Filiation is the legal relationship between children and their parents. This relationship creates rights and obligations for both parents and children. In some situations, a person can contest filiation or can claim it.
When filiation can’t be contested
No one can contest the filiation between a parent and a child when the parent’s name appears on the birth certificate (act of birth) and the parent has had what is called “possession of status” constantly.
“Possession of status” means the person has acted as a parent to the child since birth. If a case comes before the courts, a judge will consider the following criteria in deciding whether there is possession of status:
- How the person has treated the child: did the person treat the child as their own child, for example, being present at the birth, changing their diapers, taking them to the doctor, etc.?
- Reputation: is it clear to the family, friends, and society that this person is the child’s parent?
- Name: does the child have the parent’s family name? This factor is not decisive on its own, however.
Possession of status must have been constant since birth. The courts have decided that a period of 16 to 24 months is generally sufficient, but this can vary according to circumstances.
When a child is born during a marriage, a civil union, or a common-law relationship, the spouse of the parent who gave birth to the child is legally presumed to be the child’s parent. The same rule applies if the child is born less than 300 days following the divorce, the dissolution of the civil union, or the end of the common-law relationship, if the couple separated before the child’s birth.
However, the person presumed to be the parent under the above rule, or the parent who gave birth to the child, can apply to a court to contest this filiation. The presumed parent has one year from the child’s birth to do so. The time period can also run from the moment the presumed parent learned of the child’s birth. Once that deadline has passed, it’s too late to contest filiation. The person has the rights and obligations of a parent regarding the child in question.
In some other situations, a person with a valid reason for contesting the filiation of a child can do so. For example:
- A biological parent who wishes to contest the filiation between another person and the child.
- Example: A woman has a child with a man other than her spouse, but the spouse’s name appears on the child’s birth certificate. The biological father can contest the filiation.
- A family member who wishes to exclude a child from an inheritance.
- Example: If two parents of a child pass away and the father did not make a will, the law provides that the child inherits the father’s entire estate. If the parents of the deceased father believe the child was not actually the deceased father’s child, they can apply to a court to contest the filiation. If the judge rules in their favour, they will be the ones to inherit the estate.
- The child themself (or their tutor).
- Example: a child finds out that their father is not actually their biological father.
In general, the time limit for contesting filiation is 30 years from the child’s birth.
If the court rules in favour of the person contesting filiation, the filiation no longer exists. This means there are no rights or obligations between the child and the person in question.
A man who believes he is the biological father of a child can apply to a court to claim filiation. In Quebec, a child can have one or two parents named on their birth certificate but can’t have more than two. If a child already has two parents named on their birth certificate, the man who is not on the birth certificate (but believes he is the biological father) must first contest the filiation of the man whose name is on the birth certificate, before claiming his own paternity. However, all this will be impossible if the filiation cannot be contested based on the rules mentioned at the beginning of this article.
Filiation can be claimed by:
- A man who is claiming his own paternity.
Example: A woman has a child with a man other than her spouse, but her spouse’s name appears on the birth certificate. The biological father can contest this filiation and then claim his own paternity.
- The child themself (or their tutor).
Example: A child was raised by a single mother and never knew their father. At 18, the mother reveals the father’s identity. The youth can apply to a court to claim filiation and have the father’s paternity recognized.
The time limit for such a claim is 30 years. It generally starts to run from the birth of the child. However, if a court deprives a child of filiation (for example, a judge accepts a claim contesting filiation), the time begins to run from the judgement. However, in this situation, the law is unclear on how the time limit is calculated. If you require more information on this, contact a legal professional.
IMPORTANT: This article does not address the special situations of assisted procreation or same-sex couples. Other rules may apply in these situations.