2011 QCCA 1180, 2011 QCCA 1180

Droit de la famille — 111729 2011 QCCA 1180 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-020457-107 (500-04-043477-067) DATE: June 22, 2011 CORAM: THE HONOURABLE ANDRÉ ROCHON, J.A. FRANÇOIS DOYON, J.A. NICOLE DUVAL HESLER, J.A. L. B. and E. B. (for

X) APPELLANTS - Defendants v. G. N. RESPONDENT - Plaintiff and REGISTRAR OF CIVIL STATUS IMPLEADED PARTY ​– impleaded party JUDGMENT [ 1 ] THE COURT : On appeal from a judgment of the Superior Court, District of Montreal (the Honourable Mr. Justice Pierre Jasmin), rendered on January 29, 2010, which allowed the respondent’s application for recognition of paternity; [ 2 ] After having examined the file, heard the parties, and on the whole deliberated; [ 3 ] For the reasons of Rochon, J.A., with which Doyon and Duval Hesler, JJ.A. agree; [ 4 ] DISMISSES the appeal with costs. ANDRÉ ROCHON, J.A. FRANÇOIS DOYON, J.A.

NICOLE DUVAL HESLER, J.A. Mtre Guy Du Pont and Mtre Michael H. Lubetsky Davies Ward Phillips & Vineberg For the appellants Mtre Sonia Heyeur For the respondent Hearing date: March 9, 2011 REASONS OF ROCHON, J.A. [ 5 ] N.B. (N.) wanted to have a child. She asked a friend, G.N. (G.) to participate in its conception. The appeal raises only one question: Did the friend agree to limit his role to that of genitor (articles 538 and following C.C.Q. )?

[ 6 ] Lack of formality surrounding parental projects poses evidentiary difficulties, particularly when this juridical act is that of a woman alone and when the genetic material is provided by way of sexual intercourse. [ 7 ] Added to these difficulties is the tragic fate of N., who died from a fulminating cancer three years after the birth of the child. N.’s parents, who are also the child’s grandparents, maintain that their daughter’s parental project must be respected and that G.’s application for recognition of paternity should be dismissed. THE FACTS [ 8 ] N. and G. met in 2001.

G., a native of the Seychelles Islands, was already the father of two children born of two different relationships. N. was divorced. [ 9 ] They started to have regular sexual relations without, however, cohabiting or being a couple. G. occasionally crossed paths with N.’s friends, but never socialized with them. Similarly, N. never invited G. to meet her parents. G. explained this situation by the fact that he was Catholic and N. was Jewish which, added to G.’s country of origin, created discomfort in N.’s community. [ 10 ] N. was 36 years old and longed for a child.

She had tried unsuccessfully to conceive during a previous marriage and had subsequently gone to a fertility clinic and then an anonymous sperm donor bank. She did not follow up on the latter project. At the time, she had been seeing G. for several months. [ 11 ] In early 2002, N. asked G. to help her conceive a child. G., already the father of two children, was not ready to commit financially to a third child. N. apparently told him that she did not expect financial support.

According to G., what N. wanted, rather, was for him to be the child’s father and to give the child all his affection. [ 12 ] N. and G. apparently had long discussions on the subject and G. agreed to help her conceive, while insisting that he be named the father on the child’s act of birth. N. appears to have agreed to this. [ 13 ] Shortly thereafter, N. became pregnant, but lost the baby as a result of a spontaneous miscarriage. She became pregnant again and gave birth on ..., 2003. N. and G. apparently had sexual relations until the birth of the child. [ 14 ] N. gave G. $1,400 in several instalments.

G.’s testimony in this regard is uncertain, even contradictory. First he said N. gave him this amount as a gift so he could visit his son in the Seychelles Islands. On cross-examination, he admitted that the amount was a [TRANSLATION] “reward” for having helped N. to conceive or that at least part of the amount was paid for that purpose. [ 15 ] G. accompanied N. for her first ultrasound examination at the hospital and, at N.’s invitation, he went to the hospital to see the child two days after the birth. [ 16 ] G. saw the child sporadically after the birth. He always saw the child in N.’s presence.

G.’s older daughter met the child on several occasions. When she was sick, N. made arrangements with a friend so that G. could see the child. [ 17 ] G. asked N. to show him the child’s act of birth. After a few hesitations and several days later, N. apparently showed G. a document which, according to G., named him as the father. [ 18 ] N. saw to the child’s needs alone. G. knew little of the child’s daily activities. G. knew that N. was sick, but he did not know the extent of her illness. [ 19 ] It was N.’s mother who informed G. of her death.

