All About Estates

Pre-Conception Parentage Agreements

Over my past several blogs I have looked at the new rules for determining parentage introduced in the All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016, S.O. 2016, c. 23 (“Act”), since it is important for estate planners to understand and appreciate the variety of family structures that our clients, and their intended beneficiaries, may have. The final component of the new parentage rules I will look at is the “pre-conception parentage agreement.” The rules for pre-conception parentage agreements are set out in section 9 of the Children’s Law Reform Act (“CLRA”).

As I noted in prior blogs, the new parentage rules use a model of “pre-conception intention” rather than a strictly biological model of parentage. Biological parentage continues to be relevant, but it is no longer determinative of parentage in all cases. Pre-conception parentage agreements are a good example of these principles.

Subsection 9(1) of the CLRA defines a “pre-conception parentage agreement” to be a written agreement between two or more parties in which those parties agree to be the parents of a child who has not yet been conceived. Any written agreement that meets this definition will be a pre-conception parentage agreement. However, and more importantly, in order for the parentage implications to follow from the agreement (which will generally be the intention behind the agreement in the first place), the pre-conception parentage agreement must meet certain additional criteria, set out in subsections 9(2) and 9(3) of the CLRA, as follows:

  1. There can be no more than four parties.
  2. The intended birth parent must be one of the parties, and the intended birth parent cannot be a surrogate. This distinguishes pre-conception parentage agreements from surrogacy agreements, which are governed by a different set of rules (discussed in my last blog).
  3. If the child is to be conceived through sex, but not through insemination by a sperm donor (i.e. conception through sex where the sperm donor and intended birth parent have, before conception, agreed in writing that the sperm donor will not be a parent of the child), the person whose sperm is used must be a party to the pre-conception parentage agreement.
  4. If the child is to be conceived through assisted reproduction or insemination by a sperm donor, the spouse (if there is a spouse) of the intended birth parent must be a party to the agreement, unless the spouse provides written confirmation, before the child is conceived, that the spouse does not consent to be a parent of the child, and that confirmation is not withdrawn before conception.

If the above requirements are met, then on the birth of the child the following people are recognized at law to be the parents of the child:

    • every party to the pre-conception parentage agreement who is recognized at law to be a parent of the child as the birth parent (section 6 of the CLRA), the other biological parent (section 7 of the CLRA), or the spouse of the birth parent (section 8 of the CLRA); and
    • the other parties to the pre-conception parentage agreement.

While Ontario law did previously allow for the recognition of more than two parents of a child, obtaining such recognition involved added time, expense and uncertainty in the form of adoption orders or declarations of parentage. For many families, those added costs are prohibitive. The benefit of the new rules is that, where the requirements are met, legal recognition of parentage follows automatically on the birth of the child.

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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