The Issue of Parental Recognition
On December 10, 2015, private member Bill 137 (also referred to as Cy and Ruby’s Act) passed its second reading at Queen’s Park. Bill 137 seeks to amend various statutes that deal with parental recognition, most notably, the Children‘s Law Reform Act (“CLRA”).
As it currently stands in Ontario, same-sex parents who make use of third party genetic material to assist with their reproductive efforts or are involved in surrogacy arrangements, must navigate red-tape and incur legal costs to ensure that the non-biological parent becomes the parent of their child. Accordingly, the non-biological parent must go through the process of legally adopting the child after the birth in order to be recognized as the parent. Bill 137 would, among other things, allow for the parents to enter into a parentage agreement that would recognize the non-biological parent earlier on and without requiring adoption proceedings.
At least four other Canadian provinces have already adopted similar legislation to reflect the changing ways we recognize parentage. This includes Quebec, Manitoba, Alberta, and British Columbia. For instance, in Quebec, article 538 of the Civil Code of Quebec recognizes the concept of the “parental project” and provides the following:
538. A parental project involving assisted procreation exists from the moment a person alone decides or spouses by mutual consent decide, in order to have a child, to resort to the genetic material of a person who is not party to the parental project.
538.1. As in the case of filiation by blood, the filiation of a child born of assisted procreation is established by the act of birth. In the absence of an act of birth, uninterrupted possession of status is sufficient; the latter is established by an adequate combination of facts which indicate the relationship of filiation between the child, the woman who gave birth to the child and, where applicable, the other party to the parental project. This filiation creates the same rights and obligations as filiation by blood.
Furthermore, article 538.2 of the CCQ adds that the donor of the genetic material is not considered to be the child’s parent merely as a result of the contribution (with some exceptions), language that is similar to the proposed amendments under Bill 137.
In a recent article published on this topic, the consequences of the proposed Bill are explored from an estates perspective. The author notes that Bill 137 does not contemplate any parallel amendments to the Succession Law Reform Act (“SLRA”). The concern raised is that under the SLRA, intestate succession rights are bestowed upon the “issue” of the deceased. “Issue” is defined under section 1 as including “a descendant conceived before and born alive after the person’s death” which suggests that a genetic lineal relationship must be present.
In the event that changes are made to parental recognition under the CLRA, it is unclear what the effect would be on children born through the use of third party genetic material under the SLRA and, in particular, whether these children would meet the definition of “issue” under the SLRA.
Thank you for reading.