Do Children’s “Best Interests” Matter When Tracing Their Filiation in Quebec Civil Law ?

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Les Cahiers de droit

Do Children’s “Best Interests” Matter When Tracing Their

Filiation in Quebec Civil Law ?

Angela Campbell

Volume 64, Number 1, March 2023

Article up to date as of July 1, 2022.

URI: https://id.erudit.org/iderudit/1097336ar

DOI: https://doi.org/10.7202/1097336ar

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Faculté de droit de l’Université Laval

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0007-974X (print)

1918-8218 (digital)

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Cite this article

Campbell, A. (2023). Do Children’s “Best Interests” Matter When Tracing Their

Filiation in Quebec Civil Law ? Les Cahiers de droit, 64(1), 51–75.

https://doi.org/10.7202/1097336ar

Article abstract

This essay offers a commentary on the intersection between the best interests

principle and the law of filiation in Quebec. It highlights the tension between

best interests and the positive law of filiation, highlighting the implications for

those most vulnerable in family law disputes who have been central to

Professor Goubau’s scholarship. The analysis here is premised on a review of

four relatively recent decisions handed down by Quebec courts, each distinct

in its context. The first considers circumstances of assisted procreation or

“parental projects” that result in more than two prospective parents ; the

second addresses intercultural adoption contexts ; the third examines

determinations of filiation where a child’s birth ensues from a surrogacy

agreement ; and the fourth explores how the law deals with

stepparent-stepchild relationships. In each context, a judgment is featured to

explore how the law intersects with the best interests principle. While none of

the judgments are intended to be representative of the state of the law in a

given area, each offers an example to illustrate how courts negotiate tensions

between the positive law and the best interests principle. While judges will

have varying degrees of discretion in different contexts to consider this

principle, they acknowledge the tension and seek to reconcile it in a manner

that at once foregrounds children’s interests while also correctly applying and

interpreting relevant legal authorities.

Do Children’s “Best Interests”

Matter When Tracing Their Filiation

in Quebec Civil Law ?

Angela

camPbell*

This essay offers a commentary on the intersection between the

best interests principle and the law of ﬁliation in Quebec. It highlights

the tension between best interests and the positive law of filiation,

highlighting the implications for those most vulnerable in family law

disputes who have been central to Professor Goubau’s scholarship. The

analysis here is premised on a review of four relatively recent decisions

handed down by Quebec courts, each distinct in its context. The ﬁrst

considers circumstances of assisted procreation or “parental projects”

that result in more than two prospective parents ; the second addresses

intercultural adoption contexts ; the third examines determinations of

ﬁliation where a child’s birth ensues from a surrogacy agreement ; and the

fourth explores how the law deals with stepparent-stepchild relationships.

In each context, a judgment is featured to explore how the law intersects

with the best interests principle. While none of the judgments are intended

to be representative of the state of the law in a given area, each offers an

example to illustrate how courts negotiate tensions between the positive

law and the best interests principle. While judges will have varying

degrees of discretion in different contexts to consider this principle, they

acknowledge the tension and seek to reconcile it in a manner that at

* Professor of Law, McGill University. The author is grateful for the research support

provided by McGill University and for the excellent research and editing assistance

of Shona Moreau as well as for the comments of two anonymous reviewers whose

recommendations improved this work.

Article up to date as of July 1, 2022.

In accordance with the journal’s language rules, the use of the masculine form alone

is intended to make the text easier to read and, depending on the circumstances, it is

inclusive of both women and men.

Les Cahiers de Droit, vol. 64 n

1, mars 2023, p. 51-75

(2023) 64 Les Cahiers de Droit 51

52. Les Cahiers de Droit. (2023).64.C. de D..51

once foregrounds children’s interests while also correctly applying and

interpreting relevant legal authorities.

Cet essai propose un commentaire sur l’intersection entre le

principe de l’intérêt supérieur et le droit de la ﬁliation au Québec. Il

met en évidence la tension entre l’intérêt supérieur et le droit positif

de la ﬁliation, en soulignant les incidences pour les personnes les plus

vulnérables dans les litiges en droit de la famille, qui ont été au centre

de la recherche du professeur Goubau. L’analyse présentée ici est fondée

sur l’examen de quatre décisions rendues relativement récemment par

des tribunaux québécois, chacune étant distincte dans son contexte. La

première porte sur les circonstances de la procréation assistée ou des

« projets parentaux » qui donnent lieu à plus de deux parents potentiels ;

la deuxième traite de contextes d’adoption interculturelle ; la troisième

examine les déterminations de la ﬁliation lorsque la naissance d’un enfant

découle d’une entente de maternité de substitution ; et la quatrième

explore l’engagement du droit dans les relations entre beaux-parents et

beaux-enfants. Dans chaque contexte, un jugement est présenté pour

explorer la façon dont le droit recoupe le principe de l’intérêt supérieur.

Bien qu’aucun des jugements ne se veuille représentatif de l’état du droit

dans un domaine donné, chacun d’eux offre un exemple qui illustre la

façon dont les tribunaux négocient les tensions entre le droit positif et le

principe de l’intérêt supérieur. Bien que les juges jouissent d’une certaine

marge de manœuvre dans différents contextes pour prendre en compte

ce principe, ils reconnaissent la tension et cherchent à la concilier d’une

manière qui met en avant l’intérêt de l’enfant tout en appliquant et en

interprétant correctement les autorités juridiques pertinentes.

Este ensayo plantea realizar un comentario sobre un punto común

que existe entre el principio del interés superior y el derecho de ﬁliación

en Quebec. Se hace hincapié en la tensión que existe entre el interés

superior y el derecho positivo de la ﬁliación y se resaltan las incidencias

en las personas más vulnerables en los litigios de derecho familiar, las

a. camPbell

Do Children’s “Best Interests” … 53

cuales han sido fundamentales en la investigación llevada a cabo por el

profesor Goubau. El análisis que aquí se presenta se basa en el estudio

de cuatro decisiones que han sido dictadas recientemente por tribunales

quebequenses, las cuales, en su contexto, son claramente distintas unas

de otras. La primera trata sobre las circunstancias de la procreación

asistida o « proyectos de paternidad » que han dado lugar a más de dos

padres potenciales ; la segunda trata sobre los contextos de adopción

intercultural ; la tercera estudia las determinaciones de la filiación

cuando el nacimiento de un hijo resulta de un acuerdo de subrogación de

maternidad, y la cuarta explora el alcance de la ley en las relaciones entre

padrastros e hijastros. En cada contexto se presenta una decisión dictada

con el ﬁn de examinar cómo se coteja la ley con el principio del interés

superior. Si bien ninguna de estas decisiones pretende ser representativa

del estado del derecho en un ámbito determinado, cada una proporciona

un ejemplo con el que se ilustra cómo dirimen los tribunales las tensiones

que existen entre el derecho positivo y el principio del interés superior.

Si bien los jueces gozan de un cierto margen de maniobra en diversos

contextos para tomar en cuenta este principio, reconocen la tensión

existente, e intentan conciliarla, de tal manera que prevalezca el interés

superior del menor al aplicar e interpretar adecuadamente los principios

legales pertinentes.

Pages

1 Parental Projects and Plural Parenthood ...................................................................... 55

2 Intercultural Adoption ..................................................................................................... 60

3 Surrogacy ........................................................................................................................... 64

4 In loco parentis .................................................................................................................. 68

Conclusion ............................................................................................................................... 73

It is an honour to be invited to contribute to this collection paying

tribute to an esteemed colleague and true ﬁxture in the world of family

law and the law of persons. Throughout his career, Professor Dominique

Goubau advanced juridical approaches to the family in Quebec in the

most progressive of ways, often through a transnational and comparative

54 Les Cahiers de Droit (2023) 64 C. de D. 51

lens. His writings and teachings have prompted judges, practitioners and

scholars to reﬂect critically on difﬁcult questions related to themes such

as vulnerability and dignity, and how both of these might be furthered

or compromised by how the law intervenes in family life and family

relationships

. In this regard, Professor Goubau has consistently centred

children, inviting us to foreground the principle, enshrined in both

international

and domestic law

, that the child’s best interests are the

foremost consideration in all decisions affecting them.

