Family

Law recognizing legal status of parents a 'dramatic' shift

By AdvocateDaily.com Staff

New Ontario legislation designed to recognize the legal status of all parents, straight or LGBTQ2+ — regardless of how their children were conceived — is a dramatic change, says Toronto family lawyer Gene C. Colman.

“Under this new law if both parties agree that one will have no parental responsibility you can do that by entering into a contract prior to conception,” Colman, principal of Gene C. Colman Family Law Centre, tells AdvocateDaily.com. “That gets you off the hook, that is to my mind revolutionary.

“Previously in Ontario, if you have sexual relations and make a baby, then all things being equal, the child has the right to know the father.”

And that father, he adds, could be made to pay child support. Prior to the adoption of the new legislation, courts may not have necessarily recognized a written agreement that swore off parental rights and responsibilities.

That has all changed.

The All Families Are Equal Act allows everyone, no matter their gender orientation, to be recognized in Ontario as parents while allowing those involved in the process as surrogates and sperm donors to not be deemed a parent.

The amendments came into force at the beginning of the year and are meant to provide greater clarity for those using assisted reproduction, as well as deliver a streamlined process for the recognition of parents using a surrogate, and reduce the need to go to court to have their status legally recognized.

What it means, Colman explains, is that the provision of sperm resulting in a child alone doesn’t necessarily result in the individual being declared a parent. And not all women giving birth to a child will be found to be the mother.

“Until now statute law has not kept up with the medical science,” says Colman.

“The common law is full of expression that the parent can’t bargain away a minor's right to child support.”

The bottom line, he adds, is if sperm donation or surrogacy is used, a formal written contract must be in place prior to conception to identify the terms, the parents and the role and obligations of all those involved.

So if the sperm donation was made through sexual intercourse, for example, it’s essential that a contract be made in advance for those who don’t intend to be a parent or be involved with the child and assume those responsibilities, including financial support, Colman warns. If it’s your sperm, it’s your kid, unless you make it clear otherwise, he adds.

A recent case touched on these issues as the court considered the province’s new approach. The woman wanted a child and her former boyfriend, who had children with another woman, agreed to donate the sperm through intercourse.

“What was interesting in this case was was that they had a written agreement, but each of them kept changing their minds. And the agreement was only made after the child was born. Under the Act the contract has to be effected before the child is conceived; that’s key,” says Colman

Ultimately, the woman sued the man for child support, and although this happened prior to the introduction of the new law in January, the court’s decision came in April and concluded the sperm donor had no parental responsibility.

Colman says the judgment provides a good analysis of the new legislation, exploring the development of surrogacy, the social policy behind the changes and case law history, recognizing that the new regulations allow for all different types of family.

And the decision keeps with the spirit of the legislation and the times, which wouldn’t have been likely just a year ago, he adds.

But Colman warns that agreements must be formal and completed prior to conception, ideally through lawyers representing each party paying close attention to the new law as they draft.

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