Orders declaring parentage and role of best interests of the child taken up at September parentage committee meetings

29 September 2021

By Kevin Zakreski

BCLI’s Parentage Law Reform Project Committee held two meetings in September. Both meetings continued the committee’s focus on section 31 of the Family Law Act, which gives the court authority to make orders declaring parentage.

While such orders aren’t required in British Columbia (in contrast to other provinces, which often have legislation requiring them in specific circumstances, such as surrogacy arrangements), they may be sought if there is a dispute or any uncertainty about parentage. As a result, novel cases of parentage often engage with section 31, making this area of particular interest for reform of legislation that is often driven by social and technological changes.

The committee discussed the scope of section 31, what conditions (if any) should apply to applicants, and whether the granting of orders declaring parentage can be streamlined for some cases.

The committee also considered how the best interests of the child should figure into decision-making under section 31. Currently, part 3 of the Family Law Act doesn’t refer to the best interests of the child, but some courts have relied on this concept in making decisions on parentage. But this isn’t a clear-cut area. By way of contrast, part 4 of the Family Law Act—which deals with care of and time with children—provides that “In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.” [Emphasis added.] Such an all-or-nothing standard would be a significant departure for the law of parentage, which has tended to treat the best interests of the child as one important principle among a range of principles that courts must consider and balance in making decisions. So the questions are more in the nature of whether it is advisable to try to capture this thinking in part 3 and, if so, how it should be expressed.

The goal of these discussions is to develop tentative recommendations to reform part 3 for a public consultation to be held later in the life of the project.