One of the topics covered in the paper is parentage of children, which received its own dedicated chapter (PDF). BCLI participated in Phase 2 of the Family Law Act Modernization Project through its Parentage Law Reform Project. This project culminated in recommendations for legislative reform, which are set out in the Report on Parentage: A Review of Part 3 of the Family Law Act. As the policy intentions paper notes, “The Ministry intends to recommend policy reforms for [parentage] along the same timeline as the other Phase 2 work”.

The ministry gave an indication of this timeline in a news release that accompanied the policy intentions paper. “The proposed policy changes will inform amendments to the [Family Law Act]”, the news release said, “which will be introduced to the legislature for consideration as soon as is feasible”.

The post BC ministry declares its policy intentions on parentage first appeared on British Columbia Law Institute.

In shaping its proposals for wills law reform, the Law Commission of England and Wales found a compelling model in British Columbia’s Wills, Estates and Succession Act (WESA), a statute shaped in part by the 2006 BCLI report on succession law. Elements of BCLI’s recommendations now appear in the Law Commission’s 2025 report, Modernising Wills Law. There are several areas where BCLI’s work and that of BCLI’s predecessor, the Law Reform Commission of British Columbia (LRCBC), directly informed the Law Commission’s report.

Dispensing Powers 

Both reform reports share the same premise that testamentary intent should not be defeated by technicalities. BCLI’s recommendation that courts be granted the discretion to validate testamentary documents that fail to meet formal execution requirements, so long as the intent of the will-maker is clear, is represented in section 58 of WESA.

The Law Commission explicitly cited BC as the model for this approach, noting that courts in the province have used dispensing powers responsibly, without a flood of litigation occurring. As a result, the Law Commission recommended that similar judicial dispensing powers be included in the new Wills Act, opening the door to fulfilment of testators’ wishes where formal defects are present.

Expanding Rectification Powers

BC’s reform also expanded the scope of judicial rectification, enabling courts to correct drafting errors that may result from miscommunication or misunderstandings related to will instructions. Expanding these powers signalled a shift away from rigidity, towards outcomes that reflect the true intentions of the deceased.

The Law Commission followed suit by recommending particularly that courts in England and Wales should have greater flexibility to rectify wills in cases involving clerical or drafting errors.

Abolition of Revocation by Marriage

Historically, both Canadian and English law have held that marriage automatically revokes an existing will. BCLI’s report proposed that marriage should no longer revoke a will unless specifically stated, the rationale being that this rule often leads to unintended intestacy, particularly in blended families or among older adults.  WESA implemented this change.

The Law Commission endorsed this position in its 2025 report, recommending an end to automatic revocation upon marriage or civil partnership.

Reducing Minimum Age for Will-Making

Another point of alignment between the two reports is the recommendation to lower the minimum age for making a will to 16 years of age. BCLI’s recommendation stemmed in part from the premise that lowering the minimum age would help to prevent inconveniences resulting from intestacy in cases where minors have interests in valuable assets.

In support of lowering the minimum age, the Law Commission’s report cites BC as a jurisdiction which grants 16 year olds testamentary capacity. Like BCLI, the Law Commission notes that lowering the minimum age requirement will assist children who have significant assets, as well as those who may be experiencing degenerative conditions or other health issues.

Saving Gifts to Subscribing Witnesses and Their Spouses

Traditionally, a person who signs as a witness to a will cannot receive a gift under that will. However, BCLI and the former LRCBC recognized that this could lead to harsh outcomes, especially in cases involving close friends or partners who witnessed the will out of necessity or convenience, not deceit.

In response, WESA grants courts discretion to validate such gifts where no undue influence or fraud is found. The Law Commission adopted a nearly identical stance, recommending that courts in England and Wales be allowed to save gifts to witnesses or their spouses (including same-sex partners) where the circumstances merit it.

Electronic Wills

Perhaps the more future-facing element of both reforms is the recognition of electronic wills. The BCLI report anticipated this shift as early as 2006, noting that legal frameworks would soon need to adapt to digital signatures, online storage, and changing norms around document creation. Later, the first provisions enacted in Canada to validate purely electronic wills were added to WESA, having been developed by the Uniform Law Commission of Canada.

