After discussing big-picture issues at its January 2022 meeting, the committee shifted its attention to the details of section 26 of the act. This section sets out a series of presumptions of parentage, which apply to a child conceived by sexual intercourse, “unless the contrary is proved.” These presumptions have a long history in family law. They weren’t updated in the last series of reforms affecting parentage, which came into force in 2013 (and which were focused on children conceived by assisted reproduction). The committee discussed whether changing social attitudes should lead to changes to—or even the elimination of—some of the presumptions.

The committee also considered the question of whether conception of a child by sexual assault should be taken into account in determining parentage under part 3. While sexual violence may be a relevant issue form matters decided under part 4 of the Family Law Act (such as guardianship, parenting time, and parental responsibilities), part 3 is silent on this issue. This approach prevails throughout the rest of Canada. But the American Uniform Parentage Act 2017 (PDF) takes a different tack. This uniform act, which has been adopted in a number of states, contains a provision that sets out a court-based process to deny parentage to the perpetrator of a sexual assault that results in the birth of a child. The committee discussed whether this provision holds any lessons to be learned for BC’s Family Law Act.

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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The committee plans to address in future meetings other aspects of the court’s role in determining parentage, including its territorial jurisdiction and the place of the best interests of the child test in part 3 (parentage) of the Family Law Act.

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.

The post Parentage Law Reform Project Committee completes review of court orders declaring parentage at October 2021 meeting first appeared on British Columbia Law Institute.

“Family law and fertility law will need to be proactive to meet the future challenges of assisted human reproduction and to legally recognize the intention of people wanting more autonomy over their relationship and family making options.” – Zara Suleman. 

Zara Suleman, who serves as the chair of BCLI’s Review of Parentage under Part 3 of the Family Law Act Project, has written a feature for CBA BC’s BarTalk magazine on the gaps and needs to transform and review legal parentage under Part 3 of the Family Law Act.

The article highlights some of the increasingly complex scenarios families of all forms are faced with and the ways in which family law and fertility law are in catch-up mode to respond to the real lived experiences of people. 

Reflecting All Families was published on the October 2021 edition of BarTalk and is accessible online on their website. 

The post Reflecting All Families – discussing the gaps and needs to transform and review legal parentage on CBA BC’s Bartalk first appeared on British Columbia Law Institute.

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.

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Since section 31 came into force, it has been the focus of many court decisions under part 3. There are questions about its reach, as court cases have considered whether declarations of parentage may still be made on an alternative basis: the court’s common-law jurisdiction to protect children (what lawyers call its parens patriae jurisdiction).

The committee particularly focused on section 31’s two conditions, which provide for an order “if there is a dispute or any uncertainty as to whether a person is or is not a parent under” part 3 of the act. The committee considered how other jurisdictions, such as Ontario, and other law-reform projects, such as the Uniform Law Conference of Canada, in its Uniform Child Status Act (PDF), have handled orders declaring parentage.

The committee also began a discussion of how the best interests of the child should figure into decision-making under part 3.

The committee plans to continue discussing these topics at its next meeting. The goal 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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