All About Estates

The New Parentage Rules in the Children’s Law Reform Act

Continuing my discussion of the All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016, S.O. 2016, c. 23, in this blog I will look at the new rules for determining the relationship of parent and child in Part I of the Children’s Law Reform Act (“CLRA”), which became effective January 1, 2017.

Section 1 of the CLRA as it read on December 31, 2016 essentially recognized two forms of parents, natural and adoptive. Section 1 provided that for all purposes of Ontario law a person is the child of his or her natural parents, whether born within or outside marriage, and where an adoption order has been made a child is the child of the adopting parents “as if they were the natural parents”. In other words, parentage was essentially determined by biology, and the effect of an adoption order was to treat adoptive parents in the same manner as biological parents.

Under the new rules, the two categories of parents recognized at law are adoptive parents and parents as determined under sections 6 through 13 of the CLRA. The principle underlying the new parentage rules is “preconception intention”. It is not the case that biology is now irrelevant, as some alarmists have claimed, but rather that biology is no longer determinative in all cases. For example, the new rules provide that a person who contributes reproductive material or an embryo to conceive a child through assisted reproduction is only a parent of a child if the person would otherwise be a parent under the new rules (i.e. either as an adoptive parent or as a parent determined under sections 6 through 13 of the CLRA).

Before summarizing the new rules, it is important to understand some of the new terminology in the rules. The rules recognize three methods of conceiving a child. “Assisted reproduction” means a method of conception other than sexual intercourse. “Insemination by a sperm donor” refers to an attempt to conceive a child through sexual intercourse where there is a prior written agreement that the person whose sperm is used does not intend to be a parent. Finally, sexual intercourse means an attempt to conceive a child through sexual intercourse where there is no such prior written agreement (i.e. the person whose sperm is used either intends to be a parent or there has been no prior written agreement that the person does not intend to be a parent).

Under the new rules, the status of parent is determined as follows:

  1. The birth parent is recognized at law to be a parent of a child, unless the birth parent is a surrogate who relinquishes the birth parent’s entitlement to parentage in accordance with the CLRA or a court declares that the surrogate is not a parent of the child.
  2. Where a child is conceived through sexual intercourse, the person whose sperm is used is recognized at law to be a parent of the child. In this regard, the new rules incorporate a series of presumptions that apply to this determination, which are largely similar to the presumptions under the old rules. The presumptions are set out in subsection 7(2) of the new rules.
  3. If a child is conceived through insemination by a sperm donor, the person whose sperm is used is not recognized at law to be a parent of the child, and the presumptions in subsection 7(2) do not apply.
  4. If a child is conceived through assisted reproduction or insemination by a sperm donor, the spouse of the birth parent at the time of conception is recognized at law to be a parent of the child, unless the spouse of the birth parent did not consent to be a parent prior to conception, or did consent but withdraws the consent before conception.
  5. Up to 4 persons can enter into a “pre-conception parentage agreement” in which up to 4 persons agree to be parents of a child. On the birth of the child, the parties to the agreement are recognized at law to be the parents of the child.
  6. A surrogate and up to 4 intended parents may enter into a surrogacy agreement. After the child is 7 days old the surrogate may consent to relinquish the surrogate’s entitlement to parentage, at which time the intended parents are recognized at law as the parents of the child and the surrogate ceases to be a parent of the child.
  7. A deceased person may be recognized at law to be the parent of a child that is conceived after death through assisted reproduction. The rules for recognizing a deceased person as the parent of a posthumously conceived child are discussed in more detail in a previous blog.

The new rules set out specific requirements for pre-conception parentage agreements and surrogacy agreements, which I will discuss in more detail in my next blog.

To be continued…

About Darren Lund

Darren Lund is a member of the Trust, Wills, Estates and Charities Group in the firms Toronto office. Darren has expertise in a broad range of estate planning matters, including multiple wills, inter vivos trusts, disability planning, estate freezing, and planning for beneficiaries and assets outside Canada. Darren advises trustees and beneficiaries on all aspects of estate administration, both contentious and non-contentious, and his experience includes passing of fiduciary accounts, trust variations, post-mortem tax planning, and administering the Canadian estates of non-residents. He also speaks and writes on a variety of related topics such as estate planning for spouses and couples, inheriting overseas property and estate planning for persons with disabilities. He previously practised estates law at a large national law firm.

Email: dlund@fasken.com

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