Conversations on adoption, family, parentage and the law

B.C.’s new Family Law Act — coming March 2013

This week, the British  Columbia government announced that the long-awaited new Family Law Act will come into force on March 18, 2013.

What does this mean for parents and parents-to-be?

The new law makes significant changes to the legal language used to describe parenting arrangements, and to how property will be divided when relationships end.  “Custody” and “access” will be no more, replaced with “guardianship”, “parenting responsibilities” and “parenting time.”  Common law couples will now be subject to the same laws in regard to property division as married couples, and there will be a heighened emphasis on helping couples resolve their legal issues outside of court.

Arguably more profound, however, are the fundamental changes the new legislation makes to how families formed through reproductive technologies will be recognized in B.C.

In this area, the legislation provides needed clarity.  The new law expressly provides, for example, that the act of donating sperm will not be enough to make a man a parent.  Only the birth mother and her spouse will be recognized as the child’s parents.  Under section 27 of the Act, the donor will have no parental status, rights or obligations unless the parties enter into a written agreement prior to the birth that recognizes those rights.

Conversely, through the recognition of such agreements, it will now be possible for children in those families to have three legal parents — the birth mother, her spouse, and the biological father. (See my previous post on multi-parent families.)

The new legislation also provides that the biological parent of a child conceived after the parent’s own death can legally be that child’s parent. Essentially, this means that if a person has a child using sperm or ova that had been provided by their deceased spouse before their spouse’s death, both they and their deceased spouse may be recognized as legal parents of the child.  This seemingly esoteric change will have a profound impact on those families affected, by clarifying an uncertain area of the law and allowing the parents involved to give full legal expression to their personal wishes and intentions.

 

 

Court treats donated sperm as property

Last week, the BC Supreme Court ordered that donated sperm purchased and stored by a former lesbian couple was to be divided equally between them.

One of the women wanted to use the anonymous donor sperm, which was stored in sperm straws at a Vancouver fertility clinic, to have a child with her new partner.  She sought an order giving her ownership of the sperm.   Her former partner argued that the sperm should be destroyed.

In her reasons,  Madam Justice Russell framed the issues as follows:

1.     Are the sperm straws property?

2.     Is it relevant for the court to consider the best interests of the existing children and any future donor offspring when deciding whether the claimant should be awarded the sperm straws?

3.     Is insemination from an anonymous sperm donor proscribed in British Columbia?

4.     If the answer to the first question is yes, how should the sperm straws be divided between the claimant and the respondent?

In the end, Madam Justice Russell decided to treat the frozen sperm as property because the women themselves, and everyone involved, had treated the sperm like property.   The sperm straws were purchased by the parties and used to their benefit, to conceive children together.   They had the right to deal with the sperm straws as their property.  When their relationship ended, the parties had divided all of their joint property equally between them.  So too should they divide the sperm straws.

Justice Russell also decided that in the circumstances of this particular family law case, it would not be appropriate for the court to undertake an analysis as to what might be in the best interests of the children born to the parties, or to any potential child that may be conceived by the claimant and her new partner.   She pointed out that when a relationship between a man and a woman breaks down, the woman cannot stop the man from fathering children with other women.  Neither party has any right to restrict the other’s right to procreate.  Neither should the parties here.

 . . . to engage in any such analysis [of the best interests of the children who would be half-siblings] would be borderline discriminatory to couples, such as the parties, who must conceive through sperm donation should they wish to have children that are biologically their own — Madam Justice Russell, para 85

As for the legality of anonymous sperm donation in British Columbia,  the court left that  issue for another day.  The lawyer for the woman who wanted the sperm destroyed argued that last year’s Pratten v. British Columbia (Attorney General)  decision proscribed anonymous sperm donation.   Madam Justice Russell took a practical approach, concluding that determining the legality of anonymous sperm donation was outside the scope of the case, and that it was too late to apply such arguments anyway– the sperm had already been donated and purchased.   Moreover, the Pratten decision is still before the Court of Appeal, with judgment reserved.  Stay tuned.

 

 

Grandparents, custody and adoption

For many of us, the word “retirement” conjures up images of trips we would like to take, novels not yet read (or written), the luxury of easing into part-time work or starting a home-based business.