At a brief meeting, the grandparents informed G. that the child would stay with them until the age of majority. It was then that G. consulted a lawyer and that he learned that his name was not on the act of birth. [ 20 ] After N.’s death, G. was able to see the child a few times. The grandparents limited G.’s access on the pretext that their granddaughter had a busy schedule. [ 21 ] The grandparents are over 80 years old. They are very close to a young family that the child sees frequently. They want this young family to take the child in, in the event of their death.

THE TRIAL JUDGMENT [ 22 ] The Superior Court judge began his analysis with a consideration of the role that G. had agreed to play. Was it that of a mere [ translation ] “sperm donor” or that of a father?

[ 23 ] The judge then stated the three conditions for

article 538.2 C.C.Q. to apply: (1) a parental project formed by one or two persons; (2) the sperm donor must not be a party to the project; (3) the donor must know that he is acting only in that capacity and agree to have only that status and the rights arising therefrom. [ 24 ] The trial judge pointed out that

article 538.2 C.C.Q. must be interpreted restrictively and that it is up to those who invoke the existence of a parental project involving assisted procreation to prove it. [ 25 ] Essentially, after analyzing the different evidentiary indicators, the Superior Court judge concluded that G. never agreed to act as a mere procreation assistant: [TRANSLATION] “in fact, the plaintiff never believed that he was acting as a ‘sperm donor’, but rather as the child’s father, even though he was not able to contribute financially to her needs”. [ 26 ] Consequently, the Superior Court judge recognized G.’s paternity.

He ordered that the act of birth be amended but refused to change the name of the child, [TRANSLATION] “whose family name has always been B. since birth …”. GROUNDS OF APPEAL [ 27 ] The appellants raise three grounds of appeal. The first has to do with the child’s incontestable status, under

article 530 C.C.Q. They believe that this ground alone suffices to allow the appeal. The second ground concerns errors of law and fact that they claim the Superior Court judge made in applying articles 538 C.C.Q. and following . Lastly, they argue that the trial judge erred in law by failing in his analysis to consider the child’s best interest as prescribed by

article 33 C.C.Q. ANALYSIS [ 28 ] I will begin with the last ground, concerning

article 33 C.C.Q. The rules on filiation were enacted in the best interests of children. Filiation is based on principles that establish, in all cases, legal ties with the mother, generally with the father and, if applicable, with another spouse who is party to the parental project. In formulating the rules on filiation, the legislature implicitly considered the child’s best interests. The best interests of the child underlie, to varying degrees, the rules passed by the legislature governing filiation, whether it is filiation by blood, the filiation of children born of assisted procreation, or adoptive filiation.

It would be an error to add or remove rules or to make new ones on a case-by-case basis in the name of the cardinal principle (the best interests of the child) that is already entrenched in the legislative texts. [ 29 ] This Court, per my colleague Bich, J.A., dealt with this issue in Droit de la famille – 11394 : [1] [TRANSLATION] [57] Could the child’s best interests, which must take precedence in all decisions concerning the child, justify endorsing the respondents’ scheme here, on the grounds that the resulting situation benefits the child? [58] With respect, the Court believes it must answer this question in the negative.

The rules concerning filiation, deprivation of parental authority, and adoption were adopted in the interest of children and enacted precisely to protect them. They are of public order. We cannot allow them to be circumvented in order to replace “a bad parent” (here the father) with a “good parent”. Therefore,

article 33 C.C.Q. cannot allow a filiation and adoption scheme put in place by the Quebec legislature to be bypassed. As for articles 4.1 and 4.2 C.C.P. , invoked by the respondents, they do not have much weight and, in a case like this, they cannot impair the operation of the public order provisions of the Civil Code of Québec . [59] We can undoubtedly recognize, like the trial judge, that the child’s development progresses better with Mr. Le. than with Mr. L. and that the former, unlike the latter, is a serious and dependable man who has assumed the care of the child with love and generosity.

From a legal standpoint, however, his does not justify the respondents’ actions. [ 30 ] As for the filiation of children born of assisted procreation, the Quebec legislature has formulated new rules that have given rise to a number of scholarly debates. [2] According to these rules, a child can have one mother or two mothers without any bond of filiation with the genitor. It seems to me that interpreting these rules restrictively or regarding them as exceptional would be inconsistent the legislature’s intent and choice.