While family law scholars will be well versed in the “best interests”

principle, we are also familiar with the tension that arises when the

application of positive law counters the result that a best interests analysis

might yield. Professor Goubau himself has spoken to such circumstances

in his writings

. Under Quebec family law, these circumstances are most

prone to arise in situations where a child’s ﬁliation is put into question

and where the Civil Code of Quebec maps parental status to one or more

individuals who may seem less well placed than others to serve that same

child’s best interests.

This essay offers a commentary on the intersection between the best

interests principle and the law of ﬁliation in Quebec. It highlights the

tension between best interests and the positive law of ﬁliation, highlighting

the implications for those most vulnerable in family law disputes who

have been central to Professor Goubau’s scholarship. The analysis

here is premised on a review of four relatively recent decisions handed

down by Quebec courts, each distinct in its context. The ﬁrst considers

circumstances of assisted procreation or “parental projects” that result in

more than two prospective parents ; the second addresses intercultural

1. See Dominique

Goubau

and Martin

chabot

, “Blended Families and Multi-Parenthood :

the Difﬁculty of Adapting the Law to Contemporary Families”, (2018) 59 C. de D. 889

(hereinafter “

Goubau

chabot

Multi-parenthood”). See also Dominique

Goubau,

“Dignity in Canadian Law, a Popular but Ambiguous Notion”, in Brigitte

feuillet-

liGer

and Kristina

orfali

(eds.), The Reality of Human Dignity in Law and Bioethics,

Cham, Springer, 2018, p. 191.

2. See Convention on the Rights of the Child, November 20, 1989, UNTS, art. 3 (entered

into force on September 2, 1990, accession by Canada on December 13, 1991).

3. See Civil Code of Quebec, L.Q. 1991, c. 64, art. 33.

4. See

Goubau

chabot

Multi-parenthood, supra, note 1 ; Dominique

Goubau,

“Biomedicine and Parentage Law in Canada : Between Boldness and Restraint”, in

Brigitte

feuillet-liGer

, Thérèse

callus

and Kristina

orfali

(eds.), Reproductive

Technology and Changing Perceptions of Parenthood around the world, Brussels,

Bruylant, 2014, p. 223.

a. camPbell

Do Children’s “Best Interests” … 55

adoption contexts ; the third examines determinations of ﬁliation where a

child’s birth ensues from a surrogacy agreement ; and the fourth explores

how the law deals with stepparent-stepchild relationships. In each context,

a judgment is featured to explore how the law intersects with the best

interests principle. While none of the judgments are intended to be

representative of the state of the law in a given area, each offers an example

to illustrate how courts negotiate tensions between the positive law and

the best interests principle. While judges will have varying degrees of

discretion in different contexts to consider this principle, they acknowledge

the tension and seek to reconcile it in a manner that at once foregrounds

children’s interests while also correctly applying and interpreting relevant

legal authorities.

1 Parental Projects and Plural Parenthood

Quebec civil law is clear that two is the maximum number of people

who can hold the formal status of “parent” of a child. Despite changes in

other jurisdictions

, our legislature has thus far refrained from extending

parental rights to three or more people. In 2002, Quebec established itself

as a progressive player in the western legal landscape by enacting family

law reforms that recognized the “parental project” and clariﬁed ﬁliation

in situations involving gamete donation and assisted reproduction

. While

these amendments stretched the law of ﬁliation to reﬂect changing family

forms in Quebec, they stopped short in some notable ways. For instance,

while the Code, as of 2002, recognized the possibility for a parental

project to be established by one person alone — hence, the potential for

5. See Children’s Law Reform Act, R.S.O. 1990, c. C.12, ss. 9, 11 and 13. (hereinafter

“CLRA”), where four parents can be recognized without a court order (s. 9) – but

more can be recognized with a court order (s. 13 or s. 11). This is a response to

A.A. v. B.B., 2007 ONCA 2, a 2007 Ontario Court of Appeal decision, which permits

multiple individuals to be listed on a child’s birth certiﬁcate in Ontario under speciﬁc

circumstances. See also Family Law Act, S.B.C., 2011, c. 25, ss. 29 and 30 (hereinafter

“BCFLA”), which allows donors to be listed as additional parents if the parents sign a

written agreement prior to conception in British Columbia. See also Marie

Pratte,

“La

ﬁliation réinventée : l’enfant menacé ?” (2003) 33 R.G.D., 541. Also, Benoît

moore

, “La

notion de « parent psychologique » et le Code civil du Québec”, (2001) 103 R. du N. 115.

6. See Régine

tremblay

, “Quebec’s Filiation Regime, The Roy Report’s Recommendations,

and the « Interest of the Child »”, (2018) 31 Can. J. Fam. L. 199. See also Robert

lecKey

“The Practices of Lesbian Mothers and Quebec’s Reforms”, (2011) 23 CJWL 579. See

also, Robert

lecKey

, “« Where the Parents Are of the Same Sex » : Quebec’s Reforms

to Filiation”, (2009) 23 Int. JL Pol’y & Fam 62. See also, Angela

camPbell

“Conceiving

Parents Through Law”, (2007) 21 Int. JL Pol’y & Fam 242.

56 Les Cahiers de Droit (2023) 64 C. de D. 51

solo parenthood — or two people together, it offered no hint of openness

to plural parenthood (or “pluri-parentalité

”).

This state of affairs has not changed in the two decades that have

since passed. Even within the framework of the most recent family law

reform proposal, when ﬁliation-related provisions were being discussed

prior to their removal from the Bill, the Minister of Justice declined to

expand ﬁliation beyond two parents

. In so doing, he demurred from an

opportunity to draw on the experiences of common law provinces that

have opened parenthood to four or more people in assisted reproduction

contexts

, in preference for a more orthodox approach to the law in this

domain.

Consequently, Quebec courts continue to be bound by the recognition

of no more than two parents, even when evidence suggests that a child’s

best interests might warrant an alternate conclusion. Such instances

offer a rich site for exploring distinctions between formal and functional

parenthood (or parenté and parentalité) respectively, as per judgments

rendered by courts of ﬁrst instance and appellate courts in Droit de la

fa mi l l e — 191677

In the case at hand, three adults vied for recognition as the parents

of a young child. Shortly after the child was conceived, all three parties

7. See CCQ, art 538.2, which states : “The contribution of genetic material to the parental

project of another cannot be the basis for any bond of ﬁliation between the contributor

and the child consequently born. However, if the contribution of genetic material is

provided by way of sexual intercourse, a bond of ﬁliation may be established, in the

year following the birth, between the contributor and the child. During that period, the

spouse of the woman who gave birth to the child may not invoke possession of status

consistent with the act of birth in order to oppose the application for establishment of

the ﬁliation.”

8. See An Act respecting family law reform with regard to ﬁliation and amending the

Civil Code in relation to personality rights and civil status, L.Q. 2022, c. 22 (hereinafter

“Bill 2”). The Quebec Minister of Justice Simon Jolin-Barrette commented on

October 21, 2021 – following the tabling of Bill 2 – at a press conference that [

translation

]

“The literature and studies do not show that it is preferable for a child to have more

than two parents. [...] For us, it is very clear that the family unit consists of only two

parents” ;

assemblée nationale

, Archives des travaux et activités parlementaires :

Activités de presse, Québec, Assemblée nationale, 2021, [Online], [www.assnat.qc.ca/

fr/video-audio/archives-parlementaires/activites-presse/AudioVideo-91739.html]

(September 11, 2022). Of note, the government removed from the bill all provisions

pertaining to ﬁliation prior to its enactment.

9. To name a few, see CLRA, supra, note 5, ss. 9-13 ; BCFLA, supra, note 5, ss. 29 and 30 ;

and lastly, see CC (Re), 2018 NLSC 71, which is not an assisted reproduction context

but does accord recognition to three parents.

