Having a baby can raise legal questions about the rights and obligations of parents towards their child. For most people, legal jargon is hard to follow, complicated and easily accessible.

I wanted to be better prepared to answer questions on many topics from future parents. To be as up to date as possible, I work with Anne-Christine, who is a notary. This professional specialises in the field and is an excellent resource for answers to questions.

Here is a list of questions we will try to answer:

• I don’t live with my baby’s father. Do we both have the same rights?
• We had to use assisted procreation to fulfil our dream of becoming parents. Because we used a sperm donor, can this person assert their fatherhood later?
• I wanted to become pregnant using donated sperm and my spouse wondered if she also has parental rights to the baby I am carrying. Is she the second parent?

Moving from Lovers to Parents…from a Legal Perspective

The arrival of a baby raises many questions for a couple:

• What are my rights and obligations towards my child?
• If we separate, who has custody of my child?
• How can I prove that I am the mother or father of my child, especially in the case of assisted procreation?
• How can I be legally protected?

It’s always important to be up to date to make informed choices. An ounce of prevention is worth a pound of cure!

Parental authority…or what are my rights and obligations towards my child?

Parental authority…or what are my rights and obligations towards my child? During pregnancy, the father’s commitment is directly linked to the mother’s consent for their participation in the pregnancy. But the commitment changes after childbirth. Having a baby imposes responsibilities on both parents, but also rights, such as the ability to see their child (visitation rights).

Parental authority is the legal name for all the rights and obligations that parents have towards their children from the day they are born until they reach majority. 

In virtue of parental authority, a father and mother must and have the right to:

• Have custody of their children;
• Supervise them;
• Educate them;
• Feed and care for them both physically and psychologically.

Concretely, the parental authority concept allows parents to make important decisions relating to their children, including:

• Choosing their children’s’ residence;
• Determining the school they attend;
• Decide on activities the children will do (for example, soccer or figure skating);
• Consent or refuse healthcare for their children.

These rights and obligations are exercised by the father and mother together, whether or not married or living together! The simple fact of not having custody of a child due to separation does not mean that the parent without custody loses their rights and obligations. 

This means that:

• While living together, they make all the decisions about their children together. They exercise parental authority;
• When a separation occurs, and only one of the parents has physical custody of the children, the other parent keeps their rights and obligations. They only lose their custody rights, but still has the obligation and duty to feed and educate them and participate in and consent to all important decisions concerning them. The parent who does not have custody must be consulted before these decisions are made.

If the parents don’t agree, their dispute can be placed before a judge, who will decide the question for the parents keeping in mind the interests of the children! 

In exceptional circumstances, only a judge can withdraw parental authority from a parent (in whole or in part), revoke custody and the right to take important decisions from a parent. 

Filiation…or how do I prove I am the father or mother of my child?

Filiation is the legal link between a child and its parents. The conditions to be officially recognised as the father or mother of a child vary from province to province. In Quebec, a child can only have two parents at a time, either a mother and father, two mothers or two fathers. 

Why talk about filiation? Establishing a child’s filiation leads to rights and obligations as part of parental authority. Additionally, it allows you to travel abroad with your child or merely registering them and going to pick them up a school or daycare! 

In Quebec, filiation is established in the following ways:

• By blood, a biological link between the child and their parent;
• Adoption;
• A couple’s (heterosexual or homosexual) parental project (assisted procreation);

Filiation can be proved using four different methods:

• Voluntary recognition;
• Uninterrupted possession of status;
• Presumption of paternity;
• Child’s birth certificate.

Child’s Birth Certificat:

After the birth of a child, the parents fill out and sign a birth declaration. The names written in this declaration are transcribed to the child’s birth certificate, which is proof of filiation with the child.

Presumption of Paternity 

A child born during a marriage or civil union to a heterosexual couple, or within 300 days following the dissolution or termination of the marriage or civil union, is presumed by law to have the spouse or partner as the father. This presumption does not apply to common-law partners or same-sex couples who are married or in a civil union. 

While there are four different ways to prove filiation, in practice, it’s the child’s birth certificate that will show to third parties that you are a child’s parent.

Please note that a child can only have two parents. As such, even if you consider your spouse’s child like yours for years, it does not establish filiation between you and the child. This is called psychological parentage! The only way to establish filiation with this child would through adoption, as long as the child doesn’t already have two parents! 

For more information and to see examples concerning:

• Uninterrupted possession of status;
• Voluntary recognition.

Please go to the Éducaloi website.

