This Is Not My Child! Attacking or Claiming Filiation

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Paul and Lisanne have been fighting non-stop for the past week. In a fit of rage, Lisanne blurts out: “And another thing… You might as well know that Melanie is not really your daughter!” Paul is in shock. He can’t believe that he is not Melanie’s biological father. What can he do?

In this article, Éducaloi explains how the bond between a parent and a child can be attacked or claimed by the parent, the child or even someone else.

 

To attack filiation

  • A man who is married or in a civil union (or his heir) who wants to attack filiation must ask the court for a “disavowal.” To learn more, read the section “I am married (or in a civil union). I believe that I am not the father of my spouse’s child. What can I do?” 
  • A woman who is married or in a civil union (or her heir) who wants to attack the filiation of her spouse must file a “contestation of paternity” lawsuit in court. To learn more, read the section “I am a married woman (or a woman in a civil union). My spouse is not the father of my child. What can I do to contest his paternity?”
  • Any other person who wants to attack filiation must file a “contestation of filiation” lawsuit in court. To learn more, read the section “Can anyone else contest the bond between a father and a child?”

 

To claim filiation

A man, woman or child who wants to have maternity or paternity recognized must file an “establishment of filiation” lawsuit in court. To learn more, read the section “I just discovered that I am the biological father of a child. What can I do to make it official?” 

 

Filiation that can’t be attacked

Important! Some kinds of filiation can’t be attacked. To learn more, read the section “Are there filiations which cannot be attacked?”

 

Same-sex parents

Some rules are different for same-sex parents. To learn more, read our article Same-Sex Parents and the Law

 

What is filiation?

In law, filiation is the family relationship that unites a child to each of the child’s parents.

Filiation results in several rights and duties. For example:

  • Parents must supervise and educate their children;
  • Children must respect their parents;
  • Children and parents can:
    • claim financial help from one another;
    • inherit from one another;
    • make medical decisions on behalf of one another in certain situations.

These rights, duties, and the social status that they carry are the reasons why people attack or try to establish filiation.

To learn more about filiation, read our article Filiation: the Legal Link Between Parents and Children.

 

I am married (or in a civil union). I believe that I am not the father of my spouse’s child. What can I do?

You can go to court and ask for a “disavowal”. 

A disavowal is when a man asks the court to recognize that he is not the father of a child born

  • during his marriage or civil union with the mother, or
  • within 300 days of the end of his marriage or civil union with the mother. 

 

Time limit

In general, you have one year from the birth of the child, or from the time you learned of the birth, to file a “disavowal” lawsuit in court.

If you do not go to court in time, you will no longer be able to contest that you are the child’s father. You will continue to have all the rights and duties of a father towards his child (for example, your ex-wife would be able to claim child support from you). 

If the court accepts your disavowal, you will no longer have any rights or duties toward the child.

For example, Paul and Lisanne are married. Two months after Melanie’s birth, Lisanne tells Paul that he is not the father. Paul wants a divorce. He doesn’t want to be responsible for Melanie. Paul can go to court and ask to “disavow” Melanie because Melanie was born during the marriage and Paul is still within the one-year time limit.      

 

Heirs of a man who is married or in a civil union

The heirs of a man who is married or in a civil union can also ask for a disavowal in some situations. They have one year from the man’s death.

 

Common-law partners

Important! A common-law partner cannot ask for a disavowal but instead must file an “contestation of filiation” lawsuit in court which has its own set of rules.  
To learn more, read the section “Can anyone else contest the bond between a father and a child?” 

 

I am a married woman (or a woman in a civil union). My spouse is not the father of my child. What can I do to contest his paternity? 

You can go to court and file a “contestation of paternity” lawsuit.

A “contestation of paternity” is when the mother of a child goes to court to say that her married or civil union spouse, or ex-spouse is not the father of the child born 

  • during their marriage or civil union, or 
  • within 300 days of the end of their marriage or civil union. 

 

Time limit

In general, you have one year from the birth of your child to file a “contestation of paternity” lawsuit in court.

If you do not go to court in time, you will no longer be able to contest that your spouse/ex-spouse is the child’s father. He will continue to have all the rights and duties of a father towards his child (for example, he can ask for custody of your child or visiting rights). 

For example, Paul is married to Lisanne when Lisanne gives birth to Melanie. Two months later, Lisanne decides to move in with Marc. She believes Marc is Melanie’s biological father and wants to have him recognized as the father. Lisanne can go to court to contest Paul’s paternity because Melanie was born while she was married to Paul and she is still within the one-year time limit.  

 

The heirs of a mother who is married or in a civil union 

The heirs of a mother who is married or in a civil union can also file a contestation of paternity lawsuit in some situations.

 

Common-law partners

Remember that you cannot ask for a contestation of paternity if you are neither married or in a civil union with the man in question. You would have to take a “contestation of filiation” lawsuit which has its own set of rules. Read the next section to learn more.

 

Can anyone else contest the bond between a father and a child? 

Yes. Anyone who has a moral or financial reason to do so can contest the filiation of a child. They would have to file a “contestation of filiation” lawsuit in court. This is when a person goes to court to say that there is no filiation between a child and a father. 

In some situations, it is not possible to contest the bond of filiation. To learn more, read the section “Are there filiations which cannot be attacked?” 

