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Parents - New parents

Filiation: the Legal Link Between Parents and Children

Josée lives with Roberto, whom she met four years ago, while she was pregnant with a child from her previous relationship. Roberto takes care of Josée’s son, Julien, as if he were his own son: he takes him to the park, drives him to the daycare, looks after him when he is sick, etc. Josée’s family has always considered Roberto as Julien’s father and Julien calls Roberto “daddy”. What is Roberto’s status? Can he be legally considered as Julien’s father? What would happen to Julien if Josée died? What if Josée and Roberto broke up?

In this Infosheet, Éducaloi explains the concept of filiation, the ways in which filiation can be established, and the rights and duties related to filiation.

What is "filiation"?

In law, “filiation” is the name given to the family relationship that unites a child to his or her parents. The law acknowledges and protects this relationship between children and their parents by conferring upon them rights and duties.

For example, a mother must ensure that her son is fed. She does not have this same duty towards her niece, sister or friend.

The concept of filiation has evolved with time. There are many ways that a person, today, can become a parent. The conditions that you must meet to be officially considered the father or mother of a child can vary depending on the country or province that you live in.

For example, a child in Quebec cannot have more than 2 parents at any given time, but it is possible for these parents to be 2 fathers or 2 mothers.

How does filiation come about?

The law only recognizes three types of filiation:

• By blood – where the child is biologically related to the parent.
  
• By adoption.
  
• By a parental project of a person or a couple (same-sex or not). For more information about “parental projects”, consult our Infosheets Assisted procreation  (http://www.educaloi.qc.ca/en/loi/parents/370/) or Same-sex parents and the law  (http://www.educaloi.qc.ca/en/loi/parents/369/).

What are the effects of filiation?

Filiation results in rights and duties. The law gives parents rights and duties relating to the custody, supervision, education and maintenance of their children. Specifically, parents have to look after the physical and psychological well-being of their children. These rights and duties make up “parental authority”.

Because they have parental authority, parents have the right to make all decisions affecting the well-being of their children. For example, parents will decide:

• Where their children live;
  
• Which school or daycare they attend;
  
• The types of activities they participate in;
  
• The type of medical care they receive;
  
• The type of religious upbringing that they have.

Parents' rights to make decisions affecting their children come with accountability. A parent who fails in his duties to supervise, educate or have custody over his child can be forced to pay for the damage his child causes to another person or to another person’s property. For example, if your kid breaks the neighbor’s window due to your lack of supervision, you may have to pay for it to be repaired.

Parents are also their children’s “tutors” until adulthood. This means that they must administer their children’s property, protect their interests and if necessary, represent them in the exercise of their rights. For example, a parent will normally act on behalf of a child to bring a lawsuit to court. The parent will give the lawyer instructions and sign the necessary legal documents on his child’s behalf.

Filiation has many other effects. For example, in certain specific situations:

• Where a will was not made, a child can inherit part or all of his father or mother’s property.
  
• Where a will was not made, a parent can inherit part or all of his child’s property;
  
• A child of age can make medical decisions on behalf of his father or mother;
  
• A parent in need can ask his child for financial help.

How is the filiation between a child and a parent proven to other people?

Sometimes, parents are asked to prove that a child is theirs. For example, the school or daycare will ask the parents to provide them with the child’s birth certificate so that they can register him. A border officer may ask parents to prove that the child travelling with them is theirs.

Proving filiation can also become very important if someone goes to court to say that the child’s parent is not his “real” parent and that he or she is.

There are four ways of proving filiation:

• By the act of birth of the child. After birth, a document called the “declaration of birth” must be completed, signed and sent to the Registrar of Civil Status. Parents write their names on this document and these names are recorded on the child’s act of birth. The act of birth is the main way of establishing filiation.
  
  
• By uninterrupted possession of status. If a parent’s name does not appear on the act of birth, he can prove that he acted like the child’s parent from the moment he was born, always believing that the child was his. This is called “possession of status”.
  
  For example, the parent will show that he gave the child his family name and that his family and friends always considered that the child was his. Possession of status must be uninterrupted, meaning that it has to last long enough without breaks in between. The courts have found that 16-24 months is long enough.
  