10. Droit de la famille – 191677, 2019 QCCA 1386.

a. camPbell

Do Children’s “Best Interests” … 57

signed an agreement in which they stated their desire to share the child’s

“physical, emotional, and ﬁnancial support

”. As such, the three parties had

created a parenting plan and determined their respective roles in the child’s

life. The birth registration named two parents : the child’s birthmother and

her partner (L.) at the time of the child’s birth. Under the parenting plan,

M. who was a biological parent, although his name did not appear on the

child’s birth registration, would also share in the child’s upbringing and

support. Later, the couple (birthmother and L.) separated and ﬁled for

divorce. The couple signed an interim consent agreement regarding their

joint exercise of parental authority, excluding the child’s biological father,

who had previously been involved in the child’s upbringing. Being excluded

from this interim consent agreement, M. responded by ﬁling an application

for recognition of paternity.

In rendering judgment, Morrison J. wrestled with the constraints

imposed by positive law, noting that he was forced to choose between

L. and M. as the child’s parent. The ﬁliation of the child’s birthmother

being uncontested, Morrison J. acknowledged Quebec law’s limitation of

parental status to no more than two people. In his mind, this restricted a

court’s ability to consistently render a decision in a child’s best interests,

including in the case at hand :

[

translation

] In the opinion of the undersigned, the impossibility of a child

having more than two parents is problematic in light of the social reality of 2018.

In this case, with due regard to the contrary view, the best interests of minor

child X. would require that the law allow for the recognition of her reality that,

emotionally and socio-economically, she has always had three parents

Given that triparentality (or pluriparentality) is not recognized in

Quebec, the judge reluctantly ordered M. to replace L. as the child’s second

parent. As biological truth must prevail, the Superior Court granted the

biological father’s application to have the birth certiﬁcate amended to

include the names of both biological parents

The Court of Appeal of Quebec saw matters differently. Writing for

the Court, Kasirer J.A. (as he then was) took the view that this case did

11. Id., para 12 (our translation).

12. See Droit de la famille – 18968, 2018 QCCS 1900, para 37. Morrisson J. states in French :

“De l’avis du soussigné, l’impossibilité qu’un enfant ait plus de deux parents pose

problème eu égard à la réalité sociale de 2018. En l’espèce, avec égard pour l’opinion

contraire, le meilleur intérêt de l’enfant mineure X. requerrait que la loi permette la

reconnaissance de sa réalité, soit que sur les plans émotionnel et socio-économique,

elle a effectivement toujours eu trois parents.”

13. It should be noted that after the separation, M. and the birthmother shared joint

custody of the child, while L. had limited access rights to the child.

58 Les Cahiers de Droit (2023) 64 C. de D. 51

not require the court to venture onto the terrain of plural parenthood

Rather, the claims in question could be justly addressed through a focus on

functional rather than formal parenthood. Kasirer J.A. thus distinguished

between the concepts of parentalité, i.e., the ability to be recognized as

holding functional rights and responsibilities associated with ﬁliation

and parenthood, and parenté, i.e., the formal legal status of ﬁliation and

parenthood. A major consequence of that distinction would be that, unlike

a parent holding formal parental status, a person holding a functional or

de facto parental role would not have legal rights and obligations vis-à-vis

a child, which would be relevant in situations such as inheritance upon

intestacy and making decisions for a child regarding matters such as health

care and education.

For the Court of Appeal, the evidence was sufﬁcient to show that the

child’s birthmother and L. — both of whose names appeared on the child’s

birth registration — had created a parental project within the meaning of

article 538 of the Civil Code. As such, M. could not be recognized as a

father and was instead considered as a “third party” vis-à-vis the child,

insofar as positive law was concerned. His claim to ﬁliation thus failed.

For the Court of Appeal, this outcome was not counter to the child’s best

interests, the latter more appropriately addressed in relation to questions

regarding parental authority

than ﬁliation.

The Court of Appeal hence offers a more restrained analysis of the

facts than did the trial judge. Unlike Morrison J., Kasirer J.A. refrains

from casting plural parenthood as Quebec’s lex feranda and instead states

that the positive law in its current state provides the requisite guidance

to determine ﬁliation questions in contexts of assisted procreation. And,

whereas the trial judge had found a discussion about the best interests of

the child essential to the analysis, the Court of Appeal warned against

this. Not only had there been no factual evidence adduced in the ﬁrst

instance as to the interests in the child central to the case at hand, but

de jure, the issue could not be opened. In Quebec, the law of ﬁliation does

not invite the courts to engage in a best interests analysis except in cases

14. Droit de la famille – 191677, supra, note 10.

15. See CCQ, article 599, which in keeping with civil law tradition, deﬁnes parental authority

as “the rights and duties of custody, supervision, and education of their children”,

as well as the obligation to maintain their children. See also

eDucaloi

, “Parental

Authority : Rights and Responsibilities of Parents”, (2022) The Law by Topic, [online],

[www.educaloi.qc.ca/en/capsules/parental-authority-rights-and-responsabilities-of-

parents/] (September 11, 2022).

a. camPbell

Do Children’s “Best Interests” … 59

involving ﬁliation by adoption

. The Court cites Professor Goubau’s work

as a leading authority on the risk of confusion between parental functions

and ﬁliation if the courts were to inject a best interests inquiry into cases

like this one, in which they have to decide questions of ﬁliation

Imagining a case with slightly different facts, which matched those

presented to the Court of Appeal for Ontario in AA v. BB

some 15 years

prior, provides an intriguing thought experiment for Quebec jurists

specializing in family law. Whereas no evidence was presented in Droit de

la famille — 191677 about whether tri-parenthood would serve the child’s

best interests, in AA v. BB, the evidence was clear that the child recognized

all three prospective parents as such. Furthermore, unlike the Quebec

judgment discussed here, in AA v. BB, the motion for recognition of a third

parent was not challenged. Accordingly, the Court of Appeal invoked its

parens patriae jurisdiction

granted under the law of equity to recognize

that the child had three parents – a decision that was codiﬁed by statute

nearly a decade later

A Quebec court presented with facts akin to those in AA v. BB would

likely ﬁnd itself in a delicate position. Operating within the traditions of civil

law, the judge would not have access to equitable relief

. Even otherwise,

the parens patriae jurisdiction could only be correctly invoked in the

presence of a legislative “gap” or oversight that undermined a child’s best

interests. Through recent family law reform initiatives, Quebec legislators

may have had the opportunity to consider the possibility of allowing formal

recognition of three or more parents for one child

. Even though they

eliminated all provisions pertaining to ﬁliation from the ﬁnal text, the

preliminary negotiated text, which did address this issue, suggested they

would reject such recognition.

16. This being said, change might be on the horizon. See Droit de la famille – 22865,

2022 QCCS 1928. Barin J., in this ﬁliation case employs the best interests provision

of article 33 CCQ to loosen the watertightness of the ﬁliation lock that appears to be

provided by article 530 CCQ.

17. Droit de la famille – 191677, supra, note 10, para. 169.

18. See A.A. v. B.B., supra, note 5.

19. See Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.), [1997] 3 SCR

925 for information on a court’s parens patriae jurisdiction.

20. See CLRA, supra, note 5, ss. 9–11.

21. But note Droit de la famille – 072895, 2007 QCCA 1640, par. 87, where the Quebec

Court of Appeal’s majority invoked a common law doctrine of in loco parentis to

justify the award of custody to a woman who had acted in the place of a parent to the

children concerned.

