THE CANADIAN PRESS
March 31, 2009
MONTREAL - A Quebec man who has failed to have his name removed from the
birth certificate of a young girl he found out was not his biological daughter
wants to argue his case before the Supreme Court of Canada.
The businessman has already struck out in Quebec Superior Court and in the Quebec Court of Appeal.
Both courts ruled that paternity is ironclad if a man's name is on the birth certificate, if that status is not contested within a year of the child's birth and if other factors, including the same family name, indicate obvious bonds between the child and the parents.
The courts ruled there is little room for interpretation, but the man's lawyer disagreed with both rulings.
"It's not a monetary question as much as it is a question of principle - can we impose a child on a man?" Guylaine Gauthier said in an interview.
"The message the courts have sent is that we can falsely name someone as the father and this goes against the judicial system and the values upon which it is based.
"The question of good faith and bad faith is of major importance here - and I think there's a poor application of the Civil Code."
The man, a native of Rimouski in eastern Quebec, was involved in a common-law relationship with a woman between 1998 and 2005 and the girl was born in 2002.
He testified he had no reason to believe he wasn't the father, but after the relationship ended he learned she'd kept her infidelity from him.
"After he was separated, people came forward and told him who the father was and that person also acknowledged that he was the girl's father," Gauthier said.
In January 2007, a DNA test concluded with a probability of more than 99.99 per cent that Gauthier's client was not the biological father.
Since then, he's had no contact with the young girl and the girl's mother has cut ties with him, but the man is still legally considered her father and could still be responsible for her financially, Gauthier said.
A well-known Quebec family lawyer said she doesn't think the case will even make it to Ottawa as she says the question of filiation has been long settled.
"The theme of this is filiation has nothing to do with biology," said Anne-France Goldwater.
"Once a child has a birth certificate and the child has a possession of status that matches the certificate, it's over, you cannot contest its filiation ever again."
Goldwater said there is a short window of time to contest, but in the majority of cases, the truth is discovered too late.
"Once his name is on the birth certificate and he has treated the child as his own, filiation is considered irrevocably established," she said.
The Canadian Children's Rights Council, an advocacy group concerned with children's human rights, said statistics reveal that about 10 per cent of Canadians don't have the name of their biological father on their birth certificate.
President Grant Wilson said men should not have to go to court in cases of paternal fraud to have the matter resolved.
Also, judges often rule that "because you've acted like dad long enough, we're making you the dad but unfortunately you can't tell people how to feel," Wilson said.
"Certainly, their relationship is going to be different."
Mandatory DNA testing during pregnancy would go a long way to limit the damage and protect the children from future harm, Wilson said.
"It's extremely damaging to children when they find out the man they thought was their father isn't their father," he said.
Goldwater said seemingly forgotten in the whole affair is the young girl.
"It's a cruelty beyond understanding to break this child's life like that," she said.
Copyright © 2009 The Canadian Press. All rights reserved.