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In Québec family law, the concept of filiation determines who is legally recognized as a child’s parent. When assisted reproduction is involved, the Civil Code introduces specific rules to protect children and clarify parental obligations towards the children. One of the most important of these rules is found in article 538.3 C.C.Q., which creates a presumption of filiation in certain circumstances.

Article 538.3 provides that when a child is born of a parental project involving assisted procreation between spouses, civil union partners, or de facto union partners, and that child is born during the marriage or within 300 days after its dissolution or annulment, the spouse of the person who gives birth is presumed to be the other parent. This presumption operates automatically, even if the child was conceived through assisted reproduction and even if the parties were separated at the time, unless a formal judgment of divorce or separation has already been issued, or if the birthing married was subsequently re-married prior to giving birth.

Without a judgment of divorce or separation, the ex‑spouse may be legally presumed to be the parent and have said filiation recognized. Although the presumption may, in theory, be rebutted, the burden is high and subject to the interpretation of the Court. For this reason, individuals who wish to avoid the presumption should not give birth before 300 days (or even more, to be safe) after obtaining a judgment of divorce or separation. Legal advice is strongly recommended when assisted reproduction intersects with separation or divorce.