My guess is few envision toddlers underfoot, or carpooling teens to soccer games.

Yet when a parent is struggling to raise their child, it is not uncommon for grandparents– often in their 60s or 70s, and often struggling financially themselves– to step forward and fill the breach.  In B.C., more children are being raised by grandparents than in foster care.  In 2010, over 10,000 B.C. households with children were headed by grandparents.

Legal options for grandparents range from informal arrangements to adoption and everything in between, including custody.  Adopting a grandchild severs the legal parent-child relationship, and puts the grandparent legally in the place of the parent.   In many cases, adoption will be inappropriate or viewed by the grandparents as too drastic a step.

When difficulties first arise in a family, grandparents and other family members may not realize that non-parents can apply to court for custody and guardianship of a child.  With a custody order, the grandparent has legal guardianship of the child but does not become their legal parent.  In Canada, non-parents may obtain custody if it is in the child’s best interests.

Parental claims must not be lightly set aside, and they are entitled to serious consideration in reaching any conclusion. Where it is clear that the welfare of the child requires it, however, they must be set aside — Supreme  Court of Canada in  King v. Low [1985] 1 S.C.R. 87

B.C.’s Family Relations Act (s. 35) specifically states that grandparents, other relatives or non-relatives may apply for custody of a child.

Adopting or obtaining an order for custody or guardianship gives grandparents more legal security, but can have other unintended consequences.  In some cases, the financial assistance available to grandparents who care for children through a government-run fostering program such as B.C.’s Extended Family Program is not available to grandparents who adopt or have legal custody or guardianship of their grandchild.

In other cases, grandparents who are unaware of the financial help that is available may feel forced to allow their grandchildren to go into foster care because they can’t afford to care for them.

Grandparents should obtain legal advice and find out what resources are available to them in their jurisdiction before making decisions about how to approach their legal relationship with their grandchild.   In B.C., the Parent Support Services Society offers support and information programs for grandparents raising grandchildren, including legal guides, on-line resources and local support groups in communities throughout Vancouver Island, the Lower Mainland and the Gulf Islands.   They also have a new toll-free Grandparents Raising Grandchildren Support Line — 1-855-474-9777.

 

Consent to Adoption

The purpose of this Act is to provide for new and permanent family ties through adoption, giving paramount consideration in every respect to the child’s best interests.  B.C. Adoption Act, section 2

Adoption is a transformational moment in the life of a family.  It marks legal recognition of a new parent-child relationship.  Equally significantly, it severs the legal relationship between the child and his or her birth parent.

While we celebrate adoption as a means of creating and recognizing family, in some contexts adoption has had a darker side.  Fear of unethical adoption practices, including child trafficking, has led Canada and other nations to suspend the adoption of children from a number of countries, including Cambodia, Nepal and Guatemala.

Closer to home, there is the recent news that a possible class action lawsuit has been commenced in B.C., seeking compensastion for birth mothers who allege they were coerced into relinquishing their babies for adoption when they gave birth outside of marriage in the 1940s – 1990s.  The class action has yet to be certified, but is anticipated to be the first of several such lawsuits that are expected to be filed across the country.

Contemporary adoption law recognizes the fundamental significance of severing the legal parent-child relationship, and strives to balance respect for birth parents with the overarching objective of furthering the child’s best interests.   In B.C., a birth mother’s consent to the adoption of her infant is only valid if it is given at least 10 days after the birth and is made in writing, under oath, after having been advised about the adoption by a lawyer or social worker.  The birth mother may retract her consent until 30 days after the child’s birth, even if the infant has already been placed with her prospective adoptive parents.

Birth fathers must also consent, provided they have acknowledged paternity, and/or signed the child’s birth registration or registered with the Birth Father’s Registry  (or have otherwise been identified as the child’s father under the Adoption Act).   An adoption cannot proceed without the birth parents’ consent unless the court is satisfied it is the child’s best interests to do so.

And when an older child is being adopted, the child herself must consent.  Commonly these are step-parent adoption situations, or cases where a child has been in the permanent care of the Ministry.  If the child is 12 or older, the court cannot make the adoption order without the child’s consent (unless she is incapable of giving that consent due to a mental disability).  The child can also revoke her consent at any time until the order is made.  Children over the age of 6 but under 12 must be interviewed by a social worker or other qualified person and a report of their views put before the court (see Adoption Regulation, section 16).

