Bill 28 Creates New Definitions of Parentage and Rules for Birth Registration
As the concept of family changes so must our understanding of parenthood. The definition of a child in Ontario was established when the concept of family was generally accepted. Now, families take on many different forms and Ontario law is changing to adapt to this new reality. These changes may have a significant impact on Will writing and estate planning generally. Bill 28 proposes significant amendments to the legal definition of parent found in the Ontario Children’s Law Reform Act. At the moment a child is quite simply the offspring of his or her “natural parents”, except in the case of adoption. For heterosexual couples, the presumption at law has been 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.
However, under the Vital Statistics Act, when a child is born in Ontario, the mother and father are required to certify the birth of the child and they will be listed as the legal mother and father of the child on that child’s birth certificate. A donor must be listed on the child’s birth certificate where his identity is known. 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. This has created a problem when a child is born through surrogacy or conceived from the sperm of known sperm donor or a known ova or embryo donor. When the donor is known the intended parents actually need to go through the counter intuitive step of having to adopt their own child.
Bill 28 will introduce gender neutral language will introduce new rules for the determination of parentage in cases where a child is conceived through assisted reproduction or insemination. In those instances the parents will be 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 regime will also be created for determining parentage for children born through surrogacy agreements and the concept of a pre-conception parentage agreements will be introduced where up to four people can be recognized as the parents of the child upon birth.