22. See Bill 2, supra, note 8.

60 Les Cahiers de Droit (2023) 64 C. de D. 51

In such a situation, the options available to a Quebec court would be

somewhat more restricted. A judge would be largely bound by a positivist

analysis with little discretion to engage in a best interests analysis, even if

such an analysis could yield an outcome seemingly more favourable to the

child concerned

. This outcome is the one Morrison J. seems to lament

in his trial judgment rendered in Droit de la famille — 119627. One might

imagine that the challenge for a judge faced with preponderant evidence

indicating that ﬁliation as determined by law is misaligned with what is in

the child’s best interests. Rendering judgment could be experienced by the

judge as running counter to the obligation — also set by law in Quebec — to

give priority to a child’s best interests in matters that affect the said child

One might plausibly counter that judicial consistency yields stability in

determining ﬁliation and that this furthers children’s best interests at a

general societal level. Legal certainty and clarity as well as predictability

in the courts’ application and interpretations of the law will help families

make informed decisions about the prospect of litigation, which is always

tumultuous for the parties at hand and third parties, even when the

outcomes are those desired

. In the same way, there will be contexts

where the law’s rigidity may stand to compromise children’s dignity.

This is potentially so where the facts might demonstrate that a child’s

best interests are furthered by the formal recognition of more than two

parents

. Conversely, it might also be the case where the law recognizes

the ﬁliation of those who expressly disavow their children

2 Intercultural Adoption

Cases involving intercultural adoption, notably those that centre the

status of Indigenous children, have raised fraught questions about how the

23. At the same, it is pertinent to note that Quebec judges, like judges in other provinces,

participate in the construction of law, especially in the context of Canadian bijuralism,

where the inﬂuence of the courts in equity cannot be denied. This remains so even if

equitable doctrines do not apply in the civil law tradition.

24. See CCQ, article 33.

25. See Alain

roy

, “Revue de la jurisprudence 1994-2019 en droit de la famille : entre

conservatisme et audace judiciaires”, (2020) 122 R. du N. 1, pp. 19-23.

26. It is important to note that the Commission citoyenne sur le droit de la famille (2018)

does not take position on the issue, and that the Minister of Justice’s decision not to

include the issue in the ﬁrst Bill 2 may be a result of this. See

comité consultatif

sur le Droit De la famille

, Pour un droit de la famille adapté aux nouvelles réalités

conjugales et familiales, Québec, Ministère de la Justice du Québec, 2015, p. 62

(hereinafter “Roy Report”).

27. See Droit de la famille – 20572, 2020 QCCA 585. See also Droit de la famille – 09358,

2009 QCCA 332.

a. camPbell

Do Children’s “Best Interests” … 61

best interests principle ought to be interpreted in adjudicating applications

to declare children eligible for adoption. Well before the Truth and

Reconciliation Commission ﬁled its report

, Justice Wilson rendered what

is today perceived by some as a controversial, if not regrettable, judgment

in Racine v. Woods

. The case concerned a child named Leticia Woods

who was born in 1976 to a First Nations mother with addiction challenges,

who was deemed unable to care for her. Leticia was apprehended by the

Children’s Aid Society of Central Manitoba and placed in the foster care

of Sandra Ransom (later Racine). After a couple of years, the Racines

petitioned to adopt the child against the birthmother’s wishes and were

successful petition. Upholding the declaration of adoption in favour of the

Racines, the Supreme Court concluded that the signiﬁcance of cultural

background and heritage diminishes over time. Some scholars have

subsequently argued that this decision did not appear to be in the best

interests of the child, as Leticia spent much of her adolescence in group

care and later testimony indicated that her untethered Indigenous identity

was a struggle

More than two decades later, Racine retained its grip on cases that

centred questions about the adoption of Indigenous children outside of

their communities, particularly where such children are understood as

“abandoned” by their birth parents. In J.K.

, the Court of Appeal was called

upon to review a decision to refuse to declare an Indigenous child eligible

for adoption. The child had been in the care of a woman (S.) essentially

from birth. Initially, S. cared for both the child and the latter’s mother,

who gave birth at age 15. Within two years, however, the birthmother had

repeatedly run away, and the child was subject to consecutive orders that

placed her in S.’s care. Just before the child turned 5, the Director of Youth

Protection sought to declare her eligible for adoption, so that S. could

adopt her. An adoption following the declaration of eligibility involves a

two-step process : (1) assessing whether the child’s circumstances meet

the conditions to be declared eligible for adoption

and (2) establishing

28.

truth anD reconciliation commission of canaDa

, Honouring the Truth, Reconciling

for the Future : Summary of the Final Report of the Truth and Reconciliation

Commission of Canada, Winnipeg, The Truth and Reconciliation Commission of

Canada, 2015.

29. Racine v. Woods, [1983] 2 SCR 173. See Peter

choate

and others, “Rethinking Racine v

Woods from a Decolonizing Perspective : Challenging the Applicability of Attachment

Theory to Indigenous Families Involved with Child Protection”, (2019) 34 CJLS 55.

30. See P.

choate

and others, supra, note 29, p. 59.

31. See Directeur de la protection de la jeunesse c. J.K., 2004 CanLII 60131 (QC AC)

(hereinafter “J.K.”).

32. See CCQ, art. 559–560.

62 Les Cahiers de Droit (2023) 64 C. de D. 51

whether the declaration serves the child’s best interests. In the case at

hand

, the applications judge had no difﬁculty determining that the ﬁrst

of these requirements had been met. The judge wrestled, however, with the

second requirement. In this regard, he focused on the child’s Indigenous

identity and ultimately concluded that her adoption by S. would not serve

her best interests, as this would result in her losing her Algonquin identity.

At the appeal level, the Director of Youth Protection successfully

contested this ruling and the child was therefore declared eligible for

adoption. In rendering judgment, the Court of Appeal cited Racine

emphasize that identity is but one factor to be considered in determining

the best interests of an Indigenous child. Moreover, the importance

ascribed to cultural heritage will be mitigated where the child has formed

psychological bonds with the prospective adopting parents over time,

where she has been disconnected from her birth family, and where the

prospective adopting family “substituted itself — by the passage of time

and by judicial declarations for her original community

”.

For the Court of Appeal, then, Justice Bonin of the ﬁrst instance

was mistaken to have “entirely consecrated” his analysis of the child’s

best interests to the question of cultural identity

. While the child’s

Indigenous heritage merits consideration, it cannot stand alone as the sole

or predominant consideration for a court in assessing what will best serve

a child’s interests in the context of a placement for adoption

While J.K. and Droit de la famille — 191677 deal with two distinct

contexts, they both provide examples of binary decisions that courts

have had to make in determining a child’s ﬁlial status, forcing tough

33. See J.K., supra, note 31, para. 6.

34. Racine v. Woods, supra, note 29.

35. See J.K., supra, note 31, para. 12 (our translation). See also, in relation to adoption and

the best interest of the child : Anne-Marie

savarD

, “L’établissement de la ﬁliation à la

suite d’une gestation pour autrui : le recours à l’adoption par consentement spécial en

droit québécois constitue-t-il le moyen le plus approprié ?”, in Christelle

lanDheer-

cieslaK

and Louise

lanGevin

(eds.), La personne humaine, entre autonomie et

vulnérabilité : Mélanges en l’honneur d’Édith Deleury, Montreal, Yvon Blais, 2015,

p. 589 ; Michelle

Giroux

, “Le recours controversé à l’adoption pour établir la ﬁliation de

l’enfant né d’une mère porteuse : entre ordre public contractuel et l’intérêt de l’enfant”,

(2011) 70 R. du B. 509, 532 ; and

GrouPe De travail sur le réGime québécois De

l’aDoPtion,

Pour une adoption québécoise à la mesure de chaque enfant, Québec,

Ministère de la Justice, 2007, pp. 104–105.