In this regard, the Superior Court judge erred in interpreting the rules contained in articles 538 C.C.Q . and following restrictively on the grounds that they are exceptional provisions. Nothing suggests that this type of filiation differs, in terms of the strength of the legal bond that it establishes, from the other types and that it falls within the category of exceptions. I must acknowledge, however, that this new scheme changes the sense of the word genitor, which traditionally meant the father of the child. The provisions in question must be given a broad and liberal

interpretation, however, in order to give effect to the legislative intent. [ 31 ] We must also not confuse questions of statutory

interpretation with the rules of evidence. An error in

interpretation does not

necessarily lead to an error in the assessment of evidence. I will return to this point. [ 32 ] To conclude my analysis of this ground of appeal, I would add an additional comment by my colleague Bich J.A. Her observation applies equally to this case: [TRANSLATION] [61] Note that recognition of his paternity does not in any way settle the question of the relationship that Mr. L. could have with the child, particularly with regard to access rights. Similarly, this recognition does not shield him from an action to remove parental authority.

This judgment does not in any way decide any of these questions. [ 33 ] As for the appellants' first ground of appeal, it, too, is bound to fail. According to the appellants, the child was born of an assisted procreation project devised by the mother. The child's birth certificate ascribes only maternal filiation to the child. This filiation is consistent with her possession of status. Under

article 530 C.C.Q. , n o person may contest the status of a person whose possession of status is consistent with his act of birth. [ 34 ] This ground of appeal is based on the premise that the child was born of a parental project involving assisted procreation. As the mother alone devised the project, the child can have only a maternal filiation. [ 35 ] The weakness of this argument lies precisely in the premise. In this case, if the child is not born of assisted procreation within the meaning of articles 538 and C.C.Q. and following, the rules of filiation by blood apply. This is the key issue here.

Article 530 C.C.Q. does not apply because it is not a matter of contesting an already established filiation, but rather of claiming a paternal filiation that has not been established. [ 36 ] The central question remains: Did the Superior Court judge err in concluding that the child was not born of a parental project involving assisted procreation? [ 37 ] According to the appellants, the Superior Court judge made several errors in this regard. First, they claim that he reversed the burden of proof.

Since G. recognized N.’s parental project, they maintain that it was up to him to prove that he did not agree to it. [ 38 ] They also claim that the Superior Court judge contradicted himself.

He recognized the existence of a parental project (paragraph 28 of the judgment) and then concluded that a parental project within the meaning of articles 538 C.C.Q. and following could not be established on a balance of probabilities (paragraph 31 of the judgment). [ 39 ] Lastly, they argue that the Superior Court judge made palpable and overriding errors in his assessment of the evidence: (1) he erred particularly in allowing G.’s contradictory testimony; (2) he drew undue inferences from the relationship authorized by N. between G. and the child; (3) he did not consider that G. never agreed to assume at least part of the financial responsibility for the child. [ 40 ] I will begin my analysis with the second ground of appeal, which concerns apparent contradictions in the trial judgment.

I say “apparent” because they are only that. [ 41 ]

Article 538 C.C.Q. sets out the three necessary elements for there to be a “parental project involving assisted procreation”. The first two do not pose any difficulty: (1) a person alone decides or spouses decide to have a child ; (2) to do so, the person decides or the spouses decide to resort to the genetic material of a third party. As for the third, the provision does clearly state the underlying condition. The third party must not be a party to the parental project.

This last element brings the participants’ intent into play here, particularly when the contribution of genetic material is made by way of sexual intercourse. In this case, the third party must agree to be only a genitor.

In other words, the biological mother must explain the project to the third party, who must accept his limited, participatory role. [ 42 ] It can certainly be said, using colloquial language, that a person has a parental project without necessarily concluding, from a legal standpoint, that it is a parental project involving assisted procreation within the meaning of articles 538 C.C.Q . and following For the latter project to exist, it is essential that the third party who contributes his genetic material voluntarily agree b to limit his role and thereby avoid the legal consequences of filiation that would have normally resulted. [ 43 ]

Article 538.2 C.C.Q. has the effect of excluding the biological father (known or unknown) from any bond of filiation as long as this exclusion is part of the juridical act decided by the mother and the genitor agrees to be nothing more than the genitor. [ 44 ] In F.P. v.

P.C ., [3] Senécal J. clearly describes this third element of the parental project: [TRANSLATION] 3) that he knowingly act as an “assistant" in the project that is not his, which implies that he agrees to have only that status and the limited rights arising therefrom. [4] [ 45 ] It was therefore up to the appellants to establish, on a balance of probabilities, the existence of all the necessary elements of a parental project involving assisted procreation. The Superior Court judge concluded that they had not discharged this burden.

Does this essentially factual finding contain palpable and overriding errors that would justify the Court's intervention? [ 46 ] As is usually the case, in the absence of any formality prescribed by the legislature, the evidence is composed of indicators that can support either one position or the other. On the basis of these indicators, the judge concluded as follows: [TRANSLATION] [31] The evidence has not shown on a balance of probabilities that the plaintiff acted as an assistant in N.’s parental project.