 

 

Adoption, stepparents and separation: child support when relationships end

Earlier this month, I wrote about the implications a child’s legal status can have on inheritance when a parent dies.  Similarly, a child’s legal relationship to his or her parents can have significant implications when parents separate.

Parents have a legal obligation to support their children.  If a couple separates, the Child Support Guidelines determine who is to pay child support and how much.  Generally speaking, if the children live primarily with one parent, the other parent pays support based on his or her income.  If the parents share parenting time fairly equally, the parent with the higher income is usually required to pay support.

But what if the parent’s child is not legally their child?

Step-parents do not have the same child support obligations as natural or adoptive parents.  If a child is adopted, the legal relationship with the child’s birth parents is severed, and the adoptive parent assumes full legal responsiblities and rights in regard to the child.  In the event a couple adopts a child and then separates, there is no difference in how the law handles the child support issues than there would be if the child had been born to the parents naturally.

Not so with step-parents.   In Canada, if the step-parent is legally married to the child’s parent, the step-parent will be obligated for child support provided he or she stood in the place of a parent (see s. 2(2) of the federal Divorce Act).  If the parties are not legally married, however, only provincial laws apply.  In B.C., this means there are time limits on a step-parent’s obligations.   Under the provincial Family Relations Act— the legislation that applies if the parties are not married– a step-parent will only be obligated to pay child support after separation if they had been contributing to the child’s support for at least one year during the relationship.  In addition, the application for child support must be made within one year of the last time the step-parent contributed to the child’s support.

Married or not, if a step-parent is obligated to pay support, how much they will have to pay and for how long is worked out taking into account the obligation of the child’s natural parent to contribute.

In many situations, these differences between step-parent and legal parent obligations make sense.  But consider scenarios similar to those I mentioned the other week:  families where one of the child’s parents is deceased, and the step-parent has been co-parenting the child for many years.  Or perhaps the child has only ever had one legal parent– the child may have been born to one of the parents through artificial reproductive technology, possibly before the couple began living together.  They may have considered an adoption, or at least a parenting agreement, but never did the paperwork.

If a couple living common law in those circumstances separates and the child’s legal parent delays pursuing child support, that parent could be shocked to discover that the one-year limitation date has passed by the time he or she decides to take legal action.

Unless they have an enforceable agreement with the step-parent that requires them to pay support, the  step-parent may no longer have any support obligation.

Fortunately, in my experience step-parents who have been lovingly involved in the parenting of their step-children will often willingly continue that loving relationship and support the child after separation.  But that is not always the case.  If you are going through a separation, you should obtain legal advice as soon as possible.

 

 

Adoption Leave: Towards Equality for Adoptive Parents

This post is by guest blogger Jane Marsden, articled student with Hart Legal

Jane Marsden, Articled Student at Hart Legal

Jane Marsden, Articled Student at Hart Legal

One thing is clear:  Canada has a serious adoption problem.

An estimated 30,000 Canadian children (many of whom are in their teens and have special needs) are in the care of child welfare agencies, waiting to find permanent families.

Earlier this month a Commons Committee (the Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities) tabled its Report, titled “Federal Support Measures to Adoptive Parents”. 

The Report makes 12 recommendations on how to improve adoption across the country.  These include developing and launching a public awareness campaign to raise awareness of adoption, creating a national database on domestic adoption in Canada, and examining the inequalities between child welfare and family services provided on First Nation reserves and those services provided off reserve.

Although it is beyond dispute that all the areas outlined by the Report do need significant improvement, the Report falls short according to critics in the NDP and Liberal Party.

The Liberals state in their Dissenting Opinion (which can be found at the end of the Report) that the Committee chose to disregard the voices of adoption stakeholder groups, adoptive parents and adopted children themselves, all who appeared as witnesses before the Committee. 

Of particular concern to these parties was the establishment of a new employment insurance benefit, “adoption leave”, that would give adoptive parents more time to bond and adjust with their adopted child.

