Two Mothers in Law and Fact

Robert Leckey*

Introduction

This paper is about the way family law changes (and perhaps law more generally). Its

central tension is not between stasis and adaptation, but between institutional sites and modes of

legal regulation. The concern is about the respective balances between legislative and judicial

innovation and between regulation based on formal family status and on factual, family

functioning. The focus is on the recognition of parenting by lesbian couples in the civil-law

jurisdiction of Quebec. In that Canadian province, lesbian parents have obtained legal

recognition through legislative reforms. But courts have later recognized lesbian parenting where

the parties had not taken advantage of the legislated means for establishing legal family bonds.

This example reminds comparatists of the need for care when identifying a jurisdiction‟s

response to a social practice. A legal system‟s adaptation may take more than one form, and thus

locating one response cannot end the inquiry.

Beyond this reminder, the paper makes two arguments. Both matter most for people who,

whether in pursuit of feminist, anti-homophobic, or other justice-seeking agendas, are concerned

about expanding legal notions of family. One argument relates to comparative law and the
*
Associate Professor and William Dawson Scholar, Faculty of Law, and Acting Director,
Quebec Research Centre of Private and Comparative Law, McGill University. I acknowledge the
generous financial assistance of the Wainwright Fund of McGill University. I thank Alexander
Steinhouse for his excellent research assistance. I am grateful for their comments on earlier
versions to Susan Boyd, Angela Campbell, Justina Di Fazio, Amanda Gibeault, Patrick Glenn,
Priyanka Timblo, and Régine Tremblay. Earlier versions were presented at the Third
International Congress of the World Society of Mixed Jurisdiction Jurists, Jerusalem, on 22 June
2011, and in the series „What “Doing Comparative Law” Means‟, Institute of Comparative Law,
McGill University. I am grateful for discussion on those occasions. I am, in particular, grateful
for conversations on these matters with my colleagues Rosalie Jukier, Lionel Smith, and
Catherine Walsh.

H:\Writing\Mixed jurisdictions\Mixed jdn draft 17-November-2011.docx

DRAFT ONLY 2

understanding of the civil-law tradition, which makes its thrust greater for people in a civilian

jurisdiction. The claim is that the civil law has an under-acknowledged capacity for flexibility

and for accommodating changing social conditions. The tendency on the part of some

comparatists to chalk up judicial creativity by civilian judges to the siren of common-law

influence should be rejected. The judicial developments related here are rightly viewed as

drawing on the civil law‟s internal resources. In addition, more than is often acknowledged,

scholars concerned about family law‟s boundaries have a stake in comparative private law. It is

worth highlighting the civil-law tradition‟s internal resources for adapting to new circumstances

and decentring the legislature as chief engine of adaptation.

The second argument is not specific to the civil law. Cast abstractly, it is that legislative

reform which expands the boundaries of family requires a theory of the appropriate limits on

further expansion by judges. Whatever its virtues, judicial acknowledgement of family life

beyond legislated contours may prove politically ambiguous. The cases of judicial creativity

discussed in this paper are commendable. But there is a potential for future judges to apply them

in different circumstances of factual or functional family, perhaps recognizing a sperm donor as

a father figure. That possibility has implications for other jurisdictions which have enacted

channels by which lesbian couples may secure parental status. For example, to what extent will

courts reach beyond the measures passed by the Parliament of the United Kingdom in the Human

Fertilisation and Embryology Act 2008? From the viewpoint of some groups within feminist and

gay and lesbian communities, such recognition would undermine the legislated choices about the

contours of family. The larger question for future research may be the extent to which adding

new family types to a legal system‟s stock—conjugal partners of the same sex, two mothers, two
DRAFT ONLY 3

fathers—channels judges and others to reduce the diverse ecology of queer kinship to those

types.

Legislating for Lesbian Mothers within Quebec Civil Law

Parenting by lesbian couples is now recognizable under the civil law of the province of Quebec.

This part of the paper introduces two key elements which are consistent with the traditional

theory of the civil law. These are the legislature as institutional site of law reform and formal

family status as preferred means of regulation. They will prove crucial for understanding the

significance of the judicial developments presented in the part to follow.

As within the civilian tradition in European states such as France and Belgium,

legislation is the primary source of law in Quebec. Quebec‟s private law of the family, located

chiefly in Book Two of the Civil Code, exemplifies legislation‟s primacy. For the family, as for

other areas of civil life, the Civil Code „elaborates all those institutions, rules, and concepts that

govern interpersonal relationships‟. It „presumes itself to be a definitionally exhaustive synthesis

of the general concepts governing all topics within its purview‟ (Brierley and Macdonald 1993,

[87] footnote omitted). The „cosmology‟ of a civil code „attests to an effort to totalize or to

produce absolute knowledge reduced to categories, typologies, and polarities‟ (Legrand 2002,

31). Concepts and rules are deployed to subordinate the „disturbing‟ diversity of facts (Legrand

and Samuel 2005, [33]).1 The set of concepts established, a classification exercise is necessary

and the outcome of that exercise triggers a package of effects (Brierley and Macdonald 1993,

[89]). Consequently, fitting facts into established categories is often a core part of resolving a

dispute. Is the right at issue personal or real? Is the contract one of sale or of lease?