36. See J.K., supra, note 31, para. 7.

37. There is an interesting parallel to draw here with the Supreme Court of Canada’s

decision in Van de Perre v. Edwards, 2001 CSC 60 and this court’s assessment of how

race should be treated in custody cases.

a. camPbell

Do Children’s “Best Interests” … 63

choices and outcomes potentially adverse to children’s best interests

In Droit de la famille — 191677, the Court had to determine who, between

two adults — both of whom had signalled their intention to care for the

child —, would be the latter’s “second parent”

. Recognizing one of them

would have the automatic effect of depriving the other of the possibility

of claiming formal parental status. Likewise, in J.K., the Court was bound

to decide in absolute yes-or-no terms whether the child could be placed

for adoption, the effect of which would lead either to the preservation

or the severance of the child’s formal connection to her birthmother. As

in Droit de la famille — 119677, there was no room for compromise or

discretion to recognize both prospective parents as the child’s mother. And,

while relatively recent amendments to the CCQ

create some potential

to preserve an Indigenous child’s legal connection to their birth family

following an adoption, this is possible only in the case where the adoption

occurs in accordance with Indigenous legal traditions. Accordingly, the

potential to sustain ongoing connections to one’s birth family and home

community is far less likely to be realized in situations where an Indigenous

child has been taken into care and placed for adoption through state youth

protection interventions, as was the case in J.K.

A consideration of the speciﬁc fact pattern in J.K., much as in Racine,

will result in an understanding of why a court might ﬁnd it reasonable to

declare a child eligible for adoption. But zooming out and examining these

cases through a wider lens illuminates their broader implications. Adoptions

like those in Racine and J.K. can be traced to intensely misguided state

policies that removed Indigenous children from their homes, families and

communities over decades, resulting in incalculable losses that will take

generations to restore. Confronting this reality honestly through processes

grounded in a commitment to Indigenous reconciliation conjures up the

critical question of how judgments like those set out here both reﬂect

38. It is of note that the J.K. case represents the state of the law prior to the adoption of the

provisions on customary adoption in the Civil Code of Quebec. The CCQ was amended

to permit both customary adoption and adoption with symbolic recognition of original

parentage. In particular, under article 543.1 of the CCQ, conditions of adoption based

on any Quebec Indigenous custom that is consistent with the principles of the child’s

best interests, respect for the child’s rights, and the consent of the parties involved may

be substituted for legal conditions.

39. Droit de la famille – 191677, supra, note 10, para. 49 (our translation).

40. See Bill 113, An Act to amend the Civil Code and other legislative provisions as regards

adoption and the disclosure of information, L.Q. 2017, c. 12.

41. See CCQ, art. 577 and 577.1.

64 Les Cahiers de Droit (2023) 64 C. de D. 51

and advance colonial policies and their ongoing presence and legacies

Examining these judgments from this vantage point prompts an alternate

best interests analysis compared to the one undertaken in Racine and J.K.

It instead compels us to look beyond the individual child whose case is

presented before a court to the broader systemic issues and consequences

of intercultural Indigenous adoption

. It further requires acknowledgement

that social and juridical interpretations of “the best interests of the child”,

will change over time.

3 Surrogacy

Quebec law struggles with recognizing parental relationships created

through surrogacy arrangements. Since 1993, article 541 of the Civil Code

clearly states that contracts for surrogacy services are null, as they offend

public order

. Surrogacy nevertheless persists in Quebec as a social

42. See Peter

choate

and others, “Sustaining Cultural Genocide – A Look at Indigenous

Children in Non-Indigenous Placement and the Place of Judicial Decision Making –

A Canadian Example” (2021) 10 Laws 59, pp. 2-10 (hereinafter “Choate, 2021”). See

also, Peter

choate,

“The Call to Decolonize : Social Work’s Challenge for Working

with Indigenous Peoples”, (2019) 49 British Journal of Social Work 1081 ; and Cindy

blacKstocK,

“The Complainant : The Canadian Human Rights Case on First Nations

Child Welfare”, (2016) 62 McGill LJ 285, pp. 312–315.

43. See Carmen

lavallée,

L’enfant, ses familles et les institutions de l’adoption : Regards

sur le droit français et québécois, Montréal, Wilson & Laﬂeur, 2005, pp. 263–270. In

this text, Professor Lavallée discusses the potentially conﬂicting meanings of the

child’s interest depending on whether it is conceptualised as in abstracto or in concreto.

Simply put, the child’s interests are deﬁned in abstracto as being related to the spirit

of legislative reforms rather than their interpretation, whereas the child’s interests are

established in concreto when the courts are tasked with determining what is more

suitable for the speciﬁc child involved in a given situation.

See also the recent single and coauthored works of Robert Leckey, which prompt

a reﬂection on the need for Indigenous self-governance over child welfare rather

continuous reform of existing legislative structures, anchored as they are to colonial

worldviews and institutions : Robert

lecKey

and others, “Indigenous Parents and

Child Welfare : Mistrust, epistemic injustice, and training” (2022) 31 Soc & Leg Stud

559 ; and Robert

lecKey

, “Child Welfare, Indigenous Parents, and Judicial Mediation”,

(2022) 49 JL & Soc’y 151.

44. See Angela

camPbell

, “Law’s Suppositions about Surrogacy against the Backdrop

of Social Science”, (2012) 43 Ottawa L Rev 29, 50. See also, Kevin

lavoie

and Isabel

côté

, “Navigating in Murky Waters : Legal Issues Arising from a Lack of Surrogacy

Regulation in Quebec”, in Vanessa

Gruben

, Alana

cattaPan

and Angela

cameron

(eds.), Surrogacy in Canada : Critical Perspectives in Law and Policy, Toronto, Irwin

Law, 2018, pp. 88-107. Bill 2 (supra, note 8) proposed signiﬁcant reforms to recognize

and regulate surrogacy, but these didn’t come to pass.

a. camPbell

Do Children’s “Best Interests” … 65

reality

. In light of this, prospective or “intended” parents in Quebec who

had made agreements with a person willing to carry a child for them have,

in some cases, deployed Quebec’s adoption rules in their efforts to give

juridical effect to their parental aspirations

. The way this typically played

out is as follows : a couple and a surrogate agree that the latter will carry

an implanted embryo created with the sperm of a male intending parent

and the ovum of either his spouse or a donor. Following the birth, the

surrogate commits to relinquishing the child and consenting to an adoption

by the biological father’s spouse (or common-law spouse, article 555 CCQ).

This is permissible pursuant to Quebec law under the special consent to

adoption regime

In their decisions over a decade, Quebec courts had been inconsistent

as to whether such agreements should be given judicial effect by allowing

applications for special consent adoption by the spouse of the biological

father of a child born to a surrogate

. In most instances, an applications

judge would consider factors related to the good faith of the parties

concerned, whether the agreement appeared commercially or altruistically

motivated, and the legislative intent underlying the framing of surrogacy

as contrary to public order

The Court of Appeal of Quebec changed this course in its 2014 decision

in Adoption — 1445

. Overturning the decision of Wilhelmy J., who had

45. See Stefanie

carsley

, “Reconceiving Quebec’s Laws on Surrogate Motherhood”, (2018)

96 Can Bar Rev 120, p. 130.

46. See Louise

lanGevin

, “La Cour d’appel du Québec et la maternité de substitution

dans la décision Adoption – 1445 : quelques lumières sur les zones d’ombre et les

conséquences d’une « solution la moins insatisfaisante » ”, (2015) 49 RJTUM 451 ; See

also, Régine

tremblay

, “Surrogates in Quebec : The Good, the Bad, and the Foreigner”,

(2015) 27 CJWL 94 ; Benoît

moore,

“Maternité de substitution et ﬁliation en droit

québécois”, in Sandrine

mozaine

(ed.), Liber amicorum : Mélanges en l’honneur de

Camille Jauffret-Spinosi, Paris, Dalloz, 2013, p. 859 ; Suzanne

zaccour

, “Justice

contractuelle, notariat et gestation pour autrui”, (2017) 3 R.J.E.U.M. 61 ; M.

Giroux

supra, note 35 ; and A.-M.

savarD

, supra, note 35.

47. See CCQ, article 555, which provides that special consent adoption is permitted “only

in favour of an ascendant of the child, a relative in the collateral line to the third degree

or the spouse of that ascendant or relative ; it may also be given in favour of the spouse

of the father or mother. However, in the case of de facto spouses, they must have been

cohabiting for at least three years.”

48. See S.

carsley

, supra, note 45, pp. 134–137. Between 2009 and 2014, the courts “were”

inconsistent. However, in her text, Carsley shows that in recent jurisprudence following

Adoption – 1445, 2014 QCCA 1162, they are now quite consistent.

