The family law reform continues. On June 6, new measures to protect children born of sexual assault came into force. Here’s what you need to know.
Contesting family bonds
A child born of a sexual assault can now challenge the parent-child tie that already exists between them and the assailant (known as the “filiation“). Even if the assailant has acted as a parent for years, and maybe even since birth, the child can still ask a court to break this legal bond.
To do so however, the child will have to prove the sexual assault. One way to do this is to provide a judgment that found the parent guilty of sexual assault. The child will also have to prove that breaking this legal bond is in their best interest.
Another protective measure: the child can object to the creation of a bond of filiation when none exists. Even if the assailant insists on being recognized as a parent, the child born of a sexual assault now has the right to refuse. This is known as an “opposition” to filiation, rather than a “contestation”, the latter being undertaken when filiation already exists. In both cases, the ultimate goal is the same: to avoid any legal link between the child and the assailant. As with a contestation, the child will have to prove that a sexual assault took place.
In practical terms, what happens when filiation does not exist or ceases to exist? If the contestation or opposition is accepted by a court, the assailant will not be considered a parent in the eyes of the law, and this person will therefore have no rights or obligations towards the child. For example, they will not be able to make decisions concerning the minor child’s education and health, or even claim financial support from the child that is of age.
Legal actions with no time limit
Before the new measures, children had a 30-year period to challenge filiation. The reform put an end to this time limit. Children can now contest their filiation to the assailant or oppose it at any time. It’s never too late.
Claiming an indemnity
The parent who experienced the assault can claim a financial contribution from the assailant to provide for the child.
How is this indemnity different from child support? Child support is only awarded if there is a bond of filiation between the parent and the child. By contrast, the indemnity can be claimed for a child who is not related to the assailant. Thus, if the child contests or objects to the bond of filiation with the assailant, the parent who experienced the assault can still claim some money.
If the parent does not claim the indemnity, the child who is over 18 years old can claim it themselves. This indemnity is intended to compensate for the child’s needs that arose after the age of majority, but within three years of the claim. For example, if the child is 23 years old, they can only claim money for needs that arose since the age of 20.
Inheriting the assailant’s property
Even in the absence of filiation, the child may inherit from the assailant. If the assailant has no will, the child will be considered a “first-degree descendant”. This means that the child will be treated in the same way as the assailant’s legally recognized children.
However, the assailant can bypass this rule by making their intentions clear in a will.