2017 QCCA 1088, 2017 QCCA 1088

Droit de la famille — 171644 2017 QCCA 1088 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-025841-164 (500-04-061896-131) DATE: July 11, 2017 CORAM: THE HONOURABLE ALLAN R. HILTON, J.A. JEAN BOUCHARD, J.A. MARTIN VAUCLAIR, J.A. L… K… K… M… N… K…, personally and in her capacity as tutor to X APPELLANTS – Petitioners v.

NO… KA…, in her capacity as tutor to Y RESPONDENT – Plaintiff/Respondent and THE LATE A… K… IMPLEADED PARTY – Defendant and NO… KA… REGISTRAR OF CIVIL STATUS IMPLEADED PARTY – Impleaded party JUDGMENT [ 1 ] The appellants appeal from a judgment rendered on December 18, 2015, by the Honourable Micheline Perrault of the Superior Court, District of Montreal, which dismissed the motion in revocation of a judgment on the merits, ruling that there were no grounds for intervention respecting the acknowledgement of paternity made by De Vito J. on October 25, 2013: Droit de la famille — 153277 , 2015 QCCS 6030 . [ 2 ] For the reasons of Vauclair J.A., with which Hilton and Bouchard JJ.A. agree, THE COURT : [ 3 ] DISMISSES the appeal, with legal costs against the appellants.

ALLAN R. HILTON, J.A. JEAN BOUCHARD, J.A. MARTIN VAUCLAIR, J.A. Mtre Ann-Julie Auclair Mtre Julie Savonitto SAVONITTO & ASS. For the appellants Mtre Diane Roy BARRON, ROY, PROULX

For the respondent and the impleaded party Date of Hearing: November 10, 2016 REASONS OF VAUCLAIR, J.A. [4] The sole issue raised in this case concerns the possibility of acknowledging the filiation of a child born of assisted procreationfrom an embryo resulting from the couple’s genetic material. The embryo was frozen after fertilization until its insemination in themother’s uterus, long after the death of the biological father. [5] Perreault J. dismissed the motion in revocation presented by the appellants because there was nothing to justify varying thejudgment acknowledging filiation.

On appeal, the appellants claim that the judge erred. In their view, first, a child’s filiation cannot beacknowledged when it was conceived from an embryo implanted in the mother’s uterus after the death of the father and, second, theconsents of the deceased father were incorrectly interpreted. The issue raised by the Court [6] Before considering the merits of the case, we must decide an issue that arose during preliminary review of this matter. Indeed,the Court raised an issue not discussed by the parties, within the meaning of R. v.

Mian, 2014 SCC 54 , [2014] 2 S.C.R. 689,namely, the link between filiation and heirship, notably in light of

article 617 of the Civil Code of Québec and the impact of this link onthe appellants’ legal standing under

article 489 of the Code of Civil Procedure. Since the appellants’ standing was essentially based ontheir potential co-heirship, was it not necessary to determine whether the child himself was able to inherit and, if not, whether thestanding to apply for the revocation still existed? [7]

Article 617 provides: 617. Natural persons who exist at thetime the succession opens, includingabsentees presumed to be alive at thattime and children conceived but yetunborn, if they are born alive andviable, may inherit. In the case of a substitution or trust,persons who have the requiredqualities when the provision producesits effect in their regard may alsoinherit. 617. Peuvent succéder les personnesphysiques qui existent au moment del’ouverture de la succession, y comprisl’absent présumé vivant à cette époque etl’enfant conçu, mais non encore né, s’ilnaît vivant et viable.

Peuvent également succéder, en cas desubstitution ou de fiducie, les personnesqui ont les qualités requises lorsque ladisposition produit effet à leur égard [8] The appellants sought and obtained leave to make additional written submissions. It appears that the issue of the appellants’standing was not really disputed and that this issue had been clearly decided in their favour and no cross-appeal had been instituted.Recognition of the appellants’ legal standing is thus not contested by the respondent on appeal and it is not an issue that the partiesoverlooked within the meaning of Mian. [9] I agree.

It must be concluded that the appellants’ standing was recognized at trial because of their potential co-heirship, but it isclear from the judgment that the child’s heirship was not the subject of a ruling since, first, Congolese laws were not considered in thedebate and, second, his heirship under Quebec law was not debated.

Clearly, the matter is not closed and the legislature could certainlybe called upon in this regard: Comité consultatif sur le droit de la famille, Alain Roy (chair), Pour un droit de la famille adapté auxnouvelles réalités conjugales et familiales, Quebec, Ministère de la Justice du Québec, 2015 (hereinafter “Roy Report”). [10] Consequently, in light of the additional submissions, as interesting as the issue of the child’s right to inherit and therefore theissue of whether he had been “conceived” at the time of the opening of the succession may be, it need not be decided in this appeal.

