Civil Union and the New Filiation Rules in Quebec: from Ignorance to the Legal Recognition of the Homoparental Family

16 October 2002
October 16, 2002

Quebec’s Draft Bill on Civil Union

In December 2001, Quebec’s Minister of Justice tabled a draft bill recognizing civil unions for same-sex couples. In its initial form, this new civil status included only same-sex couples. The new legislation creates a form of legal union almost identical to the status associated with marriage that goes much further than legislation adopted in most other jurisdictions where forms of partnerships open to same-sex couples have been recognized. Indeed, Quebec’s initial civil union proposal recognized nearly every right and obligation associated with marriage (including the conditions of forming and celebrating a union, matrimonial regimes and rules concerning family patrimony). But it fell short of amending the Québec Civil Code provisions related to filiation (the relationship of a child to a parent) and parental authority.

The Minister of Justice indicated that he wanted to consult the public on this issue and hoped to include parental rights in the government’s final bill. To this end, a parliamentary commission was held, with discussion focussing on eventual amendments to the Québec Civil Code provisions on filiation, parental authority and the equality rights of children from homoparental families. The opportunity of extending civil union status to heterosexual couples also figured prominently in the public consultations held in Québec City in February 2002.

Among the organizations and individuals who came forward during these consultations were many lesbian mothers who described their situation and explained why it was vital for them to receive social recognition regarding parenting and filiation. First and foremost, they saw legislation that would recognize the official status of two parents as a way of protecting both their children and all children in Quebec. Amending the rules of filiation was also seen as a matter of equality, respect and acceptance of the reality of homoparental families in a society open to diversity. Children who had been raised by homosexual parents also told their stories and explained why they felt that full legal recognition of homoparental families was essential in changing negative attitudes towards children in their situation and in ensuring respect and dignity for families like theirs. Other large, non-governmental organizations such as the principal labour unions, the Fédération des femmes du Québec, the Commission des droits de la personne and McGill’s Centre of Private and Comparative Law all supported the demands of homoparental families and of the participating gay and lesbian organizations by recommending that the filiation rules be amended.

Many organizations, individuals and experts also insisted on the importance of extending civil union status to both heterosexual and same-sex couples in order to avoid creating a separate civil status that, apart from being perceived as segregationist, ran the risk of further stigmatizing the couples who were contemplating entering into a civil union by forcing them to request a permanent homosexual status. To understand the depth of this concern, one only has to consider the problems associated with homosexual civil status in certain work environments or the perils of this status in countries where homosexuality is still a crime.

An Act Instituting Civil Unions and Establishing New Rules of Filiation

At the end of these public consultations, the Minister tabled a substantially modified bill that made civil union accessible to both same-sex and different-sex couples (the text of the new Act is available on the Quebec National Assembly Web site at: Bill 84 confirms the right of gays and lesbians to adopt children, either individually or as a couple, and it introduces new filiation rules regarding assisted procreation. These new rules also determine that lesbians who have children on the basis of a joint parental project may be recognized as parents whether they are related by a de facto or a civil union relationship. This Act was adopted unanimously by Quebec’s National Assembly on June 7, 2002 and came into force on June 24, 2002.

a) Civil union

Unlike Vermont’s civil union model, which is exclusive to same-sex couples, the government of Québec chose to create a new conjugal status for both same-sex and different-sex couples wishing to publicly commit to sharing a life together, with all of the rights and obligations that this status entails. Henceforth, the conditions, rights, obligations and effects related to this union are established in the Québec Civil Code (in many cases, simply through their reference to marriage regulations). The new Act also modifies some 54 Québec laws, to recognize the fact that persons entering into a civil union now have essentially the same rights and obligations as married spouses.

* Eligibility for civil unions is governed by the same provisions as those applicable to marriages, with the exception of age of consent, which is set at 18 (compared to 16 years of age for marriages).
* The Act specifies that civil unions must be publicly solemnized before a duly empowered official. Any person authorized to solemnize marriages, including ministers, may now celebrate civil unions. But the Act stipulates that no minister may be compelled to solemnize a civil union if his or her religion forbids it.
* A civil union confers more or less the same rights as those of marriage. In particular, spouses in a civil union are bound to live together as a couple and they owe each other respect, fidelity, succour and assistance. Civil union has the same effects in, inter alia, the exercise of parental authority, family residence, family patrimony and in the rules of matrimonial regimes and contract, now re-named “civil union contract and regimes.”
* As is the case with a marriage, a civil union is dissolved by the death of either spouse or by judicial declaration. However, Québec has introduced a new procedure of notarized dissolution for civil union spouses. A union may therefore be dissolved through a joint declaration of the spouses, which must be executed by a notary. Such dissolution may only occur to the extent that the spouses have reconciled all of the consequences of the dissolution and that no common children are involved. In the absence of such agreement or where the rights of minor children are involved, the court must pronounce the dissolution of a union.

