Proposed updates to parentage laws would redefine family in Ontario

On September 29, 2016, Bill 28: All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016, was introduced in the Ontario legislature. Bill 28, if passed, will modernize Ontario’s parentage and birth registration rules, which have not been updated since 1978, and redefine who is a child or issue of a deceased person.

Proposed legislative changes respecting parentage and birth registration

Bill 28 proposes significant amendments to the legal definition of parent found in the Children’s Law Reform Act, Ontario. Currently one is deemed to be the child of his or her “natural parents”, except where an adoption order is made. For a heterosexual couple, there is a presumption at law that the natural parents are the birth mother and the man she is married to or cohabitating with at the time the child is born, or the man that has identified as the father of the child on the birth certification (etc.).  Pursuant to the Vital Statistics Act, Ontario, when a child is born in Ontario, the mother and father are required to certify the birth of the child and will be listed as the legal mother and father of the child on that child’s birth certificate. Only where the father is unknown and conception of the child occurred through assisted conception, can an “other parent” be listed on the birth certificate.

The current legislation creates a hurdle to legal parentage of a child born through surrogacy, or conceived through the use of a known sperm donor, or a known ova or embryo donor. Particularly vulnerable, are single mothers or two mother families who have conceived by insemination from a known sperm donor – as a donor must be listed on the child’s birth certificate where his identity is known. Where this occurs, the intended parents would need to take another step in order to make the child legally theirs and not the child of the donor. This has lead to the peculiar practice, in such instances, of adopting one’s own child.

Bill 28 maintains the rules of parentage where a child is conceived without the use of assisted reproduction; however it will introduce gender neutral language. New rules will be introduced for the determination of parentage in cases where a child is conceived through the use of assisted reproduction or insemination. In such situations, the law will provide that the parents of the child are the birth parent, and the birth parent’s spouse, if any, at the time of the child’s conception, and no court order is needed. A legislative scheme is also set out for determining parentage for children born through a surrogacy agreement, and the concept of a pre-conception parentage agreement is introduced, where up to four people can be recognized as the parents of the child upon birth.

Proposed legislative changes to the definition of child and issue

Bill 28 will change the definitions of child and issue in the Succession Law Reform Act, Ontario, to also include a child and descendant conceived and born alive after the parent or person’s death (if certain conditions are met). These changes allow a court to grant a declaration of parentage to a deceased person, in relation to a child conceived with assisted reproduction after that person’s death. It will allow a posthumously conceived child to inherit and seek support from their deceased parent’s (or even grandparent’s) estate, if the child is born within three years of that person’s death. Of particular note to estate practitioners, Bill 28 will also revise the definition of “relationship by blood or marriage” commonly used to interpret who are considered descendants under a Will; provisions of reproductive material or an embryo for use will not in and of itself give rise to a presumption of parenthood. Unless a contrary intention appears, for the purposes of construing a Will, one will not considered to be related to a person by blood simply because they are genetically related to the person who provided the reproductive material. It will be interesting to see how such a change affects the planning and administration of estates.