Background [11] As for the merits of the case, some context is in order. [12] The respondent ès qualités and impleaded party (hereinafter “the mother”) and the late A… K… (hereinafter “the father”)married on January 31, 2004, in the Democratic Republic of Congo (“Congo”). In January 2007, they settled in City A. They wanted tostart a family, but could not conceive naturally. The couple decided to use the services of a specialized clinic. After several months andmany meetings, the procreation procedure took place on September 1, 2011. The father once again provided fresh sperm.

The mother’seggs were extracted the same day. In vitro fertilization was performed and the embryos were then frozen. The couple received thenecessary explanations, and consents were signed, including one providing that the spouses wanted their embryos to be [translation]“given to the surviving spouse” should one of them die. Sixteen embryos were frozen. [13] The father subsequently went to the Congo for several months to manage problems concerning the estate of his own father. Themother joined him in October 2011, then returned to Canada in December for the first insemination.

The consent to transfer the spermsample was then signed remotely and sent electronically to the mother. The insemination failed. However, 14 frozen embryos remained.

Another attempt was planned for when the father returned to Canada. Unfortunately, he died in the Congo in January 2012 from anaccidental fall. [14] On September 24, 2012, the mother underwent a second insemination, which was successful. On ..., 2013, 493 days after thedeath of the biological father, she gave birth to a boy. [15] The registrar of civil status refused to inscribe the name of the deceased father on the declaration of birth. At the registrar’ssuggestion, the respondent brought a motion for an acknowledgment of paternity before the Superior Court. The appellants were notinformed of this motion.

On October 25, 2013, Sylvie De Vito J. of the Superior Court granted the motion and ordered the registrar ofcivil status to prepare

an act of birth bearing the name of the deceased father (hereinafter “De Vito judgment”). A DNA analysis foundthat there was a 99.9999999% probability that the late A…K… was the father. [16] In late July 2014, the appellants learned of the De Vito judgment from their lawyer. On September 18, 2014, they filed a motionfor revocation of the judgment. [17] Perrault J. quickly noted that the appellants were not party to the motion for acknowledgment of paternity presented before hercolleague De Vito J.

The judge even concluded that the mother had deliberately hidden her true family situation from De Vito J. todeceive her and to avoid any dispute, implying that no other person had an interest in the proceedings. [18] Perrault J. believed that the appellants had been diligent in filing their motion. As for their standing, the judge concluded thatthe test was met since the child’s filiation could have an impact on the succession. [19] She therefore began her analysis, acknowledging the seriousness of the defences raised against the motion for acknowledgmentof paternity. However, she rejected these defences.

She did not accept the appellants’ argument that Quebec law does not allowposthumous acknowledgment of paternity, except when the child is born within 300 days of the death (art. 525 C.C.Q.), nor did sheaccept their argument that any filiation requires a constant possession of status, which was impossible in the circumstances. [20] In the judge’s view, it was clearly a matter of acknowledgment of filiation by blood as established by DNA evidence. Grounds of Appeal 1.

Did the trial judge err in failing to consider the fact that at the time of [the father’s] death, the embryo was not implanted in [themother’s] uterus and that the child was born 493 days after the death? The parties’ positions [21] The appellants do not dispute that the father is the child’s biological father.

They claim, however, that the judge failed toconsider that the embryo was not implanted in the mother’s uterus before the death and that the child was born 493 days after the death.More particularly, they argue that she did not consider the fact that the father could not exercise his rights and perform his obligationsarising from the establishment of filiation, making filiation impossible. They claim that filiation is a legal concept that overridesbiological ties. The absence of a legislative mechanism for establishing posthumous filiation indicates that such filiation cannot beacknowledged.

This is justified, in their view, due to the absence of a stable relationship between the individuals, including when itcomes to succession. Citing several authors and French law, they assert that exclusively maternal filiation is possible, which may be thecase with assisted procreation: J. Pineau and M. Pratte, La famille, Montreal, Thémis, 2006; M-F. Bureau, Le droit de la filiation : entreciel et terre, Cowansville, Yvon Blais, 2009; A.

Lefebvre-Teillard, Introduction historique au droit des personnes et de la famille, Paris,P.U.F., 1993. [22] The mother replies that the Civil Code already provides for filiation by blood, and its silence on the possibility of post-mortemfiliation does not mean that it is prohibited. On the contrary, when it so wishes, the legislature legislates to prohibit this, such as when achild is born of assisted procreation with the intervention of a third party (art. 538.2 C.C.Q.).

