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Sperm donor or father? Questions remain after Ontario enacts Bill 28

An ongoing case before the Ontario courts could be one of the first major tests of a new provincial law that protects sperm donors with no intent to parent from paying child support, says St. Catharines family lawyer Sharon Silbert.

Although the mother of twins born through her gay friend’s sperm donation close to 20 years ago signed an agreement giving her sole custody and full financial responsibility, she is suing the donor for support, the National Post reports.

The man describes his role in the children’s lives as a “benevolent uncle,” partially paying for trips and saving for their education. But he never agreed to act as their father, the article says.

While a decision is yet to be rendered, Silbert, principal of Sharon B. Silbert Professional Corporation, says she expects the court to hear arguments over whether the man should be treated as a father or a sperm donor.

The mother says she felt “obligated” to sign the contract regarding her responsibilities, and that it was not her idea, according to the article.

“The court may have to look at interpreting the new legislation, but they may also have to rule on the validity of a contract,” Silbert tells AdvocateDaily.com. “The questions will be whether it should be taken at face value or whether the mother could demonstrate the sperm donor actually acted as a father and should be treated as such, despite the agreement.”

Bill 28, which was passed by the Ontario legislature in December 2016, was intended to clarify the law around sperm donations and surrogacy. For example, couples who use known sperm donors or a surrogate no longer have to adopt their own children.

What is less clear is whether the bill can be applied retroactively, Silbert says.

Another recent case before the Ontario Superior Court of Justice granted a biological father a “declaration of non-parentage” after it decided an agreement before the child’s birth determined the father would only act as a sperm donor and not a father — even though the child was conceived during sexual intercourse.

In that case, the judge referred to the new Ontario legislation, but said the law can’t possibly predict every parenting dilemma.

“The legislation sets out a framework wherein, if followed, prospective parents can ensure that when the child is born they will be entitled to legal recognition of their parental status or non-status without costly and possibly public legal processes,” the judge wrote. “However, as history tells us, the legislation cannot anticipate every parenting arrangement and not every parenting arrangement will meet the statutory presumptions.”

In those cases, a declaration of non-parentage can be declared under s. 13 of the amended Children’s Law Reform Act, the court found.

Silbert, who is not involved in either matter and comments generally, agrees.

Referring to the first case, she says it will be interesting to see if the judge deems the contract invalid.

“The new legislation gives more weight to agreements related to parentage and more flexibility in terms of structuring parenting relationships,” she says. “But this case raises the possibility that there could still be challenges if one person argues that the other's behaviour suggests a different type of relationship than one described in a contract.

“The legislation may not solve every problem, and there's still a potential for challenging cases to come out with respect to the intent of parents.”

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