 

As the law currently stands, adoptive parents are entitled to 35 weeks of parental leave under the EI system in Canada, however birth mothers are entitled to an extra 15 weeks of EI maternity benefits.   Disappointingly, the Committee declined to make any recommendations on an adoption leave benefit due to the current “period of fiscal restraint.”

So where does this leave the 30,000 children waiting to be adopted and the families who hope to adopt some of them?

As of earlier this year, foster parents committed to adopting children in their care are now eligible to receive EI parental benefits. This is undoubtedly a step in the right direction, however it does not go far enough.  As the Committee itself acknowledged, many adoptive parents testified that the need for more time to adjust, recover and bond with adopted children is so crucial that many parents have to take unpaid leave from their employment. 

Adoption, step-parents and inheritance: why you need a Will

In B.C. if a parent dies without a will,  any property falling into their estate is divided between their spouse and children.  If they don’t have a spouse, the children receive it all.

But what if the parent’s child is  not legally their child?

The courts have held that a step-child who was  not adopted by the deceased parent will not inherit in these circumstances.  (If you are looking for it in the legislation, it’s called the distribution of an “intestate estate”– where there is no will, the deceased’s parent’s estate is divided between the deceased’s spouse and lineal descendents.  See Part 10 of the Estate Administration Act).

This can have serious implications for families who are waiting for adoption or parentage paperwork to complete, or who have taken a child into their lives but have not taken legal steps to formalize the parent-child relationship.

Consider these scenarios:

A couple marry when one of them is widowed and already has a child.  The step-parent is intimately involved in the raising of that child and considers herself a mother to him;

A woman fosters a boy who then remains part of the family into adulthood.  She considers him a son, but no adoption application is ever made;

A same-sex couple have a child through surrogacy.  One of the men provides the sperm and is named as the child’s father on the birth certificate.  Both of the fathers consider themselves equal parents, but aside from an agreement with the surrogate no other paperwork is done.

In each of these cases,  if the parents die without wills that properly address this issue, these children could be left with nothing– regardless of what the parent may have wanted.   In some circumstances, the child or other family members may have to decide whether or not to pursue potentially expensive and emotionally divisive litigation.

When it comes to estates law, being a parent in act and spirit is not enough.  Even written agreements about parentage may not be enough.

What can address the problem is thoughtful estate planning.   Parents can specify in their wills exactly who is to benefit from their estate and what they are to receive, and, if necessary, document why they are making these decisions. They can also consider using beneficiary designations on life insurance, RRSPs and other plans to ensure their wishes are met.  Estate planning is important for everyone who has children, but it is particularly critical for families in these circumstances.

If you have any doubt as to whether your existing will meets the needs of you and your children, get legal advice.

 

Multi-parent families: in BC, some children may soon have three legally recognized parents

You don’t really understand human nature unless you know why a child on a merry-go-round will wave at his parents every time around – and why his parents will always wave back.  ~William D. Tammeus

For many, these memorable words by Pulitzer Prize winning journalist William D. Tammeus evoke images of a conventional mom and pop family at the summer fair.  The reality, of course, is that an individual needn’t fit the traditional definition of “parent” to have that profound parental connection to a child.

Blended families and close extended family relationships are increasingly common. It takes a village, the saying goes, and often a small village is indeed involved in raising a child—step-parents, grandparents, partners, aunts, uncles, friends, siblings.  No matter how many family members might be waving to her on the merry-go-round, however, traditionally a child has not been able to have more than two legally recognized parents.   British Columbia’s Law and Equity Act (s. 61) states that, subject to the Family Relations Act and the Adoption Act, a person is considered to be the child of his or her “natural parents”.

This began to shift in Ontario in 2007, when the province’s Court of Appeal found that a child born to a lesbian couple through artificial insemination had three legal parents—the birth mother, her same-sex spouse, and the biological father, who donated the sperm (A.A. v. B.B. and C.C.)    Response to the decision was as out-spoken and varied as it was predictable.

Now British Columbia is poised to formally recognize the reality of three parent families, with the introduction of the new Family Law Act. When the Act comes into force, which is expected sometime over the next year, children born through assisted reproductive technology will be able to have three legally recognized parents, provided all of the parents involved agree in writing before the child is born.  Without such an agreement, only the birth mother and her spouse or partner will be recognized as the child’s parents.  These changes will bring needed clarity and flexiblity to the laws governing family relationships.