The Civil Code specifically provides thatthe contribution of genetic material from a third party cannot be the basis for any bond of filiation. The legislature similarly provides thatno one may claim filiation contrary to the act of birth and the possession of status consistent with that act (art. 530 C.C.Q.). Additionally,the legislature sets aside biological reality in matters of adoption, which bars the establishment of a filial relationship between the childand his or her parents by blood (art. 569 C.C.Q.).

The mother faults the appellants for drawing a link between the realities of filiation andthose of succession, when the former arises out of an incontestable right that may always be acknowledged. Analysis [23] The appellants’ argument is unusual. Definitively claiming that the child can never obtain acknowledgment of his paternalfiliation despite the reality of his biological father’s identity is somewhat shocking.

I cite here the observations of Nuss J.A. in Droit dela famille — 2219, which, though admittedly made in a different legal context, resonate here as he finds it [translation]“aberrant for a Court authorized to rule on a case to ignore truth and reality, in this case that the respondent is the child’s father, and todismiss his motion on the ground that it is preferable [translation] ‘in the best interests of the child’ that he not be or that a declaration ofpaternity not be made”.

The appellants deny truth and reality on the basis of the absence of a legislative provision providing for thefiliation of a child born further to the post-mortem insemination of an embryo formed from with the genetic material of his mother and ofhis father, the two persons who were the parties to the “parental project”. [24] I will state immediately that I fully share the view that biological truth is not absolute. I find this excerpt from the Roy Reportparticularly enlightening when it states that [translation] “the right to filiation is not only a right to the truth.

It is also, in part, a right tolife, to the best interests of the child, to family peace, to affection, to moral sentiments, to the established order, to the passing of time

[...]”: Roy Report, pp. 141-142. In my view, this excerpt shows that beyond its legal aspects, the issue of filiation has psychological andsocial dimensions for the persons concerned. [25] That is why I refuse to resolve the dispute solely on the basis of the law of successions, as the appellants propose. Of course, theright a child born of post-mortem insemination to inherit raises questions but, first, the appellants invested considerable energy inpreventing the preliminary issue raised by the Court from being addressed, which would have undoubtedly had the advantage ofincluding the scope of

article 617 C.C.Q. in the discussion. In this regard, it seems to me that the

interpretation of the word “conceived”allows for competing arguments. Second, the right to inherit is only one part of the social reality of filiation. I do not agree that the rightof a child born of post-mortem insemination to inherit is the only interest in establishing his filiation, as the appellants assert. Once again,filiation is multidimensional and certainly has a significant identity value. [26] No one disputes that the Civil Code is silent on the specific issue of post-mortem insemination.

Even the Roy Report does notdiscuss it, although it recommends that filiation be divided into two distinct categories, that is, filiation of a child born of naturalprocreation and that of a child born of assisted procreation. It states that the former [translation] “perfectly describes the situationcovered […], that of a child conceived naturally, as opposed to a child born of assisted procreation whose filiation must be establishedaccording to the provisions of

chapter 1.1”: Roy Report, at 143. The report does not question so-called “standard” assisted procreation,other than to add the possibility of using a surrogate mother: Roy Report, at 156. [27] With respect to filiation,

chapter 1.1 of the Civil Code deals with children born of assisted procreation – and no one disputes this– when the parental project involves the genetic material of a third party: art. 538 C.C.Q., Roy Report, at 155. This

chapter sets out itsown filiation rules. It in no way applies to the situation here, where the only genetic material involved is that of the two parties to theparental project. [28] The biological father does not become a third party to the parental project simply because of his death. Such a result would havebeen specifically provided for by the legislature.

As the respondent states in her brief, the legislature speaks clearly when it excludesbiological reality as a source of filiation: arts. 530, 538.2 and 569 C.C.Q.; Droit de la famille — 2219, (C.A.Q.). [29] As the Roy Report summarizes so well, [translation] “since the 1980 reform, priority is given to blood ties, with one exception:under

article 530 C.C.Q., filiation resulting from both

an act of birth and the constant possession of status consistent with that act cannotbe contested, regardless of the existence of evidence showing, beyond any doubt, the absence of a genetic tie between the child and theparent concerned.”: at 152; Droit de la famille — 1528, 2015 QCCA 59. [30] With respect, the appellants appropriate a discourse and case law that favour acknowledgment of filiation and use them to denya desired filiation which is based on a biological tie. [31] Furthermore, they are wrong to suggest that when the biological father is no longer able to perform his role as a parent, otherthan by the transmission of his name, filiation cannot be established. [32] First, it seems to me that this reasoning places a mother and her child in an undesirable position in the case of a fugitive father,by allowing the latter to abscond without fear of being “caught”.

