Conversations on adoption, family, parentage and the law

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.