1
[„dérangeante‟].
DRAFT ONLY 4

In the family setting, the classification bears on the opposition between individuals

connected by a formal legal bond and third parties. The Civil Code regulates family life using

means that are formal, as opposed to functional. Rather than attempting to grasp the „diversity of

experience‟ of „contemporary lived kinship‟ (Finch 2006, 304), it mediates the life of families

through foundational institutions such as marriage and civil union. Within this formal approach,

there is a sharp distinction between family members formally recognized and legal strangers. For

example, merely cohabiting or „de facto‟ spouses fall almost entirely outside family law‟s

boundaries.

The other foundational institution in Quebec‟s family law is filiation. Filiation is the legal

bond between child and parent. It traditionally arises from ties of adoption or of „filiation by

blood‟. Despite the lexical implication, „filiation by blood‟ is a legal construct distinct from

genetic connection (Alland and Rials 2003, „filiation‟). For example, filiation may arise from

birth registration or a presumption of paternity respecting the mother‟s husband, in neither case

requiring a genetic link or proof of one. Parental status entails the investiture of parental

authority, the „totality of the attributes conferred upon a person acting as a parent in respect of a

minor child‟ (Quebec Research Centre of Private and Comparative Law 1999, „parental

authority‟). Its principal attributes are the rights and duties of custody, supervision, education,

and maintenance.2

Consistent with its emphasis on formal family status, the Civil Code does not recognize

individuals as „parents‟ or „children‟ for even limited purposes on the basis that an individual,

such as a step-parent, has acted towards another in a parent-like way. A parent, established as

such by filiation, holds parental authority; a third party does not. A parent owes support to the

2
Art 599 CCQ.
DRAFT ONLY 5

child; a third party does not. There is no scheme on parental responsibility distinct from

parentage equivalent to that in the UK‟s Children Act 1989. Short of adoption by the step-parent,

there is no mechanism by which a child‟s parents provide a step-parent with parental

responsibility or by which a step-parent may apply for a judicial order of parental responsibility.

Despite its prominence, the Civil Code‟s book on the family does not exhaust the positive

law of the family in Quebec. Book One, on Persons, includes a chapter on the „Respect of

children‟s rights‟. Article 33 states: „Every decision concerning a child shall be taken in light of

the child‟s interests and the respect of his rights.‟ Article 32 declares every child‟s right to „the

protection, security and attention that his parents or the persons acting in their stead are able to

give to him‟. But judicial and scholarly treatments typically offer little sense that those articles

might palliate the rigidity of family law as laid down by the Civil Code. The principle of the best

interests of the child is understood as conditioning public and private decision-making, without

adding rights to those enacted (Deleury and Goubau 2008, [635]). These provisions prove

important for the discussion below.

A political, procedural, and institutional dimension merits emphasis. The „preferred

means‟ of ensuring that the Civil Code, including family law, does not become out of date is

legislative intervention (Normand 2008, 89). One factor underwriting this preference is the

distinct character of a comprehensively codified civil law. Another is the perceived absence, on

the part of Quebec courts, of a general equitable jurisdiction equivalent to that exercised by a

court of equity. It is said, for example, that Quebec courts have no parens patriae jurisdiction

(Morin 1990).

Critically, the civilian preference for relying on legislative initiative and for regulating

via formal status need not result in conservatism. As proof, before there was same-sex marriage
DRAFT ONLY 6

in Canada, the Quebec legislature provided same-sex (and different-sex) couples the means to

formalize their relationship in the civil union.3 Instead of merely regulating the rights and

obligations of the partners as a couple, a civil union generates a bond of alliance or a „family

connection‟.4 Like a civil partnership under the UK‟s Civil Partnership Act 2004, a civil union

„affects kinship relations going beyond the partners themselves‟ (Bainham 2006, 49). Such a

move confirms the preference for familial rights and obligations in the private law to flow from a

formal status (on the abiding weight of formal status for adult couples in the UK, see Glennon

2008).

The legislature has also, boldly, provided for recognition of parenting by same-sex

couples. The reforms to filiation of 2002 embody a decision to address the social reality of

lesbian parenting by updating, rather than attenuating, the opposition between parents and third

parties. A new chapter added to the Civil Code in 2002 allows two women to establish bonds of

filiation connecting a child to them from his birth where he was born as a result of their „parental

project‟ involving assisted procreation. No recourse to adoption or judicial establishment of

parental responsibility is necessary. Contributing genetic material to a parental project creates no

bond of filiation between the male donor and the child eventually born.5 That rule displaces the

assumption, in the regime of filiation by blood, that the male progenitor of a child should be the

legal „father‟. Instead of recognizing the spouse of a child‟s birth mother on a functional basis as

a step-parent, the reforms recognize the second mother formally, granting her rights and

obligations to that of a mother by birth.

