To address this legal vacuum, the commission’s document asks whether all couples, regardless of marital status, should have the same ground rules for dividing assets and providing support if they have a child together.
Roughly a third of Quebec couples live together without tying the knot, and Schirm said the proportion is likely even higher among younger people today.
Whether keeping pace with rapidly advancing reproductive technologies or responding to well-entrenched social phenomena, Quebec family law has some serious catching up to do.