Quebec adopts sweeping family law reform with changes for non-binary people, kids' rights

The Canadian Press, June 8, 2022

Quebec City - People who do not consider themselves men or women will now be able to legally check the 'X' box on official documents provided by the Quebec government, without having to go through surgery.

People who identify as non-binary when giving birth to a child will also be able to identify themselves as the child's "parent," rather than the father or mother of their baby, if they wish.

That's all under the new rules brought in by Bill 2, passed Tuesday in the National Assembly.

The controversial bill, spearheaded by Justice Minister Simon Jolin-Barrette, was tabled in October 2021 as a major reform of Quebec's family law, which had not been updated for some 40 years, even though social mores have changed hugely since then.

The new law, which is sweeping and complex, deals with a host of often-delicate social subjects, and was originally intended to be even more comprehensive.

After protests from fellow legislators that there would not be enough time to complete the process before the National Assembly adjourns on June 10, the minister decided last week to withdraw two important parts of the bill: the rules of filiation and the regulation of surrogate pregnancies.

If he had not done so, there was a strong risk that the bill, a tome of more than 100 pages containing some 360 articles, would die on the order paper.

Jolin-Barrette also had no choice but to act now on the issue of gender identity and recognition of non-binary people. He had to comply with a court ruling, the Moore decision, which only gave him until Dec. 31, 2021, to do so.

He already had to request an extension of the deadline to June 17. Initially, Jolin-Barrette wanted to impose genital surgery on anyone wishing to have their gender designation changed on their official papers.

Faced with the ensuing outcry from the LGBTQ community, who said that this position would force transgender people to "come out" on official documents, the minister backed down and withdrew the controversial articles.

The Superior Court ruling, delivered by Justice Gregory Moore on January 28, 2021, struck down several sections of the Civil Code that were deemed discriminatory.

He ruled that Quebec had to eliminate all forms of discrimination related to gender designation in documents issued by the Directeur de l'état civil.

No one should be forced to identify themselves as male or female, the decision concluded. It was also necessary to add the possibility of self-identifying as a "parent," instead of father or mother, when writing the birth certificate of a child.

At all stages of the process, the opposition parties criticized Jolin-Barrette for taking too long to introduce his bill and for not allowing enough time for a serious clause-by-clause study.

They found this situation all the more objectionable, they said, given that the Minister of Justice is also the Government House Leader and therefore the one who sets legislative priorities and manages the agenda. They had less than four weeks to review the legislation.

Jolin-Barrette's handling of this file was "lamentable," according to Liberal MP Jennifer Maccarone.

In her final remarks before the bill's passage, she insisted that many in the LGBTQ community will be disappointed that many parts of the reform had to be set aside because of the way the parliamentary process was handled.

"They waited three and a half years to start the work," said PQ MP Véronique Hivon, who was also disappointed with the turn of events.

Along with the language reform recently brought in with Bill 96, the family law reform was one of the main bills orchestrated this year by Jolin-Barrette and by the entire government.

At the time of its adoption late Tuesday, the minister was absent from the House, needing to manage the study of another of his bills, Bill 34, on better access to justice, in another room.

The next government, which will be elected on October 3, will have to resume the whole process of dealing with the issues that have been set aside, in particular the sensitive issue of surrogacy.

Currently, agreements between surrogate mothers and intended parents have no legal standing. Opposition MPs have also expressed concern about the issue of the commodification of women's bodies.

The planned family law reform was also to include a review of the rules of conjugality, including the issue of the rights and obligations of common-law partners as compared to married couples.

The new, wide-ranging set of family laws, which had been anticipated for years, was based on a substantial report on the issue produced by University of Montreal law professor Alain Roy in 2015.

The report was shelved at the time by the Liberal government. It essentially focused on the child, his or her interests, and his or her absolute right to know his or her origins, regardless of the circumstances of his or her conception.

For example, whether the child is adopted or conceived through assisted human reproduction, their right to know their history will now be enshrined in the Charter of Human Rights and Freedoms.

Where a court decision may impact a child, Bill 2, which was passed on Tuesday, states that if there is a climate of family or spousal violence, this must be taken into account.

To ensure that all children are equal before the law, in the case of common-law couples with children, Bill 2 provides for an automatic "presumption of paternity," as for married couples.

Previously, if a man died during his wife's pregnancy, he could only be recognized as a parent by court order.

This report by The Canadian Press was first published in French on June 7, 2022.