3
Arts 521.1ff CCQ.
4
Art 521.7 CCQ.
5
Art 538.2 CCQ.
DRAFT ONLY 7

In further mediation of familial rights and obligations through formal institutions, the

legislative drafters took into account the adults‟ civil status for the purposes of establishing

filiation. One married or civil-union spouse may declare the filiation of the other.6 Furthermore,

for such de jure couples the law will presume the birth mother‟s spouse to be the child‟s other

parent.7 Even on novel terrain, the reforms‟ differential treatment of de jure as opposed to de

facto spouses confirms an ongoing role for the formal institutions of family (however much

lesbian mothers may themselves have „severed‟ the link between marriage and parenting (Kelly

2011, 111)). This approach is similar to the UK‟s Human Fertilisation and Embryology Act,

which differentiates lesbian partners in a civil partnership from ones who are not (Wallbank

2010). Recognition of lesbian parenting by the addition of a chapter to Quebec‟s Civil Code thus

aligns with the channels and formal techniques of the civilian tradition.

Judicial Change beyond Legislation

In ways not contemplated by the legislated reforms, some recognition of lesbian mothering has

occurred in the courts. In two judgments subsequent to the legislative reforms of 2002, the

Quebec Court of Appeal has shared custody between a child‟s parent, the sole holder of parental

authority, and her former same-sex partner. As the following discussion shows, those judgments

appear to derogate from the hallmarks of the civil legal tradition. They evoke characteristics of

common-law adjudication. They also illustrate that even recently enacted rules may come under

pressure from facts of family living that appear to escape their grip.

What is the backdrop to that judicial innovation? Since 1987, it has been unquestionable

that a court in Quebec may confer custody of a child on a third party without depriving the

6
Art 114, para 1 CCQ.
7
Art 538.3, para 1 CCQ.
DRAFT ONLY 8

parents of parental authority. In C (G) v V-F (T),8 the Supreme Court of Canada awarded custody

of two children to their late mother‟s sister and brother-in-law, absent wrongful conduct by the

father. Justice Beetz relied on the children‟s interests as the determining factor. The Civil Code is

now explicit that when custody is entrusted to a third person, the father and mother „retain the

right to supervise the maintenance and education of the children‟.9

Admittedly, an order sharing custody does not produce the same legal effects as the

establishment of filiation. Exercise of the right and duty of custody, as an attribute of parental

authority, lapses on the child‟s majority or emancipation (although the social bond which it

fosters may of course endure).10 Custody creates no bond of kinship, giving a child neither

grandparents in the law‟s eyes nor a lineage. It has no implications for the transmission of

intestate successions, for which, in a symbolically freighted way, „the threads of kinship and

marriage … draw the pathway of presumed affection‟ (Jubault 2010, [216] footnotes omitted).11

To be sure, an adult receiving custody of a child will swiftly realize that such a right and duty has

obvious resource implications, imposing direct and indirect costs. But, unlike filiation, it does

not subject the adult and child to a reciprocal obligation of support, emblematic within the civil

law of family solidarity (Cornu 2006, [119]). Still, in circumstances such as those of the two

judgments discussed presently, shared custody may be filiation‟s functional equivalent.

Droit de la famille—072895 concerned a dispute over the custody of two teen-aged girls

after a fourteen-year lesbian relationship ended.12 Call it the adoption case. As adoption by a

same-sex couple was not widely seen as permissible at the time, the respondent alone had

8
[1987] 2 SCR 244.
9
Art 605 CCQ.
10
Art 598 CCQ.
11
[„les fils de la parenté et du mariage … dessinent le parcours de l’affection présumée‟].
12
2007 QCCA 1640, [2008] RJQ 49.
DRAFT ONLY 9

adopted each girl. Adopting the two children was, nevertheless, the women‟s „shared

endeavour‟,13 and they subsequently raised the children together. The girls called the appellant

„Maman F‟ and the respondent „Maman G‟. After the women‟s separation, the girls spent one out

of every two weeks in the appellant‟s home. Several years after the separation, Maman F sought

shared custody on the basis that it would serve the children‟s best interests and legally solidify

their reality. She did not contest the Civil Code via the Canadian Charter of Rights and Freedoms

or invoke a principle of equality, privacy, or family life, as known to the European Convention

on Human Rights. Maman G acknowledged the emotional reality of the children‟s relationship

with her former partner. But she insisted that the court could not attribute any prerogatives of

parental authority to someone who was a third party vis-à-vis the children. The Court of Appeal

conferred custody of the two girls to both parties by alternate weeks. The judges referred to the

children‟s best interests as well as to C (G) v V-F (T), the Supreme Court of Canada‟s judgment

conferring custody on children‟s aunt and uncle.

After that judgment it was natural to wonder about the extent to which other Quebec

judges would rely on children‟s best interests so as to recognize family configurations outside

filiation. In Droit de la famille—102247,14 the Court of Appeal confirmed an order requiring a

legal mother by birth—the holder of parental authority—to share custody of the child with her

former partner. Call that appeal the birth-mother case. Factual differences from the earlier case

show the Court of Appeal to have enlarged its recognition of family forms absent filiation.