These people can make a contestation of filiation:

A common-law partner

  • Example: Raymond lives with Sophia. Sophia gives birth to Dominique. Raymond’s name appears on Dominique’s birth certificate. He later discovers that Dominique is not his biological child. Raymond files a contestation of filiation to have the court recognize that he is not Dominique’s father

 

A biological father who wants to contest the bond of filiation between his child and another man 

  • Example: Paul is married to Elizabeth. Elizabeth has an affair with Michael and gets pregnant with Michael’s child. Paul’s name is on the birth certificate. Since Michael is the biological father, he contests Paul’s paternity by making a contestation of filiation. 

 

A family member wants to exclude a child from an inheritance  

  • Example: Nadia and Igor live together. While giving birth to Louis, Nadia dies. A few months later, Igor dies in a tragic accident and does not leave a will. The law says that all of Igor’s property should go to his son, Louis. Had it not been for Louis, Igor’s parents would have inherited. They decide to file a contestation of filiation in court to recognize that Louis is not Igor’s biological child. 

 

A child or the child’s tutor

  • Example: Elyssa has a very strained relationship with her father, Benoit, who has a drinking problem. One day, she learns that Benoit is not her biological father. Elyssa files a contestation of filiation to get the court to confirm that Benoit is not her father.

 

Time limit

The person usually has 30 years from the child’s birth to file a contestation of filiation in court.

 

I just discovered that I am the biological father of a child. What can I do to make it official? 

You can take a claim in “establishment of filiation.” This is when a person asks the court to recognize that a child is his or her son or child.

Since a child can’t have more than two parents, a filiation must often be contested before making a claim to establish a new filiation. In other words, the court must break the bond that already exists between a child and one person before recognizing a new bond between the child and someone else.    

In some situations, it is not possible to contest the bond of filiation. To learn more, read the section “Are there filiations which cannot be attacked?” 

 

These people can make a claim to establish filiation:

A biological father claiming paternity

  • Example: Rosie and René are married. Rosie has an affair with Claude and gives birth to Luciano. René’s name is on the birth certificate. Claude finds out that Rosie gave birth and does the math: he thinks that Luciano is his son and not René’s. Claude files a contestation of filiation in court to say that René is not Luciano’s father and a claim to establish filiation saying that he is Luciano’s real father and should be recognized as such

 

A child or the child’s tutor

  • Example: Aaron does not know who his father is. On his 18th birthday, his mother tells him that Sam is his father. Aaron files a claim in court to establish filiation with Sam so that Sam can be recognized by law as his father. 

 

A child’s heirs

 

Time limit

A person asking to establish filiation has 30 years to bring the lawsuit to court. The 30 years usually start running from the child’s birth. If there is a judgment that makes the child lose his filiation with a parent (example, a judgment in disavowal), the time starts running from the date of that judgment.

In some cases, the court counted the time limit differently. Consult a legal professional for details.

A child’s heirs only have three years from the child’s death to make a claim to establish filiation.

 

Are there filiations which cannot be attacked? 

Yes. It is important to understand that in matters of filiation, the interest of the child and the stability of families are given more importance than biology. 

This is why the law states that no one can attack the filiation of a child and a parent whose name appears on the birth certificate and who has uninterrupted “possession of status”.

 

Possession of status

This  is when someone acts like the child’s parent from the time of birth and is publicly considered to be the parent. 

Three elements make up possession of status:

  • Treatment: The person treated the child as his or her own child, for example, being present at the birth, changing the diapers, giving the bottle, staying up at night with the baby. 
  • Name: The child was given the person’s family name. 
  • Reputation: Being recognized as the child’s parent by the people around the child (family circle and society at large).  

The possession of status must be uninterrupted for a period of time that is long enough. The courts have found that 16 months is usually long enough, but it might be different depending on the circumstances. Here is an example: Luka and Natasha live together. Natasha gives birth to Mattis and Luka’s name is on the birth certificate. Luka takes care of Mattis, plays with him, changes his diapers, teaches him to walk, takes him to daycare every morning, reads him a story before bedtime, etc. Everyone knows that Luka is Mattis’ father: Luka’s parents, his brother, his neighbors, the daycare teacher, etc. 5 years down the road, Natasha tells Luka that she lied to him and that he really isn’t Mattis’ father. A man called “Vladimir” is. Luka is furious and immediately takes a DNA test. The result is that there is a 0% chance that Mattis is his son. Vladmir agrees to also take a DNA test which shows that there is 99.99% chance that he is Mattis’ father. 

Since Luka’s name appears on Mattis’ birth certificate and since he had “uninterrupted possession of status” by acting as Mattis’s father for 5 years, no one can attack the filiation between them. That means that:

  • Luka cannot attack his own filiation with Mattis;
  • Natasha cannot attack Luka’s filiation with Mattis;
  • Vladimir cannot attack Luka’s filiation with Mattis and try to have himself legally recognized as Mattis’ father;
  • Mattis himself cannot attack Luka’s filiation with him;
  • etc.

The law says that Luka is the father of Mattis and he has all the rights and duties of a father.

Important !
This article explains in a general way the law that applies in Quebec. This article is not a legal opinion or legal advice. To find out the specific rules for your situation, consult a lawyer or notary.