Applying the Filiation Concept to Assisted Procreation

The application of the filiation concept in assisted reproduction is often questioned. Assisted procreation is legally defined as recourse by a person or couples, same-sex or no, to sperm or ova from another person to conceive a child. It can take place with or without medical assistance.

Assisted procreation includes:

• In vitro fertilisation;
• Artificial insemination;
• Sexual relations with someone who is not your spouse to conceive a child.

Recourse to assisted procreation involves the same rights and obligations for parents towards their child as blood ties. Parental authority applies in the same way.

Above all, assisted procreation refers to a parental project. This project is a decision taken by a person or couple, of the same sex or not, to have a child using the sperm or ova from another person. And this person clearly knows that their participation in this project will go no farther than their donation.

Legally speaking, creating a parental project establishes filiation of the child in favour of the person or couple who created the parental project. The person who donated their sperm or ova cannot claim filiation with the child issued from the parental project. 

As such, when the child is born, each member of the couple that created the parental project can register their respective names on the birth certificate as a parent. They will then be identified as the father or mother of the child, or fathers and mothers of the child. 

When the parental project involves having sexual relations with a third party, a parental link can be established with the latter! In effect, the male has a period of one year after birth to claim parental ties with the child, even if they clearly know that he only participated in a parental project. This recourse is not possible for sperm donors. They can never claim parental ties with a child issued from a parental project.

Given what I just said, the only way for two men to establish parental ties with a child is through adoption. Indeed, it is impossible for men to create a parental project as it requires a surrogate mother, which is a contract that has no legal value in Quebec. In the eyes of the law, the surrogate mother will be the biological mother of the child until an adoption takes place if it can (it’s not automatic)! 

Finally, once you know your rights and obligations towards your child, and the way to prove that you are there parent, what happens when there is a separation? 

Mediation…or how does custody of my child work in case of separation?

Mediation…or how does custody of my child work in case of separation? During a separation or divorce, the two parents have custody rights for their children as they both have parental authority. They have to continue to meet their needs, including monetary, based on their respective capacities. Separation or divorce does not change the rights and obligations of parents towards their children. 

Of course, in this type of situation, the parents have to mutually agree to share custody and the option of paying child support for the children. 

In Quebec, a couple that is married or in a civil union with children under 18 years of age should have recourse to mediation to agree on custody and the payment of child support where applicable. The judgement of divorce will contain the final agreements.

Common-law couples can voluntarily decide to go into mediation to establish custody and child support guidelines, but they are not legally bound to.

When the two parents live in Quebec, Quebec law outlines the rules for setting child support for children. The support is expected to correspond to the needs of the children and the resources of the parents. These rules determine the amount to be paid for each child. It takes into consideration the number of children and the net income of each parent.

Whatever your situation, the mediation process is preferred for taking decisions, as it can easily adapt to each case. The goal is to find common ground and make decisions that are satisfactory for each of the parties while always first considering the interests of the children.

Please note that only notaries certified in family mediation can offer this service! Please consult Justice Quebec for more information and to find certified family mediators in your region.

Expert Advice

There is never a good or bad time plan for the consequences of death or disabilities, but the arrival of a baby is even more of a reason to sign a will and a protection mandate in due form. 

Who will inherit my assets after my death? Who will have custody of my child if they become an orphan? How can I meet their future needs? These are questions that can be answered by preparing legal documents that meet your needs. 

If there are minor children present, systematically inserted into the will and the protection mandate will be the names of people you trust, who you want to have custody and parental authority of your children if they become orphans (guardians). However, if your will or protection mandate becomes applicable, the person/people you named could refuse this responsibility.  

Additionally, the choice belongs to the last of the two parents. After the first death or first disability, the second parent will continue to exercise 100% of parental control. If the second parent dies, only then will those named in the will become guardians for minor children. 

The guardianship of a minor raised many other questions, such as the guardian’s rights and obligations or the need to constitute a tutorship council.

Also, in the absence of these protection tools (will and protection mandate), the children may end up in the middle of a process to choose the guardian. This involves the courts and even Child Protection Services. Honestly, I think all parents would want to avoid a situation like this for your child when they just lost their two parents! 

You can find a ton of legal information on the Quebec Chamber of Notaries website. 

As a conclusion, I hope that I was able to answer many of your questions concerning your role as a new parent! I want to reiterate that the information found in this article is very general in nature and can be subject to changes due to your specific situations. Please consult with a notary to get the right information and legal opinion based on your own case! 

Marie Fortier
The Baby Expert