In a recent decision in Newfoundland and Labrador, three individuals in a polyamorous relationship were ruled to be the legal parents of a child (Re CC, 2018 NLSC 71). The trio consists of the biological mother of the child and two men, none of whom are married. Furthermore, by choice, none of the parties know which of the two men is the child’s biological father. The trio brought an application for a declaration recognizing all three as the child’s parents. The Court found that the statutory scheme in Newfoundland and Labrador regarding parentage had a gap as there was no recognition of the possibility of a child having more than two parents. The Court therefore exercised its parens patriae jurisdiction to issue a declaration that each man is the child’s father, with the result that all three parents are to be listed on the child’s birth certificate.
A moment to send some well-wishes to the officially recognized family!…And now on to the topic of their eventual deaths.
While the Court has recognized the parentage of all three members of the trio, it remains unclear how this will affect the intestacy rights of the child, should any of the fathers die without a will. Newfoundland and Labrador’s intestacy laws, like in other provinces, provide that the child of an intestate deceased person is to receive a share of the deceased’s estate. Section 2(2) of Newfoundland and Labrador’s Intestate Succession Act sets out that, for the purpose of determining intestacy rights, the relationship of parent and child is to be determined under the province’s Children’s Law Act or Adoption of Children Act.
In light of the Court’s finding that a statutory gap existed in the Children’s Law Act requiring the Court’s intervention in declaring both men to be fathers of the child, it is not clear what may happen on the death of the men in terms of potential intestacy rights of the child. The gap was such that, instead of issuing a declaration pursuant to the Children’s Law Act, the declaration was issued by relying on the Court’s parens patriae jurisdiction. While perhaps unlikely, this could potentially lead to a question of whether the child would be considered a child of both fathers for the purposes of the Intestate Succession Act. In issuing the declaration, the Court clearly intended for the declaration to provide the child the same rights as any other child when the Court stated that “to deny the recognition of fatherhood (parentage) by the Applicants would deprive the child of having a legal paternal heritage with all the rights and privileges associated with that designation.” In all likelihood, given the declaration of parentage, the child will inherit on the intestacy of any of the three. However, given the uncertainty of these newly recognized parental relationships and the possibility of future challenges by disgruntled family members (for example, other potential biological children or siblings of a deceased), parents in these types of situations should carefully consider their estate planning needs to best protect their family.
For more on this type of situation in Ontario, read our blog on the Ontario Court of Appeal decision in AA v BB.
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We do not have an automatic recognition of same-sex parents in Ontario, as the rules of parentage in section 1 of the Children’s Law Reform Act (“CLRA”) state that a person is the child of his or her “natural parents”. The exception to this is where an adoption order has been made, which is what one or both same-sex parents would need to obtain in order to have their parentage recognized.
On June 22, 2016, by way of a consent Order, the Court declared the CLRA to be in breach of s.1 of the Charter of Rights and Freedoms to the extent that “the legislation does not provide equal recognition and benefit and protection of the law to all children, without regard to their parents’ sexual orientation, gender identity, use of assisted reproduction or family composition, and to the extent that the legislation does not provide equal recognition and the equal benefit and protection of the law to all families.”
On September 29, 2016, the All Families Are Equal Act was introduced, and, if passed, is expected to take effect in the New Year. Among other things, this new legislation will reportedly ensure the following:
- where a child is conceived through assisted reproduction, the parents are the birth parent and the birth parent’s partner, if any, at the time of the child’s conception (no court order required);
- the intended parents of a child born to a surrogate would be recognized without a court order if (i) the surrogate and the intended parent(s) received independent legal advice and entered into a written pre-conception surrogacy agreement; and (ii) the surrogate provides written consent to give up her parental status before conception and seven days after the child’s birth; and
- a court can grant a declaration of parental status to a deceased person in relation to a child conceived after their death (the child can inherit and seek support from the deceased parent’s estate if born within three years of death).
I look forward to seeing how the legislation is interpreted, and whether the uncertainty that has long plagued this area of the law will be eliminated.
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