One difference concerns the relationship between the adults‟ earlier intentions and the

child‟s best interests. In the adoption case, the children‟s interest in sustaining a relationship with

both women aligned with the latters‟ past intentions—thwarted only by the law—that both

13
ibid [11] [„projet commun‟].
14
2010 QCCA 1561, [2010] RJQ 1904.
DRAFT ONLY 10

should become the girls‟ legal parents. But in the birth-mother case, the child was born neither of

a parental project in the Civil Code‟s sense nor of a shared plan by the two women. The birth

mother had become pregnant without her partner‟s knowledge. Furthermore, she had refused to

take legal steps to secure maternal status for her partner.15 The Court of Appeal nevertheless

affirmed the trial judge‟s decision, based largely on an expert‟s report about the child‟s interest

in maintaining the relationship with his „second mother‟. The child‟s interests prevailed over the

birth mother‟s intention, despite the legislature‟s having set adults‟ mutual intentions at the heart

of its reforms concerning assisted procreation (Leckey 2011).

The other difference concerns the priority, if any, of a birth mother. Had it been easier, in

the adoption case, to recognize both women as „mothers‟ for custody purposes when neither had

given birth to the girls? Scholars have studied the dynamics of sameness and difference

experienced amongst lesbian partners, one of whom is a birth mother and the other, a „social‟

mother (Dalton and Bielby 2000; Kranz and Daniluk 2006; Bown 2008). In the birth-mother

case, however, the court did not imply that childbirth had vested the birth mother with a superior

status.

The boldness of the Court‟s orders bears notice. The Civil Code‟s title on parental

authority furnishes an expectation that custody of a child should lie with those holding parental

authority, ordinarily the father and mother as designated by filiation. The Supreme Court of

Canada‟s earlier case had granted custody to third parties in replacement of the legal parent‟s

exercise of custody. Under the Civil Code the common course on breakdown of a blended family

might be for the former spouse of a child‟s parent to receive access or a right of contact.

Quebec‟s leading treatise on family law addresses the grant of custody to a third person as

15
Droit de la famille—092011 2009 QCCS 3782, [2009] RDF 587 [31]-[34].
DRAFT ONLY 11

substitute for the parents or shared between parents, but not shared between a parent and a non-

parent (Pineau and Pratte 2006, [521]-[523]).

In further ways, the Court of Appeal in the two cases departed from orthodox civilian

techniques. Recall how the civil law‟s regulation of the family turns on a sharp distinction

between legal parents and legal strangers. It is thus striking that the Court of Appeal in both

cases used the lexicon of motherhood—with its simultaneously legal and social usages—to refer

to a woman whom no bond of filiation connected to the child.16 Calling a party a „mother‟ makes

it likelier that she will be granted custody, which is an attribute of parental authority. It begs the

critical question, as if judges referred to „trust property‟ in a dispute turning on whether or not a

settlor had constituted a trust.

Moreover, the Court of Appeal in the birth-mother case downplayed parental status. It

approved the trial judge‟s statement that custody must be a function not of the parties‟ status, but

of the child‟s needs.17 The trial judge had also referred to changes in the forms of family life,

remarking that familial situations foreseeable today were „perfectly unthinkable at the time. The

person who might be presented as a “third party” is not always a genuine “third party” in relation

to the family unit.‟18 The „epoch‟ to which he was referring was 1987, when the Supreme Court

of Canada granted custody to the aunt and uncle of the children whose mother was deceased. He

did not acknowledge that the legislature had, in 2002, decided both which new kinds of familial

situations to enfold into the Civil Code and the channels for their entry. Nor did he elaborate on

16
For the adoption case, see Droit de la famille—072895 (n 69) [15] [43] [48] [66] [72] [81]; for
the birth-mother case, at trial, see Droit de la famille—092011 (n 72) [85]. See also reference to a
child‟s „second mother‟ in an abduction dispute between the child‟s father and her lesbian
mother: Droit de la famille—111062 2011 QCCA 729 [18].
17
Droit de la famille—102247 (n 72) [10], quoting from Droit de la famille—092011 ibid [116].
18
Droit de la famille—092011 ibid [50] [„parfaitement impensables à l’époque. Celui que l’on
présente comme un “tiersˮ n’est pas toujours un véritable “tiersˮ face à la cellule familiale.‟],
quoted by the Court of Appeal in Droit de la famille—102247 ibid [17].
DRAFT ONLY 12

the basis by which he could distinguish a „genuine‟ legal stranger from one who was not. The

judge‟s silence about the relationship between his order sharing custody and the enacted reforms

of 2002 leads squarely to the rightful investment, on the part of those concerned with overlooked

kinship configurations, in comparative accounts of the civil-law tradition.