The plaintiff never believed that he was acting as a “sperm donor", but rather as the child’s father, even though he was unable to contribute financially to her needs.

[ 47 ] The Superior Court judge accepted as duly proven that N. had devised the project to have a child. Just the fact that she had gone to fertility clinics and to an anonymous sperm donor bank amply demonstrates this. [ 48 ] At the same time as she visited these clinics, N. began a relationship with G. To decide the central question in this case, the Superior Court judge could rely on the testimony of only one person, G.

The third party testimonies constitute, at most, indirect evidence of the exact nature of the relationship between G. and N. [ 49 ] That N. alone devised the project to have a child seems to be established here. That she enlisted G. to conceive the child also seems to me to be well supported by the evidence. That G. knowingly agreed to limit his role to that of a mere “sperm donor” was not shown, in the opinion of the Superior Court judge. [ 50 ] The latter conclusion is based on factual premises accepted by the trial judge.

They are as follows. [ 51 ] G. asked that his name appear, as the father, on the birth certificate. He maintains that he received assurances from N. in this regard. G. insisted on seeing the birth certificate. N. apparently showed him a document which, in all likelihood, was false because G. says he discovered for the first time, after N.’s death, that his name was not in the register of civil status. [ 52 ] G. announced to the members of his family, before the birth of the child, that he would be the new father of a baby girl.

He accompanied N. to the hospital for her first ultrasound examination. [ 53 ] At N.’s request, G. went to the hospital two days after the birth of the child. [ 54 ] N. apparently agreed to G.’s playing a true role of father to the child and insisted that G. give all his affection to the child, even though his financial situation did not enable him to pay for her needs. It appears that the two continued their sexual relationship until the birth of the child. [ 55 ] G. saw the child regularly after the birth.

They did activities together, but always in N.’s presence. [ 56 ] There is no evidence that N. said, mentioned or explained to G. that his role was limited to contributing genetic material, with the legal consequences that entailed. [ 57 ] Moreover, one fact is troubling. [ 58 ] G. apparently received $1,400 to help with N.’s project. Examined out of court, he said this amount was given to him as a gift by N. so that he could go to the Seychelles Islands to visit his son.

At the hearing, he changed his story, stating that the amount was paid to him, at least in part, as a reward for participating in the conception of the child. The trial judge did not rule on these contradictions. [ 59 ] G. sees his child and does activities with her, but generally not in the presence of N.’s parents or her family circle. [ 60 ] Some of these elements are neutral and favour neither party. This is the case with G.’s access rights.

It would be erroneous to conclude that there was no parental project involving assisted procreation based solely on the fact that the genitor subsequently had some relationship with the child. Authors who have examined the question have concluded that, in many cases, the mother or mothers prefer to use a known donor, because they feel it is desirable that there be some involvement of the [ translation ] “biological father”. [5] [ 61 ] The appellants place great emphasis on the fact that G. did not want to and did not contribute financially to the child’s needs.

They see this as a clear indication of his limited role. This argument calls for a comment. [ 62 ] Filiation is established by law. It does not derive from a parent’s intention to assume the ensuing consequences (maintain the child, see to the child’s supervision and education). Filiation is not based on a person’s intent or capacity to financially support and properly care for a child.

In this case, G.’s attitude regarding financial support of the child was one of several indicators of the role he had accepted, but this attitude alone could not constitute a bar to his application for recognition of paternity. [ 63 ] In short, I do not see any palpable and overriding error in the trial judge’s overall assessment of the evidence. With respect, if he erred in the suggested statutory

interpretation, this does not vitiate his factual findings. G. understood his role as being that of a father and not a mere genitor. According to G., N. never expressed to him her intention to limit his role to that of contributing genetic material. From the evidence, a grey area emerges between what N. thought and what G. perceived. I cannot imagine, without usurping the role of the trial judge, how I could substitute my opinion for his on this question. [ 64 ] I believe it would be useful to add a final comment.

Unlike the rules of filiation by blood, where the intent of the persons involved is unimportant, the expression of intent is crucial in matters of assisted procreation. Registering the legal document and the consent of the person who limits his role to that of contributing genetic material would help put at ease those who undertake such a process. The absence of legislative measures obliges us to turn to the inevitable vagaries of the evidence. There is food for thought here, because consent alone can transform filiation by blood to filiation arising from assisted procreation.

Through natural relations, one can become a father without ever having entertained the idea of being one, whereas in the case of assisted procreation, one must agree not to be a father. [ 65 ] For these reasons, I would dismiss the appeal with costs. ANDRÉ ROCHON, J.A.