  
• By presumption of paternity. When a child is born during the marriage or civil union of a heterosexual couple (or within 300 days of the dissolution or annulment of the marriage or civil union), the law assumes that the spouse is the father. The presumption of paternity does not apply to a father who lives with his partner without being married or in a civil union.
  
  
• By voluntary acknowledgement. If the status of a parent cannot be proven by any of the three ways mentioned above, he can try to prove it by stating that he is the parent of the child.

You may run into obstacles if you are trying to prove that you are the parent of a child without a birth certificate. For example, you may have trouble convincing a boarder officer that the child in the back seat is really yours because you say so (voluntary acknowledgement) or because you treated him as your own since the day of his birth (possession of status).

That is why possession of status, presumption of paternity and voluntary acknowledgement are mostly methods used in court to clarify someone’s filiation and to change, correct or add a mention to a person’s birth certificate.

To learn about ways to prove filiation between same-sex parents and their children, consult our Infosheet Same-sex parents and the law  (http://www.educaloi.qc.ca/en/loi/parents/369/).

To learn more about how to attack or claim filiation, consult our Infosheet Attacking or claiming filiation  (http://www.educaloi.qc.ca/en/loi/parents/424/).

I want to be recognized as the father of my biological child. Do I have to adopt him if I am not married to or in a civil union with his mother?

No. The Civil Code now states that, in order to have your name recorded on the child’s act of birth, it is sufficient if your name appears on the “declaration of birth”. If only the mother’s name appears on the act of birth, you can prove that you are the father by "uninterrupted possession of status".

Is it easier for couples who are married or in a civil union to declare a birth than for couples who are in a de facto union?

It is a little easier. When parents are married or in a civil union, one of them can declare the other’s filiation in the “declaration of birth”. But when parents are in a de facto union or don’t live together, the parent who signs the declaration must obtain the other parent’s authorization to write his name on the declaration, or better yet, the declaration must be signed by both parents.

Since the beginning of our relationship, I have treated my girlfriend’s son as my own. Can I claim filiation with him?

No. Roberto and Julien, the people described in the introduction to our Infosheet, share this type of bond called “psychological parenthood”.

“Psychological parenthood” means loving a child as your own while knowing that he is not.

Psychological parenthood is not recognized by the law as a way to have filiation. Filiation does not come about by the feelings or the relationship that exists between the adult and the child, no matter how strong.

Even if the child calls you “daddy” for 10 years, the only way that you can establish filiation with him is by adopting him. That may not be possible if the child already has a father. To learn more about the conditions that must be met to adopt a child in Quebec, consult our Infosheet Adopting a child in Quebec.  (http://www.educaloi.qc.ca/en/loi/parents/154/)

The fact that there is no filiation between the adult playing a parenting role in the child’s life and the child does not mean that the law will ignore the bonds that were created.

The adult that played the parenting role in the child’s life can ask for custody or access rights, for example. The judge will try to do whatever is in the child’s best interests.

What is the difference between “uninterrupted possession of status” and “psychological parenthood”?

For it to be “uninterrupted possession of status”, you must have always thought that the child was yours, from his birth onward. A psychological parent knows that the child is someone else’s but considers him to be his own. The psychological parent can come into a child’s life at any time, not just at birth.

People use uninterrupted possession of status to prove to others that a child is theirs. It is not a type of filiation, but a way to prove a type of filiation. The types of filiation recognized in Quebec law are by blood, by adoption and through a parental project. These are the only ways in which a child can have filiation with an adult.

Although a psychological parent may want to have his love, care and devotion recognized by the law as founding a true parent-child relationship, at present, the law does not see this as a form of filiation.

My wife has children from a previous marriage. Did my marriage to her create a bond of filiation between me and her children?

No. The only way you can achieve a bond of filiation with her children would be if you adopted them, assuming that they do not already have a father.

However, even if there is no filiation between you and the children, if you acted as their parent, you might have created legal duties for yourself. In case of divorce and only in case of divorce, you may have to pay child support for their upkeep.

For more information about this issue, see our Infosheet entitled Frequently asked questions about child support.  (http://www.educaloi.qc.ca/en/loi/parents/377/)