49. See Adoption – 07219, 2007 QCCQ 21504 ; Adoption – 091, 2009 QCCQ 628 ; Adoption

– 09185, 2009 QCCQ 8703 ; and Adoption – 09558, 2009 QCCQ 20292.

50. Adoption – 1445, supra, note 48.

66 Les Cahiers de Droit (2023) 64 C. de D. 51

rejected an application for adoption in a surrogacy context on the basis that

the intending parents had acted in a manner that circumvented the law, the

Court of Appeal’s analyses drew the child’s interest into sharper focus.

For Morissette J.A., the issue of whether money had exchanged hands

between the surrogate and the intending parents was inconsequential

to the analysis a court must undertake when called upon to determine

whether a child’s ﬁliation by adoption — here, by special consent — ought

to occur. As Morissette J.A. explains, the best interest analysis to be the

determining factor : [

translation

] “A decision on an order of placement

for adoption must be made in accordance with the provisions of the law

and in the best interests of the child (and not from the perspective of the

persons who have entered into an assisted reproduction agreement)

”.

Morissette J.A. also offered an alternate interpretation to article 541

CCQ, which contrasted with the position that article 541 prohibits

surrogacy. In his view, which appears to be the current legal position in

Quebec, article 541’s ambit is limited to rendering surrogacy agreements

unenforceable. It does not, however, outright bar the conclusion of such

agreements, and the presence of such an agreement does not necessarily

obstruct the recognition of the intending parents’ ﬁlial status where that

status is sought through adoption procedures that are recognized under

the Civil Code.

Thus, in matters of adoption in relation to surrogacy, two questions

are usually fundamental : the ﬁrst is whether the birth parent gives consent

to relinquish parental status and place the child for adoption, and the

second is whether the adoption would serve the child’s best interests

. In

Adoption — 1445, the facts established at trial allowed the Court to answer

both questions in the afﬁrmative.

The focus on best interests within the Court of Appeal’s reasons is

both expected and curious. Expected because the case dealt with adoption.

As noted, while the Code generally does not direct courts to consider best

interests in matters of ﬁliation

, courts must undertake this analysis in

51. See Id, para. 17.

52. However, there are an increasing number of exceptions to this rule. See Adoption – 161,

2016 QCCA 16 ; and more recently, Adoption – 21301, 2021 QCCQ 7351 ; two situations

where the surrogate’s consent was not required because she was not declared the

child’s parent, and only the intended father’s consent was required.

53. It is worth noting, however, the proposed surrogacy provisions discussed in Bill 2

(supra, note 8), which were ultimately omitted from the ﬁnal version of the law, included

a requirement to conduct a Best Interest of the Child analysis in the event that the court

needs to determine the child’s ﬁliation.

a. camPbell

Do Children’s “Best Interests” … 67

adoption contexts. Hence, the Court of Appeal’s emphasis on the child here

was correct from a juridical standpoint.

The centring of best interests is also curious, given the court’s decision

to lean on article 522 of the Civil Code

in its analysis. This provision

establishes that, regardless of the circumstances of a child’s conception

or birth, they have the same rights and obligations vis-à-vis their parents

where their filiation is established. This legal principle is crucial in

situations where children’s ﬁliation and entitlements as heirs might have

depended — or be understood as dependent — on the marital status of their

parents

. But its relevance to a decision where ﬁliation was in question is

less clear. For Morissette J.A., applying article 522 yielded the result that

the adoption should be authorized. He stated :

[

translation

] [..] for the reasons stated above, that granting the order of

placement for adoption of the child X. is, as Professor Moore so aptly expressed

it, the least unsatisfying solution. It is very certainly that which best serves the

interests of the child X., in compliance with articles 33 and 543 CCQ. Since her

birth, she has been living with her father, her elder brother (son of the same

father and three years older than her) and the appellant (her father’s spouse).

This family unit, which currently includes her half-brother Y. and the appellant,

is the only one she has ever known. C., whose name appears on the child X.’s

birth certiﬁcate, has never had the slightest intention to exercise any parental

authority whatsoever over the child she gestated

The justice concluded his judgment by stating that, in situations of

adoption, [

translation

] “it is the interests of the child that must prevail,

not the circumstances of the child’s birth

”.

The reach of Adoption – 1445, with its focus on best interests, appears

restricted. Any surrogacy case that does not meet the parameters of special

consent adoption

would not lend itself to a best interests analysis. Outside

54. See CCQ, article 522 ; which states : “All children whose ﬁliation is established have

the same rights and obligations, regardless of their circumstances of birth.”

55. Dominique

Goubau

, Ghislain

otis

and David

robitaille

, “La spéciﬁcité patrimoniale

de l’union de fait : le libre choix et ses « dommages collatéraux »”, (2003) 44 C de D 3,

pp. 13 and 37.

56. See Adoption – 1445, supra, note 48, para. 66.

57. See Id, para. 69.

58. Pursuant to CCQ, article 555, special consent adoption is only recognized where an

adoption application is brought by someone with a particular legal relationship to a

child or the child’s birth parent. It provides : “Consent to adoption may be general

or special ; special consent may be given only in favour of an ascendant of the child,

a relative in the collateral line to the third degree or the spouse of that ascendant or

relative ; it may also be given in favour of the spouse of the father or mother. However,

in the case of de facto spouses, they must have been cohabiting for at least three years.”

68 Les Cahiers de Droit (2023) 64 C. de D. 51

of such circumstances, the strict terms of article 541 CCQ apply, leaving

the courts unable to enforce the terms of a surrogacy agreement, even if

this would further the interest of the child or children concerned

Quebec’s family law jurists might accept that filiation analyses

cannot and should not put into question the best interests of the child,

save for situations where adoption is raised. In this regard, one might

reasonably presume that in other ﬁliation contexts, i.e., ﬁliation by blood

and ﬁliation by assisted procreation, the legislator’s framing of positive

law will have integrated the children’s overarching best interests in a just

and appropriate manner. However, contemporary social realities of the

family — which increasingly include the societal acceptance of surrogacy

arrangements — challenge the taxonomy of ﬁliation and its categories set

out in the Civil Code. Depending on the circumstances, the same set of

facts could give rise to claims of ﬁliation by blood, by assisted procreation,

or even by adoption. The persuasiveness and success of such claims will

depend in large part on the relationships of the parties concerned with one

another and with the child

. And yet, a court will be limited in the extent

to which it can entertain arguments relating to best interests, as these

pertain only in adoption contexts. All of this might be cogent in situations

where the law’s application yields a result that seems to align with the

child’s best interests and the centring of their dignity, as was arguably the

case in Adoption – 1445. This may, however, strike practising and academic

jurists alike as less equitable where outcomes that result from the Code’s

strict application diverge from those that a best interests analysis would

yield

4 In loco parentis

A fourth and ﬁnal context that merits underlining in this commentary

departs to some extent from the strict parameters of ﬁliation to explore

the legal status of those who have quasi-parental roles, rights and

responsibilities. In loco parentis is a legal doctrine with limited application

in civil law. In the majority of instances, a person in loco parentis has

59. I must qualify this with the possible exception brought on by Bill 2 (supra, note 8),

which recognizes trans parents (and thus trans “parentage”) in the rewriting of CCQ,

art. 111 and 115. This, however, has yet to be judicially tested.

60. See as mentioned, Droit de la famille – 22865, supra, note 16.

61. See Andréanne

malacKet

, “Maternité de substitution : quelle ﬁliation pour l’enfant

à naître ?”, (2015) 117 R du N 229, pp. 236–239. See also M.

Giroux

, supra, note 35 ;

and A.-M.

savarD

, supra, note 35 ; L.

lanGevin

, supra, note 46 ; R.

tremblay

, supra,

note 46 ; B.

moor e

, supra, note 46 ; and S.

carsley

, supra, note 45.

a. camPbell

Do Children’s “Best Interests” … 69

assumed a parental role toward the child. The in loco parentis doctrine is

frequently applied to relationships between stepparents and stepchildren.

