Sometimes a parent is asked for proof that a young person is their child. This could happen, for example, when crossing an international border. In some situations, a person may wish to prove they’re the parent of a child, for example, when some uncertainty exists. But how can this relationship be proven?
Filiation is the legal relationship between children and their parents. This link creates rights and obligations for both parents and children.In Quebec, there are three means of proving filiation: the birth certificate (act of birth), the presumption of filiation, and continual “possession of status”.
The birth certificate
When a child is born, the parents must fill out the “declaration of birth” and send it to the Directeur de l’état civil (registrar of civil status). The parents’ names will then appear on the birth certificate. This document serves as proof of filiation between the child and the parents.
In general, filiation is proven by the birth certificate. The two parents must sign the declaration of birth to ensure their names will appear on the birth certificate. However, if the parents are married, in a civil union, or are common-law spouses, it is possible for just one of the parents to fill out and sign the declaration of birth.
If only one parent has signed the declaration of birth and the parents are (or were) in a common-law relationship, the parents must send the following additional documents to the Directeur de l’état civil:
- A sworn declaration by the parent who did not sign the declaration of birth stating that the birth occurred during the common-law relationship or within 300 days of the end of the relationship if it has ended.
- A sworn declaration by another person stating that the birth occurred during the couple’s common-law relationship or within 300 days of the end of the relationship if it has ended.
- Documents showing that the parents are (or were) in a common-law relationship.
The parents can then use the birth certificate to prove they are the child’s parents.
Presumption of filiation
When a woman gives birth during a marriage, a civil union, or a common-law relationship, her spouse is legally presumed to be the child’s parent. The same rule applies if the child is born within 300 days of 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.
Possession of status
If a parent’s name does not appear on a birth certificate, they can claim filiation by proving they have acted as, considered themselves to be, and have been publicly recognized as the parent since the child’s birth. This is known as continuous possession of status.
For example, the person can show they gave their family name to the child and that people close to the family have always considered them to be the child’s parent. Possession of status must have been constant since the child’s birth. It is usually necessary to apply to a court to establish possession of status. The courts have stated that a period of 16 to 24 months is generally sufficient, although this can vary according to circumstances.
Possession of status or psychological parent?
As explained above, possession of status is a way to prove that a person is the parent of a child when the person’s name is not on the birth certificate. It involves showing that the person treated the child continuously as their own since birth and this relationship was recognized by people close to the family.
The term “psychological parent” is used when an adult begins to take care of a child as if the child were their own. This could be, for example, the new spouse of one of the parents. This type of relationship does not create legal filiation.
A psychological parent knows they are not the legal parent, but they act as a parent toward the child. They may enter the child’s life long after the birth. But regardless of the affection and care provided and the length of time spent together, no legal filiation is created. The only way for the psychological parent to become the legal parent is to adopt the child, if the legal requirements are met.
If the couple separates, the psychological parent may obtain visiting rights in some cases, thus allowing them to continue their relationship with the child. If the case comes to court, a judge will decide based on the child’s best interests. If the couple was married, and is now getting divorced, the psychological parent may be ordered to pay child support.
Sometimes, a person may voluntarily declare that someone is their child. This might be, for example, in a letter, an email, or a message on social media. This voluntary acknowledgement does not make the person the child’s legal parent. However, the child could possibly use it to ask the person to assume some parental obligations, such as providing support payments.