Appreciating the Civil Law’s Internal Resources

While Quebec‟s reforms show that a civilian legislature can act decisively and quickly, other

examples show that legislative reform can move glacially, even where the will is present (on the

difficulties of reform in Belgium, Herbrand 2011). Judicial adaptation of legal resources to

familial facts may thus be an important avenue. At the same time, the traditional theory of the

civil law downplays the role for judges. While civilian family regimes have generally been

amended so as no longer to label children as illegitimate, some scholars do not hesitate to

criticize reforms as illegitimate invasions of the civil law‟s integrity (despite the civil law‟s

porousness prior to its nineteenth-century conscription into nationalist projects: Glenn 2010, ch

5). It is thus worth understanding better the civil law‟s sources and forms of legal change.

The adoption and birth-mother cases do not fit with the insistence, flagged above, that it

is chiefly the legislature which innovates in Quebec private law. In those cases, the judges

refused to regard that legislative initiative, and its assumptions about familial belonging, as

exhaustive. They did so even though the civilian legislature had addressed same-sex parenting by

amending filiation. (Some scholars would have preferred that the legislature leave filiation

unaltered and recognize a parent-figure of the same sex as a child‟s parent by amending the

regime of parental authority (Pratte 2003, 559; Lavallée 2005, [46]).)

The distance between these developments and the traditional view of judges‟ application

of a codified civil law makes it natural to wonder if foreign sources influenced the judges. Were
DRAFT ONLY 13

the judges borrowing from the common law? In „mixed‟ jurisdictions with strands of common

law and civil law, such as Quebec, scholars register anxiety about such borrowing (Kouri 2001;

Monge 2003; but see Jutras 2009). In the birth-mother case, the Court of Appeal held:

„According to the law, he has only one mother. On the facts, he has two.‟19 An order based on

the situation in fact, not law, evokes the common law, in which „judicial wisdom consists in

knowing how to seize the facts‟ (Legrand and Samuel 2008, 68).20

Whatever their air of unorthodoxy, the orders sharing custody with a child‟s factual but

not legal second „mother‟ are, in fact, reconcilable with the civil-law tradition. Despite the

apparent kinship with common-law judging, it would be wrong to assume that the Court of

Appeal in the two cases must have exceeded the resources of the living civil law. One must

beware comparisons of common law and civil law which reduce either tradition to frozen and

unrealistic ideal-types (Baudouin 1974). While the civilian tradition views law reform as

primarily a legislative task, judicial passivity should not be exaggerated. The judicial recognition

of lesbian parenting, beyond the contours of filiation, may be read as exemplifying the civilian

judge‟s inventive use of broad-based principles within the Civil Code. From that perspective, one

can study the judgments without impugning their civilian pedigree.

The general provisions about children‟s rights and interests mentioned above are

germane. The judges may have viewed the provisions on the respect of children‟s rights as

freestanding authorization for sharing custody. The rule on children‟s best interests in article 33

would aid judges when confronting situations that, whatever their characterization vis-à-vis

19
Droit de la famille—102247 (n 72) [45] [„Selon le droit, il n’a qu’une mère. Dans les faits, il
en a deux.‟].
20
[„la sapience du juge consiste à savoir capter ses faits‟]. But on the French civilian judge‟s
incorporation of religion through „the prism of fact‟ [„le prisme de fait‟], see Landheer-Cieslak
2007, 626.
DRAFT ONLY 14

filiation and alliance, appear as unquestionably „family‟ matters. Along that line, the Court of

Appeal in the birth-mother case noted that the Civil Code‟s provisions on the respect of

children‟s rights are expressed without any reservation regarding the rules on filiation and

parental authority. To be sure, held the judges, all the texts must be reconciled, but the first

articles merit greater weight than the second.21 Yet caution may be warranted in relying on

article 33 as a freestanding basis affecting the allocation of rights and obligations established by

the Civil Code. The greater detail of the regimes of filiation, support, and parental authority in

the Book on the Family militate against making them secondary. Why would the legislative

drafters detail the concretization of the obligation of support—temporal constraints of one year,22

payment by indexed pensions23—if the more general mention in article 32 of the child‟s right to

his parents‟ „protection, security and attention‟ commands greater weight?

By contrast, a narrower reading would regard those articles in Book One as an avenue for

accessing or mirroring, by analogy, provisions elsewhere in the Civil Code. This reading would

cast article 33 in a more minor role as an alternative avenue for accessing primary rules in the

book on the family. Accordingly, the judges recognized children as having two „mothers‟ not

purely on the facts, but on the facts as mediated through the legislature‟s recognition of that

possibility. In other words, from 2002 onwards, the Civil Code‟s formal regimes for recognizing

same-sex couples—as civil-union partners and as parents—make the family life of gays and

lesbians thinkable, and so the judges are better able to bring the factual situations of gay and

lesbian family life into law.