Once a partner’s relationship with the other partner’s child is established

and legally recognized as in loco parentis, their roles and responsibilities

are comparable to those of other parents, including the right to apply for

custody or parenting time and the payment of child support. In Chartier

v. Chartier

, the Supreme Court of Canada established a broad application

of the doctrine. However, in V.A. c. S.F.

, the Court of Appeal of Quebec

limited the scope of Chartier to a narrow reading of section 2(2) of the

Divorce Act

. In other words, in most cases, the parent in loco parentis

must be married to the child’s parent in order for a support obligation to

be imposed on the spouse’s child

. Additionally, the evidence required to

establish that the appellant’s intent to act in loco parentis must be clear,

unequivocal and unambiguous

Quebec courts have thus traditionally adopted an austere approach

to the in loco parentis doctrine, construing and applying it narrowly. This

approach is eminently reasonable given that the doctrine’s roots are foreign

to Quebec private law. As the Civil Code makes no mention of in loco

parentis, family law judges in the province have been conventionally loath

to invoke the doctrine to extend parent-like rights and obligations to a

child’s stepparents. The doctrine’s application is restricted to contexts

where parental rights are determined by the Divorce Act. As seen in

V.A. c. S.F., however, judges have generally remained steadfast to the

principle that the in loco parentis doctrine is restrictively interpreted and

sparingly applied in Quebec :

[

translation

] Our Civil Code provides for this obligation between spouses

and ﬁrst-degree relatives, i.e., between parents and children, but has never

incorporated the concept of ‘in loco parentis’ into the Code as such.

62. Chartier v. Chartier, [1999] 1 SCR 242.

63. V.A. c. S.F., 2000 CanLII 11374 (QC AC).

64. Divorce Act, R.S.C. 1985, c. 3, s. 2(2).

65. It is important to note that there might be a slim opening for more application

for this doctrine, as in an obiter dictum penned by Dalphond J.A., in Droit de la

famille – 072895, 2007 QCCA 1640, the Quebec Court of Appeal suggested that the

concept could also apply to a parent in loco parentis in a de facto union. In Droit de la

famille – 102247, 2010 QCCA 1561, the Quebec Court of Appeal, authored by Vézina J.,

granted shared custody of a child to the child’s mother’s spouse, with whom the child

had resided since birth. In doing so, the Court referred, among other things, to the

concept of in loco parentis.

66. See Droit de la famille – 102247, supra, note 65, para. 22.

70 Les Cahiers de Droit (2023) 64 C. de D. 51

Divorce, on the other hand, falls within the exclusive legislative competence of

the Federal Parliament. It is only as an ancillary measure in divorce matters that

the federal government exercises ancillary jurisdiction in matters of support.

Section 2(2) of the Divorce Act formally introduces the concept of “in loco

parentis”. It is therefore, in matters of support, and this is said with due regard

for the contrary opinion, an exceptional measure, which adds to civil law and

which, in my opinion, must be interpreted like any another exception, that is to

say restrictively and not liberally

A constrained application of the in loco parentis doctrine in Quebec

family law makes sense given our province’s positive law framework. Yet

this conventional approach can — as in other scenarios examined in this

paper — undermine the best interests of the child who is at the heart of a

dispute. In many cases where in loco parentis claims are ﬁled — whether

by or against a child’s stepparent — the application of the doctrine would

serve the child’s best interests. This could, for instance, allow the court

to grant to a stepparent who has cared for the child parenting time with

that child. It could also give effect to alimentary obligations on the part

of the stepparent that would serve the child’s needs. In light of this, one

could easily imagine that interpreting the in loco parentis doctrine in a

manner that prioritizes a stepparent’s intent could be at odds with the best

interests principle.

Furthermore, Quebec’s approach draws a sharp distinction — as it

does in other domains of family law — between the rights of children whose

parents are married versus those whose parents live as unmarried, de facto

spouses

. The doctrine applies only in cases where a child’s parent and

stepparent married, and later divorced. Outside of such contexts, there

appears to be minimal juridical foundation for relying on in loco parentis to

67. See V.A. c. S.F., supra, note 63, par. 13 and 14, (our translation of : “Notre Code civil

prévoit cette obligation entre époux et parents au premier degré, donc entre parents et

enfants, mais n’a jamais incorporé au Code, comme tel, le concept « in loco parentis ».

Le divorce, de son côté, relève de la compétence législative exclusive du Parlement

fédéral. Ce n’est qu’à titre de mesure accessoire en matière de divorce que le pouvoir

fédéral exerce une compétence accessoire en matière alimentaire. L’article 2(2) de la

Loi sur le divorce introduit formellement le concept de in loco parentis. Il s’agit donc,

en matière alimentaire, et ceci dit avec égards pour l’opinion contraire, d’une mesure

exceptionnelle, qui ajoute au droit civil, et qui, à mon avis, doit être interprétée comme

toute exception, c’est-à-dire de façon restrictive et non de façon libérale.”)

68. The justice outcomes for children whose parents are married versus de facto spouses

has been the subject of extensive discussion and debate in Quebec, that has not as

of yet resulted in a legislative amendment. See Quebec (Attorney General) v. A, 2013

SCC 5. See also, Robert

lecKey

, “Cohabitation Law in Quebec : Confusing, Incoherent,

and Unjust” (forthcoming in 2022, date written : March 8, 2022) Hous J Intl L ; Roy

Report, supra, note 26.

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Do Children’s “Best Interests” … 71

extend rights and obligations to the stepparent-stepchild relationship. The

only exception is now the passage of Bill 2, which amended article 611, an

article that previously outlined grandparents’ special rights and provided

a presumption of their relationship. The amended article now also permits

such relationships to be maintained under the same conditions with the

ex-spouse of the child’s father, mother or other parent, if this person is

signiﬁcant to the child. This previous distinction was arguably disconnected

with a cardinal principle in the law of ﬁliation set out in article 522 and

the allowances set out in article 114 of the Civil Code of Quebec, to the

effect that “[a]ll children whose ﬁliation is established have the same rights

and obligations, regardless of their circumstances of birth

”. This being

said, it is worth noting Justice Dalphond’s concurring opinion in Droit

de la famille — 072895

, where he appears to extend the in loco parentis

doctrine liberally, drawing on Quebec’s Charter of Human Rights and

Freedoms to rationalize his ﬁndings :

[

translation

] [T]he girls are entitled to the attention of the appellant in

the context of shared custody. I would add that section 39 of the Charter

seems to me to guarantee them the right to support from the appellant as well.

The combination of sections 10 and 39 of the Charter leads me to conclude

that the concept of ‘in loco parentis’ applies to both married and unmarried

couples where the spouse of the child’s parent is in effect the second parent of

the child

Dalphond J.A.’s reasoning here may open the door to the possibility

of in loco parentis claims beyond divorce litigation, although it is crucial

to note that Droit de la famille — 072895 was a judgment focused on

the custody/parenting time interests of a woman who played an active

coparenting role. This is distinct from the prototype in loco parentis case

in family law, which involves claims for child support against unwitting

defendants.

It is against this juridical backdrop that the Superior Court of Quebec

heard Droit de la famille — 153071

. The litigation involved a typical in

loco parentis case in family law : a man who played a “father-like” role

69. CCQ, article 522.

70. See Droit de la famille – 072895, supra, note 21.

71. See Id, para. 87 (emphasis is ours and our translation from the following : “Les ﬁlles

ont droit à l’attention de l’appelante dans le cadre d’une garde partagée. J’ajoute que

l’article 39 de la Charte me semble leur garantir aussi le droit à des aliments de la part

de l’appelante. La combinaison des articles 10 et 39 de la Charte m’amène à conclure

que la notion « in loco parentis » s’applique tant aux couples mariés que non mariés

lorsque le conjoint du parent de l’enfant tient dans les faits lieu de deuxième parent

pour l’enfant”.)