The Law Commission’s 2025 report devotes a chapter to electronic wills, recommending a regulation-making power that would allow such wills to be introduced safely and gradually. Importantly, the Law Commission pointed to jurisdictions like BC as examples of where digital modernization in succession law has been successfully anticipated and legislated.

Conclusion

Though operating in different legal systems, the BCLI and the Law Commission shared a common goal to modernize wills law. From dispensing powers to digital innovations, many of the Law Commission’s recommendations echo proposals developed in BC some time ago. As England and Wales move towards legislative implementation, BC’s leadership stands as an example of how thoughtful law reform can positively ripple across jurisdictions.

The post How British Columbia’s Wills Reform Helped Shape England and Wales’ Proposed Wills Act first appeared on British Columbia Law Institute.

The first draft of the 5th edition is currently out for review with pension experts. BCLI will consider their comments and make edits to the draft over the summer.

The completed 5th edition is expected to be published Fall 2025.

For more details on the project, please visit the project webpage.

The post Project Update: Pension Division Q+A 5th Edition first appeared on British Columbia Law Institute.

In its Parentage Act Discussion Paper (PDF), the institute notes that “Nova Scotia is the only jurisdiction in Canada that lacks parentage legislation.” The discussion paper sets out a plan to address this situation by “discuss[ing] how Nova Scotia can and should respond to modern realities of parentage by re-evaluating the foundational assumptions of the common law.”

After a set of opening chapters that “situate this project in a historical, social and legal context,” the discussion paper makes a comprehensive series of proposals and questions for discussion, which address the following subjects:

• principles of reform;
• sperm, egg, and embryo donation;
• surrogacy;
• parentage via sexual relations;
• multiple-parent families;
• posthumous conception;
• general court declaratory powers;
• interjurisdictional matters;
• other issues—including language and statutory interpretation.

The institute is seeking public comment on its proposals and questions for discussion. The consultation period is open until 30 January 2023. Information on how to make a submission is set out in the discussion paper (PDF).

The post Nova Scotia consulting on reforms to parentage laws first appeared on British Columbia Law Institute.

Summary of the case

The court’s overview at the start of its decision provides a good summary of the dispute at the heart of this case.

[2]        The Applicants are a same-sex couple. The Applicants and the Respondents, who are the child’s biological parents, initially agreed the Applicants would act as parents upon the birth of the Respondents’ child. Once the child was approximately four months’ old, the Respondents sought the return of their child to their care. The child, who is now approximately 17 months’ old, continues to be in the Applicants’ full-time care, subject to parenting-time being exercised by the Respondents.

[3]        As such, the Applicants have no biological connection to the child, namely, Isabelle . . . . They seek to become her legal parents, pursuant to s. 13 of the Children’s Law Reform Act, R.S.O. 1990 c. C.12. [This is the Ontario equivalent to section 31 of British Columbia’s Family Law Act, which empowers a court to make a declaration of parentage.]

[4]        If such a designation is not possible, and regardless of same, the Applicants seek to have primary residence of Isabelle and sole decision-making responsibility for her. They are agreeable to the Respondents having ongoing, gradual increased parenting-time with Isabelle, including overnights, as of July 15, 2022 (once Isabelle is 18 months’ old). It was proposed by the Applicants that the parenting schedule be reviewed in January 2024, once Isabelle reaches the age of three years’ old.

[5]        The Respondents oppose the Applicants’ court Application and seek to have their claims dismissed. They wish to have Isabelle immediately returned to their primary care and seek an order that they have sole decision-making responsibility for her. They are agreeable to the Applicants having contact with Isabelle a minimum of once per week, with the date and duration to be determined by the Respondents in accordance with Isabelle’s best interests.

Ontario legislation (like legislation in British Columbia) gives people the legal tools they need to effectively achieve the result the parties desired (when they “initially agreed the Applicants would act as parents upon the birth of the Respondents’ child”). The tragedy of this case was that the parties were unaware of these tools and embarked on their plan without proper legal advice, only consulting with a lawyer shortly before the child’s birth. By then, it was too late to meet the legislation’s requirements for an effective surrogacy arrangement.