But in the meantime, there is no such clarity.  The fact you wave every time your child goes around the merry-go-round may make you a parent in spirit, but not in law.  As I discussed in a previous post, parents of children born through reproductive technologies often have to resort to the courts to obtain an order formally confirming their status and severing any rights of the donor.  If your family is considering using assisted reproductive technology, be sure to get legal advice on the specifics of your situation and the laws in your jursdiction.

 

 

What Adoption is not (or shouldn’t be)

You may have read about the Florida millionaire attempting to protect his fortune from a lawsuit by adopting his girlfriend, who is 42 years old.  According to media reports, as his legal child the girlfriend then becomes a beneficiary under a family trust set up for the benefit of his children.  As a result, the girlfriend/daughter can receive payouts from the trust, while the man’s creditors– including anyone with a court judgment against him– can’t touch the money, because it is held in trust for his children.

Could that happen here?  Should it be able to happen here?

The short answer to both questions is NO.  

First, B.C.’s Adoption Act  requires that if someone over the age of 19 is going to be adopted, the court must be satisfied that the person being adopted– the intended “child”–  actually lived with the person who wants to adopt them as a member of the family, and was supported by that person while still a child. The applicant must also convince the court that there is an acceptable reason for the adoption order to be made. 

Second, to allow such adoptions would be contrary to public policy and common sense, on many levels.

One objection is that adults adopting their lovers or spouses results in incestuous relationships, with possible criminal consequences– in some jurisdictions, the criminal definition of incest includes sexual relationships between persons related by adoption.  In addition, there is no roadmap for what should happen if the “parent” and “child” end their romantic relationship.  They can split up, but unless the “child” finds someone else to adopt him or her they will still be parent and child, with the legal and moral obligations to each other that stem from that relationship.  Estate law may give them inheritance rights and standing in an estate dispute.  And while it sounds like a stretch, in some jurisdictions they could face the possibility of parental support obligations.

This not what adult adoption laws are for.  Adoption  is about building family, not protecting people from creditors.

Bottom line– this is not what adoption laws are for.  Adult adoption is about building family, not protecting people from creditors.  In some places, adoption has occasionally  been used by same-sex couples to establish legal rights and protections for their partners, but it has been a tool of desperation utilized by couples with no other means of protecting each other.  Legal recognition of same sex relationships makes such well-intended use of adult adoption unnecessary.

Best of luck to the Florida millionaire and his girlfriend/daughter should they part ways.  Thankfully in BC we can just watch their drama from the sidelines, assured it won’t happen here.

Sperm donor case now in Court of Appeal

This week, the BC Court of Appeal is hearing the case of Olivia Pratten, the Ontario journalist who is seeking the right of children born through sperm donation to know their biological origins.

Last year, Madam Justice Elaine Adair of the British Columbia Supreme Court struck down provisions of the Adoption Act as unconstitutional, finding that the Act failed to provide Ms. Pratten and other children born through assisted reproductive technologies with the same rights to information about their biological parents as are provided for children who have been adopted (Pratten v. British Columbia ).  Justice Adair gave the province 15 months to correct the problem by amending the legislation.  She also ordered an injunction that prohibits sperm banks from destroying donor records or transfering those records outside of B.C.

Prior to the injunction, it was lawful for such records to be destroyed after after six years, although practices varied between clinics.

The BC government is appealing the decision, arguing that existing laws permitting anonymous sperm donation are constitutional.

“Donor offspring of anonymous donors. . . are left with the same sense of genealogical bewilderment that has so negatively affected adopted children’s sense of self, belonging and identity and indeed led to the transformation of adoption laws” — Dr. Diane Ehrensaft, expert opinion in Pratten v. British Columbia

For Ms. Pratten herself, any change to the law is likely too late.  It sounds as though the records that could have identified the sperm donor in her case were destroyed several years ago.   As medical advances lead to increasing use of assisted reproductive technologies,  however, the  issues of whether and how individuals in Ms. Pratten’s situation can access information about their genetic origins– and how those records are to be preserved and regulated– must be addressed.   I will be following the Court of Appeal’s decision with interest.