21
Droit de la famille—102247 (n 72) [40].
22
Art 595, para 1 CCQ.
23
Arts 589, 590 CCQ.
DRAFT ONLY 15

Beyond these readings, it would be wrong for the judgments‟ civilian character to hang

on the Civil Code‟s express inclusion of the child‟s welfare. Such a principle provides an

obvious textual hook. But absent such a written principle, judicial interpretation of the codified

private law need be neither rigid nor inadaptable to changing social circumstances. As its

preliminary provision acknowledges, the Civil Code operates „in harmony‟ with „general

principles of law‟ (Bisson 1999). The civil law has a „body of ideas connected to notions of

justice, aequitas, efficiency and more‟ (Kasirer 1994, [14]), an „immanent sense of equity‟

(Yntema 1967, 80). It flows from the nature of a civil code—its provisions drafted at a high level

of generality and abstraction—that judges can apply them in response to changing circumstances

and extend legal rules by analogical reasoning, while beginning with the canonical text‟s fixed

formulations (Brierley and Macdonald 1993, [117] [118]). The civilian pedigree of the

judgments discussed here need not depend on the legislated text in force at a given time. The

judicial orders in the adoption and birth-mother cases can be viewed as internal to the civilian

economy of Quebec‟s private law. They are not justly subject to criticism for infidelity to the

civilian tradition.

Here the discussion reaches towards the larger field of comparative law. From time to

time, feminist scholars take up comparative law, here understood not as the citation of foreign

materials but as the descriptive effort to understand law through comparison. Work avowedly

within „comparative legal feminism‟ aims to uncover what is contingent and culturally specific

about the stated and unstated norms of Anglo-American feminism (Cossman 1997). Recent

comparative research on family law draws energy from critical feminist scholarship and

challenges the doctrinal construction of family law (Halley and Rittich 2010). Comparative

scholarship informed by critical legal studies and by legal pluralism may simultaneously draw on
DRAFT ONLY 16

feminist precepts (Fournier 2010). In public law, a subfield of comparative constitutional

scholarship is flourishing, undertaken with explicit attention to feminism and gender (for

example, Williams 2009; Baines and Rubio-Marin 2005; Haussman et al. 2010). By contrast,

feminist and queer voices are less present on the more traditional terrain of private-law

comparative scholarship (for comparative queer studies outside law, see Hayes et al. 2010).

Perhaps scholars with an urgent justice project find frustration, rather than renewed energy, in

methodological debates which occasionally bog down in Byzantine distinctions and

argumentative impasses (for a moderate voice, Husa 2006). But despite some scholars‟ insistence

that their comparative work pursues knowledge for its own sake in a neutral or descriptive

register, comparative debates on the legal traditions and their resources are politically significant.

Research that is ostensibly descriptive reflects at least some theory. There can be political

consequences to disseminating some descriptions rather than others (Kennedy 2003). Scholars

concerned with family law‟s exclusions have, so to speak, a horse in the race of comparative

private law.

Specifically, there is reason to support the flourishing of complex, non-essentialist

accounts of the civilian legal tradition. Rather than essentializing the tradition and labelling

deviation from it as an external influence, such accounts make space for internal pluralism. There

is no guarantee that such an approach will always advance justice-seeking political commitments

or that it would inaugurate a welcome „poststructuralist account of kinship‟ (Eng 2010, 16). But

the rigid structuralism of the traditional civil law of the family has been destructive enough for

unrecognized forms of kinship (think of the resistance in some places to recognizing couples

outside marriage, and of the hostility in France towards even single lesbians‟ efforts to adopt a

child) that the internally plural account, by which change and dissent may arise in sites other
DRAFT ONLY 17

than the legislature, is attractive. It is worth aiming to dislodge the unjustifiable but enduring

alignment of codified family law, viewed as the exclusive preserve of the legislature, with the

sex-differentiated imperatives of structuralist anthropology. The argument here echoes the

alertness of some feminist scholars to avoiding essentialist notions of human rights and of local

culture, in order to counter rejections of women‟s rights as imperialist impositions from outside

(for example, Holtmaat and Naber 2011; Merry 2006). It also resonates with efforts to highlight

cultures‟ internal forces of critique, renewal, and dissent (Sunder 2001). While calling for

attention to a view of the civil-law tradition as dynamic and adaptive on the part of feminist,

queer, and other scholars committed to manifold forms of family, this paper also flags the

judges‟ flexibility as potentially problematic.

Theorizing Limits on Judicial Innovation

Where a legislated scheme of family is hostile to lived forms of family, it is natural that

advocates should advance a functional, fact-based approach. But once a legislature has expanded

its recognition of family, it becomes necessary to consider whether there are rightful limits on

courts‟ scope to issue orders which reach further. To what extent does legislated formal

recognition of long-neglected family forms reduce the politically palatable scope for recognizing

family on a functional basis? This part considers this question through the prism of the two

judgments presented above. On a reading that is suspicious, if not paranoid (Sedgwick 2003,

123-51), the suggestion is that the judicial inventiveness modeled has the potential to undermine

the legislative steps taken to assure the autonomy of lesbian-headed families.