On the other hand, it is important to note that divorce legislation does not apply to this provincial institution and, therefore, that the provisions concerning de facto parenting (dependant children) and related jurisprudence does not apply in case of separation. Québec still has a great deal of ground to cover when it comes to ensuring the responsibility of adults who have played a parental role in a child’s life. This issue will likely be the subject of much debate in the coming years.

It must also be noted that, despite their similarities, civil union and marriage are not one and the same. Although this legislation went as far as the provincial legislator could go within his purview, many still see it as a compromise. A number of gays and lesbians feel that civil union is merely an ersatz of marriage and that the full civil participation of sexual minorities depends upon their access to marriage and the full symbolic value associated with this institution.

Others view this new status as a golden opportunity for couples to acquire the legal protection afforded by marriage while entering into a civil and secular union that is free of patriarchal or religious antecedents. In this sense, civil union and marriage may come to be seen as relative options, thereby modernizing the organization of conjugality.

b) Parental status

The new Québec legislation is distinct from many other alternatives to marriage, such as those adopted in Scandinavian countries, France or the Netherlands in matters of parental status. The Québec legislator chose to recognize homosexual filiation and, as much as possible, to accept same-sex parents and different-sex parents on equal terms.

* The Québec Civil Code already allows any person aged 18 or older to adopt a child in Québec, alone or jointly. However, the previous law was ambiguous owing to filiation provisions that referred to the father and mother. Public adoption services systematically turned down prospective homosexual parents. The new Act elucidates this ambiguity, confirming that gays and lesbians must have access to public adoption services, either individually or as spouses. The new legislation also stipulates that special consent to adoption by one’s spouse (usually referred to as second-parent or step-parent adoption in common law jurisdictions) may be directed to a married, civil union or de facto spouse.
* Bill 84 introduces a new chapter on assisted procreation and defines the joint parental project established as soon as one or two persons decide to use genetic material from another person to have a child. The general rule is that the contributor of the genetic material is considered the child’s parent only in cases where no medical assistance is required, in which case the contributor has one year after the child’s birth to claim a relation of filiation. This possibility applies even where a joint parental project is formed and both parents are recognized in advance, since uninterrupted possession of status will not be allowed in defence. We can only wonder why the legislator chose to include such a bizarre clause, especially in the chapter related to assisted procreation.
* The Act creates a presumption of parentality in civil unions, so that the other parent of any child born during the union is presumed to be its mother’s spouse. It should be noted that the Netherlands chose not to establish such a presumption, as the government felt it was too much of a departure from natural law. Vermont, on the other hand, has embraced this provision as part of its civil union legislation.
* In the case of lesbians who are not related by a civil union, both mothers must enter their names in the act of birth, as do unmarried heterosexual partners.
* The Act provides for a bridging mechanism for children born into a joint parental project established by a lesbian couple prior to the coming into force of the Act. Thus, a declaration of filiation may be made at any time up to three years after the coming into force of the Act so that the name of the mother who did not give birth to the child may be added to the birth certificate at no cost and that that parent’s surname may be added to the child’s name at no cost.

c) Consent to care

The new Act now stipulates that when a person who has reached the age of consent is no longer able to consent to receive care that is required by his or her state of health, the first person authorized to provide consent (in the absence of a specific authorization to this effect) shall be his or her married, civil union or de facto spouse. This provision answers the demands of countless organizations representing gays and lesbians who deplored previous the legislation authorizing only married spouses to consent to care (to the great detriment of same-sex partners). This change is certainly substantial, but it remains to be seen how medical institutions will manage consent from de facto spouses where there is no legal definition or proof of the relationship.

Marie-France Bureau has been a member of the Barreau du Québec since 1997 and she is currently completing her Masters degree at McGill University. Her field of research is family law reform.

about NAWL
The National Association of Women and the Law is a not-for-profit feminist organization that promotes the equality rights of women through legal education, research and law reform advocacy.
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