72. Droit de la famille – 153071, 2015 QCCS 5688.

72 Les Cahiers de Droit (2023) 64 C. de D. 51

in the life of his wife’s child from a prior relationship was the subject of

a claim for child support at the time of the divorce. For reasons already

discussed, an orthodox approach to in loco parentis would have prompted

equivocation or hesitancy with respect to extending alimentary obligations

to the defendant. However, Granosik J.’s decision departs from convention

and offers an analysis that accentuates the best interests principle, ascribing

to it as much weight as a stepparent’s intent, the latter usually considered

of predominant importance in such cases. He thus ﬁnds that parental

intent is just one of the factors to be considered in such contexts, and,

cites Chartier v. Chartier to the effect that “[t]he interpretation that will

best serve children is one that recognizes that when people act as parents

toward them, the children can count on that relationship continuing and that

these persons will continue to act as parents toward them

”. Furthermore,

Granosik J. widened the application of the doctrine to situations where the

child’s biological parent continued to play a role in the child’s life, a factor

that has typically been deemed as lending itself to a judicial ﬁnding that a

stepparent would not have stood in a parent’s place

Ultimately, Droit de la famille — 153071 provides a further example

of a judicial analysis that strives to balance a child’s best interests with

positive law, even where the latter would appear to limit a judge’s discretion

to consider the former. While dealing with an issue that falls outside of

the formal ﬁliation context

, the judgment sheds light on the challenge for

the courts to render decisions in cases where applicable legal authorities

would direct outcomes regarding parental status, rights and obligations

that seem contrary to a child’s best interests. In such cases, the courts

might attempt to reconcile these apparently competing pressures. In this

case, Granosik J. does so by extending the in loco parentis doctrine to a

set of facts that were not evidently conducive to the doctrine’s application.

The outcome is palatable from the perspective of the child’s dignity and

interests, aiming to sustain — even if only ﬁnancially — a relationship that

existed between the child and stepparent prior to the divorce. It could thus

73. See Chartier v. Chartier, supra, note 62, para. 32.

74. Other factors outlined by the court in Chartier v. Chartier (supra, note 62), include the

child’s integration into extended family, ﬁnancial provision, community representations

regarding responsibility for the child, and the nature of the child’s relationship with

the legal parent ; Bastarache J. in Chartier notes that for all intents and purposes the

stepdad was the stepchild’s father, her biological dad having all but disappeared from

her life since a very young age.

75. Though now, the legislature passed Bill 2 (supra, note 8), and CCQ, article 611, now

permits, under certain conditions, relationships to be maintained with the ex-spouse

of the child’s father, mother, or other parent, if this person is signiﬁcant to the child.

a. camPbell

Do Children’s “Best Interests” … 73

be aligned with best interests as an overriding principle. Just the same, it

could be viewed as misaligned with the strict tenets of Quebec positive law,

recognizing that although civil law jurisprudence on the in loco parentis

doctrine has evolved since V.A. c. S.F., the legislative stance on the issue

in question has not changed.

Conclusion

This essay has drawn on four judicial decisions rendered by Quebec

courts to explore intersections between the law of ﬁliation in Quebec

and the principle of “the child’s best interests” in family law. It draws its

inspiration from Dominique Goubau’s scholarly commitment to centring

the dignity of vulnerable actors in family law systems and disputes. The

analysis herein has sought to consider when and how the positive law and

the best interests principle could be said to conﬂict, and whether and how

such conﬂict might be conceptually reconciled from a judicial standpoint.

As shown throughout this essay, a best interests analysis — while

ostensibly primordial to family law cases — is not a magic wand that a

court can wave to design any outcome that it deems suitable in family

law litigation involving children. For example, a best interests analysis

does not permit a court to extend the positive law of ﬁliation, even when

the application of the latter seems to yield an incorrect or inappropriate

outcome. Framed in a juridically transsystemic way, best interests in

civil law cannot be deployed to obtain equitable relief. Hence, even if

it seems that a child’s dignity would be best served if the three or more

people functioning as that child’s parents were formally recognized as

such, Quebec law is clear that parenté is a status reserved to a maximum

of two people. Likewise, a stepchild who stands to beneﬁt from the

extension of the in loco parentis doctrine to his or her case will ﬁnd a

court loath to apply that doctrine based on best interests alone, as the

court will also look for evidence of a stepparent’s intentions. And an

intending parent who contracts for surrogacy might rely on a best interests

claim to seek recognition of their ﬁliation only where the conditions for

special consent adoption are met

. Beyond such parameters, ﬁliation in

76. See CCQ, article 555. Stepparents and relatives are permitted to adopt with “special

consent” under this provision. Typically, under the “general adoption” system, birth

parents have no say in who adopts their children, and the adoption completely severs

their parental ties. A birth parent is permitted to maintain their parental relationship

while their spouse adopts the child under this “special permission” clause. When an

intended father is listed on the birth certiﬁcate, the parties must ﬁle for a special

74 Les Cahiers de Droit (2023) 64 C. de D. 51

surrogacy contexts has not been recognized based on the best interests

of the child

Moreover, even when applicable to matters of filiation, the best

interests principle will not necessarily further justice outcomes. Notably,

best interests analyses have historically been central to judicial decisions

over decades in the country. For example, they have been used to

justify the removal of Indigenous children from their communities and

their subsequent placement in and adoption by settler families. Viewed

through western social, historic and legal frames, such decisions might

be understandable when considered on an individual basis. Yet a broader,

relational perspective would examine how these judgments at once connect

to and result from colonial policies that, over generations, targeted the

removal and assimilation of Indigenous children. Such an analysis forces

us to confront incredibly difﬁcult questions about the deployment of the

best interests principle in family law within this historical context, and its

nefarious consequences

There is no doubt that Quebec’s family law jurists and scholars

have much work left to do as we continue to forge ahead in exploring

the opportunities and challenges presented by the notion of the child’s

consent adoption to allow the surrogate to transfer her parental rights to the intended

father’s spouse. See also, S.

carsley carsley

, supra, note 45, pp. 130–132, which

provides an in-depth description of the full process.

77. See Adoption – 1873, 2018 QCCQ 1693, para. 23. The court concluded that the public

order regime established by the legislature cannot be disregarded in the interest of the

child. Ms. C, the surrogate in this case, did not sign a special consent to the adoption,

as required by the Civil Code of Québec. Because the intended parents owed her

money, the American surrogate refused to consent to the adoption once more, under

the requirements set out by CCQ, article 555. The parties’ contract was recognized

as valid and enforceable by the Chancery Court of Nashville in Tennessee. However,

according to article 543 CCQ, adoption can take place only if it is in the best interests

of the child and under the conditions speciﬁed by article 555 CCQ, which was the case

here. As a result, the adoption was annulled. See also, Droit de la famille – 212386, 2021

QCCS 5233, para. 7-12. In this more recent case, the court refused to allow for a special

consent adoption because the intended mother and intended father were unmarried and

had not cohabited for 3 years. Though it is important to note that the court was willing,

however, to provide the intended mother some rights, even if she could not establish a

bond of ﬁliation with the child, on the basis that this would be in the best interests of

the child.

78. There have been some efforts to rectify some of these injustices. Speciﬁcally, in the

Quebec context, the CCQ was amended to permit both customary adoption and

adoption with symbolic recognition of original parentage. Under CCQ, article 543.1,

conditions of adoption based on any Quebec Indigenous custom that the Quebec

government deems consistent with the child’s best interests, respect for the child’s

rights, and the consent of the parties involved may be substituted for legal conditions.

a. camPbell

Do Children’s “Best Interests” … 75

best interests, particularly in ﬁliation contexts. Yet the legions of students

and colleagues who have been trained by and/or have collaborated with

Dominique Goubau are up to this task. We have beneﬁted from the

opportunity to learn from a model of intellectual curiosity, perseverance,

humility and excellence, from someone whose work has greatly enhanced

outcomes for families and their most vulnerable members throughout

Quebec society. For this, we are most grateful.