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.

What is filiation?

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

Filiation results in several rights and duties. Here are some examples:

  • 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, and 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.

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.

For example, Paul and Lisanne are married. After Melanie's birth, Paul learns from Lisanne 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.

If the court rules in your favour, there will no longer be a bond of filiation between you and the child.

In general, you have a time limit of one year from the birth of the child 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 that the law attaches to that status (for example, your ex-wife would be able to claim child support from you).

Remember that you cannot ask for a disavowal if you are the mother's partner who is neither married or in a civil union. You would have to take a "contestation of filiation" lawsuit which has its own set of rules. Read on to learn more.

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

For example, Paul is married to Lisanne. Lisanne gives birth to Melanie. She tells Paul that he isn't Melanie's father and that Marc is. Lisanne wants to move in with Marc and to get Paul out of the picture. Lisanne can go to court to argue that Paul is not Melanie's father, i.e. to "contest" Paul's paternity.

Your spouse/ex-spouse will no longer share a bond of filiation with your child if the court rules in your favour.

You have one year from your child's birth 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 that the law attaches to that status (for example, he could ask for custody of your child or for rights of visitation).

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 on to learn more.

Can anyone else contest the bond between a father and a child or a second mother 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 make a "contestation of filiation". This is when a person goes to court to say that there is no filiation between a child and his father or a child and his second mother.

The person contesting the child's filiation with his father or second mother has 30 years to bring the lawsuit forward. The 30 years usually start running from the child's birth.

Here are a few examples:

  • Raymond lives with Sophia. Sophia gives birth to Dominique. Raymond's name appears on Dominique's birth certificate. He 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.
  • 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 Louis's filiation in court saying that he is not Igor's biological child.
  • 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.

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".

A claim in "establishment of filiation" is when a person goes to court to say that there is filiation between a child and his father, a child and his mother, or a child and his second mother.

If another person is already the child's father or second mother, you must make both a claim of "contestation of filiation" and of "establishment of filiation". Basically, you must ask the court to break the bond that already exists between the child and the other person and then to recognize your bond with the child.

Here are some examples:

  • Rosie and René are married. Rosie has an affair with Claude and gives birth to Luciano. René's name is written 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.
  • Aaron is the son of Irini. He does not know who his father is. On Aaron's 18th birthday, Irini reveals to him that Sam is his father. Aaron files a claim to establish filiation with Sam in court so that Sam can be recognized by law as his father.
  • Mario has a one night stand with Stephanie. Emma is born as a result. Stephanie's partner, Lydia, appears as the second mother on Emma's birth certificate. A year later, Mario learns about Emma's birth. He files a "contestation of filiation" to get the court to reject the bond between Emma and Lydia and an "establishment of filiation" to get himself recognized as Emma's father.

In general, the person asking for an establishment of filiation between a child and his father, mother, or second mother has 30 years to bring forward the lawsuit. The 30 years 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.

The time limit to bring forward this type of lawsuit has been computed differently in certain judgments. Consult a legal professional for details.

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" is when a father or a second mother acts like the child's parent from the time of his birth. Three elements make up possession of status:

  1. Name: Giving the child the family name of the father or of the second mother;
  2. Treatment: The father or second mother treating the child as his or her own child. Example: being there at the birth, changing the diapers, giving the bottle, staying up at night with the baby, etc.;
  3. Reputation: Being recognized as the father or second mother of the child by the people around him or her (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 16-24 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. Luka's name appears on Mattis' birth certificate. He 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.