Admittedly, the two judgments will appear commendable to many readers. Given the

child-welfare expertise in the two appeals, measures in aid of sustaining a relationship between

children and their second „mother‟ may appear justified, even absent a bond of filiation.
DRAFT ONLY 18

Certainly, cases in which a lesbian birth mother leads the trump card of biological connection

and legal parentage to deny claims by her former partner form an unpleasant counterpoint to the

happier cases in which intact couples jointly seek legal recognition. The orders for shared

custody in the judgments studied here have a symbolic import. The judges‟ recognition of „two

mothers‟ may „legitimate‟ the family form headed by two women (albeit retroactively, after the

conjugal relationship has dissolved). Some scholars argue that the desire for state recognition is

misguided (Butler 2004, 102-130). Whatever one‟s view on that matter, the orders in the Quebec

cases had direct legal effects. They were thus unlike orders for parental responsibility that have

been criticized the UK context as mere „legitimation‟, without concrete effects (Reece 2009,

101). Shared custody in the two lesbian cases requires the holder of parental authority and her

former partner to engage in „parenting after partnering‟ (Maclean 2007). „Recognizing‟ a second

mother in a custody dispute after the adult partners have parted ways, over the legal mother‟s

protests, may be distinguishable from validating her involvement in more harmonious

circumstances.

The grant of shared custody in the birth-mother case divide risks convoking two camps.

One camp would prioritize recognizing the caring work shared by lesbian partners irrespective of

who gave birth or who holds parental status. The Quebec Court of Appeal implicitly aligned

itself with that camp. The other camp would prioritize autonomy for a birth mother in defining

her family. Its viewpoint is worth elaborating.

Members of that second camp would suggest that, where legislation provides means for

conferring parental status on the parent of a child‟s same-sex partner, the decision not to deploy

those means merits some respect. More concretely, does the legal opportunity to recognize a

child‟s second mother (on birth registration or via second-parent adoption) comport the
DRAFT ONLY 19

corresponding freedom to leave the child with only one? Once legislative drafters have turned

their mind to parenting by same-sex couples, might there be a lesser place for equity, in the

common law or the civil law, to respond to „exceptional or unforeseen instances‟ (Yntema 1967,

85)? Mothering by lesbian couples is no longer unforeseen. Beyond which point does judicial

creativity not extend legislation in conformity with its spirit, but undermine it? Put otherwise,

what is the negative space rightly viewed as surrounding the means for recognizing lesbian

mothers? Family law might be distinctive on account of judges‟ responsibility, relying on the

best interests of children—characterized by law as third parties—to brunt the effects of adults‟

self-interested agreements. Still, similar questions arise in the general private law about the

rightful scope of doctrines such as unjust enrichment or promissory estoppel where a party has

intentionally refrained from entering contractual relations with another.

The autonomy camp might further point to the possibility, added to the Civil Code with

the 2002 reforms, that a child might from birth have only a single parent, his birth mother. (It had

already been possible for a person alone to adopt a child.) That possibility provides a clear

avenue for a woman to exercise autonomy in shaping the family structure of her choosing. The

importance of such autonomy is a key theme in some feminist scholarship (for example,

Cossman 2007). In the birth-mother case, the legal mother had refused to take measures to confer

parental status on her partner. That exercise of choice might be seen as distancing the facts from

the circumstances of the Supreme Court of Canada‟s 1987 judgment conferring custody on third

parties. In C (G) v V-F (T), the children‟s parents had never chosen a form of family with a view

to excluding the aunt and uncle who later received custody. The children‟s preference for their

aunt and uncle‟s household, as opposed to their widowed father‟s, had arisen gradually, as a

matter of fact. It did not override a mother‟s imagined family blueprint.

DRAFT ONLY 20

Feminist scholarship on shared parenting and custody might further illuminate the

concerns of the autonomy camp. Some feminist scholars have noted that shared parenting may

impose a burden on a child‟s mother. It may be especially problematic where the parents fail to

co-operate, including where there is violence or abuse. Such considerations did not apply to the

cases discussed here. Consider too the concerns that a non-custodial parent‟s right to access

constrains a custodial parent‟s autonomy to plan her and the child‟s life. In particular, the

custodial mother‟s ability to relocate may be curtailed (Boyd 2011). Where the Civil Code‟s

regime of filiation provides the means for establishing a second parent but not the obligation to

do so, it is fair to posit that, at some point, an order based on a judge‟s determination of a child‟s

welfare may seem illegitimately to circumvent the Civil Code‟s regime of filiation. Now that a

child may have two mothers, is there a risk that judges might too readily interpret facts from the

diverse ecology of queer kinship through the script of two equal mothers? Judges have (rightly)

been criticized for too readily viewing a man associated with a child‟s conception or upbringing

as „father‟. Is there an equivalent need for caution in the case of a woman who is not legally a

child‟s mother?

Critically, it might not only be a second woman whom a shared custody order might

recognize as an additional parent. The advantages and disadvantages of the regime enacted in

2002 for the benefit of lesbian mothers are relevant. The legislature apparently determined that a

child born of assisted procreation might have at most two parents, excluding the donor as a third

party. Negatively, such a design choice fails to reflect that some lesbians raising children involve

a known donor as a parent figure. Positively, in line with a refrain prominent in the literature on

lesbian parenting, it secures the parental status of the non-birth mother and authorizes the two

women to parent autonomously (for example, Arnup and Boyd 1995). Do the cases discussed
DRAFT ONLY 21

here open the door to Quebec courts‟ relying on children‟s best interests so as to find that a child

born of assisted procreation has not only two mothers under the Civil Code, but also, in fact, a

„father‟? The rules on filiation appear to make plain that, in the context of assisted procreation,

mere genetic connection does not suffice to establish legal paternity. But what if a known donor

has been involved in the child‟s life, performing what looks like the ordinary conduct of a non-

residential father?