The court’s ruling on parentage

At various points in the judgment, the court emphasized the importance of complying with the legislation:

[233]        I agree with counsel for the Respondents that we have a legislative framework in place for the placement of children through adoption and surrogacy for a reason. These legislative schemes offer a roadmap to all parties involved (biological parents, adopted parents, intended parents, surrogates) to ensure safeguards are met vis-à-vis all parties in the matter and ultimately for the safety, well-being and protection of children. Some of these safeguards include independent legal advice, specified counselling, home studies, pride training and the like.

[234]        The court and public policy should not condone a party having a child and simply handing them off like a football to a third party. This is not the intent of our legislation. There has to be some oversight as to whether the third party is an appropriate caregiver for the child and whether all parties involved understand their rights and obligations and the long-term repercussions of their actions. The issue of permanency for the child is also important, as the birth parent can hand over their child to a third party only to turn around at a later date demanding the return of the child. These situations could have devastating ramifications on the parties and dangerous consequences for the physical and emotional well-being and development of the child.

These considerations came to the fore in the court’s analysis of the applicants’ request for an order declaring parentage.

The court began by noting “[t]here is not a lot of existing case law on having more than two declared parents under s. 13 of the Children’s Law Reform Act.” The court decided it could distinguish this case from an earlier Ontario case because “this case does not involve an insemination or the specific pre-conception intent of gifting reproductive material.” As the court explained:

[294]        Although it was always the intention of the parties that the Applicants would be the intended parents to Isabelle, the evidence actually suggests it was the parties’ intention for the Respondents to not be legally recognized as Isabelle’s parents. There was never any intention to have all four parties be the legal parents for the child. Regardless, these discussions only took place after conception.

[295]        As I previously stated, I am not convinced that when [the respondents] set out to have sexual intercourse with one another they set out to conceive a child by donating or gifting their egg and sperm for the sole purpose of providing the Applicants with a child. In all of the communications I have read (and there are many), the mother never stated the conception was planned for this purpose. She actually refers to her pregnancy as an “oops” or accident. There were no communications I could find suggesting [the male respondent] set out to intentionally donate his sperm.

Finally, the court noted that “it was open to the legislature to require that the best interests of the child be considered with respect to any declaration of parentage, but it did not and chose to omit same.”

The court’s ruling on guardianship

In contrast to the court’s reasoning on parentage, the court noted that the best interests of the child governed its decision on guardianship: “I concur there is no presumption in favour of the biological parents or genetics when determining a parenting order for a child. The governing principle as per subsection 24(1) is best interests, having regard to the considerations outlined in 24(2) and the factors outlined in 24(3) of the [Children’s Law Reform Act]. The best interests standard is a child-centered approach.” And in this case, the court’s determination of the child’s best interests led it to rule in favor of the applicants:

[266]        Isabelle appears to have a secure attachment with the Applicants. There is a possibility that if she were to be placed with the Respondents, she could still form further secure attachments, which would not negatively affect her development. However, why would I do this? Why would I risk this child’s development when she is feeling loved, safe, nurtured and has a parental connection with the Applicants? Why would I now change the status quo when the Applicants have a history and a proven track record with the development of this child and have met all of her needs, and presumably will continue to do so? The fact that the Respondents are her biological parents and want her return is simply not enough. I must look at the totality of the evidence and the circumstances and be guided by the legislative factors to determine what is in this child’s best interests.

[267]        The fact that particular safeguards were not followed or adhered to is not enough to return this child to her biological parents. It is the here and the now and where we are today.

In the result, the court ordered that the applicants had “sole decision-making responsibility” for the child, whose primary residence was to be with the applicants, and granted specified parenting time and other specified rights to consultation and information to the respondents.

The post In “a case about everything the parties did wrong to achieve a particular goal,” Ontario court illustrates the differences between guardianship and parentage first appeared on British Columbia Law Institute.