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”.

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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.

Should conception by sexual intercourse be permitted for traditional surrogacy?

Section 29 of the Family Law Act governs surrogacy. Surrogacy is when a person carries a child for someone else. There are two kinds of surrogacy. The first is ‘traditional’ surrogacy. In this case, the surrogate carries the child, but also donates an egg (i.e., is genetically related to the child). The second is ‘gestational’ surrogacy. In this case, the surrogate carries the child but is not genetically related.

In BC, the legislation allows for both types of surrogacy if assisted conception is used. In this meeting, the Committee discussed whether the legislation should permit conception by sexual intercourse for traditional surrogacy.

A main point of concern was the vulnerable position of surrogates. Surrogacy may occur in situations where there is a power imbalance. Using sexual intercourse to conceive is significantly less expensive than paying for assisted conception through a clinic. For this reason, a surrogate may feel pressured by intended parents into using sexual intercourse to conceive.

The Committee also considered equal treatment. In provinces like Ontario, the legislation allows for sperm donation by sexual intercourse. The Committee discussed whether there is a reason to permit sperm donation by sexual intercourse but not egg donation.

Should part 3 of the Family Law Act require independent legal advice?

Next the Committee turned its attention to independent legal advice. Independent legal advice is when parties to a legal issue all speak to a separate lawyer. This is important to make sure that all parties understand their independent rights and obligations in a particular situation.

In part 3 of the Family Law Act, there are several groups who could potentially benefit from independent legal advice. In other provinces like Saskatchewan and Manitoba, independent legal advice is required for surrogates and intended parents. However, it is not required for other contractual situations like multiparent configurations or sperm donation by sexual intercourse.

The Committee considered whether donors, surrogates, intended parents, and sperm donors by sexual intercourse should obtain independent legal advice given their unique vulnerabilities. The Committee considered issues such as the time and cost associated with independent legal advice, as well as the likelihood that someone may not get legal advice and fail to meet the legislative requirement.

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.

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Section 24: Should there be more flexibility around donors and parentage?

Section 24 of the Family Law Act states that a donor is not automatically a parent by reason only of donation. Should the line between (non-parent) donor and parent be more flexible? Should donors and parents be able to draft pre-conception contracts for contact time?

This is where the Committee picked up its discussion. The Committee discussed many pros and cons associated with increased flexibility and contact. For example, there may be an increased risk of litigation where roles are not clear. Further, more contact between a donor and child may increase exposure for obligations including child support. The Committee also discussed the tensions between pre-conception contracts and the best interests of a child post-birth.

Next, the Committee considered whether section 24 should require a written pre-conception agreement for donors. Discussion centered around barriers to donation. Would adding an agreement requirement to the legislation limit the incentive to donate? What would the consequences be for individuals who may be unaware of the requirement? How could recipients contact unknown donors if a contract were required?

Section 27: Should there be a standardized form to document spousal non-consent to become a parent?

In the context of assisted reproduction, Section 27 of the Family Law Act grants parentage to a birth parent and the birth parent’s spouse (whether by marriage or marriage like relationship) unless the spouse does not consent or withdraws consent. This section does not have any specific requirements to deny or withdraw consent. The Committee discussed potential benefits of adding a specific form for denial or withdraw of consent. The advantage of a form is clarity. But this is at the risk of some people being unaware of the form and failing to complete it. The Committee also discussed the risks of requiring a spouse to sign a form in cases of family violence.

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.

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