Second, this argument does not consider that, in the absence ofopposition, an action in filiation based on a biological tie can be initiated at any time, subject to the 30-year prescription period, and canarise after the death of the biological father and even be taken up by the heirs of a deceased child: art. 536 C.C.Q.

Death is therefore not abar to filiation. [33] In addition, the argument that filiation is incongruous since the deceased father cannot act on his paternity was rejected by theCourt, as the judge pointed out, in Droit de la famille — 111729, 2011 QCCA 1180, para. 62, where it is stated that filiation isestablished by law and does not flow from either the will of a parent to assume the consequences thereof or, it might be added, from theircapacity to do so. [34] For example, the rules set out at articles 532 and 533 C.C.Q. enable a child to claim filiation before the court when it is notestablished by

an act and by possession of status consistent therewith and to do so by any means. The courts have occasionally referred tothe “right” to obtain acknowledgment of one’s filiation: Droit de la famille — 14259, 2014 QCCS 549, para. 14; M.-C.L. c. Les Héritiersde la Succession de P.C., , para. 12; M.K. c. Les Héritiers de J.-L. et al, , para. 21 (Que. Sup. Ct.);B. (W.) c. E. (M.-J.), (QC CS), [1999] R.L. 657, 659 (Que. Sup. Ct.). [35] The intervention of the legislature in

chapter 1.1 therefore reflects the choice to create an appropriate and specific filiationregime when the genetic material of a third party is involved. Otherwise, filiation is established according to the general regime.

In Droitde la famille — 111729, supra, the Court writes in paragraph 35 that [translation] “[…] if the child is not born of assisted procreationwithin the meaning of articles 538 C.C.Q. and following, the rules of filiation by blood apply”: see also Kirouack, M.-C., Le projetparental et les nouvelles règles relatives à la filiation : une avancée ou un recul quant à la stabilité de la filiation?, in Développementsrécents en droit familial, vol. 229, Service de la formation permanente du Barreau du Québec, Cowansville, EYB, 2005. [36] I would dismiss this first ground of appeal. 2.

Did the trial judge commit an error of law and a palpable error in assessing the documentary evidence by failing to consider theexpress terms of [the father’s] consents? The parties’ positions [37] In the alternative, the appellants argue that the judge erred in failing to assess the documentary evidence regarding the father’sconsents. They essentially argue that the consent in Exhibit P-2A was given remotely and that the father did not receive thecomprehensive and contemporaneous information necessary to conclude that his consent was informed.

They also claim that the fact thatthere was no mention in the consent document that the donor spouse would have to assume the legal responsibilities of parental authorityvitiates the consent. Furthermore, they add that if the consent is valid, it is only to donate embryos, and not to establish post-mortem

filiation. [ 38 ] They propose that at death, since the mother then controlled any procreation project, the father became a third party and the regime under

chapter 1.1 was applicable. The issue also raises the question of the legal status of the frozen embryo. [ 39 ] The mother claims that the father’s consent was valid. The fact that there was no mention that the donor spouse would have to assume the legal responsibilities of parental authority is meaningless in the case of a deceased spouse and does not affect the consent. Lastly, she asserts that filiation is a result of law and not the will of a parent.

Analysis [ 40 ] Although I recognize that the appellants’ arguments raise interesting and serious questions, I believe it is possible to answer them briefly. [ 41 ] First, I would point out that the evidence shows that the father signed the form in person on September 1, 2011 when he had just donated fresh sperm that was used to fertilize the mother’s eggs. Ms. Sylvie Moulin’s testimony is clear in this regard: A.B., pp. 555-556.

The document that was signed electronically concerns the authorization to transfer the embryos for the first attempt in December 2011, which failed. [ 42 ] Since the appellants claim that the judge erred in assessing the evidence, they had to show a palpable and overriding error. They did not succeed.

The judgment was based on a reasonable assessment of the evidence, which is not limited to the signed documents, but includes the couple’s efforts as indicated by numerous visits to the specialized clinic over a sustained period of time. [ 43 ] Next, to answer the other arguments, it should be noted that a court must resist the temptation to legislate. Post-mortem insemination undoubtedly raises ethical and social questions.

There is no legal bar, however, to acknowledging the filiation of a child born in these circumstances. [ 44 ] Would it be preferable for the legislature to intervene in order to establish guidelines regarding post-mortem filiation with respect to embryos formed from a couple’s genetic material without the involvement of a third party? That is a question for the legislature to decide. In the meantime, I note the Roy Report’s comment that, where potential ethical abuses may arise, it is not the child who should pay the price: Roy Report, at 156.

That said, I am not affirming that this is the case here, but the comment is relevant to the extent that an unborn child cannot be blamed for the conduct of his parents. [ 45 ] I would dismiss this second ground of appeal, with legal costs. MARTIN VAUCLAIR, J.A.