How would readers react if judges, beyond the civil code‟s articles on filiation, dubbed

sperm donors as „fathers‟? The distinction between „known donor‟ and „dad‟ is a complicated

one. It is critical to many lesbian couples with children. For instance, many lesbian mothers

acknowledge their child‟s need for male role models and act to satisfy that need, while

distinguishing it from any imperative to provide a „father‟ (Goldberg and Allen 2007; Kelly

2011, 96-108). Donors may be known or known and involved without being considered as

„fathers‟ or co-parents with the mothers (Almack 2006, 17).

Judges‟ spotty record at dealing with diverse forms of family comes into play. Empirical

research on „judgecraft‟ reports that judges who disapprove of legislation undertook „a

conservative activism directed to preserving the status quo‟ (Fielding 2011, 114). It has been

argued, based on case analysis, that even the notion of „functional family‟ carries within it the

seeds of deference to the „eternal biological family‟, a father at its head (Millbank 2008).

Concretely, the flexibility perceived by the Quebec Court of Appeal might prove welcome to

conservative judges who reject the democratically pedigreed determination that a child might not

need a father. It is early days, but some judges in Quebec may hesitate to recognize that a woman

alone has deployed the filiation regime enacted in 2002, with the result that she should be a
DRAFT ONLY 22

child‟s sole legal parent while the known donor remains a legal stranger.24 Qualitative research

with lesbian mothers reports that they are suspicious of judges, and many would say they have

reason to be (Kelly 2011, 116-7). Such worry is an instance, in the family context, of the concern

expressed by a private-law theorist that a strong remedial discretion for judges requires an

acceptance of judges‟ „instinct for the just result‟ that may not obtain in a plural society (Birks

2000, 16).

Admitting that the cases discussed here might serve as precedent for recognition of a

father „in fact‟ though not „in law‟ intensifies the need to analyze the ways in which judicial

creativity supplements or supplants legislative choices. Custody orders issued in the interstices of

parental status may not only construct non-traditional families. They might also reconstruct

traditional ones. Thus legislative recognition of two legal parents may not limit law‟s familial

possibilities. For example, a court‟s recognition of the figures active in a child‟s life beyond the

parents identified by bonds of filiation might also lead to custody or access for other third

parties, with the consequent constraints on the legal parent with primary custody. These matters

are controversial and there is no unified position within feminist or gay and lesbian communities.

Empirical research indicates that interviewees‟ views often reflect their own experience and

position regarding their children (Richman 2006, 90-91).

At a minimum, enactment of formal means for recognizing two women as parents to the

exclusion of the sperm donor, as in the UK, invites attention to these issues. The Parliament of

the United Kingdom‟s 2008 reforms are said to have clung to the „sexual family form‟

(McCandless and Sheldon 2010b). Indeed, Parliament‟s elimination of the criterion, for

professionals giving treatment, of a prospective child‟s need for a father spurred fierce

24
Droit de la famille—111729 (n 108), leave to appeal to SCC sought.
DRAFT ONLY 23

objections, however little it has affected decision making within fertility clinics. Clearly the

„anxieties about the shape of the family and the role of men within it‟ run deep (McCandless and

Sheldon 2010a, 222). As the children whose parentage is determined under the 2008 Act grow

up, parental status will at times fail to identify all the adults profoundly involved in their lives.

Which configurations of family will judges recognize in such situations? Which should they?

Conclusion

Judges in the province of Quebec have ordered lesbian mothers to share custody of children with

their former partners, although family law characterizes the latter as legal strangers towards the

children and although the parties did not take advantage of available legal means for extending

parental status. In the cases, the judges focused on the lived reality of the relationships in

question, rejecting the formal structure of a codified civil law as dispositive. It is possible to

characterize such an approach to recognizing queer families as internal to the civil-law tradition.

Doing so requires complementing the ostensibly exhaustive regime of the Civil Code with

unwritten principles. It also needs a methodological sense that legislative text frames questions,

rather than fully answering them. Moreover, feminist scholars have reason to participate more

regularly in comparatist debates. An understanding of the civil law as internally plural and as

providing multiple means to adapt to social fact is conducive to their normative commitments.

At the same time, the examples studied here generate cause for concern. Once a

legislature has provided formal means for recognizing the families headed by gay men and

lesbians, the respective weights of formal and functional means of family recognition may shift.

Attending adequately to the autonomy of lesbian mothers may call for according substantial

weight to decisions not to use such formal means. Otherwise, might not recognition of factually
DRAFT ONLY 24

or functionally family relations beyond legal ones may undermine the political choices manifest

in recognizing queer families?

DRAFT ONLY 25

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